WCB DECISIONS FOR MARCH 22, 2022
REFUND OF ATF DEPOSIT
Matter of Throgs Neck Dental, 2022 WL 886728
This claim was established for an occupational disease of Hepatitis B with a date of disablement of February 13, 2002. In 2013, claimant was classified with a permanent partial disability with a 75% medical impairment, and the carrier was directed to continue payments at the rate of $391.36. Subsequently, an ATF deposit was directed.
Claimant passed away on January 1, 2021 from congestive heart failure with residual ejection fracture, renal failure, and hypoglycemia. Subsequently, awards were brought up to December 31, 2020 at $391.36 and suspended due to claimant’s passing.
On June 3, 2021, the carrier filed an RFA-2 requesting a re-opening of the claim for reimbursement from the ATF. At the hearing, the carrier argued that it was entitled to a refund from the ATF for the monies paid, and not used, due to claimant’s passing. The Law Judge denied this request, noting that it was for lifetime benefits, not subject to the capped weeks under the 2007 Amendments, since the date of accident preceded said amendments, and therefore no refund was allowed.
On appeal, the carrier argued that the denial of the request for a refund was incorrect. Per the matter of New York Presbyterian Hospital, decided by the Full Board 2009, the carrier argued that when a classified capped claimant dies following an ATF deposit, or a classified pre-capped claimant dies from related injuries following an ATF deposit, a refund is warranted. Further, the carrier stated that not permitting a refund in a pre-capped case when the claimant dies from an unrelated cause was contradictory to the legislative intent of the 2007 Amendments, and that it was not logical to grant a refund in a capped case, but not in a pre‑capped case.
In rebuttal, the ATF maintained that a pre-capped PPD claimant who died of unrelated causes did not meet the requirements spelled out in the New York Presbyterian Hospital matter, and in addition, the limitation of refunds protects the integrity of the fund.
Section 27(4) of the WCL indicates that after a carrier has made a deposit into the ATF of the present value of future indemnity benefits, the ATF is required to refund that deposit, or a portion thereof, for particular circumstances. Pursuant to the Full Board decision cited by the carrier, these are:
- When an award has been modified or changed by the Board for any reason other than the death of the claimant or remarriage of their spouse;
- When the carrier has made an ATF payment based on an award for PTD or PPD, and if the claimant later dies as a result of the established disability, and a death award is made in a separate death claim;
- When the carrier has made an ATF deposit based on a capped PPD award and claimant dies before the number of weeks specified in that award has passed; and
- Effective March 30, 2007, deposits in death cases with dependent children are computed on the assumption that those dependents will remain full-time students until age 23, and the carrier is entitled to a refund of the portion of the deposit plus simple interest if the dependents do not continue with full-time education until that age.
The Board Panel held that the Law Judge correctly denied the carrier a refund since none of the statutory limitations applied.
CONTINUING JURISDICTION AND PRESERVING OBJECTIONS
Metal Locking Service 2022 WL 886729
This claim was established for the lower back due to an accident occurring November 9, 2005.
On May 20, 2020, Dr. Cappuccino filed a C-4AUTH requesting L/S repeat decompression and fusion at L4-S1 with an electrical bone growth stimulator. The New York State Insurance Fund (SIF), the carrier in this matter, granted this request.
SIF filed a Form C-8.1B for treatment rendered November 6, 2020 in the amount exceeding $78,000.00, setting forth that prior authorization was not granted for treatment over $1,000.00. Attached was a bill from Niagara Memorial Hospital indicating an occurrence date of November 3, 2020, and there were discharge summaries indicating a diagnosis of status post lumbar fusion, and that the procedure was a bilateral endoscopic outside in L4‑L5, L5‑S1 subtotal foraminotomy with removal of scar nerve compression with removal of broken pedicle screws with repeat decompression at multiple levels, as well as guidance with intraoperative spinal cord monitoring using local autogenous bone and Trinity stem cell matrix. On August 13, 2021, a Proposed Decision was filed resolving this C-8.1B in favor of the provider pursuant to the medical treatment guidelines. SIF objected to this proposed decision.
