You are here: / Workers' Compensation

DURING MARCH AND APRIL 2020 CLAIMANT, WHO WORKED IN RETAIL IN CLOSE CONTACT WITH THE PUBLIC, WAS EXEMPT FROM THE EMERGENCY WORK RESTRICTIONS; CLAIMANT CONTRACTED COVID, SUFFERED A STROKE AND WAS HOSPITALIZED FOR FOUR MONTHS; HIS CLAIM CONSTITUTED A “COMPENSABLE ACCIDENT;” CLAIMANT DEMONSTRATED AN EXTRAORDINARY RISK OF EXPOSURE DUE TO FREQUENT CONTACT WITH THE PUBLIC “IN AN AREA WHERE COVID WAS PREVALENT” (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the Workers’ Compensation Board properly considered the “prevalence of the COVID virus” in the claimant’s workplace and properly awarded benefits. Claimant, who worked in retail, was exempt from the emergency restrictions and had extensive contact with the public during March and April 2022. After contracting COVID, claimant had a stroke and was hospitalized for four months:

… [C]laimant testified that he worked full time in a high-volume store during March and April 2020. According to claimant, his job responsibilities involved almost constant contact with the public, working either on the store floor or as a cashier. Claimant testified that employer did not provide store employees with sneeze guards or protective face masks until mid-April 2020. Although employer had a policy requiring customers to socially distance and wear face masks in the store, claimant explained that management advised employees not to enforce that policy. Many customers did not wear face masks, and claimant recounted specific instances of close contact with customers despite employer’s social-distancing policy. * * *

The Board determined that relevant case law “indicate[d] that if a claimant contracts COVID-19 through close contact with the public, such exposure could be found to be a work-related accident within the meaning of [Workers’ Compensation Law] § 2 (7).” According to the Board, a claimant can demonstrate this by showing COVID-19’s “prevalence” in the workplace … . * * *

… [T]o establish that an illness due to exposure to pathogens or adverse environmental conditions is compensable, a claimant must demonstrate that the illness was caused by “extraordinary” workplace exposure … . Consistent with that requirement, the Board’s “prevalence” framework requires a claimant to show a “significantly elevated” risk of exposure … . As applied to COVID-19, the “prevalence” framework specifically requires a claimant to demonstrate an “extraordinary” level of exposure through evidence of frequent contact with the public or co-workers “in an area where COVID-19 is prevalent.” … [P]ersistent, high-risk exposure to a disease in the workplace culminating in infection can constitute a compensable accident … . Matter of Aungst v Family Dollar, 2025 NY Slip Op 06530, CtApp 11-24-25

Practice Point: Consult this opinion for insight into when exposure to a disease in the workplace, here COVID, can be considered a “compensable accident” under the Workers’ Compensation Law.​

 

THE WORKERS’ COMPENSATION BOARD PROPERLY DENIED BENEFITS FOR PTSD SUFFERED AS A RESULT OF EXPOSURE TO COVID IN THE WORKPLACE BECAUSE THERE WAS NOTHING UNIQUE ABOUT THE CLAIMANTS’ EXPOSURE AS OPPOSED TO THAT OF THE REST OF THE WORK FORCE; THE WORKERS’ COMPENSATION LAW HAS SINCE BEEN AMENDED TO CHANGE THE ANALYSIS FOR PSYCHOLOGICAL INJURY SUCH THAT WHETHER A CLAIMANT SUFFERED STRESS GREATER THAN WHAT USUALLY OCCURS IN THE NORMAL WORK ENVIRONMENT IS NO LONGER A CONSIDERATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, reversing the Appellate Division, determined the workers’ claims for benefits for post-traumatic stress disorder (PTSD) stemming from workplace exposure to COVID were properly denied by the Workers’ Compensation Board. The Board reasoned that the exposure was not the result of an “accident” because everyone in the workplace was similarly exposed. The Court of Appeals noted that the Workers’ Compensation Law has recently been amended to provide that psychological-injury claims can no longer be disallowed on the ground the underlying stress was no greater that what usually occurs in the normal work environment:

… [E]vidence of COVID-19’s prevalence in the workplace does not relieve a claimant of the burden to establish that the injury was accidental which, in cases of emotional stress-induced psychological injury, has involved a demonstration by the claimant of stress greater than the stress experienced by similarly situated workers in the normal work environment. Here, substantial evidence supports the Board’s determination that the stress of workplace exposure experienced by claimants was comparable to the stress experienced by similarly situated workers in the normal work environment during the COVID-19 pandemic … .

