Thought Leadership

Ms. Hudson worked as a front-line nurse for the employer on its COVID-19 floor in the Fall of 2020. She contracted COVID at some point in October 2020 and was hospitalized on October 21, 2020. Her sons contracted the virus at the same time. Tragically, one of them died of complications. The claimant alleged that she contracted COVID at work and subsequently infected her sons.

After a hearing, the Industrial Accident Board concluded that the claimant failed to meet her burden to prove COVID-19 was contracted at work and failed to prove that any alleged exposure qualified as an occupational disease for purposes of workers’ compensation under the specific circumstances of her employment. The Board accepted the causation/exposure opinion of the employer’s expert, Dr. Bacon, over the claimant’s expert, Dr. Eliasson, to reach its conclusion.

On appeal, Ms. Hudson argued that the Board applied an incorrect burden of proof, that the decision was not supported by substantial evidence and that the exposure at work did qualify as a compensable occupational disease exposure in accordance with the Workers’ Compensation Act. The court held that the Board applied the correct burden of proof. It rejected Ms. Hudson’s claim that she was required to prove the exact moment when the exposure caused her to become ill. The Board decision and its acceptance of Dr. Bacon’s testimony was supported by substantial evidence, including the claimant’s conscientious use of proper protective equipment (PPE) at the hospital, that Dr. Eliasson was unaware of the claimant’s out-of-work activates, that Dr. Bacon’s testimony was more consistent with the initial treatment records, and that the claimant’s son most likely contracted COVID first due to the presentation of his symptoms prior to Ms. Hudson’s. Because the claimant failed to prove that COVID-19 was contracted at work, the court did not reach the question of whether the exposure under these circumstances qualified as an occupational disease under the Workers’ Compensation Act.
 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 1, January 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}