At the subsequent hearing, neither the claimant nor claimant’s counsel appeared. SIF argued that the C-8.1B should be resolved for the carrier, as prior authorization was not granted, the bill was over $78,000.00, and that there was an authorization for surgery, “but that authorization request did not state it would be a stem cell matrix. We do not authorize the stem cell matrix surgery that was done.” The Law Judge noted that the procedure that was approved was a decompression and fusion at L4-S1, and resolved the C-8.1B in favor of the carrier.
Claimant’s counsel appealed this decision, arguing that it should have been resolved for the medical provider, referencing the earlier C-4AUTH’s which were approved by the carrier. Claimant’s counsel further argued that he did not attend this hearing because it was not on his calendar, and that the findings made were prejudicial to the doctor, as two authorizations were already provided by the carrier. In rebuttal, SIF argued that the decision should be affirmed, since neither claimant nor counsel attended the hearing, and accordingly did not object to the decision.
Rule 300.13 requires that the specific objection or exception that was interposed to the ruling on the record at the hearing be stated, and that the Board may deny review where the appellant did not interpose his specific objection or exception to a ruling or award. Newly-enacted Section 23‑a did not apply because the Board Panel was denying review of the application because of claimant’s failure to appear and object, and not because of the content of the form itself.
Nonetheless, upon review of the hearing minutes, the Board Panel took note of SIF’s statements. Contrary to the statement what was indicated, stem cell matrix was not the only procedure indicated, as the documentation attached to the C-8.1B also included procedures for lumbar fusion and discectomy, which SIF most certainly did approve in 2020. Pursuant to the Board’s continuing jurisdiction under Section 123, and on its own motion, the Board Panel remitted the case back to the hearing calendar to properly address the Form C-8.1B in question.
DISALLOWANCE
Department of Correction 2022 WL 886733
This is a controverted matter for injuries allegedly sustained in a work-related accident on December 6, 2019. Nearly one year later, on November 13, 2020, the claimant’s treating physician set forth the claimant was referred for evaluation of memory/cognitive difficulties, stating that claimant had difficulty with his memory for the last year or so, denying any type of injury or illness. The report further noted that claimant has become forgetful, that he would misplace things and was told to take a medical leave of absence from work because of these difficulties. The report noted he had several head injuries in the past, but none in at least 15 years, and further that he had a brother diagnosed with multiple sclerosis and has had significant cognitive issues similar to what claimant had described.
In the March 15, 2021 report, the doctor noted that he had sent claimant for a complete neuropathy battery, but the claimant had no insurance, and he related he had had a head injury about the time all this had started at work. On April 1, 2021, claimant filed a Form C‑3.0 indicating that he worked as a corrections officer, and that on December 8, 2019 he “tackled an inmate,” and allegedly sustained injuries to the head and left wrist as a result. He listed the first date of medical treatment in December 2019, and noted that he stopped working in October 2020.
The treating physician’s July 14, 2021 report noted that the claimant still had difficulty remembering and stated that “about a month prior to these issues he had an incident at work where he had to tackle an inmate,” but that claimant did not recall striking his head, but did recall injuring his wrist and having a headache afterwards. He further noted that the claimant “did not have a good explanation for his symptoms.” He inferred that claimant “probably may have sustained a concussion during the altercation he had at work.”
On August 23, 2021, a copy of the employee accident/injury report was filed with the Board, indicating that on December 6, 2019, claimant was “involved in use of force with inmate,” and had sustained abrasions on his left hand from cuts.
In his deposition testimony, the treating physician stated that claimant had first reported to him a head injury on March 15, 2021, and that claimant was very vague about how it had occurred. The doctor testified that he would expect the claimant to have some sort of brain injury “immediately after” the tackling of the inmate, and that he would expect the claimant to have sought medical attention. He also noted someone the age of claimant would have these symptoms improve over the next few weeks.
At trial, claimant testified that he knew his wrist was pinned underneath him, but really couldn’t recall actually hitting his head on anything, but he did remember that he had a headache afterwards. He filled out an incident report the same day, and within the next several weeks or a month, he began forgetting things.
