Obstacles to Qualifying for Workers’ Compensation for COVID-19 in New York

New York City | Queens | Brooklyn | Bronx Workers’ Compensation Lawyers

Under New York’s workers’ compensation laws, workers may qualify for benefits for their illness or disease, provided it was contracted on the job. Though the New York Workers’ Compensation Board (WCB) has not excluded COVID-19 as a compensable injury, there are some factors that can make successfully filing a Coronavirus-related work comp claim more difficult.

Proving that COVID-19 Is an “Occupational Illness”

In the New York workers’ compensation system, anyone seeking benefits has the burden of proof to show two things: that he or she was injured or became ill, AND that the injury/illness was work-related. With an occupational disease or illness, however, there are certain conditions that are common to certain types of jobs. For example, individuals who work in occupations where they are constantly exposed to dust or other small particles may be at higher risk of silicosis or mesothelioma.

The WCB maintains a list of those types of illness or disease that are common to an industry. If a worker then seeks workers’ compensation benefits for one of those listed conditions, there is a presumption that the condition was work-related. This presumption then shifts the burden of proof to the employer to prove that the exposure that led to the illness is not work related.

At this point, unfortunately, the WCB has not placed COVID-19 on the list of illnesses associated with certain occupations, thereby requiring that a person seeking work comp benefits because of the Coronavirus prove that he or she contracted the virus on the job. There are, however, two proposed bills in the New York legislature that would officially designate COVID-19 as an occupational disease.

Proving that Exposure to COVID-19 Resulted in Lost Time on the Job

Even if the legislature makes the coronavirus an occupational disease, potential claimants still face challenges demonstrating their inability to work. A completed claim application requires a medical report from an authorized provider, as well as a report of injury from the employer or the employee. To qualify for benefits for COVID-19, a claimant must first show either a definitive diagnosis by a physician or a positive test for COVID.  For individuals who were exposed early in the pandemic, when testing was limited, the only option may be a medical diagnosis. Furthermore, medical professionals are often reluctant to complete the necessary report, both because of the length of time it will take and the minimal compensation/reimbursement involved.

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