December 2020 Legal Report


By: Milan Rada, Esq. with John Hewson, Esq.

As 2020 comes to a close, it goes without saying that we have all experienced some degree and level of hardship when it comes to COVID-19.  Unfortunately, some of us have known people or even loved ones that have been terribly sick or even passed away due to the effects of this pandemic.  It has certainly been a trying year.  However, one of the positives that we were able to achieve at the very outset of this pandemic was being granted line of duty status by the Commissioner for any member that contracted COVID-19.  This allowed the members to be covered under GML 207-c for the time they missed from work due to the disease without having to worry about their sick accruals being raided or having to fight with the Department on where the disease was contracted.

However, what we are also seeing with many of the clients that we represent is an entirely different approach being taken in Workers’ Compensation.  As you have seen us discuss in earlier Legal Reports or at meetings, we also advocated for members to file for Workers’ Compensation benefits even though the Department was giving I-numbers for positive COVID-19 diagnoses.  The main reason for this is because although we needed to make sure there was a COVID presumption for the missed time that a member experiences immediately after the positive test, no one really knows what the long term effects of the disease may be or if other symptoms may arise in the future.  Thus, making sure that a member is protected for those future concerns was equally important.

What we are seeing though is that the vast majority of these cases in Workers’ Compensation are being controverted by the County and Triad Group.  Therefore, we are getting plenty of messages from clients stating that they are receiving letters in the mail fighting their cases.  This can be incredibly confusing when a member is being told early that they are covered if they contract COVID.  So what is the difference?  And more importantly, how are we dealing with this?

Truthfully, this was entirely expected by our office as soon as the pandemic hit.  Without a presumption in the Workers’ Compensation system, it was highly unlikely that the employers and insurance companies were going to be very agreeable to covering the medical costs and monetary benefits that might be due to someone who is out of work and sick with the disease.  As they do with most cases, insurance companies will look to exploit any defense to get themselves off the hook for payment.  This is no different even though it is a worldwide pandemic.  And it is not limited to just police departments.  Hospital workers and nursing home workers that we represent are having their cases controverted to the same degree.  The insurance companies representing these employers are arguing that it cannot be certain that these people contracted the disease at work and could have been equally contracted out in the general public, which is not covered under compensation.  They are simply trying to muddy the waters.

This is exactly the situation that we are dealing with on PBA member cases.  The argument being presented is that there is not a specific accident or exposure where the member contracted COVID and a general likelihood that it was contracted at work is not enough.  We obviously disagree.  We think that it is pretty clear that first line workers who are exposed to sick members of the general public is the overwhelming way that members are contracting the disease.  And for that reason, it should be covered under Workers’ Compensation.

Now the counter argument to that is that Workers’ Compensation does not typically cover getting an illness at work because that level of medical certainty that the compensation law requires does not exist.  Getting the flu from a co-worker would not be covered so why should COVID?  We believe that COVID is an entirely different entity altogether and with the wide array of symptoms and bodily systems that can be affected by the disease, this disease is must more akin to hepatitis or HIV which are diseases that are covered under line of duty laws when a member becomes exposed.  This is the fight at our hands.

Further, the avenue to approach right now is to challenge and litigate this position in Workers’ Compensation. Right now we are having a great deal of success with these cases and with the judges on these issues.  While there are some bad decisions that have come down, the vast majority have been favorable to our position including on several death cases that we have handled for the families of people that unfortunately passed away due to the disease.  In addition, we do not foresee any Workers’ Compensation presumption coming down the line due to the massive costs involved, so we need to win these cases on a case by case basis.

If you find yourself in this situation, please keep your PBA leadership and delegates aware.  We can litigate the case in the Workers’ Compensation arena with the goal being to establish the connection between the work related exposure and the diagnosis of COVID.  Having that extra layer of coverage will protect the members if any symptoms that the doctors connect to COVID arise in the future.  We can handle this with simply a positive test to start before setting the case for a trial on the further issues.

After a very trying year, please stay safe during this holiday season.  We wish you and your families only the best holiday season and new year ahead.  If you need us for any questions or issues, do not hesitate to contact us at 516-496-0400 or by e-mail at mrada@fbrlaw.com. We can be reached through our website and through mobile devices at fbrlaw.com as well.  Until 2021, stay safe and be well!