Per Reserved Decision filed November 24, 2021, the Law Judge credited the testimony of the treating physician, noting that it would be unlikely that claimant’s symptoms required by the alleged incident if claimant had no symptoms for months after the incident and had no treatment and was able to work for nearly one year afterwards. Accordingly, the Law Judge disallowed the claim.
On appeal, claimant’s counsel argued that claimant had been experiencing the symptoms for slightly less than one year prior to his first medical treatment, and that therefore, the conditions were causally related to the accident. The Board Panel noted that the claimant bears the burden of establishing a causal relationship between the injury and the employment by the proffer of competent medical evidence. However, this must be a medical opinion supported by a rational basis that indicates sufficient probability as to the cause of the injury, while general expressions of possibility could not support a finding of causal relationship.
Given the treating physician’s testimony, which indicated that it was “less likely” that an injury sustained in December of 2019 would be a factor in claimant’s cognitive issues after he worked for nearly a year and did not treat during that time, the Board found a lack of contemporaneous medical evidence, and the treating physician’s testimony demonstrated a lack of specific details regarding the alleged head injury. The Panel found that the opinion of causal relationship was based on mere possibilities, that there was no contemporaneous medical evidence supporting the finding of causal relationship. Accordingly, the Board Panel held that the claimant failed to meet his burden of proof establishing causal relationship and affirmed the disallowance of the claim.
COMPENSABLE COVID
NYSDOCCS 2022 WL 886737
The claimant, a corrections officer, alleged that on September 17, 2020, he became infected with COVID-19 as a result of his employment. The date of accident that he listed on the C-3.0 is March 23, 2020.
On October 5, 2020, the carrier filed an SROI-04 controverting the claim on multiple grounds. However, the carrier did not raise the issue of untimely notice under Section 18, and further indicated that the employer first had knowledge of the injury on March 21, 2020, which actually preceded the date listed on the C-3.0.
The medical evidence included a positive COVID test performed on March 30, 2020.
A pre-hearing conference was set for November 3, 2020. The carrier filed a timely PH-16.2 in which it continued to raise the defenses set forth in the SROI-04. The carrier also listed one lay witness that it intended to produce.
Claimant’s treating physician testified by deposition that he saw claimant via telehealth on March 24, 2020 and described symptoms consistent with COVID-19. The claimant indicated that he was a corrections officer, and he was in contact with other people at work who were positive for this condition, and he recommended the claimant isolate himself and get tested. He next spoke to him on March 30, 2020, at which time his symptoms had worsened, and he ordered a COVID-19 test. He told the physician’s assistant that he was positive, but he never saw the results. He did not know specifically how claimant contracted the virus, but claimant told him that he had sick contacts at work.
At trial, claimant testified as to his job duties, which involved reviewing inmates’ identification in a small, enclosed area. On March 23, 2020, he had a cough and was not feeling well, and he alerted his supervisor. He tested positive for COVID-19 on March 30, 2020, and before he fell ill, he was told that there were several inmates who had tested positive for COVID and habits to be housed in the same building where he was assigned. He was not advised as to which inmates were COVID positive.
He admitted that around February 20, 2020, he went on a week’s vacation to Iceland, and he was not screened for COVID-19 upon reentering the country. Further, his spouse tested positive for the virus one week after March 30, 2020, and his daughter tested positive a week after that. Subsequently, he learned there were several coworkers who had tested positive for COVID-19. The trial was continued for lay witness testimony, and the carrier’s representative continued to raise all previously raised issues of controversy, which again did not include untimely notice under Section 18.
The employer’s lay witness testified that he was claimant’s supervisor, and confirmed the claimant was in close contact with many inmates entering the yard, as many as 80 per day. He believed that claimant was one of the first known COVID cases, and he learned of this through word of mouth. Around the end of March 2020, every housing unit in the prison was locked down on quarantine, but he did not hear of any positive inmates at that time. In any event, they were not allowed to wear masks at work in March of 2020.
