COVID Claims and Career Dreams Collide with Legal Reality in Recent 3rd Dept. Cases

The Appellate Division handed down two decisions on Oct. 30:

1. Angelo v. Southwestern Central School: The 3rd Dept. is still dealing with COVID-19 cases. Here, a school custodian filed a claim and The Board concluded there was prevalence of exposure in claimant’s work environment in a school. But the 3rd Dept. reversed, finding claimant did not sustain his burden of proof that he had specific exposure to COVID-19 or that he had a public facing job that elevated the risk of contracting COVID-19. The Court found that brief encounters with passing groups of students in the hallway did not represent a meaningful degree of regular, consistent, and close interaction with the public to sustain a finding of prevalence. The reversal is significant because the Appellate Division found these facts, as a matter of law, did not rise to substantial evidence to support the Board’s findings.

2. Jover v. Alba Demolition: Here, Claimant initially had a 75% loss of wage-earning capacity classification in 2018. At that time, claimant could not demonstrate attachment to the labor market. In 2019, claimant had a spinal fusion which resulted in a light duty 10 lb. lifting restriction. Claimant again failed to prove attachment to the labor market, because all the jobs he applied for were for specialized experience and education that claimant did not possess. Claimant, a non-English speaker with cooking, construction, dishwashing and delivery experience applied for jobs as an optometrist, paralegal, social worker and a Bengali-speaking marketing specialist. These were not serious efforts, and the Court rightfully affirmed the Board Panel. Claimant’s experiences did not exactly substitute for not having a Doctor of Optometry.