Is fear of contracting the COVID-19 virus a compensable mental injury under the Workers’ Compensation statute? On July 20, 2023, The Appellate Division-Third Department in three separate unanimous opinions decided the issue with a resounding “NO”.

Matters of Matthews, Brown, and Djanuzakov* involved claims filed against the New York City Transit Authority and its subsidiary by claimants who had public facing jobs.  The claimants, a train conductor, cleaner and bus driver filed mental stress claims alleging various psychological conditions as a result of being exposed to COVID-19 in the workplace. The claimants never contracted COVID prior to filing the claim however, they claimed exposure to other workers who tested positive and several coworkers and passengers who died of COVID-19 causing claimants to feel unsafe, depressed, and afraid to return to work.  In all three claims, the treating psychologists gave total disability, finding that the psychological symptoms made it impossible for the claimants to return to work. All three claims were disallowed by the Law Judge and the Workers’ Compensation Board.

In Matter of Brown, the claim was disallowed due to insufficient medical evidence to establish a causal nexus between the mental stress and claimant’s job duties. In Matters of Matthews and Djanuzakov, the Board disallowed the claims finding that the stress experienced by the claimant (train conductor and bus driver respectively) was the same as other similarly situated workers during the pandemic. The attorney representing all three claimants appealed to the Third Department.

The Court noted that “it is well settled that a mental injury arising from work-related stress is compensable” and the fact that the condition was pre-existing will not preclude the claim if the claimant’s employment exacerbated the condition as “to cause a disability which did not previously exist.” The claimant, however, must demonstrate that the stress that caused the injury was “greater than that which other similarly situated workers experienced in the normal work environment.” The Workers’ Compensation Board, as the fact finder, determines whether workplace stress is extraordinary based upon the evidence presented to it. In all three claims, the Third Department found that the Board’s reasoning was supported by the case law and affirmed its decisions.      

2017 and 2022 Legislation to Address Mental Stress Injuries

WCL Section 10 recognizes that certain stressful situations at work may trigger disabling mental injuries. In order for a mental injury to be compensable, the stress that caused it must be considered to be greater than the normal stress at work experienced by similarly situated workers. This evidentiary standard sets a high bar. In 2017, the legislature in recognition of the high standard for mental injury claims by police officers, firefighters, and emergency medical technicians created a carve out by removing the restriction that a mental stress claim had to be greater than the stress sustained by similar first responders.

During the 2022 legislative session, the Assembly and Senate passed a bill that would have extended the exception carve out for first responders to the entire labor force (A2020-A/S.6373-B). In addition, the bill if passed, would eliminate the requirement that the stress stemmed from a work emergency. The Governor vetoed the bill, noting the significant cost to the system, this however, did not stop the bill from being reintroduced during the 2023 session. In 2023, A.5745/S.6635 passed the Senate, but failed to pass the Assembly.       

For more information on workers’ compensation contact Lovell at 1-800-5-LOVELL or visit online www. Lovellsafety.com.

*Matter of Sheldon Matthews v. New York City Transit Authority, 218 AD3d 983 (2023)

Matter of Tracey Brown v. New York City Transit Authority, 218 AD3d 967 (2023)

Matter of Djanuzakov v. Manhattan & Bronx Surface Transit Operating Authority, 218 AD3d 980 (2023)