Neither our decision today nor the approach of our dissenting colleagues could be expected to have a significant impact on the development of the law. After the Appellate Division decided these appeals, the legislature amended the Workers’ Compensation Law to provide that the Board “may not disallow a claim” for PTSD, acute stress disorder, or major depressive disorder “upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” (Workers’ Compensation Law § 10 [3] [c]). By amending the statute in this manner, the legislature has determined that claims of psychological injuries should be evaluated under a standard more favorable than even the dissent’s novel standard.…  Claimants do not argue that the newly amended language applies retroactively to the Board decisions, which predate the effective date of the legislation. Matter of McLaurin v New York City Tr. Auth., 2025 NY Slip Op 06529, CtApp 11-24-25

Practice Point: A recent amendment to the Workers’ Compensation Law provides that, where psychological injury is claimed, whether the stress suffered by the claimants is greater than that which usually occurs in the normal work environment is no longer a consideration. Here, in this pre-amendment case, the fact that the claimants’ exposure to COVID was no greater than the exposure suffered by the rest of the workforce was a proper ground for the denial of psychological-injury benefits.​

 

,

ALTHOUGH CLAIMANT’S MEDICAL REPORT DID NOT ADHERE TO THE REQUIREMENTS OF WORKERS’ COMPENSATION LAW 137 AND COULD BE DEEMED INADMISSIBLE FOR THAT REASON, THE EMPLOYER FAILED TO MAKE A TIMELY OBJECTION TO THE REPORT; THE PRECLUSION OF THE REPORT WAS THEREFORE ERROR (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the medical report (by Dr, Kountis) finding claimant had a 42.5% schedule loss of use (SLU) of the right wrist should not have been precluded because it did not meet the requirements of Workers’ Compensation Law 137. Although the Board has the power to preclude the report for that reason, the employer did not make a timely objection to the report:

Although “[a] report of an examination that does not substantially comply with the requirements of Workers’ Compensation Law [§] 137 . . . shall not be admissible as evidence,” a party raising an objection to such a report’s admissibility must “raise [that] objection in a timely manner” … . Claimant filed Kountis’ report in March 2023, after which the employer was notified that it had 75 days to respond in any of several enumerated ways, including by filing a memorandum to refute the sufficiency and credibility of the report. At no time during that 75-day period did the employer challenge Kountis’ report for failing to adhere to the requirements of Workers’ Compensation Law § 137. Further, the employer failed to raise the argument during the subsequent hearing held in September 2023. It is clear that the employer had, and failed to avail itself of, ample opportunity to challenge Kountis’ report prior to the WCLJ’s determination. As a result, the employer’s eventual challenge was untimely, and it was error for the Board to preclude Kountis’ report … . Matter of Troiano v New York City Hous. Auth., 2025 NY Slip Op 06377, Third Dept 11-20-25

Practice Point: If there are grounds for precluding a medical report for failure to meet the requirements of Workers’ Compensation Law 137, the employer must make a timely objection to the report. Here the employer failed to object to the report during the 75-day period allowed for objections and failed to object in a hearing held six or seven months after the report was filed. The Third Department determined, under those facts, it was error to preclude the report.

 

THE EXTENSION (NOW TO 2026) OF THE TIME FOR PARTICIPANTS IN THE 9-11 CLEANUP TO FILE CLAIMS FOR MEDICAL BENEFITS DOES NOT APPLY TO CLAIMS FOR DEATH BENEFITS BY A BENEFICIARY OF A DECEASED PARTICIPANT; HERE THE PARTICIPANT’S WIFE MADE A CLAIM FOR DEATH BENEFITS WHICH WAS PROPERLY DENIED BECAUSE THE STATUTORY DEADLINE IN WORKERS’ COMPENSATION LAW SECTION 28 HAD PASSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the two-year death-benefit statute of limitations in Workers’ Compensation Law section 28 precluded a claim for death benefits made by the wife of a volunteer who participated in the 9-11 cleanup and who had received lifetime benefits for resulting medical conditions. Although the deadline for claims for medical benefits has been extended (to 2026), that extension does not apply to claims for death benefits by surviving beneficiaries:

[Workers’ Compensation Law 168] explicitly refers to “[a] claim by a participant,” permits such participant’s claim to be filed within the enumerated extended time period, and again repeats “[a]ny such participant” when stating that certain previously denied claims “shall be reconsidered by the board” … . The phrase “claim by a participant” does not encompass claims by the surviving beneficiaries of those individuals. This is made clearer by comparison with the language in Workers’ Compensation Law § 18, which expressly provides that notice may be given by “any person claiming to be entitled to compensation or some one in his behalf” and can be “signed by [the employee] or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person, on their behalf.” Likewise, Workers’ Compensation Law § 28 refers to “the claimant” and references payments “to an employee or his dependents in case of death.” Workers’ Compensation Law § 168’s use of the phrase “[a] claim by a participant” must therefore be understood to mean that only a claim brought by a participant, and not by the survivors or beneficiaries of a participant, may benefit from the extended time limits of Workers’ Compensation Law § 168. As the Appellate Division reasoned, “it was decedent who was entitled to file a claim for benefits outside of the period allowed by Workers’ Compensation Law § 28” … .

No other provision provides claimant with relief from the requirement that claims be filed within the two-year limitations period. Matter of Garcia v WTC Volunteer, 2025 NY Slip Op 06360, CtApp 11-20-25

Practice Point: Claims for death benefits by the beneficiaries of deceased participants in the 9-11 cleanup are subject to the two-year statute of limitations in Workers’ Compensation Law.

 

,

CONTRARY TO THE STANDARD USED BY THE WORKERS’ COMPENSATION BOARD, AN SLU NEED NOT BE REDUCED BY THE AMOUNT OF ANY PRIOR SLU TO THE SAME PART OF THE BODY; MATTER REMITTED FOR APPLICATION OF THE PROPER STANDARD (THIRD DEPT).

The Third Department, reversing and remitting the matter to the Workers’ Compensation Board, determined the Board applied the wrong standard for compensation for an injury to a member for which an SLU had been made for a prior injury. The Board used the erroneous standard that an SLU “must always be reduced by the amount of any prior SLU to the same statutory member:”

The Court of Appeals has clarified … that successive and “separate SLU awards for different injuries to the same statutory member are contemplated by [Workers’ Compensation Law §] 15 and, when a claimant proves that the second injury, ‘considered by itself and not in conjunction with the previous disability,’ has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use” … . Thus, a claimant’s entitlement to an additional SLU award for a successive injury to the same statutory member “turns upon the sufficiency of the medical proof adduced” … . “Such demonstration may include medical evidence that a prior injury and the current injury to the same member are ‘separate pathologies that each individually caused a particular amount of loss of use of [the subject member]’ and that the current injury resulted in a greater degree of loss of use of the body member in question ‘beyond that . . . [of] the prior injury’ ” … .

… [T]he standard articulated and then applied by the Board, which relied solely upon Matter of Genduso v New York City Dept. of Educ. (164 AD3d at 1510), was that an SLU “must always be reduced by the amount of any prior SLU to the same statutory member” (emphasis supplied). The Board is not required to reduce or offset the SLU by the prior SLU where a “claimant demonstrates that a subsequent injury increased the loss of use of a body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444). Given that the Board’s decision did not consider, or otherwise ascertain the credibility of, the conflicting medical evidence that was before it — which included documentary and testimonial evidence from claimant’s treating physician — regarding the extent to which claimant’s injuries were “separate pathologies that each individually caused a particular amount of loss of use” of his right leg … , the Board’s finding of a 12.5% SLU of the right leg must be reversed and the matter remitted for further consideration by the Board in accordance with the holding in Matter of Johnson [supra]. Matter of Krein v Green Haven Corr. Facility, 2025 NY Slip Op 06238, Third Dept 11-13-25

Practice Point: When an SLU has been made for a prior injury, a subsequent SLU for the same part of the body need not be reduced by the amount of the prior SLU. The claimant can submit medical evidence that the injuries are separate pathologies which individually caused a specific amount of loss of use.

 

,

ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the record did not support the finding that claimant, a school custodian, contracted COVID-19 from workplace exposure. The decision is fact-specific. Claimant had little contact with students during his work hours and there were other possible sources of infection:

We acknowledge that “the contraction of COVID-19 in the workplace is compensable under the Workers’ Compensation Law” … , that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board’s findings in this regard, if supported by substantial evidence, will not be disturbed … . Additionally, our case law makes clear that where, as here, the injured claimant alleges that he or she contracted COVID-19 at work, such claimant “bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event” … ; “for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection” … .

