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WINNING RESULTS: LOIS Attorney Secures Disallowance of Alleged Workplace Exposure to COVID-19

Lois Law Firm was able to procure a disallowance of an alleged COVID-19 workplace exposure claim at the Board Panel level after the claim was established by the Law Judge at the trial level. Lois attorney, Connor Wetherington, achieved this result through effective cross-examination of the claimant and presentation of evidence to refute and discredit the purported timeline of contracture.

The claimant alleged that he was exposure to the corona virus on November 30, 2020 while assisting a customer in the jewelry department who he claimed to have tested positive for COVID-19 following their interaction. The claimant subsequently produced a PCR test result, which was positive for COVID-19. In light of the positive test result, the claim proceeded to trial.

While preparing for trial, attorney Wetherington discovered that the claimant alleged the same method exposure several weeks prior to pursuing the workers’ compensation claim. According to Employer’s internal HR documents, the claimant made an internal allegation of potential exposure after interacting with a customer on November 3, 2020. The claimant was tested for COVID-19 on November 16, 2020 and the test result came back negative on November 18, 2020.

At the July 19, 2021 trial, the record was developed through the testimony of the claimant and an employer witness. When confronted with the timeline of the reported exposure and the chronology detailed above, the claimant conceded that he had no idea when he contracted COVID-19 and just “assumed” he got it from the specific customer. The claimant went so far as to say the claimant was one of his “regulars”, but never provided the customer’s name. The employer witness credibly authenticated the timeline of events. Upon completion of testimony and the parties stating their positions, the Law Judge established the claim for COVID-19 as he determined prevalence was proven and that the inconsistency of the reporting dates were “insignificant.”

Nearly one-year after attorney Wetherington filed the appeal, the Board Panel filed its Memorandum of Board Panel Decision on August 5, 2022. In the decision, the Board Panel found that the claimant’s testimony as to his condition exposure was exaggerated and not credible. Based on the CDC’s standard of a 2-to-14-day incubation period for the virus, the Board Panel found the claimant’s interaction with the customer did not result in a work-related contracture of COVID-19 given the safety protocols in place (e.g., masks, sanitizing the jewelry, shield/divider between claimant and customer). The Board Panel found that the claimant’s method of specific exposure did not support a finding of prevalence, which was the new standard created by the Board Panel during the pandemic, as there was no indication of an increase in customer traffic within the store. It was also determined that the claimant did not experience such a level of elevated risk to constitute an extraordinary event and failed to demonstrate prevalence through sufficient evidence.

Therefore, the Board Panel found that the claimant did not sustain a specific work-related exposure to COIVD-19 or established prevalence. Accordingly, the decision filed on July 27, 2022 was reversed and the claim was disallowed in its entirety.

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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