Be proactive, have a medical report: Critical advice for Worker’s Comp COVID cases
By KATE MOSTACCIO
PEF delegates and leaders heard vital information on how to increase the odds of a favorable Worker’s Compensation case for COVID-19 during a Zoom workshop at the 42nd Annual Convention, with the most emphasis put on being vigilant and proactive about where your case is and if the documentation is complete.
“It’s crystal clear at this point, if you file and there is no medical report, nothing good is going to happen,” said Attorney Robert Grey of Grey & Grey, LLP. “The case is likely to be put on an administrative shelf, with no notice to you, and leaving you with no protection.”
Grey provided information on the basics of a Worker’s Comp case, including why you should file, how to file, time limitations, and what to do after filing a claim.
When asked why someone should file a claim, Grey said: “Because you got hurt or you got sick at work and the Worker’s Compensation system is the vehicle and the law to help you.”
The Worker’s Compensation Law provides for wage replacement, health benefits and lasting protections should your condition worsen. Additionally, established claims can be reopened for money benefits for 18 years from the date of the accident. There is no time limit at all to reopen an established claim for medical treatment. The key word is “established.”
Unfortunately, it appears cases are frequently closed by the Worker’s Compensation Board (WCB) without a claimant being aware anything was wrong or missing.
“You have to be aware of what stage your case is in and you have to be proactive to move it forward,” Grey said. “If the board assembles the case because you filed a claim, but doesn’t get a medical report, they are going to administratively close the case without any notice to you.”
Steps to take
The first step is to give notice to your employer that you’ve been injured on the job or became ill due to an exposure on the job. The legal timeframe for notice is 30 days from the date of an accident or a death. Notice can be given by verbal statement or email to your supervisor, filing an incident report, or calling the report into the Accident Reporting System (ARS) used by state employees.
For occupational disease claims, the notice period is two years from the “date of disablement,” which may be the date of first medical treatment, the date of first lost time from work, or the date the worker knew the illness was work-related.
The second step is to file a claim.
“It is important to make the claim right away,” Grey said. “After you give notice, you must also file a claim with the New York State Worker’s Compensation Board. That is a different and an additional step to giving notice to an employer. Particularly with large employers, like the state of New York, people sometimes fall under the misimpression all they have to do is report to the employer and after that, the employer is responsible. That is not the case with Worker’s Compensation.”
Grey said claims are submitted via Form C-3, available online. If it is a death claim, file Form C-62.
“In both cases [accident or occupational disease], the sooner the better,” Grey said. “You don’t want to wait. As soon as you know or believe you have a work-related injury or exposure, you want to notify the employer and file the claim. Early reporting and filing really prevents a lot of grief down the road.”
After giving notice and filing with the WCB, the third step is obtaining a medical report.
“You have to see a doctor who takes compensation and that doctor has to file a report with the WCB,” Grey said. “The doctor is supposed to fill out Form C-4. Without the medical report, nothing good happens. Probably nothing at all will happen.”
Being proactive, vigilant
Once you have filed the claim, the WCB gets to work and assembles the case, issuing a Notice of Case Assembly.
“All that does is give you a case number,” Grey said. “It does not do anything else.”
Currently, it seems like COVID cases are treated differently than run-of-the-mill sprains or broken bones. In the latter cases, the WCB may assemble the case, and the State Insurance Fund may accept the claim establishing the case and beginning the information collection process.
“COVID claims are being processed in a less worker-protected way than your usual claim,” Grey said. “If you have a Worker’s Compensation case for COVID you have to understand it is not being treated the same and you need to be more aggressive.”
Sometimes a case is “indexed,” which means you filed a claim, a medical report was also filed and the State Insurance Fund has not responded. When that happens, the WCB issues a Notice of Indexing that requires the State Insurance Fund to respond. There is no such requirement for Notice of Assembly, which the State Insurance Fund is free to disregard.
By contrast, if a case is indexed, they have 25 days to accept or contest.
“If they don’t file anything, which we see with high degree in COVID cases, then they waive a number of defenses and that’s good for you. Unfortunately, when the board indexes a COVID case and the State Insurance Fund doesn’t respond, the board is closing these cases and is not taking forward action.
“This is all a huge problem,” Grey said. “If your case gets administratively closed without being established you do not have any protection, no compensation for medical bills or wage replacement. If it isn’t reopened and prosecuted within seven years, you’re permanently precluded from pursuing it.”
Claimants can and should monitor their case via ECASE. All you need is your Notice of Case Assembly and your WCB number. You can register online.
“You have to pursue your claim,” Grey said. “This is how you do it.”
If you notice the board administratively closed your case or marked it for no further action, you can ask the board to take further action on your case.
“You have to file Form RFA-1W,” Grey said. “Fill it out and file it with the board and tell them you want the case established so you’ll be protected.” So far, this has been largely successful when coupled with medical evidence, Grey said.
