All posts by Greg Lois

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com
New York, Video, Webinars, Workers Compensation

New York Addresses General Releases In Approving Section 32s

On October 8, 2021 the New York Workers’ Compensation Board announced that as of December 6, 2021, all Section 32 Waiver Agreements submitted to the Board for approval must be accompanied by an affirmation or affidavit executed by the person who signs the agreement on behalf of the carrier/self-insured employer, or its designated third-party administrator, affirming under penalty of perjury that the agreement submitted to the Board for approval contains all the terms and conditions agreed to by and between the claimant and the carrier/self-insured employer, and that no separate agreements or contracts have been entered into by the parties that are not reflected in the agreement submitted to the Board for approval. The full announcement is here: https://content.govdelivery.com/accounts/NYWCB/bulletins/2f633a4

The point of this is obviously to attack the process whereby employers seek General Releases and Resignations at the time of Section 32 settlement.

The Board has created a new form (because of course it did!) which can be viewed here.

Note bene: The Board announcement does not mention resignations but this article will as they are analog to the practice of seeking general waivers at the time of Section 32 settlement.

This article covers the relevant laws, our current practice, and provides guidance to the practitioner on how we will adjust our Best Practices moving forward. 

We are also holding two LIVE webinars on this topic, on Monday, October 18 at 12PM EST or 3PM EST. You are invited to register to attend here.

Continue reading New York Addresses General Releases In Approving Section 32s →
Benefits, Defenses, Employment Law, Events, New Jersey, Webinars, Workers Compensation

New Jersey Creates “Preference” For Rehiring Permanently Disabled Employees

New Statute Creating “Hiring Preference”

On September 30, 2021, Governor Phil Murphy signed into law Assembly Bill A2617, which provides as follows:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.

Who The New Law Applies to

The law creating preference only applies to employers with more than 50 (fifty) employees.

Read on for all the exemptions (below). 

Who Is Exempted From the New Law

1) The Preference Does Not Apply to Employers with Less Than Fifty (50) Employees.

Employers with less than 50 employees are exempted b the clear terms of the new law.

2) The Preference Does Not Apply to Contractors Subject to Prevailing Wage Law

The law states that it “shall not include a contractor as defined in section 3 of P.L.1999, c.238 (C.34:11-56.50).” The referenced law,  N.J.S.A. 34:11-56.50, defines “contractor” as

a person, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof who enters into a contract which is subject to the provisions of the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.), and includes any subcontractor or lower tier subcontractor of a contractor as defined herein.

The New Jersey Prevailing Wage Act (N.J.S.A. 34:11-56.25 et seq.) establishes a prevailing wage level for workers engaged in public works. It applies to public projects which are defined as follows: 

3) The Preference Does Not apply to Athletes Employed by Professional Sports Teams.

The law states that employers of athletes of professional sports teams are exempted from the preference. 

Continue reading New Jersey Creates “Preference” For Rehiring Permanently Disabled Employees →
Medical Provider Claims, New Jersey, New York, New York Medical Treatment Guidelines (MTG), Workers Compensation

Appeals Court and WCB Fee Schedule Changes Address Out of State Medical Provider Claims

Appeals Court Rules Against New Jersey Provider Claims

On October 7, 2020, the New Jersey Appellate court issued a decision affecting Medical Provider Claims. The Court ruled that unless the New Jersey’s Division of Workers’ Compensation has jurisdiction over the underlying claim for a compensable work-related injury, it does not have jurisdiction over a Medical Provider Claim for payment. The court also ruled that the injured employee’s residency in New Jersey alone is an insufficient basis to confer jurisdiction on the Division for extraterritorial workplace injuries.

Practical Effect

This decision impacts all Medical Provider Claims filed in New Jersey where the injured worker received medical or surgical treatment in New Jersey related to a New York, Pennsylvania, or any other state’s workers’ compensation law and then the provider made a claim for fee reimbursement at New jersey’s “usual and customary” rate. These types of claims are very common as medical providers in “fee schedule” states like Pennsylvania or New York often instruct their patients to receive medical care in New Jersey so that the provider can charge the insurance carrier under New Jersey’s lucrative “usual and customary” medical fee approach (New Jersey has no medical fee schedule for workers’ compensation claims).

