Opinion Mondays: Recent NY Case May Open Door for Compensability of COVID-19 Claims Without Need for Presumption
It may be a long shot, but a recent New York appellate decision may have opened the door, if ever so slightly, to compensability of COVID-19 claims on the basis of the state’s definition of occupational disease [Matter of Renko v. New York State Police, 2020 N.Y. App. Div. LEXIS 3918 (3d Dept. July 9, 2020)]. The New York definition — one of the shortest in the nation — specifies “a disease resulting from the nature of employment and contracted therein” [N.Y. Workers’ Comp. Law § 2[15], emphasis added]. In its Renko decision, the court stressed that the “nature of the work” is the key to determining whether a claimant has established an occupational disease claim under New York law — not the environmental conditions at the workplace. Accordingly, the court reversed a Board decision that had denied a worker’s claim on the basis that his auto-cleaning duties at a police station garage following the September 11 attack at the World Trade Center did not expose him to toxins that were a normal attribute of his work.
Background
Claimant worked as an auto body mechanic for the New York State Police. Following the September 11, 2001 terrorist attack, claimant performed routine maintenance and cleaning at a facility in the City of Albany on police vehicles that had been deployed to, and returned contaminated with toxins from, the WTC clean-up operations. In 2014, and again in 2016, claimant filed WTC-12 forms with the Workers’ Compensation Board pursuant to Workers’ Compensation Law article 8-A [see N.Y. Workers’ Comp. Law § 161, et seq., which provides certain benefits or those who worked in “recovery and clean-up operations], registering that he was a participant in the WTC clean-up operations in anticipation of later filing a claim for workers’ compensation benefits.
In December 2017, claimant sought medical treatment for a prostate issue and was diagnosed with prostate cancer a month later. In March 2018, claimant filed a claim for workers’ compensation benefits alleging that he developed prostate cancer as a result of his exposure to toxins while cleaning the police vehicles involved in the WTC clean-up operations. Following a hearing, a WCLJ found that the claim did not fall within the provisions of Workers’ Compensation Law article 8-A inasmuch as the work at issue was not performed at a specified WTC site, which assessment claimant did not dispute.
The WCLJ then disallowed the claim as an occupational disease, finding insufficient evidence of causal relationship. Upon review, the Board found, among other things, that the claim did not meet the requirements of an occupational disease. Treating the claim as one for accidental injury, the Board held the claim was time-barred as it was not filed within the two-year period set forth in N.Y. Workers’ Comp. Law § 28. Claimant’s subsequent request for full Board review was denied and Claimant appealed.
Appellate Court Draws Important Distinction
Initially observing that an occupational disease is one “resulting from the nature of employment and contracted therein” (N.Y. Workers’ Comp. Law § 2[15]), the Court emphasized that there was a significant distinction between “the nature of the work” and “the workplace.” Citing earlier decisions, the Court stressed that an occupational disease derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work.
Board Missed the Point
The Court reasoned that in rejecting the claim, the Board reasoned that claimant was exposed to toxins that were not a “normal attribute of [his] work” [Opinion, p. 3]. According to the Court, that premise missed the point that claimant’s maintenance duties required him to actually clean these vehicles by removing the toxins. Accordingly, claimant’s exposure to the WTC toxins derived from the very nature of his work, not from an environmental condition of the workplace. The Court concluded that the Board had failed to make a true determination as to the causal relationship, if any, between the nature of Claimant’s work and his disease and the case, therefore, was remanded. The Court added that there was no question as to timeliness of the occupational disease claim.
Commentary
Most writers, including this one, have indicated that those pursuing COVID-19 occupational disease claims face an uphill battle in most states because the typical Workers’ Compensation Act definitionally excludes “ordinary diseases of life” [see Larson’s Workers’ Compensation Law, § 52.03]. If an employee contracts influenza from contact with a co-worker, generally speaking, there is no claim. Since COVID-19 contamination, like the flu, comes from close association with others and is not peculiar to any given workplace or occupation, most claimants will be unable to establish occupational disease claims and will need to proceed under the state’s accidental injury procedure, essentially showing that the exposure was due to an accidental injury arising out of and in the course of the employment.
