In ChaseSensale’s continuing endeavor to provide the most current information on issues directing impacting law enforcement, and after several independent inquiries, we present the following information regarding the applicability of both the Workers’ Compensation Law (“WCL”) and General Municipal Law (“GML”) §207-c (that section of the law granting line of duty status and benefits afforded thereunder).
If a member of law enforcement contracts COVID-19 while in the line of duty, how will the Workers’ Compensation Board (“WCB”) and each individual municipality respond to said claims? The question is without easy answer but we shall provide the best information currently available. At the outset, be advised, the WCL is far more lenient in determining whether and injury or illness is work-related than GML 207-c; meaning, even if the WCL accepts an injury as work-related, your local municipality may not. For example, if a member of law enforcement falls while entering headquarters, generally speaking, the WCL will consider the injury to be compensable (work-related) whereas the local municipality will generally deny line of duty status pursuant to GML-207-c.
For first responder claimants, such as law enforcement, the best chance for a finding of such claim as compensable must include the following:
(1) a specific incident producing the exposure, with identification of a date/time;
(2) that the claimant’s occupational duties must incite that exposure;
(3) identification of a person or persons that engaged in contact with claimant, who have such infectious disease;
The analysis also reveals that, although the risk of exposure/contracture of COVID-19 may be endemic to the general populace such claims may not necessarily be barred by that shared risk.
Given the current incredibly conservative politically bent of the WCB, acceptance of these claims shall be inordinately strictly construed. Without being able to effectively and credibly prove that a member of law enforcement was not previously exposed to COVID-19 prior to the accident; that the accident in question caused the transmission of COVID-19 to said member of law enforcement; and that the member of law enforcement had no other exposure to COVID-19 prior to their diagnosis, such claims will be summarily denied. Be mindful that the costs associated with accepting these claims as compensable shall put unforeseen financial stress upon workers’ compensation insurance carriers . . . a stress that was most clearly identified in 2008 when the largest insurance workers’ compensation carrier, AIG, was required to undergo a bailout from the federal government and a serious restructuring of the carrier.
Whether a particular municipality will recognize the contracting of COVID-19 is entirely different story. As mentioned previously, inasmuch as the WCL is much more liberally construed than GML §207-c, it is highly doubtful that the municipality with recognize contracting COVID-19 was a line of duty injury, let alone the New York State & Local Retirement System (“NYSLRS”) and the New York City Employees’ Retirement System (“NYCERS”). Each municipality shall enforce their own rules without any standard in place currently. At the very least, the factors enumerated above should be adhered to here, as well. Since there exists no current standard, The Chase Sensale Law Group, L.L.P is contacting the respective Boards of the Nassau Police Conference (“NPC”) and the Police Conference of New York (“PCNY) to solicit their assistance in procuring a bill in New York that provides first responders with the presumption that the contracting of COVID-19 arose out of and was in the course of their employment; i.e., a line of duty injury. There exists precedent for this inasmuch as both NYSLRS and NYCERS recognize the compensability of 09/11/01 related claims where first responders meet other preliminary eligibility requirements.
Please be on the lookout for other such information from , The Chase Sensale Law Group, L.L.P regarding these serious yet developing events and the best way to keep you and your family safe.
The New York State Supreme Court, Appellate Division, Third Department, recently weighed in with respect to two issues with significant impact on securing indemnity benefits pursuant to the New York State Workers’ Compensation Law. In brief, the first issue concerns whether an award of indemnity benefits at the total rate of disability subsequent to a finding of permanent partial disability is supported by a legal basis; the second issue concerns whether a claimant may receive an award pursuant to schedule loss of use while simultaneously found to have a permanent partial disability for which no benefits have been paid. For more information, do not hesitate to contact our office to determine if/how these recent decisions can/will affect your pending claim(s).