Example: New York Claimant Getting Care in New Jersey. Provider Brings Claim for Reimbursement.

In a common example, the injured worker resides in New Jersey but works in New York. The injured worker is injured in New York. The worker seeks workers compensation benefits, and chooses to have care in New Jersey. The New Jersey medical provider then demands payment for medical services at the “usual and customary rate” in New Jersey, instead of the New York fee schedule. The “usual and customary” demands of the medical provider are routinely 8- to 12-times the costs for the same care under the New York fee schedule. Often, the insurance carrier will reimburse the New Jersey medical provider at the New York Medical Fee Schedule rates (again, usually a small fraction of the demanded payment under New Jersey’s “usual and customary” scheme).  The New Jersey medical provider will then file an action, called a “Application for Medical Provider Reimbursement” (or more commonly a “Medical Provider Claim”) demanding that the difference between what was paid (the New York Fee Schedule amount) and the “usual and customary amount” (often multiples larger) before the New Jersey Division of Workers’ Compensation.

The insurance carrier should file a Motion to Dismiss for Lack of Jurisdiction.  Based on the recent court decision (decided October 7, 2020, and applicable to all pending Medical provider Claims) the Workers’ Compensation Court should dismiss these claim petitions.

What Happens Next: Applying New York’s Fee Schedule

Effective April1, 2019, the Workers’ Compensation Board changed the Medical Fee Schedule in effect for medical payer reimbursement in New York workers’ compensation claims. This will have a significant impact on the many Medical Provider Claims filed by New Jersey doctors and medical providers seeking reimbursement for services rendered to New York workers’ compensation claimants where the Jersey provider is demanding reimbursement at a much higher (“usual and customary”) rate than would be allowed under New York’s fee schedules.

The Changes to the Fee Schedule.

Changes to General Ground Rule 16 govern reimbursement for out-of-state treatment. The Rule now provides that a claimant who lives in New York State may treat with a qualified or Board authorized out-of-state medical provider when such treatment confirms to the Workers’ Compensation law and Regulations, the MTG’s and the Medical Fee Schedule. Payment shall be made to the medical provider as set forth herein and using the regional conversion factor for the zip code where the claimant resides.

How are Fee Schedule Reimbursements Determined?

Simple. The methodology for calculating medical reimbursement fees remains unchanged. Fee schedules are both region and activity-specific. To calculate a fee for a particular procedure:

  • Identify the appropriate conversion factor, which is listed within the respective Ground Rules document. There is a conversion factor for each geographic region and general type of medical service provided (e.g., surgery, radiology, etc.). For example, in the Medical Ground Rules document, you’ll find the conversion factor table on page 12.
  • Once you have the conversion factor you need, find the CPT code for the specific type of service you want to look up.
  • For each CPT code, there is a Relative Value Unit (RVU) listed.
  • Multiply the RVU by the conversion factor to calculate the fee for that service.

The Takeaway.

It is clear that Medical provider Claims filed in New Jersey where the Division of Workers’ Compensation does not have jurisdiction over the underlying workplace injury should be dismissed. The medical providers remain entitled to the Fee Schedule payments due under the jurisdictional state’s statutory scheme. The New York Workers’ Compensation Medical fee Schedules now specifically address how providers who render treatment to New York residents out-of-state should be reimbursed. This means that a qualified out-of-state medical provider should be reimbursed (paid) at the rate applicable in the region where the claimant resides (in New York). The Board has continuing jurisdiction to resolve disputes between medical providers and insurers for out-of-state medical care and now has set forth a bright-line rule for how those providers will be reimbursed.