… Although claimant’s job included cleaning various areas of the school and picking up supplies, he acknowledged that his only contact with students would occur while he was mopping the hallways, at which time approximately 20 students would pass by him on their way to the locker rooms. During the relevant time frame, no other member of claimant’s household tested positive for COVID-19, but claimant’s then-spouse worked in-person and did the grocery shopping, her son attended sporting events three days each week and claimant attended church each week with approximately 40 other people. Claimant, who did not wear a mask during church services, testified that his fellow attendees “wouldn’t have been [sitting] that close” to one another. The record is silent as to the rate of infection in either the school where claimant worked or the surrounding community.

Upon reviewing the record as a whole, we cannot say that the Board’s decision is supported by substantial evidence. As a starting point, the record is devoid of proof that there was a high rate of infection present in claimant’s work environment at the relevant point in time … . Further, claimant’s brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence … . Finally, the record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period. Under these circumstances, the Board’s finding that claimant’s employment exposed him to an elevated risk of exposure to COVID-19 cannot stand. Matter of Angelo (Southwestern Cent. Sch.), 2025 NY Slip Op 05998, Third Dept 10-30-25

Practice Point: Contracting COVID-19 is compensable under Workers’ Compensation but claimant must present proof exposure at the workplace was the source of the infection, not the case here.​

 

,

CONFLICTING EVIDENCE OF THE CAUSES OF CLAIMANT’S HEARING LOSS DID NOT SUPPORT THE MEDICAL EXPERTS’ CONCLUSIONS THAT THE LOSS WAS ATTRIBUTABLE TO THE OPERATION OF HEAVY MACHINERY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the conflicting evidence of the causes of claimant’s hearing loss did not support the experts’ conclusions that the hearing loss was “likely” caused by exposure to noise from the operation of heavy equipment:

… [T]he medical opinion evidence on the issue of causation need not be expressed with certainty or in absolute terms … , and we acknowledge that the Board is vested with the exclusive authority to weigh conflicting medical opinions and to evaluate the medical evidence before it … . That said, the medical opinions upon which the Board bases its finding of a causal relationship nonetheless must be supported by a rational basis … . Here, each of the foregoing physicians indeed expressed that it was “likely or “very obvious” that claimant’s hearing loss was attributable to work-related noise exposure. However, given the other documented sources of noise exposure … , the conflicting medical histories provided by claimant and, most notably, the testimony of the carrier’s consultant, who made clear that the results of claimant’s audiograms were decidedly inconsistent with noise-related hearing loss, we are unable to conclude that these generalized statements of causation are otherwise supported by a rational basis in the record as a whole. Under these circumstances, the Board’s finding that claimant sustained a work-related binaural hearing loss is not supported by substantial evidence … . Matter of Spada v Keeler Constr. Co., 2025 NY Slip Op 05553, Third Dept 10-9-25

Practice Point: In the context of a hearing loss alleged to have been caused by prolonged exposure to noise from heavy machinery, the medical experts’ conclusions must be supported by evidence in the record. Here the experts’ conclusions that the hearing loss was attributable to the operation of heavy machinery were weakened by conflicting causation-evidence in the record and the finding of causation was reversed.

 

, ,

THE WORKERS’ COMPENSATION BOARD DID NOT MAKE SUFFICIENT FINDINGS UNDER THE “ABC” TEST FOR DETERMINING WHETHER CLAIMANT WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, MATTER REMITTED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not properly apply the so-called “ABC” test to decide whether claimant was an employee or an independent contractor:

… [O]ur review of the Board’s decision reflects that it did not set forth sufficient findings of fact regarding its assessment of whether the three-part ABC test was satisfied in order to determine if claimant himself was an independent contractor. To that end, to establish a person as an independent contractor under the three-part ABC test, it must be demonstrated that “(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue” (Labor Law § 861-c [1]). * * *

In our view, given the limited findings by the Board, it is unclear whether the Board considered the ABC factors in determining that claimant’s status as an employee was not rebutted. As such, and aware that the role of this Court is not to independently review and weigh the conflicting evidence to determine whether the various factors of the ABC test … — including who directed and controlled the work being performed in installing the trusses — were met, the Board’s decision is not supported by substantial evidence and the matter must be remitted to the Board for proper consideration of whether the ABC test was satisfied in order to rebut the presumption of an employer-employee relationship. Matter of Trickey v Black Riv. Plumbing, Heating & A.C., Inc., 2025 NY Slip Op 05133, Third Dept 9-25-25

Practice Point: Consult this decision for an explanation of the “ABC” test for whether a claimant is an employee or independent contractor.

