By Charlene Stewart Barnaba and Anthony M. Napoli.
PMT continues our effort to keep you informed and assess the impact of the Covid-19 pandemic on businesses. Businesses should carefully consider a number of contractual provisions and operational issues that are likely to play a significant role in the short and long term and may be the subject of disputes and litigation. Early retention of counsel to assess these issues may help to reduce litigation risk. PMT’s resource of knowledge and industry experts in a variety of important fields are working to keep you up to date and your business protected. Below are some of the recent updates in New York, Pennsylvania and New Jersey which we feel are important for you to know.
Please use these links to view how it’s affected your state: New York, Pennsylvania & New Jersey
New York Workers’ Compensation and Covid-19
After over one year since the State of Emergency was declared and a spike in cases and a rise in Covid-19 claims, the Workers’ Compensation Board has issued Covid-19 related decisions. Below is a summary of select cases in which the Board Panel found that Covid-19 was established.
In Matter of Jewish Home Lifecare Manhattan, 2021 NY Wrk Comp G2806375, the claimant, a security guard, testified regarding his work environment and the prevalence of Covid-19 in his workplace. The claimant credibly testified that there was an outbreak at the facility and that there was a separate floor for Covid-19 patients. While the claimant did not patrol that floor, he did patrol the building and came into contact with employees who worked on that floor. In addition, the claimant testified that at least one other security employee tested positive for Covid-19 prior to him, that he worked with such employee approximately one week prior to becoming sick himself, and that one or two more security employees tested positive after him. Moreover, the claimant credibly testified that while working in the security booth at the main entrance he had interactions with EMS and positive patients who were being admitted into the facility. While the claimant did wear a mask and gloves once they were provided by the employer, it is unclear when such equipment was provided and there is no guarantee that such equipment will prevent contraction even when used. The claimant credibly testified that, other than grocery shopping (when he also wore a mask), he did not socialize or leave his house once the State of Emergency was declared. Thus, the claimant established prevalence (i.e. that an accident arose “out of” his employment) whereby he is entitled to the presumption of WCL § 21(1) that his accident also occurred “during the course of” his employment.
Covid-19 was also established by the claimant in Matter of City of Long Beach, 2021 NY Wrk Comp G2796329, in which claimant credibly testified that his work duties as a paramedic included answering emergency calls and rendering medical care to patients in a variety of locations, including nursing homes. The claimant also credibly testified that from April 3, 2020 to April 16, 2020, he came into close contact with and was involved in the care of approximately 35 positive Covid-19 patients. The claimant credibly testified that his contact with the 35 positive Covid-19 patients was confirmed through his dispatchers and follow-up from the hospital to which the patients were transported, and produced credible documentary support for his testimony.
Although the claimant was not entirely aware as to when he contracted Covid-19, the claimant’s illness began on or about mid-April 2020, a time when Covid-19 was particularly prevalent throughout New York State. The record demonstrates that the claimant was subjected to a series of events in time and space (treating positive Covid-19 patients), and his exposure was at a level of elevated risk in a prevalent Covid-19 environment as to qualify as an adverse environmental condition and unusual hazard or extraordinary event. In addition, the onset of his symptoms leading to his testing on April 16, 2020, satisfies the time-definiteness requirement for an accident. The Board Panel, however, found that the establishment of the case should be rescinded and remanded for other reasons.
In order to establish a case, the testimony of the claimant is crucial and the testimony of the employer may also be required. The claimant must prove 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 environment are the workers who can show that the exposure was at such a level of elevated risk as to constitute an extraordinary event.
Pennsylvania Workers’ Compensation Updates
Covid-19 has affected employers across the country. Pennsylvania is no exception. According to Jennifer Berrier, Acting Secretary of The Department of Labor and Industry, there were 20,000 reported Covid-19 claims in 2020. However, non-covid workers’ compensation claims were down 16,000 compared to 2019.
While challenges regarding causality of Covid-19 claims have yet to reach appellate level, Covid-19 influenced litigation on non-covid claims with mixed results. The following are all Workers’ Compensation Appeal Board Decisions that may pique your interest.
Christina McCarthy v. Speedway LLC, 2021 WL 1328335 (Pa.Work.Comp.App.Bd.) March 31, 2021
One month after his March 2, 2020 decision granting employer’s Termination Petition, a WCJ, sua sponte, vacated his decision explaining before the Covid-19 shutdown, the claimant contacted his office and indicated that she did not receive the notice of the petition or hearing notice and wanted to contest the Termination. The March 2, 2020 decision and Order was not appealed. There was no indication in the Judge’s “Vacated Order” when the claimant’s communication was received nor when the Office of Adjudication shut down.