Coronavirus, New Jersey, Workers Compensation

Coronavirus and New Jersey Workers’ Compensation: A Practical Guide

TLDR

Most coronavirus claims will not be compensable under New Jersey’s Workers’ Compensation Act. While infection or illness caused by workplace exposure can be found compensable the petitioner must show either (a) a specific incident causing the infection or illness or (b) exposure to “peculiar” conditions unique to the employment which resulted in the illness. Simply working with an infected co-employee or being exposed to the general public will generally not satisfy the “peculiar” requirement.  The only exception to this general rule against compensability is that for first responders, mere “potential exposure” triggers a presumption of compensability. Medical treatment is required for compensable cases and would include testing; however pre-injury testing and prophylactic measures such as quarantine are not considered “medical treatment” in New Jersey.

Part I. How Traumatic/Specific Incident Claims Will be Handled: Nearly All Will Be Denied

§1.01   Comparing Traumatic Injury Claims to Occupational Disease Claims

Generally, the concept of what is a “traumatic injury” is simple: an unexpected accident or incident which injures an employee. The petitioner bears the burden of demonstrating a specific incident caused illness or infection.

§1.02   Standard of Proof for Entitlement to Medical and Wage-Replacement Benefits in Accidental Traumatic Injuries

N.J.S.A. 34:15-7 provides in part:

(C)ompensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer.

That compensation will be paid for an injury either partial in character or total which is permanent.

A petitioner must prove legal causation (the injury is work-connected) and direct medical causation (the injury is a physical or emotional consequence of work exposure). To be compensable, the claimant must show a direct link from a specific exposure to the resulting condition. For example, a “needlestick” incident which occurred during the course of employment, where the exposure to the patient’s blood or bodily fluids directly led to the contracture of the disease or illness.

§1.03   The Standard of Proof for Permanent Disability Benefits in an Accidental Traumatic Claim

This is the prime legal/factual issue to be established, negotiated, challenged, and litigated in a workers’ compensation case. In traumatic injuries, where the petitioner alleges permanent disability resulting from a specific accident, often the only avenue of defense is to challenge the “nature and extent” of permanent disability. To do so vigorously, the factual/medical investigations discussed above must be conducted. Then, the legal standards for degree of permanency can be applied.

Permanent partial disability is defined at N.J.S.A. 34:15-36 as “a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs.”

As set forth at length above, in Perez v. Pantasote, Inc., the Supreme Court states that:

In summary, then, the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury. The burden of proving both of these elements rests with the petitioner.[1]

The Supreme Court wants petitioners to present objective medical evidence to establish that a permanent disability exists. What does this mean? What tests meet this burden? The Supreme Court has found that range of motion test results are generally subjective and alone will not satisfy the requirements of “demonstrable objective medical evidence.”[2] There is no numerical threshold to measure “minor injuries.” If there has not been an appreciable impairment of the employee’s ability to work, we may look to a second criterion, whether there has been a disability, in the broader sense of impairment, in carrying on the “ordinary pursuits of life.”

A lack of complaints will not bar recovery. In Porter v. Elizabeth Bd. of Educ.,[3] the petitioner underwent disc surgery and demonstrated objective medical evidence of disability, but he did not complain of pain or difficulty. However, he was awarded benefits. The Court found that “his injury was not minor and the legislature never intended to deny compensation for such disability simply because the petitioner did not complain enough.”

Minor respiratory conditions are not eligible for permanent disability awards under New Jersey’s Workers’ Compensation Law; this is because many workers suffer from occasional bronchitis or mild asthma with no significant effect on their ability to work or their quality of life.[4] It is possible for a workers’ compensation claimant to have a work-related health problem that is not sufficiently debilitating to be compensable.[5] In Perez v. Capitol Ornament, Concrete Specialties, Inc.,[6] the Appellate Panel instructed that a Workers’ Compensation Judge must consider impact of injury on a petitioner’s ability to work in view of his limited educational and intellectual resources and not base his decision on a “range” of disability for a particular type of injury. While this is a “common sense” decision, it also destroys the continuity of awards since a fractured arm will engender more exposure in a laborer than the same injury to a lawyer.

