Hamberger & Weiss LLP


WCB Pushes COVID-19 Claims Forward Despite Lack of PFME

There is increasing evidence over the last few months that Board policy is shifting to make it easier for claimants to move controverted COVID-19 claims to trial. Last month, Board Chair Clarissa Rodriguez sent a letter to carriers and claims administrators asking them to assist the Board by providing medical evidence necessary to move controverted COVID claims forward for adjudication. The request was surprising, given the role of carriers and administrators in controverted claims traditionally does not include assisting the claimant in producing the medical evidence needed to establish a claim. 

Additionally, the Board produced a video in which it provided claimants information about the evidence that they needed to successfully make a workers' compensation claim based on COVID-19. The video correctly states that claimants need a medical report from an authorized provider stating that the claimant's work caused the illness. However, that standard is not being enforced at the Board. 

We have noticed in our hearings that Judges are moving COVID cases to trial even in the absence of prima facie medical evidence ("PFME"). Our research also indicates that the Board is permitting COVID cases to move to trial without PFME. For example, in American Airlines, 2020 WL 5591103 (N.Y.Work.Comp. G2810516; 9/11/20), the Board found a death certificate, standing alone, to be PFME for a COVID claimed death, on the basis that Board regulations did not require an opinion on causal relationship. The Board ignored its own requirement that the medical report reference an injury, which was missing in the death certificate. 

Recall that the Board's standard for prima facie medical evidence is a "medical report referencing an injury." 12 NYCRR §300.1(a)(9). Also, although PFME is sufficient to move a case to trial, PFME that only references an injury without a clear statement of causal relationship to work will not support the establishment of a claim. 

Based on the above, we conclude that the Board has an unstated policy that COVID-19 cases are going to proceed to trial, even in the absence of sufficient medical evidence. As before, an appeal regarding PFME is interlocutory, meaning that an appeal of a Judge's decision cannot be taken until the Judge provides a final decision on the controverted claim. 

That said, some of our clients (particularly health care providers or insurance carriers for health care providers) have elected to accept COVID-19 claims without prejudice under WCL §21-a when a claimant tests positive for COVID-19, even in the absence of PFME. This decision is based on the employer's or carrier's judgment that the claimant was likely exposed to COVID-19 in the workplace based on the nature of the claimant's job. 
Employers and carriers, as always, should consider the facts in each case individually. Our comments on the apparent Board policy should not be read as advice to deny all COVID-19 claims in the absence of PFME. 

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