The employerappealed the April 1, 2020 Vacated Order averring that the Order was null and void. The Appeal Board agreed finding that the WCJ violated 34 Pa. Code §131.112(a) as the Order was an amendment to a decision without an agreement of the parties, did more than correct a typographical error, and made a change in analysis that effected the substantive rights of the parties. In this case, the claimant can file a reinstatement Petition.
Igor Dnistranskiy v. Brite Logistics, 2021 WL 1328371 (Pa.Work.Comp.App.Bd.). March 24, 2021
The Appeal Board reversed a WCJ’s decision dismissing a Fatal Claim Petition with prejudice and remanded the case to the WCJ to reopen the record to allow litigation of the matter. The Fatal Claim Petition was filed on March 10, 2020, five days before the expiration of the three-year Statute of Limitations for a Fatal Claim Petition and shortly before business shutdowns due to the Pandemic. The WCJ’s Interlocutory Orders twice directed claimant’s counsel to introduce medical evidence to support the claim. Counsel represented that he was unable to obtain necessary medical records/reports from the claimant’s physician due to the Covid office shutdowns. After four months and two Judge’s Interlocutory Orders directing claimant’s counsel to produce evidence, the WCJ dismissed the Fatal Claim Petition with prejudice. The claimant appealed.
The Appeal Board acknowledged the WCJ’s frustration, but they were constrained to determine that the WCJ abused its discretion since in this case, neither the claimant nor their counsel had control over a third-party which was the claimant’s medical expert. Also, “the highly unusual circumstance of the global pandemic crisis hit right at the time when the claimant filed this Fatal Claim Petition, hampering the claimant’s ability to secure required evidence.”
Josephine Smigley v. City of Philadelphia, 2021 WL 1911291 (Pa.Work.Comp.App.Bd.), April 2, 2021
On August 6, 2020, the employer filed a Motion to Compel an Impairment Rating Evaluation when the claimant objected to attending the evaluation on July 9, 2020 because of the Covid-19 pandemic. In her decision of October 5, 2020, The WCJ sustained the claimant’s objection to the IRE due to the pandemic. The claimant provided no evidence of why she could not attend the examination except for her age which was 83 years. The WCJ dismissed the Motion to Compel without prejudice. The WCJ ruled that the employer could have a telemedicine IRE “at the end of the pandemic”. If the claimant failed to appear, the employer can file another Motion to Compel.
The Appeal Board affirmed holding that the WCJ did not abuse her discretion given the claimant’s age. The Board modified the WCJ’s decision to preserve the effective date of any resulting change in disability status back to the date the IRE was originally requested since the pandemic did not have a foreseeable end date.
Judge Hart v. City of Philadelphia, 2021 WL 1911292 (Pa.Work.Comp.App.Bd.), April 28, 2021
A WCJ granted the employer’s Petition to Compel an in-person Impairment Rating Evaluation with his decision of November 9, 2020. The evaluation was originally scheduled for July 28, 2021. The claimant refused to attend due to concerns over Covid-19. The employer filed a Petition to Compel. The claimant, however, did not object to the examination due to the pandemic, but challenged the constitutionality of the IRE. The WCJ granted the Motion to Compel and ordered the IRE be performed using Covid-19 safeguards. The Appeal Board quashed the claimant’s appeal as premature as claimant did not waive his challenges or objections to the IRE by attending the examination. He could make the same challenges at a later date, if necessary. He lost his Covid-19 challenge however.
Covid-19 is likely not a valid reason for refusing to attend an examination now given either the claimant, doctor, or both have been vaccinated.
Kimberly Waardal v. Carbon Lehigh Intermediate Unit #21, 2021 WL 1911286 (Pa.Work.Comp.App.Bd.), April 15, 2021
A claimant was entitled to a reinstatement of temporary total disability benefits when she was laid off due to Covid-19. The claimant had not returned to her preinjury job after her 2017 work injury and had been working under work-related medical restrictions when she was laid off in March 2020.
Upon her layoff, the claimant was receiving partial disability benefits, unemployment compensation benefits and four weekly payments of $600 in federal benefits under the CARES Act.
It appears that the claimant was earning greater than her pre-injury wage when she was laid off. Upon granting the Reinstatement petition, the WCJ granted credit against benefits the claimant received. Based on the credits owed to employer’s insurer, the WCJ specified that insurer was not liable for current compensation payments but would be responsible for resuming compensation payments once the credits were exhausted. The WCJ, however, did not award credit for payments made under the CARES Act. The employer appealed this specific determination.
The Board determined that benefits under the CARES Act are federally funded; therefore, the employer is not entitled to a credit.