That is why, of course, the presumptions put in place in a number of states [e.g., California, Illinois, Kentucky, Minnesota, Missouri, North Dakota, Wisconsin, and Utah] are so important. Since the burden of proof in an accidental injury case is on the claimant, he or she would be hard pressed to show — by a preponderance of the evidence — that the COVID-19 germ came from a co-worker or from a customer. With the presumption in place, the burden essentially shifts to the employer to provide that it did not.
Back to the Renko decision: How does this case help a COVID-19 claimant attempting to establish an occupational disease claim. Here, the employer argued that in order for Renko’s prostate cancer to be compensable, he had to show that the risk of contracting the disease arose out of a “normal attribute” of his work. Think of the byssinosis claims of the late 70s and early 80s in the Southern textile industry. The claim centered on the fact that exposure to cotton dust caused a particular type of COPD in numbers of workers. Usually, the worker experienced what came to be known as “Monday morning syndrome.” During the weekend, when the worker was away from the dust, his or her breathing became much more normal. But on Monday morning, upon the return to the cotton mill, the shortness of breath and wheezing would fire up again.
Exposure to cotton dust was a “normal attribute” of work and even under the New York definition of occupational disease, those claims were largely successful. Moreover, one could not argue that byssinosis was an “ordinary disease of life.” No one outside the textile industry contracted it.
The Renko decision takes an important different tack. It says the concentration should not be on the normal attributes of work so much as it should be on “the nature” of the claimant’s employment. Consider this hypothetical: a New York drug store clerk contracts COVID-19. He or she files an occupational disease claim, contending the COVID-19 condition is compensable under § 2[15]. The employer defends on the ground that his/her disease is an ordinary disease of life, that the risks of sustaining an infection are common outside the workplace, and that there risk of COVID-19 is not a “normal attribute” of work.” That’s essentially what the employer in Renko argued.
“Nature of the Work” in New York
The COVID-19 claimant counters that under Renko, he or she isn’t required to show that the risk of exposure is a normal attribute of work. Instead, one should concentrate on the “nature of the work.” And what is the nature of his or her work as a clerk in a drug store? Close contact with persons who come in from off the street, often with symptoms of some sort of disorder — even COVID-19. The clerk is required to handle materials and products that have come into contact with the infected person. Particularly in the time before sanitation screens and other physical barriers were put in place, it was virtually impossible to maintain social distancing between the clerk and the customer. The argument follows that the clerk’s exposure to COVID-19 came about due to the “nature of the work.”
New York claimants will have to deal with Connolly v. Covanta Energy Corp., 123 A.D. 3d 1394, 1 N.Y.S. 3d 404 (3rd Dept., Dec. 31, 2014) [see Larson, § 52.03[3], n. 19.1], in which the appellate court reversed a decision of the state’s Board that concluded that an employee who worked for some 23 years at a garbage recycling and energy production facility had sustained an occupational disease in the form of allergic bronchopulmonary aspergillosis as a result of the employee’s exposure to the aspergillus fungus, a type of mold. The claimant’s medical expert acknowledged that the aspergillus fungus was a common source of pulmonary problems and could be found almost anywhere and, further, that the expert was unable to pinpoint exactly where or when the employee’s exposure occurred, or that it was definitely at the employer’s plant. The appellate court held that because the aspergillus fungus was ubiquitous and found in soil everywhere and that the employee could have been exposed in an industrial setting or at home in his own backyard, he had not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job.
In Renko, the court stressed, however, that the Board had diverted from its Connolly analysis and had noted that Renko’s doctors had indicated his prostate cancer was a result of exposure to toxins from the World Trade Center. The Board also noted that the consultant for the workers’ compensation carrier “indicated that any significant exposure to [WTC] dust could increase the likelihood of prostate cancer and that, as such, there was a causal relationship.” In the face of such evidence, the court noted that the Board had not made a determination as to causal relationship and, therefore, the claim had to be remitted to the Board for further proceedings in this regard.
Long Shot
Initially, I noted that utilization of an occupational disease claim argument was a long shot. A subsequent New York claimant will have to maneuver between the two, somewhat contradictory holdings in Renko and Connolly. Still, based on the New York definition of occupational disease, there be some room for claimants. One lesson here for practitioners in other states: carefully consider the exact wording of the occupational disease definition applicable in your jurisdiction.