State News : New Jersey

The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services.  The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3.  That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”

On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.

As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case.  The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail.  The overhaul law which was passed last week changed the presumption to a much higher legal standard.  Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work.  This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation. 

What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard.  The defense must demonstrate a high probability that its position is accurate.

The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics.   Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption?  Unfortunately, this new law does not provide any commentary.  Here is what it says:

Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.”  Some have asked what the word “counterpart” means.  This is not a legal term, so one can study a dictionary definition.  The word “counterpart” is defined as someone who performs a function that corresponds to that of another person.  Example, the Manager of a baseball team is the counterpart to the Coach of a football team.  They perform similar services for their respective teams.  Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT? 

Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill.  There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs.   It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement.  Example:  a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services.  Does that make the private sector EMT a “counterpart” under the above definition?  Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home?  No one knows the answer, but we do know this:  arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes.  Those cases will be tried in the courts, which will eventually provide us with an answer.

It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted.   The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.

The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.”  This language is also new.   The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’”  In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply.   Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.

-------------------------------

John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.