New York Workers’ Compensation Ruling Roundup – November 15

Big New York WC Decision drop today. This week we learn the answers to these questions:

• Can you catch COVID from working with dead bodies?
• Is burnout from working at home compensable?
• Can you get benefits for an accident that happens 2 weeks after you are fired?
• Can you get an apportionment for a 1971 accident?

And more…

1. 1. Matter of Flores v Wellwood Cemetery Assoc., Inc.  CV-23-0790 – Cemetery worker died from Covid-19.  The Board determined the death was compensable because largely the Carrier submitted no evidence contradicting the Claimant.  The spouse of the decedent testified that her husband had buried bodies of those who died from COVID and that before he passed, the decedent told his spouse that a co-worker also had COVID.   The Appellate Division did not discuss whether there was any issue raised disputing whether a person could catch COVID from contact with a dead body, or whether the decedent worked outside or inside.  The entirety of the decision appears to come down to that Claimant’s evidence was not rebutted by any other evidence.
   2. Matter of Song v City of New York Department of Buildings CV-23-1061  – Here the 3^rd Dept. held that burnout at your home computer is not compensable.  This case involves an at-home worker whose job went fully remote after COVID and she developed back, right knee, right wrist and psychological injuries because she was confined to her at-home computer station.  Claimant was an assistant plan examiner who reviews building documents.  In short, the claimant felt burnt out and either developed her physical condition because she felt burnt out, or she developed physical conditions which caused her burnout.  Either way, the Court found that there was not a recognizable link between the physical injuries distinctive to her work.  In addition, there was insufficient consequential evidence of the psychological trauma.
   3. Matter of Rottkamp v New York University CV-23-1251 – This Covid death claim was disallowed and affirmed on appeal.  The claimant could not demonstrate enough proof to show that the decedent, a refrigerator engineer, had a specific contact or worked in a job with a prevalence of the illness.  The decedent’s physician opinion was disregarded because it was apparent he did not have familiarity with decedent’s job or workplace environment.  The Board ruled in the carrier’s favor despite the carrier’s failure to file a pre-hearing conference statement and was precluded from presenting any evidence. Commentary: This decision appears to contradict the Flores decision except that in both these cases the Appellate Division upheld the Board’s rulings, therefore suggesting that both cases would have been affirmed had the Board decided the other way.
   4. Matter of Gonzalez v Northeast Parent & Child Society CV-23-1272 – In this case which actually may be the most impactful of these decisions, the 3^rd Dept. upheld the Board’s ruling not to award an attorney fee on top of a penalty.  Here, the carrier admittedly made a payment beyond the due date which carries an automatic 20% penalty.  The carrier paid the penalty which was only $205.24 without objection.  But claimant’s counsel wanted another $480 paid in an attorney fee.  The Court held here that WCL § 24 which permits an attorney fee under certain circumstances does not apply to penalties imposed from late payments
   5. Matter of Santos v 77 GP, Inc. CV-23-1577.  The Appellate Division did not spend much time on this decision.  A pizza delivery guy claimed he got hurt working for the employer.  The employer testified that they fired the claimant two weeks prior to his accident, and the Board found the employer more credible than the claimant.  Claim disallowed and affirmed.
   6. Matter of James v Premier Home Health Care CV-23-1674     The Appellate Division upheld a 0% SLU for a non-surgical strained left shoulder.  The carrier’s expert exam found claimant to be magnifying her symptoms and gave a 0% to 30% SLU range.  The Board found that opinion to be more credible and credited the 0% because the Law Judge believed claimant manipulated her of the range of motion at the carrier’s exam.
   7. Matter of Young v LP Transportation CV-23-1751.   Here, the 3^rd Dept. weighed whether an apportionment to a 1971 accident was appropriate when the claimant was determined to be total permanently disabled from a 2015 accident.  The IME found total disability but credited 20% to the 1971 accident.  The claimant, a truck driver, 53 years ago fractured two vertebrae and had many surgeries that followed. In 2015, he slipped and fell.  There really was no evidence suggesting a different apportionment and the Board appropriately used the date of the 2022 exam as the apportionment date.
   8. Matter of Arce v Schear Construction, LLC CV-23-1830.  In this case the carrier attempted to use claimant’s 3^rd party complaint to demonstrate an inconsistency with the claimant’s description of the accident in the workers compensation case.  The carrier attempted to show that the discrepancy was irreconcilable but the 3^rd Dept. disagreed and found that the civil complaint was subject only to the Board’s credibility discretion which is fully within the scope of the Board’s authority to decide
   9. Matter of Sanchez v Baldor Specialty Foods Inc. CV-23-1870.  Here, the Appellate Division affirmed the Board’s finding that a claimant did not establish attachment to the labor market if she only applied to jobs that were outside of her work restrictions.  Moreover, the Court affirmed the Board’s finding that the claimant’s rejection of a light duty offer was not justified because her explanation was that she was in too much pain was insufficient since the light duty offer contemplated all of claimant’s restrictions.