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EXPOSURE TO AND CONTRACTION OF COVID-19 IN THE WORKPLACE IS AN UNUSUAL HAZARD WHICH IS COMPENSABLE UNDER THE WORKERS’ COMMPENSATION LAW; HOWEVER HERE THERE WAS NO PROOF DECEDENT CONTRACTED COVID-19 AT HIS WORKPLACE (THIRD DEPT).

The Third Department noted that contracting COVID-19 in the workplace qualifies as an unusual hazard which is compensable under the Workers’ Compensation Law. Here the claimant’s husband last worked on March 11, 2020, experienced COVID-10 symptoms on March 13 and died on March 29, 2020. But there was no evidence decedent was exposed to COVID-19 in the workplace:

… “[T]he contraction of COVID-19 in the workplace reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers’ Compensation Law” … . Nevertheless, whether a compensable accident has occurred is a question of fact to be resolved by the Board, and its determination in this regard will not be disturbed where supported by substantial evidence … . To this end, “the claimant bears the burden of establishing that the subject injury arose out of and in the course of his or her employment” … . …

Claimant offered no evidence or testimony of decedent’s specific exposure to COVID-19 in his workplace. Further, no evidence was presented indicating any cases of COVID-19 among those living or working in the group home where decedent was house manager, or among other employees with whom decedent may have had contact, prior to or contemporaneous with his onset of symptoms. In fact, the employer’s witness testified that decedent was the first known COVID-19 infection in his workplace. Although another worker at the same group home later contracted COVID-19 and succumbed to the disease, the employer’s witness testified that the other worker tested positive two weeks after decedent’s positive test. Moreover, claimant did not know the extent to which, if at all, decedent personally interacted with others at the group home where he worked. In view of the foregoing, substantial evidence supports the Board’s conclusion that claimant failed to meet her burden to demonstrate that decedent contracted COVID-19 in the course of his employment … . Matter of Holder v Office for People with Dev. Disabilities, 2023 NY Slip Op 02156, Third Dept 4-27-23

Practice Point: Exposure to and contraction of COVID-19 is an unusual hazard which is compensable under the Workers’ Compensation Law. Here however there was no proof decedent contracted COVID-19 at his workplace.

 

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