IN RE: the Claim of STACEY WYNN (2026)

MEMORANDUM AND ORDER

 (And Another Related Claim.)

Calendar Date:  January 7, 2026

Appeal from a decision of the Workers' Compensation Board, filed May 6, 2025, which, among other things, ruled that decedent's death was causally-related to his employment and granted claimant's claim for workers' compensation death benefits.

Claimant's spouse (hereinafter decedent) was an attendance teacher/truant officer for the employer.  On March 16, 2020, the employer shut down its schools and administrative offices due to the COVID–19 pandemic.  Decedent tested positive for COVID–19 on April 6, 2020 and was hospitalized that day.  In July 2020, he applied for workers' compensation benefits alleging that he was exposed to the coronavirus at work.  Decedent remained hospitalized until his death in January 2021.  Claimant thereafter applied for workers' compensation death benefits and the employer and its third-party administrator (hereinafter collectively referred to as the employer) controverted both claims contending, among other things, that the contraction of COVID–19 was not causally-related to decedent's employment.  Following hearings and the deposition of the employer's medical expert, a Workers' Compensation Law Judge concluded, among other things, that decedent's contraction of COVID–19 was work-related and established both decedent's lifetime claim and claimant's claim for death benefits.  The Workers' Compensation Board, among other things, affirmed the establishment of the claims, prompting this appeal.

We affirm.  Initially, inasmuch as the employer failed to properly serve decedent's physician with subpoenas for her to appear for a deposition (see CPLR 308;  Workers' Compensation Law § 119), we reject its contention that the physician's medical report should have been stricken from the record for failing to testify (compare Matter of McIver v. Mobil Oil Corp., 115 A.D.2d 879, 880 [3d Dept 1985] ).

As to the establishment of the claims, “[w]hether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence” (Matter of Stabile v Catholic Health Sys. of Long Is., Inc., 238 AD3d 1235, 1236 [3d Dept 2025] [internal quotation marks and citations omitted], lv denied 44 NY3d 906 [2025];  see Matter of Holder v Office for People with Dev. Disabilities, 215 AD3d 1201, 1201 [3d Dept 2023] ).  “In this regard, the claimant bears the burden of establishing that the subject [accidental] injury arose out of and in the course of his or her employment and, further, must demonstrate, by competent medical evidence, the existence of a causal connection between his or her injury and his or her employment” (Matter of Pierre v. ABF Frgt., 211 AD3d 1284, 1285 [3d Dept 2022] [internal quotation marks and citations omitted];  see Workers' Compensation Law §§ 2[7];  10[1];  Matter of Aungst v. Family Dollar, 221 AD3d 1222, 1223–1224 [3d Dept 2023], affd _ NY3d _ [Nov. 24, 2025] ).

“[T]he contraction of COVID–19 in the workplace reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers' Compensation Law” (Matter of Pierre v. ABF Frgt., 211 AD3d at 1285 [internal quotation marks, brackets and citations omitted];  see Matter of Aungst v. Family Dollar, _ NY3d _, _, 2025 N.Y. Slip Op 06530, *3–*5 [2025];  Matter of Fernandez v. New York City Tr. Auth., 224 AD3d 1066, 1067 [3d Dept 2024] ).  Entitlement to compensation in that scenario requires a claimant to establish a causal link between his or her injury and either a “specific exposure” to COVID–19 in the workplace (Matter of Holder v Office for People with Dev. Disabilities, 215 AD3d at 1202) or the “prevalence” of “an extraordinary level of exposure” to COVID–19 in the workplace “through evidence of frequent contact with the public or co-workers in an area where COVID–19 is prevalent” (Matter of Aungst v. Family Dollar, _ NY3d at _, 2025 N.Y. Slip Op 06530, *3 [internal quotation marks and citations omitted];  see Matter of Fernandez v. New York City Tr. Auth., 224 AD3d at 1067–1068;  Matter of Holder v Office for People with Dev. Disabilities, 215 AD3d at 1201).  Competent medical evidence is required to demonstrate “the existence of a causal connection between [a claimant's] injury and his or her employment” (Matter of Pierre v. ABF Frgt., 211 AD3d at 1285 [internal quotation marks and citations omitted] ).  As the sole arbiter of witness credibility, “the Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record” (Matter of Lebeau v. Meet Caregivers Inc., 231 AD3d 1262, 1263 [3d Dept 2024] [internal quotation marks and citations omitted];  see Matter of Leon v. Structure Tech N.Y., Inc., 225 AD3d 1071, 1074 [3d Dept 2024] ).

Claimant testified that, once the schools closed due to the pandemic, decedent was assigned to travel to students' homes to make sure they had the proper electronic devices in order to attend school remotely.  According to claimant, during the time between the March 16, 2020 shutdown and his positive diagnosis on April 6, 2020, decedent was visiting approximately 8–10 student homes a day.  Claimant further testified that decedent lived with her and their two children, and that no one else in the home tested positive for COVID–19.  Decedent also used his own car to travel to the students' homes and he did not attend large gatherings or religious services or go on any trips during the period in question, although claimant testified that decedent did go to the grocery store once or twice during the relevant time frame, while wearing a protective mask, and did use a public elevator in their apartment building.  The employer's medical expert confirmed that decedent tested positive for COVID–19 on April 6, 2020 and that he died as a result of exposure to the coronavirus and related pneumonia, but he testified that he was unable to pinpoint how or where decedent contracted the virus and, therefore, he could not determine whether the contraction was causally-related to his work.  When advised at the hearing of decedent's job duties during the time in question, the expert conceded that it was possible that he could have contracted the virus while visiting the students' homes, and testified that COVID–19 was “rampant” at that time.  Although the employer's human resource representative testified that it was her understanding that decedent was contacting the students by telephone or email after the schools shut down and not in person, she stated that she based her understanding that decedent was not doing in-person visits on the employer's general policy of remote work following the shut down, and did not testify to any personal knowledge of decedent's activities during that time.

Given the foregoing, the Board, which credited claimant's testimony as to decedent's work activities following the shutdown, found that, although there was a lack of proof as to a specific exposure to COVID–19 at work, at the time decedent contracted COVID–19 the coronavirus “was prevalent in the decedent's work environment, namely as a public-facing worker where his work included contact with the public via the nature of his job duties during the pandemic, which constituted an elevated hazard of environmental exposure.”  Under these circumstances, substantial evidence supports the Board's finding that decedent sustained a work-related injury by contracting COVID–19 out of and in the course of his employment (see Matter of Aungst v. Family Dollar, _ NY3d at _, 2025 N.Y. Slip Op 06530, *5–*6;  Matter of Pierre v. ABF Frgt., 211 AD3d at 1286).  As to the granting of death benefits, the employer does not contest that COVID–19 was a contributing factor in decedent's death (see Matter of Polonski v. Town of Islip, 220 AD3d 1031, 1032 [3d Dept 2023], lv denied 41 NY3d 905 [2024] ), arguing only that the Board erred in finding that decedent's contraction of COVID–19 was causally-related to his employment.  Given our decision as to this issue, the Board's finding of a causally-related death will not be disturbed (see Matter of Miller v. Transdev Bus on Demand LLC, 231 AD3d 1257, 1260 [3d Dept 2024] ).

Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Clark, J.P.