On summation, the carrier argued that it was unclear when and to whom claimant notified that he believed his COVID was work-related but again, no mention was made as to notice under Section 18. The Law Judge established the claim for a compensable contraction of COVID-19.
On appeal, the carrier argued there was insufficient proof of prevalence of COVID at the facility when the time claimant became sick, and insufficient proof of causal relationship. The carrier noted there were no COVID cases among inmates or staff when the claimant fell ill, the record shows that claimant got sick before anyone else tested positive. Moreover, the carrier argued that the claim should be barred under Section 18 since the claimant did not give notice to the employer within 30 days as required.
The Board Panel cited to binding precedent ruling that an epidemic was sufficient to constitute an abnormal condition of sufficient gravity to result in an accident. Specifically, a disease may be deemed an accidental injury where it arises out of “abnormal conditions,” which must be established to sustain an award (unlike an occupational disease, which arises out of the very nature of the employment itself). That disease must satisfy two other conditions, namely that the inception of the disease resulted from a single act, identified in space or time, and that it must be due to something “catastrophic or extraordinary.” Accordingly, the Panel noted that if a claimant contracts COVID-19 through close contact with the public, such exposure could be found to be a work-related accident per statute.
The claimant may show that an accident occurred in the course of employment by demonstrating prevalence, which would be 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. Prevalence may be demonstrated through the nature and extent of work activities which must include significant contact with public and/or coworkers in an area where COVID-19 is prevalent.
The Panel found that there was unanimous testimony that claimant was in close contact with multiple inmates in the performance of his duties, and that the claimant credibly testified that before he became ill, he had been made aware that there were several inmates in his assigned building who had tested positive. The lay witness acknowledged that there were COVID-19 positive inmates in the facility before March 30, 2020, and many housing units were being shut down for quarantine around March 20, 2020. Further, employees were not permitted to wear protection devices at the beginning of the pandemic, and claimant became symptomatic on March 23, 2020.
The record indicated that COVID-19 was prevalent in the work environment which included close contact with the public, some of whom were positive for COVID-19, and while claimant was not entirely aware as to when or how he contracted the condition, this did not preclude a finding that an accident occurred in the course of his employment. His travel to Iceland resulted in a return more than three weeks prior to the onset of his system, accordingly, his travel was removed as a source of infection, given the 14-day incubation period for the virus. Moreover, claimant’s wife and daughter did not test positive for this condition until after he had already contracted it, and the news report provide some support for the presence of COVID in the facility in March of 2020, even if it appears to primarily pertain to a period after claimant became ill.
Claimant was subjected to not one, but many, events in time and space, and his exposure was an elevated risk in a prevalent COVID-19 environment to qualify as an adverse environmental condition and unusual hazard or extraordinary event. Also, the onset of his symptoms on March 23, 2020 satisfies the time definiteness requirement for an accident. Accordingly, the claimant has established that an accidental illness occurred in the course of his employment, and he is entitled to the statutory presumption that the accident also arose out of his employment.
The carrier was found to have failed to rebut the presumption with sufficient credible evidence, in no small part because the carrier waived its right to an IME on the issue of causal relationship, and the only rebuttal evidence in the record was the lay witness testimony, which essentially buttressed claimant’s testimony. The fact that housing units were being shut down suggests that the potential exposure in the facility was a significant concern. Accordingly, the panel found that the presumption was not rebutted.
Lastly, the Board found that Section 18 was inapplicable. The carrier did not raise this defense on its SROI-04, which instead indicated that the employer was fully aware of the injury on March 21, 2020, which was not only well within the applicable 30-day notice period, but appears to have preceded the date of accident. Moreover, the lay witness testified that he was aware that claimant had contracted COVID-19 in March of 2020. Further, the carrier failed to specifically raise this issue during summations and prior to the Law Judge’s ruling on the merits at the February 9, 2021 hearing. Most importantly, the carrier failed to raise the issue of untimely notice at the first hearing in which claimant testified, and which all parties in interest were present. Accordingly, the issue of Section 18 notice was waived. Accordingly, the Panel found that untimely notice would not bar the claim to begin with, but in any event, the defense was waived, and the claim was properly established for COVID-19.