§1.04 Benefits and Treatment in an Accidental Traumatic Claim.

The New Jersey Workers’ Compensation Act provides four benefits to workers (and their dependents) who suffer a job-related injury. The four benefits are:

  1. Medical Benefits. Employers must provide immediate, necessary, and curative medical treatment to an injured worker. The employer directs and controls care. Medical care is provided without prejudice to the employer’s ability to later argue that injury was not work related.
  2. Temporary Disability Benefits. Employers must provide wage continuation benefits to employees during recovery from an injury.
  3. Permanent Disability Benefits. An employee, injured on the job, who can prove permanent residual effects of the injury is due monetary compensation. These benefits can be for partial or total disability.
  4. Death benefits. Employers must contribute to the funeral costs of an employee killed on the job. If the decedent had dependents, the employer must pay benefits to the deceased worker’s survivors.

§1.04 Medical Benefits in Regard to Infectious Diseases.

Where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier.[7] Negative test results and “screening” or preventative testing is not covered by the Act. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

Part II. How Occupational Exposure Claims Will be Handled: Deny Them!

§2.01 Defining Occupational Disease

Occupational disease can range from Lyme disease contracted by a golf-course groundskeeper from a tick[8] to delayed-onset post-traumatic stress disorder. N.J.S.A. 34:15-31 provides:

a. For the purpose of this article, the phrase “compensable occupational disease” shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.

b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of body is diminished due to the natural aging process thereof is not compensable.

§2.02 Liable Carrier or Employer

This rule of statutory construction from the New Jersey Supreme Court’s holding in Bond v. Rose Ribbon Carbon & Mfg. Co.,[9] instructs that where an occupational disease is caused or aggravated by exposure during a period when there are several respondents or insurance carriers on the risk, the last carrier shall be responsible for payment of compensation. The Bond Doctrine has since been drafted into the statute.

However, to impose liability on the “last employer” in an occupational disease case, there must be a showing of actual causation or contribution to the petitioner’s condition by the work exposure during such employment.[10]

§2.03 Types of Occupational Claims Found Compensable

Occupational diseases or conditions compensable under New Jersey’s Act include hearing loss[11], tinnitus[12], cardiovascular or cerebrovascular injuries[13], cardiac injuries[14], psychiatric[15], and orthopedic.

§2.04 Benefits and Treatment in an Occupational Exposure Claim.

The benefits available to a petitioner alleging injury or disability due to an occupational exposure are the same as the benefits available to a petitioner alleging a specific traumatic injury. N.J.S.A. 34:15-32 provides:

The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment.

In determining the duration of temporary and permanent partial disability, either or both, and the duration of payment for the disability due to occupational diseases, the same rules and regulations as are now applicable to accident or injury occurring under this article shall apply.

The New Jersey Workers’ Compensation Act provides four benefits to workers (and their dependents) who suffer a job-related injury. The four benefits are:

  1. Medical Benefits. Employers must provide immediate, necessary, and curative medical treatment to an injured worker. The employer directs and controls care. Medical care is provided without prejudice to the employer’s ability to later argue that injury was not work related.
  2. Temporary Disability Benefits. Employers must provide wage continuation benefits to employees during recovery from an injury.
  3. Permanent Disability Benefits. An employee, injured on the job, who can prove permanent residual effects of the injury is due monetary compensation. These benefits can be for partial or total disability.
  4. Death benefits. Employers must contribute to the funeral costs of an employee killed on the job. If the decedent had dependents, the employer must pay benefits to the deceased worker’s survivors.

Medical treatment will include testing for claims where the illness is found to be compensable. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

§2.05 Special Rules for Public Safety Workers in New Jersey

N.J.S.A. 34:15-31.5 provides a presumption of compensability if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease.” The Statute also states “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”

First Responder is defined as

…a member, employee, or officer of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police, a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.

