Injuries occurring in the general course are not compensable under the New York State Workers’ Compensation system. The claimant must therefore satisfy the burden of showing that the injury arose in the course of employment.22 In the context of an occupational disease that results from illness, this would require that the claimant establish a recognizable link between the condition and a distinctive feature of their employment.23 In the context of an accidental injury, it has been held that an illness must be assignable to a determinate or single act, identified in space and time.24 This is also relevant in situations in which a claimant was traveling when they contracted an illness, elucidated below.
Once it is established that infection was acquired as a consequence of their employment, the claimant would need to establish by competent medical evidence that this conclusion is not pure speculation.25 That medical opinion need not be expressed with absolute or reasonable certainty, but there must be an indication of sufficient probability as to the cause of the injury, supported by rational basis and not a general expression of possibility.26 Mere speculation by a physician is insufficient to support a finding of causal relationship27, and credibility of evidence is an issue for the board to resolve.28
When evaluating COVID-19 claims, there are some additional distinctions that should be made, both in terms of (1) the type of claim (accident v. occupational disease); (2) the category of the claimant’s employment (health care v. non-health care); and (3) the nature of the employment (i.e, outside employment/traveling employees), as each will have different nuances and burdens. Based on what we do know about COVID-19, any claims filed would likely be filed as an “accident.” Pursuant to WCL
§ 2(7), “[i]njury” and “personal injury” mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. Whether a particular event is an industrial accident
is not determined by any legal definition, but by the commonsense viewpoint of the average person.29 Because workplace accidents must “arise out of” and “in the course of” employment, an infection must first and foremost be an inherent risk of the claimant’s employment. For example, a retail worker who contracts COVID-19 likely will not have a compensable claim, but a hospital worker who contracts it while performing their job likely will.
Inasmuch as no caselaw exists providing any specific precedent, we have to look to see how the board has dealt with other similar contagions to anticipate how they will address COVID-19. Of note, there is no reference to “pandemic” in the New York Workers’ Compensation-related caselaw, nor any reference associated with compensable claims from the last pandemic to hit the United States (Swine Flu). As such, the inquiry must be expanded to other viruses and communicable diseases in general. There is caselaw discussing compensability of “community acquired diseases” and the general rule is: if the time and space of the “entry” or contracture cannot be specifically identified, it cannot be compensable.
Under some circumstances, the contraction of an infectious disease can be found to be an accidental injury within the meaning of the WCL.30 “As to infectious diseases contracted in the course of employment, the accident requirement has been interpreted to mean that ‘the inception of the disease must be assignable to a determinate or single act, identified in space
or time [internal citations omitted]”’.31 “Compensation has been allowed for infectious disease in many cases, but only where there was some discrete event or series of events which could reasonably be deemed to mark the onset of the infection”.32
22 Employer: Am. Eagle Airlines, No. G031 2670, 2011 WL 2215346 (N.Y. Work. Comp. Bd. May 26, 2011).
23 Employer: Rosner Constr. Carrier: State Ins. Fund, No. 00754237, 2010 WL 1976543 (N.Y. Work. Comp. Bd. May 6, 2010).
24 Id., citing Matter of Albrecht v. Orange County Community Coll., 61 AD2d 1068 , aff’d 46 NY2d 959 .
25 Matter of Williams v Colgate Univ., 54 AD3d 1121 .
26 Matter of Granville v. Town of Hamburg, 136 A.D.3d 1254, 1255, 25 N.Y.S.3d 746  (see Matter of Norton v. North Syracuse Cent. School Dist., 59 A.D.3d 890, 891, 874 N.Y.S.2d 302 ).
27 Employer: Savin Engineers, P.C., No. G075 1427, 2014 WL 5312651 (N.Y. Work. Comp. Bd. Oct. 9, 2014).
28 Tucker v. City of Plattsburgh Fire Dep’t, 153 A.D.3d 984, 985, 59 N.Y.S.3d 609, 611 (N.Y. App. Div. 2017).
29 Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 .
30 id.; see also Matter of Connelly v Hunt Furniture Co., 240 NY 83 .
31 Matter of Albrecht v Orange County Community Coll., 61 AD2d 1068 , aff’d 46 NY2d 959 .
32 id. at 1069.
A discrete event resulting in the onset of an infection sufficient to constitute an accidental injury has been found, for example, when the record contains evidence that the claimant was exposed to a person known to be infected with the disease later contracted by claimant33, when a decedent contracted malaria from a mosquito bite34, and when a decedent was infected though a cut on his hand while handling a gangrenous corpse.35
However, an infectious disease that is contracted through normal bodily processes (e.g., breathing), “at a time and place which cannot be specified,” cannot be considered an accidental injury within the meaning of the WCL.36
In Albrecht, the decedent, a professor, contracted polio and died while traveling in Africa during a sabbatical. The court
in Albrecht concluded, based on the record before it, that because the decedent contracted polio through “normal channel of entry,” at a time and place that could not be specified, he did not sustain in accidental injury.37 This is the argument to focus on if any traveling employee contracts COVID-19.
Currently, Gov. Cuomo’s office is encouraging New York insurers to cover coinsurance, copays, and deductibles for COVID-19 tests and treatment. In addition, he is pushing an amendment to a bill to encourage or even require additional paid sick leave. With that, and the availability of job-protected and unpaid leave under the Family and Medical Leave Act (FMLA), there are other avenues available to encourage claimants to process any costs through their private insurance, as opposed to filing a workers’ compensation claim. In addition, employees can collect FMLA benefits.
33 Middleton, 38 NY2d 130 ; Matter of McDonough v Whitney Point Cent. School, 15 AD2d 191 ; Matter of Gardner v New York Med. Coll., 280 AD 844 , aff’d 305 NY 583 .
34 Matter of Lepow v Lepow Knitting Mills, 288 NY 377 .
35 Connelly, 240 NY 83 .
36 Albrecht, 61 AD2d 1068 , affd 46 NY2d 959 .