Message from the NYSTPBA Board of Directors, November 25, 2022




Message from the NYSTPBA Board of Directors COVID-Related Workers’ Compensation Claims There have been several questions regarding workers compensation claims and how they relate to the COVID-19 outbreak. PBA-affiliated attorney Alex Dell has provided updated guidelines and clarifications below. Since early 2020, the New York State Workers’ Compensation Board has been very busy processing claims for work-related Coronavirus (COVID-19). If you or someone you know was or is now diagnosed with COVID-19, consider whether to file a claim for New York State Workers’ Compensation benefits. A contagious and uncontrolled disease which arises out of and in the course of one’s employment can constitute a compensable claim under the New York State Workers’ Compensation Law. Even if Division paid wages to you (and did not require you to use your accrued time) while quarantined due to COVID-19, and even if you are no longer having any symptoms related to COVID-19, it is important to file a claim with the New York State Workers’ Compensation Board to ensure that your COVID-19 condition is formally determined to be work-related. This will protect you and your family if you experience a re-lapse or worsening symptoms or new symptoms otherwise called long haul COVID-19 symptoms. You may also be entitled to a tax credit on the tax you paid on the wages you received while out of work due to a work-related COVID-19 condition. WHY SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR COVID-19? A successful Workers’ Compensation claim can provide the affected individual with two (2) big basic benefits – lost wages for temporary and/or permanent disability caused by the virus, and payment for the medical evaluation/treatment of the virus, and reimbursement for associated expenses. You may also be separately entitled to claim a tax credit on the tax you paid on the wages you received while out of work due to COVID-19 if your COVID-19 condition is determined to be work-related. WHEN SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR COVID-19? Questions have been raised whether a claim should be filed when an individual merely suspects they have been exposed to the virus, or whether the claim should be filed once the individual has been diagnosed as having the virus. Exposure to the virus, standing alone, is not sufficient to establish a compensable claim under the Workers’ Compensation Law. In general, a claim should be filed after the exposure has occurred and after the individual has been diagnosed with the virus. Keep in mind that one is not prohibited from filing a claim after they believe they have been exposed to the virus but prior to being diagnosed with the virus. But, the practical reality is that the New York State Workers’ Compensation Board will not establish a compensable claim for COVID-19 without proof that you have been diagnosed as having COVID-19, and that COVID-19 was at least prevalent in your work environment. WHAT DO I NEED TO DO TO PROPERLY FILE A WORKERS’ COMPENSATION CLAIM FOR COVID-19? To pursue a claim, you must: (1) Provide written notice to your employer of the facts and circumstances which lead to the contraction of the virus within thirty (30) days of the date of the exposure, if known, or within thirty (30) days of the diagnosis of the virus; and (2) File a written claim with the New York State Workers’ Compensation Board within two (2) years of the diagnosis of the virus. Written notice to the Workers’ Compensation Board is accomplished by the filing of an Employee’s Claim for Compensation, otherwise known as Workers’ Compensation Board Form C-3.0. This form is available on the New York State Workers’ Compensation Board Website: https://link.edgepilot.com/s/0610bcc6/_s9sqCFswkCdFhdYq0nQMA?u=http://www.wcb.ny.gov/content/main/forms/c3.pdf The Workers’ Compensation Board has not yet required an individual making a claim for work-related COVID-19 to produce a report from a doctor or qualified medical provider that there is a relationship between the contraction of the COVID-19 and your employment activities for the Division. In fact, all that is required is that you can at least demonstrate that COVID-19 was prevalent in your work environment. One is not required to prove that you contracted COVID-19 due to exposure to any particular individual. The vast majority of claims which have been considered by the Workers’ Compensation Board involve claims where the individual cannot pinpoint the exact person whom they contracted COVID-19 from but can otherwise demonstrate that COVID-19 was prevalent in their work environment. If possible, although not required, you can also provide the Workers’ Compensation Board with a report signed by your medical doctor or other qualified medical provider which includes: (1) a summary of the facts and circumstances at work leading to the exposure; (2) your diagnosis (for example, Coronavirus, COVID-19); and (3) a statement that there is a causal connection/relationship between the COVID-19 diagnosis and your work activity at the time of the exposure. Once again, however, the Workers’ Compensation Board has not yet required the production of a medical opinion on causal relationship to make a successful claim for work-related COVID-19. At this time, the Workers’ Compensation Board only