Since Governor Murphy signed Covid legislation several years ago, there has been debate about the legal significance of having a Covid presumption. Some practitioners thought that if the Judge of Compensation should find before trial that the claimant is an essential employee, that means the employee has won the case and then moves on to the issue of permanency. That is incorrect because the statute clearly provides that the employer has a right to rebut the presumption and prove that the employee was more likely exposed to Covid outside work.
The recent published case of Amato v. Township of Ocean School District, No. A-2542-23 (App. Div. November 25, 2024) has now provided clarity. First, the Court found that the Judge of Compensation can decide as a matter of law before trial starts whether the claimant is an essential employee and is therefore subject to the statutory presumption of compensability. In the Amato case the Judge of Compensation ruled that the decedent, a teacher, was an essential employee before trial testimony commenced. Next, the Appellate Division decided that the finding of the Judge of Compensation that the claimant is an essential employee does not prevent the employer from offering evidence that would rebut the presumption.
Before explaining the facts in this case, it helps to understand how the New Jersey Covid presumption law works. Think of a football field. In a normal workers’ compensation case, the burden is on the employee to move the ball past the 50 yard line. Why only the 50 yard line? Because the standard in workers’ compensation cases is “more likely than not.” That means more than 50%. But in a Covid presumption case, the employer must move the ball past the 50 yard line. If the ball has not crossed the 50 yard line at the end, respondent loses in a Covid presumption case.
One question that is often asked is whether the New Jersey Covid presumption language has any practical impact. In most cases the answer is no, but there is an exception discussed below. The presumption certainly does not change the trial at all. Petitioner testifies, lay witnesses may testify, followed by medical experts. A “more likely than not presumption” is the same standard in every workers’ compensation case. In a typical non-presumption case, petitioner loses in a tie; but in a Covid case with an essential employee, respondent loses in a tie. Ties almost never happen because the evidence usually tilts in favor of one side or the other.
The best advice for practitioners, adjusters and employers is to weigh the strength of the evidence on work exposure or non-work exposure. If the evidence is strong that the petitioner was exposed to Covid at work, it does not really matter whether there is a presumption or not. The petitioner is likely to prevail. The same is true when the respondent has strong evidence that the petitioner has been exposed to Covid outside work.
It helps to consider examples of what might constitute strong or weak evidence. Scenario one: the petitioner, a nurse, during the Covid emergency was in Florida for two weeks with her family before she tested positive for Covid. Scenario two: the petitioner’s entire family living in the same house during the Covid emergency got Covid well before the petitioner, a deli cashier, tested positive. These are strong facts for respondent to rebut the presumption. Next, let’s consider strong facts for petitioner. Petitioner, a nurse who lives alone, never left the house during the Covid emergency before he got Covid — except to work in the hospital. Petitioner, a police officer, stopped motorists all day long during the Covid emergency and contracted Covid. No one in the officer’s family had contracted Covid. In these latter two scenarios, the facts are problematic for respondent and very helpful for petitioner. It should be noted that most of the existing Covid claim petitions in New Jersey were filed from 2020 to 2022. Very few Covid claim petitions have been filed in the past year or so because Covid, like the flu, has become so prevalent in society. The presumption ended when the Governor declared the end of the public health emergency in July 2021. The public health emergency was later reinstated from January 11, 2022 to March 7, 2022.
There is one category of cases where the Covid presumption is extremely significant, and that is dependency cases. These are generally difficult for the employer to prevail on for one simple reason – there is no opportunity to cross examine the decedent. Cross examination allows the employer to find out about non-work activities, other potential exposures, second jobs, exposure in public settings, first date of diagnosis, commencement of symptoms, etc. The inability of the respondent to cross examine the decedent makes the Covid presumption very powerful for petitioner in a dependency case.
Getting back to the specific facts in the Amato case, the opinion does not say much. All we know from the recent Appellate Division opinion is that decedent was a full-time teacher in an intermediate school. The school reopened on February 8, 2021, and decedent returned to work. She became ill and died on May 18, 2021, of respiratory failure due to Covid-19. Her husband filed the dependency case. The Appellate Division decision does not address anything about when the decedent tested positive, when the decedent last worked, and whether the decedent traveled anywhere outside New Jersey. That is because the respondent’s appeal focused on legal issues before respondent produced rebuttal witnesses. To this practitioners’ knowledge, no trial testimony has taken place yet in the Amato case.
Here are the two main takeaways in Amato. First, the Judge of Compensation has the right as a matter of law to rule on whether the petitioner/decedent is an essential employee before trial begins. Second, the finding by the Judge of Compensation that the claimant is an essential employee before trial does not prejudice the right of the employer to produce evidence at trial in rebuttal of the presumption. The final paragraph in the Amato opinion is worth reading:
Lastly, we note the presumption under N.J.S.A. 34:15-31.12 that an essential employee’s ‘contraction of the disease [was] work-related and fully compensable’ is rebuttable. Thus, notwithstanding the judge’s declaratory finding that the decedent was an essential employee, respondent may introduce evidence to rebut the presumption that decedent’s contraction of COVID-19 was work related.
There are two other interesting aspects of the Amato case. Respondent argued that a teacher is not an essential employee because there is no mention in the law specifically about teachers. The Court affirmed the decision of the Judge of Compensation that teachers fall within the language of paragraph four in the Covid law: “(4) … any other employee deemed an essential employee by the public authority declaring the state of emergency.” The Court observed that the Department of Homeland Security issued guidance that kindergarten through twelfth grade teachers were included as essential employees. The New Jersey Department of Health also issued similar guidance regarding teachers as essential employees.
Finally, the Amato opinion focused the majority of its analysis on an issue we seldom see in workers’ compensation court. The issue was raised by respondent’s motion for the trial judge to recuse herself. Respondent argued that the Judge of Compensation should have recused herself in this case since she was a sponsor of the Covid-19 presumption law in her prior capacity as a member the New Jersey State Legislature. The Court said, “A compensation judge who formerly sponsored a bill enacted into law is not per se disqualified from presiding over cases implicating or interpreting that law.” The Court suggested that the standard to be used in such situations is whether a reasonable person would doubt the judge’s impartiality. The Court supported the right of the Judge of Compensation not to recuse herself in this case. “We are satisfied that Judge Downey did not abuse her discretion in deciding a recusal was unwarranted in this case. Her knowledge of the law and lawmaking was not extrajudicial knowledge but rather judicial knowledge that many judges take with them to the bench.”
This the first published workers’ compensation opinion dealing with the New Jersey Covid presumption law. It is also the only published recusal case in the Division of Workers’ Compensation in many decades. For these reasons, the Amato decision is important for practitioners, adjusters and employers to know. Those readers who would like a copy of the decision can contact the undersigned.
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