The Claimant was a delivery driver that alleges in March 2020, he had panic attacks due to making deliveries in crowded grocery stores at the start of the pandemic. He alleged that as a result of the stress at the time, he was diagnosed with both post-traumatic stress disorder. A few days after the panic attacks, the Claimant went on leave and never returned to work.
During the trial, the Claimant testified that he last worked in March 2020. The Claimant testified made deliveries to stores and that he would be there at the time same time as the public. The Claimant testified in March 2020, he couldn’t breathe, as the stores were chaotic and overwhelmed with people fleeing the pandemic in Manhattan. During cross-examination, the Claimant conceded that he did not actually contract COVID-19 as a result of his employment of being in grocery stores. Of note, the Claimant conceded that other individuals at work had the same concerns and fears about the pandemic as he did.
The Claimant’s direct supervisor testified that he was worried about bringing home to his partner as well and that he did not just hear these concerns from the Claimant; it was everyone. He testified that he told employees to take whatever measures they felt necessary to protect themselves, which included buying PPE, which was not readily available at the time. A different supervisor testified that all of his employees were dealing with the same conditions at the start of the pandemic. He testified that he treated all his employees in the same way. He testified that when the pandemic started in February 2020, there was no government mandate in place regarding PPE. He testified that everyone was allowed to take a leave without penalty, employment was protected, and no one was forced to work.
To have a compensable mental injury caused by work related stress in the workplace the Claimant must prove that the stress that was experienced was greater than that experienced by employees who are similarly situated workers in the normal work environment. This is a question of fact for the Board to resolve under WCL §2(7). The Law Judge found the claim to be compensable, essentially stating that the standard did not apply, and the Claimant’s situation was unique, noting that the area in question in question received an influx of people and as a result it was not a normal work environment. LOIS attorney, Jeremy Janis, filed an appeal.
In the appeal, we argued that the testimony of the Claimant and the employer witnesses about their fear showed that all of the delivery drivers had the same fears and the stress experienced was not greater that a similarly situated worker. Based on the concession of the Claimant and the testimony of the employer witnesses, a disallowance was obtained from the Board Panel. The Board Panel specifically found that all of the drivers experienced the same level of stress at the time, specifically noting the testimony obtained at trial. The standard of WCL 2(7) had not been met. As a result of the disallowance, the Carrier is not responsible for over two years of medical bills. Further, precedent was not set that may have created a slippery slope, as any individual could allege a fear of contracting COVID due to their employment at the start of the pandemic.