requires proof of COVID-19 (e.g., the positive lab test results) and that COVID-19 was prevalent in your work environment. HOW CAN YOU HELP SUPPORT A CONNECTION BETWEEN THE VIRUS AND YOUR EMPLOYMENT? As you can imagine, the worldwide spread of the virus calls into question whether you would have contracted the virus regardless of your employment. To combat this anticipated argument of behalf of the employer and their workers’ compensation insurer/administrator, you should, where possible, record as many details in support of the claimed, work-related exposure(s). What day/date(s) did the exposure occur? What was the approximate time of day/night when the exposure occurred? Where were you located when the exposure occurred? What were you doing at that time? Can you identify the specific individual(s) who had the virus? Or, more likely, were there multiple individuals who you came in contact with that tested positive for COVID-19? Can you estimate the length of the exposure? Were you wearing any type of personal protective equipment such as a mask/respirator, hazmat suit, etc. at the time of the exposure? How close in time after the exposure did you experience any symptoms? Were you working and fully functional without restrictions or limitations prior to the exposure? Did anyone in your family test positive for COVID-19 before and/or after you contracted COVID-19? While it certainly may not be possible to record all of these details, the law does not require you to pinpoint the exact date which the exposure occurred. However, the more detail you can provide the better as it may help the Workers’ Compensation Law Judge establish that your COVID-19 is work-related. Such detail(s) may also enhance the credibility of the medical provider’s opinion on causation. If you have not done so already, consider keeping a written log or diary of the individual(s) and group(s) you come in contact with at work on a daily basis. Recording details of who and when you came in close contact/proximity of any individual(s) who appeared visibly sick: male/female, approximate age, race, nature and length of any exposure, and any unique identifying observations about the person such as whether they were coughing, sneezing, shivering, shaking, excessively sweating, had flushed or hot skin, a runny nose, red eyes, raspy voice, etc. may help make the connection between the exposure to the virus and your employment. This can be especially helpful if you cannot determine exactly when and where the exposure occurred. CAN I PURSUE A TAX CREDIT ON THE TAX I PAID ON THE WAGES I RECEIVED WHILE OUT OF WORK DUE TO MY WORK-RELATED COVID-19? Yes. If your lost time from work was due to a work-related COVID-19 condition (or other work-related injury/illness) you are not required to pay tax on the wages which you received while you were out of work. It is common for an employer to refund the tax money to you for the tax(es) previously deducted from the wages you received while out of work due to a work related injury/illness. If you had a prior work-related accident or developed an occupational disease and paid tax(es) on the wages you received while out of work due to the work-related injury/illness, and did not receive a tax refund from your employer, you can generally file an amended tax return for up to three (3) years from the original filing to attempt to obtain the proper tax credit(s) on the tax which you paid on the wages you received while out of work due to your occupational exposure or trauma. QUESTIONS/CONCERNS? For over 25 years, the Law Firm of Alex Dell, PLLC has represented injured and disabled individuals throughout New York State with their New York State Workers’ Compensation, New York State Disability Retirement, Social Security Disability and Veterans Administration claims. Should you have any questions or concerns on how best to pursue a Workers’ Compensation claim for the COVID-19 or any other claim(s), call (518.862.5555) or email us (adell@alexdell.com) for a free consultation. We are here to help you. NYSTPBA Store If you’re starting your holiday shopping, look no further than the NYST Apparel store. Here are just a few items from the NYST Ladies’ Collection - perfect for the woman on the go! The high-rise leggings are moisture wicking and feature an integrated pocket for cell phones, keys or small essentials. The ladies’ crop sweatshirt features a drop shoulder seam, is 100% cotton and features NYST lettering on the left chest. The ladies’ tank features the NYST lettering down the spine. These items can be purchased online or in-person at our store at the PBA’s 120 State Street office in Albany. The store is located on the first floor of the building, next to the legal department. The NYSTPBA store can be contacted by calling 518-462-7448 ext. 113 or by sending an email to nystrooperapparel@nystpba.org. To browse the other items including clothing, accessories and collectibles for purchase on the NYSTPBA online store, visit the website https://nystapparel.com/. This email is an automated notification, which is unable to receive replies. To send a comment to the NYSTPBA, please contact us at nystpba@nystpba.org. The Police Benevolent Association of the New York State Troopers 120 State St. Albany, New York 12207 (518) 462-7448 http://www.nystpba.org

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