Have a question about a coronavirus claim in New Jersey?

Contact Greg Lois, Managing Partner of Lois Law Firm LLC, with any questions.

[1] Perez v. Pantasote, Inc., 95 N.J. 105 at 118 (1984).

[2] Colon v. Coordinated Transp., Inc., 141 N.J. 1 (1995).

[3] Porter v. Elizabeth Bd. of Educ., 281 N.J. Super. 13 (App. Div. 1995).

[4] N.J.S.A. 34:15-36, which states “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.”

[5] Earl v. Johnson & Johnson, 158 N.J. 155 (1999).

[6] Perez v. Capitol Ornament, Concrete Specialties, Inc., 288 N.J. Super. 359 (App. Div. 1996).

[7] N.J.S.A. § 34:15-15.

[8] Bird v. Somerset Hills Country Club, 309 N.J. Super. 517 (App. Div. 1998), cert. denied, 154 N.J. 609 (1998).

[9] Bond v. Rose Ribbon Carbon & Mfg. Co., 42 N.J. 308 (1964).

[10] Vastino v. Man-Roland, Inc., 299 N.J. Super. 628 (App. Div. 1997), cert. denied, 151 N.J. 464 (1997).

[11] N.J.S.A. 34:15-35.10 through N.J.S.A. 34:15-35.22

[12] See Schorpp-Replogle v. N.J. Mfrs. Ins. Co., 395 N.J. Super. 277 (App. Div. 2007).

[13] N.J.S.A. 34:15-7.2.

[14] Id.

[15] Goyden v. State, Judiciary, Superior Court of N.J., 256 N.J. Super. 438 (App. Div. 1991), aff’d., 128 N.J. 54 (1993).

Coronavirus, New York, Workers Compensation

Coronavirus and New York Workers’ Compensation: A Practical Guide

TLDR

Most coronavirus claims will not be compensable under New York’s Workers’ Compensation Law. In general, a disease contracted by an employee within the course of employment may be compensable.[1] To be compensable there must be a specific definite and extraordinary exposure.[2] Most illnesses or infections alleged to be caused by exposure to co-employees or general workplace risks (like contact with the general public) will not be compensable in New York. Medical treatment is required for compensable cases and would include testing; however pre-injury testing and prophylactic measures such as quarantine are not considered “medical treatment” in New York.

Part I. How Traumatic/Specific Incident Claims Will be Handled: Nearly All Will Be Denied

§1.01 Standard of Proof for Entitlement to Medical and Wage-Replacement Benefits in Accidental Traumatic Injuries

To be compensable under the Workers’ Compensation law, an accidental injury must have arisen both out of and in the course of employment.[3] Accidents arising “in the course of employment” are presumed to arise out of the employment, and this presumption must be rebutted by “substantial evidence to the contrary” for the employer to succeed in denying a claim.[4]

A compensable disease may arise from an accidental injury. Two conditions must be established to sustain an award for an accidental disease. First, the inception of the disease must be assignable to a determinate or single act, identified in space or time.[5] Secondly, it must also be assignable to something “catastrophic or extraordinary.”[6]

§1.02 The Standard of Proof for Permanent Disability Benefits in an Accidental Traumatic Claim

This is the prime legal/factual issue to be established, negotiated, challenged, and litigated in a workers’ compensation case. In traumatic injuries, where the petitioner alleges permanent disability resulting from a specific accident, often the only avenue of defense is to challenge the “nature and extent” of permanent disability. The Board publishes “Disability Duration Guidelines” which set forth the medical impairment and vocational thresholds for entitlement to an award.

§1.03 Benefits and Treatment in an Accidental Traumatic Claim.