 

,

THE RECORD DOES NOT SUPPORT THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMAINT IS NOT ENTITLED TO PERMANENT-TOTAL-DISABILITY STATUS BASED UPON EXTREME FINANCIAL HARDSHIP; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not make findings which justified its ruling that claimant was not entitled to relief based upon extreme financial hardship:

Workers’ Compensation Law § 35 (3) provides that, “[i]n cases where the loss of wage-earning capacity is greater than [75%], a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits under [Workers’ Compensation Law § 15 (3) (w)], that the [B]oard reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship” … . “[A] claimant seeking reclassification based upon extreme hardship must demonstrate financial hardship beyond the ordinary and existing in a very high degree” … . * * *

Claimant’s C-35 form, the accompanying submissions and her hearing testimony demonstrate that her essential monthly expenses — consisting of rent, utilities and basic amenities — would exceed her monthly income of $1,280, received from Social Security disability, by more than $300 if her workers’ compensation benefits are ended. This deficit results in claimant’s inability to cover even basic grocery expenses upon the expiration of her workers’ compensation benefits. Significantly, the Board made no finding that claimant’s income would be sufficient to meet her essential living expenses, nor is there substantial evidence in the record to support any such conclusion. * * * … [T]he Board did no analysis, and gave no explanation, as to how the future reduction of claimant’s income to an amount significantly below the most basic of living expenses did not result in an extreme financial hardship. Claimant now lives alone in a modest apartment and uses a high-mileage, nearly 20-year-old vehicle, for which she pays a nominal monthly parking fee. Upon this record, substantial evidence does not support the Board’s determination that claimant failed to demonstrate extreme financial hardship warranting a reclassification pursuant to Workers’ Compensation Law § 35 (3) and, thus, we reverse. Matter of Martin v D’Agostino Supermarkets Inc., 2025 NY Slip Op 04059, Third Dept 7-3-25

Practice Point: Consult this decision for a discussion of the criteria for permanent-total-disability status based upon extreme financial hardship.

 

THE EMPLOYER’S WORKERS’ COMPENSATION CARRIER WAS ENTITLED, PURSUANT TO WORKERS’ COMPENSATION LAW SECTION 15(3)(W), TO TAKE CREDIT TOWARD AWARDS OF TEMPORARY DISABILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the Workers’ Compensation Board properly held that the employer’s workers’ compensation carrier was entitled, pursuant to Workers’ Compensation Law section 15 (3)(w), to take credit toward awards of temporary disability. The opinion is too detailed to fairly summarize here.:

On December 19, 2017, claimant was involved in a work-related accident, and his subsequent claim for workers’ compensation benefits was established for injuries to his back, thoracic spine and both shoulders. Awards were made at various rates for periods of temporary disability and lost time beginning on December 20, 2017. In April 2021, claimant’s treating pain management specialist opined that claimant had reached maximum medical improvement (hereinafter MMI) with respect to his lumbar spine, and, in November 2021, the carrier’s consultant in physical medicine and rehabilitation, who conducted an independent medical examination of claimant, found that MMI in the field of physical medicine and rehabilitation had been established. In a June 2022 decision, a Workers’ Compensation Law Judge (hereinafter WCLJ) directed the parties to produce medical evidence of permanency. Following subsequent examinations for permanency, as well as deposition testimony from several of the physicians who examined claimant for permanency and testimony from claimant, the WCLJ, in a November 2022 decision, classified claimant as having a permanent partial disability with a loss of wage-earning capacity of 65%, entitling him to 375 weeks of compensation at the specified rate. The WCLJ also found that, pursuant to Workers’ Compensation Law § 15 (3) (w), the employer’s workers’ compensation carrier was entitled to a credit against the number of statutory cap weeks based upon its payment of 78.8 weeks of awards to claimant for periods of temporary partial disability after June 16, 2020 — the 130th week following the accident of record. Matter of Quoma v Bob’s Discount Furniture, 2025 NY Slip Op 03610, Third Dept 6-12-25

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy