Select COVID-19-Related Decisions

Case # G2815132
Matter of Mount Sinai Brooklyn
2021 NY Wrk Comp G2815132

Board Panel Decision

By: Loren D. Lobban, Freida Foster, Martin M. Dilan

Ruling:

The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed August 20, 2020. The claimant filed a timely rebuttal.

ISSUE

The issue presented for administrative review is whether the carrier's Application for Board Review (RB-89) concerning the issue of prima facie medical evidence (PFME) should be denied as interlocutory.

FACTS

The claimant filed an Employee Claim (C-3) on July 6, 2020, wherein she alleged that she contracted COVID-19 on March 12, 2020 as a result of her employment activities as an Emergency Room Patient Care Assistant with the employer herein. The claimant asserted that she was exposed to patients that were known to be positive for COVID-19.

On July 21, 2020, the carrier filed a Subsequent Report of Injury-Denial (SROI-04), wherein it controverted the claim on the basis that there was no compensable accident and/or there was no causal relationship.

On July 22, 2020, the claimant's attorney submitted a copy of an April 10, 2020 laboratory test report indicating that the claimant underwent testing for COVID-19 on March 15, 2020, and that the test results were positive. The attorney requested that the case be established based upon this report.

By notice issued on August 4, 2020, the Board advised the parties that a pre-hearing conference had been scheduled for August 17, 2020. Both parties subsequently filed timely Pre-Hearing Conference Statements (PH-16.2). In its PH-16.2, the carrier asserted that there was no PFME for COVID-19.

At the pre-hearing conference held on August 17, 2020, the claimant's attorney referenced the claimant's positive COVID-19 test and asserted that the positive test was sufficient to qualify for PFME for COVID-19. The WCLJ agreed with the claimant's attorney, found that PFME for COVID-19 existed based on the positive test result, and continued the case for testimony from the claimant and the employer lay witness identified on the carrier's PH-16.2. The carrier's representative duly noted an exception to the PFME finding. Based upon a request from the carrier's representative, the WCLJ also directed the deposition of Dr. Nagendra (the physician who electronically signed the positive test result report).

In the resulting decision filed on August 20, 2020, the WCLJ designated the case for an expedited hearing; found PFME for COVID-19 per the April 10, 2020 positive lab test; directed the deposition testimony of Dr. Nagendra within 55 days; directed the carrier to produce an Independent Medical Examination (IME) report by the next hearing; and continued the case for testimony. The carrier's application for review ensued.

At the hearing held on October 2, 2020, testimony was taken from both the claimant and the employer lay witness. In the resulting decision filed October 7, 2020, the WCLJ again directed the carrier to obtain an IME report, noted that the case was not subject to the expedited hearing process, and continued the case for the deposition transcript and for summations.

Dr. Nagendra was deposed on October 8, 2020 and a copy of the transcript was submitted on that same date.

At the hearing held on November 9, 2020 and by decision filed November 13, 2020, the WCLJ indicated that no further action would be taken until the pending appeal was resolved.

LEGAL ANALYSIS

In its application for administrative review, the carrier contends that it was improper to find PFME for COVID-19 as the positive test result is insufficient on its face as it contains no history, no statement regarding the claimant's work exposure, and no indication of the likelihood of work-related disease transmission as required. The carrier points to the guidance from the Board's Medical Director's Office Bulletin (MDO-2020 #1) dated June 26, 2020, which advises that a patient's work exposure, such as information about the extent and nature of public contact, should be documented by the medical provider, and that the medical provider's opinion regarding the likelihood of work-related disease transmission should be included in the medical narrative. Based upon the foregoing, the carrier requests that the decision be rescinded and the case closed pending production of sufficient medical evidence.

In rebuttal, the claimant argues that the carrier's appeal should not be entertained since it is interlocutory. The claimant maintains that the WCLJ found sufficient medical evidence to move forward with the claim and if the case is ultimately established, the carrier is entitled to appeal the finding at that time.

In Matter of McDonough v Whitney Point Cent. School, 15 AD2d 191 (1961), the Third Department found that an epidemic was sufficient to constitute an abnormal condition of sufficient gravity to find the happening of an accident. In doing so, the Third Department relied upon the prior Court of Appeals decision in Matter of Lerner v Rump Bros., 241 NY 153 (1925), wherein the Court stated,

In Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 (1975), the Court of Appeals noted that the Board's finding that persistent impacts of exposure provided "substantial evidence from which the board could determine that this was an accident gauged by the common-sense viewpoint of the average man, [and also that] the time-definiteness required of an accident was satisfied by application to the result..."

In Matter of Johannesen v New York City Dep't of Hous. Pres. & Dev., 84 NY2d 129 (1994), the Court of Appeals stated, "[t]he seriously adverse environmental conditions to which claimant was subjected as part of her job and workplace reasonably qualify as an unusual hazard, not the 'natural and unavoidable' result of employment ([WCL] § 2[7])."

When viewed together, McDonough, 15 AD2d 191 (1961), which was established for mumps following exposure to sick children during an epidemic, Middleton, 38 NY2d 130 (1975), which was established for tuberculosis following exposure to a coughing inmate with the condition, and Johannesen, 84 NY2d 129 (1994), which was established for aggravation of asthma due to exposure to second-hand smoke, indicate that if a claimant contracts COVID-19 through close contact with the public (such as a patient), such exposure could be found to be a work-related accident within the meaning of WCL § 2(7).

When alleging that COVID-19 was contracted at work, the claimant may show that an accident occurred in the course of employment by demonstrating prevalence. Prevalence is evidence of significantly elevated hazards of environmental exposure that are endemic to or in a workplace which demonstrates that the level of exposure is extraordinary. A claimant may demonstrate prevalence through evidence of the nature and extent of work activities, which must include significant contact with the public and/or co-workers in an area where COVID-19 is prevalent. Public-facing workers and workers in a highly prevalent COVID-19 environments are the workers who can show that the exposure was at such a level of elevated risk as to constitute an extraordinary event.

However, it must be noted that the evidence needed to establish a case for COVID-19 is different from the evidence needed to find PFME and direct further development of the record. PFME is defined as a medical report referencing an injury, which includes trauma and illnesses (12 NYCRR 300.1[a][9]; see also 12 NYCRR 300.38[g][1]). There is no requirement that such evidence, in itself, "draw a causal link between the injury and the claimant's employment" (Matter of Garti v Salvation Army, 80 AD3d 1101 [2011]). Whether a particular document or combination of documents constitutes PFME is an interlocutory issue and not reviewable until the claim is finally determined (id.).

With regard to pre-hearing conferences, 12 NYCRR 300.38(g)(3) provides that if the carrier alleges in the notice of controversy (i.e. SROI-04) and/or PH-16.2 that the claimant has not presented PFME, the WCLJ shall determine at the pre-hearing conference whether the medical report presented constitutes PFME. Significantly, 12 NYCRR 300.38(g)(3)(i) states, "A finding that the medical report or reports constitutes [PFME] is an evidentiary determination that the case may proceed and is interlocutory and is not reviewable by the board...."

In the instant matter, the Board file contains medical evidence in the form of a positive laboratory test for COVID-19 dated April 10, 2020. This satisfies the requirements for PFME as it documents the COVID-19 illness (see 12 NYCRR 300.1[a][9]). Although later development of the record may lead the trier of fact to conclude that there is insufficient evidence to support a claim, at issue is simply whether the claim contains sufficient PFME to move forward, not whether sufficient evidence has been presented to make the claimant's case. Here, the decision filed on August 20, 2020, did not dispose of any substantive issue or reach a potentially dispositive threshold legal issue, but simply allowed the case to proceed. As a result, the Board Panel finds that the decision from which administrative review is sought is interlocutory and shall not be reviewed (see 12 NYCRR 300.38[g][3][i]). All issues and grounds raised are preserved and may be asserted in an application for administrative review upon the establishment or disallowance of the claim.

Therefore, upon review of the record and based upon the preponderance of the evidence, the Board Panel finds that the carrier's application for review on the issue of PFME is denied as interlocutory in nature and is not subject to review at this time.

CONCLUSION

ACCORDINGLY, the carrier's application for review of the WCLJ decision filed August 20, 2020 is DENIED as interlocutory. The case is continued.

All concur.