Under the New York Workers’ Compensation Law, four (4) types of benefits are available to injured workers:

  1. Medical treatment – emergency and follow-up treatment for injuries.
  2. Wage compensation for earnings – lost time while they recover from the immediate effects of their injury.
    1. When the claimant is 100% totally temporarily disabled (cannot work at all) this wage compensation is called “temporary total” and compensates the claimant for two-thirds of her pre-injury earnings (tax free) OR
    1. “Partial temporary,” when the claimant can do some work but is not earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as two-thirds of the difference between the old wages and post-accident wages.
  3. Death benefits – payable to the dependents of a worker killed during the course of employment. This is two-thirds of their average weekly wage at the time of injury, subject to maximums and minimums, paid to the survivor for life.
  4. “Permanency” benefits – payments of money to injured workers to compensate them for the “permanent effects” of an accident.

§1.04 Medical Benefits in Regard to Infectious Diseases.

Where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier.[7] Medical benefits must be provided from the date of the loss – there is no waiting period for medical benefits.[8] On December 1, 2010, the Medical Treatment Guidelines became the mandatory standard of care for injured workers, regardless of the date of injury or accident.[9] These Guidelines have been supplemented and amended, effective September 15, 2014, and now include treatment pathways for carpal tunnel syndrome and non-acute pain. Medical care providers are required to treat all existing and new workers’ compensation injuries in accordance with the Medical Treatment Guidelines (MTG) which are incorporated by reference into the regulations. There are no Guideline references for infectious disease. Therefore any and all non-emergent treatment where the cost of care will exceed $1,000 must be specifically authorized by the carrier.

The claimant must be provided care “as long as the nature of the injury or the process of treatment may require.” This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that “arise out of and in the course of employment,” and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.[10]

Negative test results and “screening” or preventative testing is not covered by the Act. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

Part II. How Occupational Exposure Claims Will be Handled: Deny Them!

§2.01 Defining Occupational Disease

A disease is considered to be compensable if it “is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by a peculiar place in which particular claimant happens to work . . . or caused by ordinary contact with a fellow employee.”[11] In general, ailments contracted from common exposure not specific to the workplace should not be found compensable.[12] Because the risk of coronavirus exposure or infection is not peculiar to any one workplace, with the exception of perhaps some medical or emergency response employments, a theory of general workplace exposure is unlikely to succeed for claimants alleging they contracted the disease due to exposure to co-employees or the general public in their workplace.

§2.02 Liable Carrier or Employer

In occupational exposure claims, the employer where the claimant was last injuriously exposed is liable.[13] The liable carrier or employer may then seek reimbursement for apportioned prior exposures contributing to the overall condition.

§2.03 Types of Occupational Claims Found Compensable

Where the employee can show that the nature of the employment brought with it exposures to specific causes of disease or infection, then the resulting condition can be compensable. Examples of diseases that have met this standard includes pulmonary diseases such as bronchitis,[14] infectious hepatitis,[15] and staph infections.[16] In those cases, the employee was able to demonstrate or allege a very specific exposure that was unique or peculiar to the employment.

§2.04 Benefits and Treatment in an Occupational Exposure Claim.

Benefits payable for occupational disease are the same as those payable for specific traumatic injury claims.[17]

Under the New York Workers’ Compensation Law, four (4) types of benefits are available to injured workers:

  1. Medical treatment – emergency and follow-up treatment for injuries.
  2. Wage compensation for lost earnings – lost time while they recover from the immediate effects of their injury. When the claimant is 100% totally temporarily disabled (cannot work at all) this wage compensation is called “temporary total” and compensates the claimant for two-thirds of her pre-injury earnings (tax free) OR “Partial temporary,” when the claimant can do some work but is not earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as two-thirds of the difference between the old wages and post-accident wages.
  3. Death benefits – payable to the dependents of a worker killed during the course of employment. This is two-thirds of their average weekly wage at the time of injury, subject to maximums and minimums, paid to the survivor for life.
  4. “Permanency” benefits – payments of money to injured workers to compensate them for the “permanent effects” of an accident.