Some may argue differently. Benefits under the Cares Act supplemented unemployment compensation the claimant received. According to the U.S. Department of Labor, the DOL’s unemployment insurance programs provide unemployment benefits to eligible workers who become unemployed through no fault of their own and meet certain other eligibility requirements. “Unemployment insurance is a joint state-federal program that provides cash benefits to eligible workers. Each state administers a separate unemployment insurance program, but all states follow the same guidelines established by federal law.”
We have reported previously on S2389 which created a rebuttable presumption that Covid-19 infections contracted by essential employees during the New Jersey Public Health Emergency are work related. The application of the law is limited to the duration of the public health emergency, which has remained in effect since the onset of the pandemic and has been renewed every thirty days by the Governor. On May 14, 2021, Governor Murphy renewed the order for another thirty days, but all indications suggest that this will be the last renewal. In Executive Order 240, Governor Murphy cited to the fact that New Jersey has reported 881,991 Covid-19 cases and 23,257 deaths. However, in recent weeks, all markers (e.g., new cases, deaths, hospitalizations) have decreased and eight million people in New Jersey have been vaccinated. There have been positive developments including a better understanding of the virus and the corresponding risk of certain activities, along with expanded access to testing. Despite these advances and decisive decreases, Governor Murphy believed that a continued mandate for mitigation protocols was warranted. New Jersey continues to report new cases in every county with ongoing deaths. The Governor determined that it was necessary to keep many measures in place to limit person to person contact, including indoor masking for everyone and outdoor masking for the unvaccinated. It is expected that the Order will not be renewed next month. With the end of the state of emergency comes an end of an employee’s eligibility to qualify as an essential worker under S2389.
On a related note, currently, all workers’ compensation hearings continue to be conducted remotely. I expect that many workers’ compensation hearings will continue to be held remotely well after the state of emergency is lifted. For routine pre-trial events such as conferences with the judge and opposing counsel or for execution of settlements, the remote platform has proven to be expeditious and cost-effective. In-person appearances devoted to conferences and settlements previously constituted a significant portion of an attorney’s court time. Interestingly, there is a proposed Bill S3374 which seeks to eliminate in-person conferences or hearings for the purpose of approving settlements unless good cause is shown for the need for an in-person hearing. This proposal does not appear to be specific to the duration of the Covid-19 emergency and it would not be applicable to events such as trials or testimony on motions.
On April 20, 2021, Governor Murphy signed into law S2476 which provides supplemental dependency benefits for dependents of essential employees who died as a consequence of contracting Covid-19 at the workplace. The law allows for a cost of living adjustment in an amount up to the maximum benefit determined each year pursuant to the New Jersey Workers’ Compensation Act. These cost of living adjustment benefits are not paid by the workers’ compensation carrier, but rather by the Second Injury Fund. The carrier must put the Fund on notice within sixty days of determination of the potential dependent’s eligibility. Although this change does not pose an additional direct cost to the carrier, the increased expenses of the Fund over time may result in higher assessments against premiums. The dependent-petitioner must still present a case to show that the employee was deemed to be an essential worker and the death was directly related to the Covid-19 infection.
On April 13, 2021, the New Jersey Supreme Court decided Hager v. M&K Construction (A-64-19) (084045), ruling that a workers’ compensation carrier must reimburse the petitioner for medical marijuana which had been utilized to relieve the symptoms of his workers’ compensation injury. Based upon competent medical testimony, medical marijuana can be determined to be reasonable medical treatment. The benefits of medical marijuana are considered in the context of the adverse effects of alternative medications such as opioids, which carry the risk of addiction and possible death. In this case, there was evidence that the petitioner was able to reduce his opioid intake. Under New Jersey’s Compassionate Use Act, a private health insurance carrier cannot be required to reimburse for medical marijuana; however, the court held that the exception did not apply to workers’ compensation carriers. The Court held that an employer did not risk criminal liability for aiding and abetting the petitioner’s use and possession of this Schedule I substance under the Federal Controlled substances Act, which prohibits marijuana from being legally prescribed. The Court recognized the Department of Justice policy over the past years to deprioritize prosecution of individuals participating in legal medical marijuana programs and to eliminate federal funding for said prosecutions. If this case is appealed further, a Petition for Certiorari would be necessary to request that the Supreme Court of the United States take up the case. The Court will grant Certiorari in only a few select cases. However, the Supreme Court may be interested in ruling upon the ongoing confrontation between state versus federal law on the legality of medical marijuana.
Should you have any questions, please call our office at (914) 703-6300 or contact:
Jeffrey T. Miller, Executive Partner