Documentation from a physician is critical for COVID Worker’s Compensation cases. A COVID test is considered a medical report and it is best to have a medical report that describes the workplace exposure(s).
The number of cases closed administratively without notice is sobering.
“I’ve been seeing almost from the outset they are making them all administratively closed and no further action,” Grey said, though there are exceptions for cases with medical evidence and contested cases. “It’s very disheartening, frankly.”
COVID-related claims can be successful if they are well prepared.
“We are finding that if a claim is not presented in the proper manner, there is a lack of support from the board,” said Attorney Alex Dell, of the Law Firm of Alex Dell, LLP.
Many workers can’t pinpoint exactly when they were exposed. Was it at work or at the grocery store? Attorneys have focused on the fact you can have an accident that occurs over a reasonably definite time due to unusual or extraordinary environmental considerations.
“We may be able to make a claim it does constitute a compensable accident under the law,” he said. “We look closely at what your job is, what is the nature of the work you do, what are your responsibilities?”
With diligence, both accident and occupational disease COVID claims have been successful to date.
Dell explained two presumptions that exist in current Worker’s Compensation Law. If you have a condition that occurs in the course of your employment, the condition is presumed to have risen out of your employment. The facts contained in medical reports are presumed to be truthful and accurate. The presumptions can be denied if the employer can rebut with substantial evidence to the contrary.
“One of the most important things we keep telling people is that it is important for you to track any potential exposures you’ve had, or exposures you know you’ve had,” said PEF Director of Health and Safety Geraldine Stella. “We have an Exposure Reporting Form on our website. You are going to want to keep track of that information.”
Stella said members who are in and out of facilities every day, working closely with the public, parole officers, and other public-facing and mission-critical workers should fill out the form as completely as possible and note days and times you worked.
“Make sure you keep a log of details if you notice something in particular,” she added. “Especially if you have someone you’ve encountered during the course of your work that has symptoms or you know has COVID.”
Dell said claimants should share the PEF exposure form with their medical provider.
“When asking the provider to make the connection between your illness and your workplace, the more facts you provide, the better,” he said.
The WCB is not looking for 100 percent certainty in medical reports but wording is important.
“’Probably’ and ‘more likely than not,’ that’s generally good enough,” Dell said. “’Possibly’ or ‘maybe’ are not generally going to cut it.” He advises discussing the language with your provider.
Some workers are coming forward with a mental health diagnosis stemming from contracting COVID or fears over contracting COVID in the workplace. You can make a claim for a mental health diagnosis in these cases but, again, how you present the claim can make or break it.
“We’re seeing many of these claims now,” Dell said. “I suspect we’re going to see more of them as time goes on.”
Additionally, an injury can also happen while you’re working from home.
“Be mindful, just because it happens at home doesn’t mean it isn’t going to be compensable,” Dell said.
Dell also said workers should be aware they can collect money from more than one source, such as Social Security Disability in addition to Worker’s Compensation.
“Many people have tunnel vision,” Dell said. “You’re been injured and your world becomes extremely small and you don’t realize there are a number of different benefits and resources available to you. You should look at it with a wide-angle lens.”
One attendee asked how to handle a claim for Worker’s Compensation while also taking advantage of the 14-day leave (with 10 days at full pay) through the state.
“It is not for each time, it is cumulative,” Stella said. “What we recommend is that you wait until that time has been used up to file your Worker’s Compensation claim.”
Another said some members have said they are having issues getting appropriate mandatory alternate duty assignments, sometimes referred to as “light duty” upon return to work. Stella said light duty is available for up to 60 days under the PS&T Contract, Article 13. Anyone having an issue should contact PEF right away.
“If they deny you, there are other benefits that are triggered,” she said.
Also raised was the question: Can we track COVID claims?
Stella said PEF is not notified when a claim is filed or a case established.
“We have been asking for COVID data at labor-management and health and safety meetings,” she said. “If they are not providing it, we will pursue other means to compel them. We encourage you to reach out to us when you find out we have a member filing or who has filed a claim.”
If you think you have a Worker’s Compensation claim, the PEF website has a wealth of information to guide you through the process.
Visit www.pef.org/media-center/covid-19/ and scroll down to the Worker’s Compensation tab.
“If you or any of your members are exposed or have gotten sick, and you believe that it was a workplace exposure, we have a whole packet of information for you that is available,” Stella said.
Members can access information on filing a fatality claim, a link to the Exposure Tracking Form, audio of the two tele-town halls on Worker’s Compensation held in April, information on Article 13 of your contract and much more.
If you still have questions after viewing the website, you can contact Health and Safety at gro.f1614483449ep@yt1614483449efasd1614483449nahtl1614483449aeh1614483449.