Medical treatment will include testing for claims where the illness is found to be compensable. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

§ 2.05 Medical Testing Exception Applying to “First Responders”

Pursuant to WCL 10(3)(a), testing and diagnosis for first responders is covered when “in the course of performing his or her duties, [the first responder] exposed to the blood or other bodily fluids of another individual or individuals.” This is an exception to the general rule that “testing” is not covered until/unless the underlying medical condition is compensable.

Part III: New York’s Other Benefits for Quarantined Workers

§ 3.01 What Other Benefits Are Available to New York’s Sick or Infected Workers?

A newly-passed (March 17, 2020) New York law will trigger Family Leave Insurance benefits to claimant who (a) have not fallen ill, and (b) whose work was closed due to government-ordered work closure related to COVID-19. The short answer is that if the employee is unable to work as a result of a government-imposed quarantine due to COVID-19, even if they are asymptomatic, they are eligible for family leave and short-term disability.

In terms of family leave and disability, the bill makes a number of notable changes. First, it is important to note that for any of the changes to take effect, there must be a government-ordered mandatory or precautionary quarantine/isolation for COVID-19. Voluntary isolation does not trigger the new benefits under the bill. Second, the imposition of a government-ordered quarantine is sufficient proof of entitlement to disability or family leave benefits under the bill. Third, being subject to a quarantine order makes an employee eligible to use their paid family leave and short-term disability benefits. Fourth, in all cases the imposition of a quarantine entitles the employee to unpaid sick leave for the duration of the act, however whether the employee is entitled to paid sick leave (and how many days) depends on the employer’s size and income (see below). If the employer provides paid sick leave, the employee is entitled to family leave and/or short-term disability after the days of paid sick leave. Using sick leave under the bill does not affect the employee’s accrued sick leave. Each employee is entitled to job protection under the bill: the employee must be restored to their former position when they return from such leave and there can be no retaliation or discrimination. It is also important to note that the provisions of the bill do not apply when an employee is asymptomatic or has not been diagnosed with any medical condition and they are physically able to work while under quarantine, whether remote or otherwise. In other words, employees that continue to work or are working remotely during a quarantine are not entitled to benefits under the bill.

With regard to family leave, the bill provides for family leave when an employee is subject to the quarantine or is providing care for a minor dependent child who is subject to the quarantine. The family leave is up to $840.70 per week. The bill also provides for disability benefits during the duration of the quarantine. The employee is only entitled to disability benefits after they have exhausted all paid sick leave under the bill. The maximum weekly disability rate under the bill is $2,043.92. Family leave and short-term disability can be paid concurrently, however this means the maximum weekly rate for such concurrent benefits is $2,884.62.

Based on the foregoing, if the employee is unable to work as a result of a government-imposed quarantine due to COVID-19, even if they are asymptomatic, they are eligible for family leave and short-term disability.

§ 3.02 Summary of the Bill

We hope the below makes the information in the bill more easily digestible:

  • The bill creates specific definitions for “family leave” and “disability”:
  • Disability – any inability of an employee to perform their regular work duties or other employment offered by their employer as a result of the COVID-19 quarantine after the employee has exhausted all paid sick leave under the bill. The disability benefits are payable on the first day of disability despite Section 204(1) of the Workers’ Compensation Law.
  • Family Leave – any leave taken by an employee either when the employee is subject to the COVID-19 quarantine or to provide care for a minor dependent child of the employee who is subject to the COVID-19 quarantine.
  • The effect on the employer depends on the number of employees and the employer’s annual income:
  • 10 or fewer employees:
  • Employees are entitled to unpaid sick leave for the duration of the quarantine.
  • Employees are eligible for paid family leave benefits and disability benefits under the bill during the quarantine.
  • If the employer’s net income was greater than $1,000,000 in the previous year, they must provide each employee subject to the COVID-19 quarantine with at least five days of paid sick leave and unpaid sick leave for the duration of the quarantine. After the five days of paid sick leave, the employee becomes eligible for paid family leave and disability benefits under the bill.
  • Between 11-99 employees: during the quarantine the employer must provide at least five days of paid sick leave, after which the employee becomes eligible for family leave and disability benefits under the bill.
  • 100 or more employees: each employee is entitled to at least fourteen days of paid sick leave during the quarantine.
  • Public employers: each employee is entitled to at least fourteen days of paid sick leave during the quarantine.
  • General rules:
  • NO discrimination based on leave for COVID-19; the employee is entitled to the position they held prior to the leave when they return.
  • Employees are to be compensated at their regular rate of pay for those regular work hours during which the employee is absent from work due to the quarantine.
  • Using sick leave due to a COVID-19 quarantine does not affect the employee’s accrued sick leave.
  • The coverage under the bill does not apply to quarantines imposed on the employee as a result of the employee traveling to a country where the CDC has issued a Level 2 or 3 travel health notice, the travel was not for employment, and the employee had notice of the CDC travel health notice and the limitations under the bill prior to such travel (essentially, an “assumption of risk” exception). These employees will be eligible to use accrued sick leave, or if they do not have accrued sick leave, unpaid sick leave must still be provided for the duration of the quarantine.
  • How benefits are payable:
  • Both disability and family leave under the Act may be payable concurrently to the employee upon the first day of an unpaid period due to a COVID-19 quarantine, however there is a weekly maximum benefit rate of $840.70 for paid family leave and a weekly maximum benefit rate of $2,043.92 for disability (maximum combined total of $2,884.62).
  • The maximum weekly disability rate is the difference between the maximum weekly family leave benefit and the employee’s total average weekly wage from each covered employer up to a maximum of $2,043.92 per week.
  • The issuance of a quarantine order is sufficient proof of a disability or the need for family leave.
  • If the federal government introduces paid sick leave, family leave or disability benefits during the coverage afforded under the bill, the employee is entitled only to the difference between what the federal government provides and what they would have received under the bill.
  • There is also an amendment to the Labor Law. Specifically, the bill introduces the addition of § 196-b, which changed the minimum sick leave requirements.

Have a question about a coronavirus claim in New York?

Contact Greg Lois, Managing Partner of Lois Law Firm LLC, with any questions.

[1] WCL § 3(2).

[2] McDonough v. Whitney Point Cent. Sch., 15 A.D.2d 191 (3d Dep’t 1961).

[3] See WCL § 10.

[4] See WCL § 21.

[5] Matter of Jeffreyes v. Charles H. Sager Co., 233 N.Y. 535.

[6] Matter of Connelly v. Hunt Furniture Co., 240 N.Y. 83.

[7] WCL § 13.

[8] WCL § 4.13.

[9] 12 NYCRR 324.2.

[10] Id.

[11] Paider v. East Park Movers, 19 N.Y.S.2d 373 (1967).

[12] Matter of Goldberg v. 954 Marcy Corp., 12 N.E.2d 311 (NY 1938).

[13] WCL § 44.

[14] Horne v. Barclay Home Prods., 540 N.Y.S.2d 567 (3d Dep’t 1987).

[15] Esposito v. N.Y.S. Willowbrook State School, 362 N.Y.S.2d 54 (3d Dep’t 1974).

[16] Furchtsam v. Binghamton Gen. Hosp., 263 N.Y.S.2d 746 (3d Dep’t 1965).

[17] WCL § 39.

New York, Workers Compensation

Apply Apportionment to Reduce Exposure in New York

Apportionment is allowed under the Workers’ Compensation Law Section 44 to ensure that compensation is proportionally awarded to the amount of causal contribution made by the employer. This is intended to prevent windfalls to employers and can be applied to both permanent partial disability awards (“PPD”) or loss of use (Scheduled Loss of Use awards). In general, and despite the clear statutory authority, it remains challenging to secure apportionment to non work-related disability except for scheduled loss of use.

For the defense, apportionment should be considered where it can result in a lower wage (and lower benefit rate), where a statute of limitation defense becomes available, and where this is sucessive or prior coverage to which liability can be ascribed.

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