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On December 6, 2024, Governor Hochul signed Senate Bill S6635 into law, which amends §10(3)(b) of the Workers’ Compensation Law. The legislation, effective January 1, 2025, aims to expand coverage for mental stress claims to all workers. The bill’s justification explains that it seeks to ensure that work-related post-traumatic stress disorder (PTSD) is properly identified, treated, and compensated under the workers’ compensation system. Prior to 2017, any claim for work-related stress could be defended on the grounds that the stress experienced by the claimant was not greater than that which usually occurred in the claimant’s normal work environment. That defense was eliminated in 2017 for claimants classified as first responders, such as police officers and firefighters, who were making a claim for stress that occurred during a work-related emergency. In such cases, the first responder claimant only had to show that they experienced extraordinary stress. Nevertheless, certain first responders who claimed stress-related injuries were still denied coverage due to court rulings that deemed their stress as a normal part of their occupation. The amendment to WCL §10(3)(b) eliminates the specific reference to first responders. Instead, it uses the term “worker” to encompass all types of workers. This change eliminates the defense that the stress was not greater than that which normally occurs in the work environment from all classes of claimants. Additionally, it removes the reference to “extraordinary work-related stress incurred “in a work-related emergency” and replaces it with “at work.” This change means that with respect to first responders, the stress claim need not be predicated on a work-related emergency. As of January 1, 2025, all workers in New York making a claim for mental stress need only show that the stress was “extraordinary.” The employer may not defend the claim on the basis that the claimant’s alleged stress was not greater than that which usually occurs in the normal work environment. Following this change in the law, much will depend on the Board’s interpretation of the word “extraordinary,” which is defined as meaning “going beyond what is usual, regular, or customary” or “exceptional to a very marked extent.” (“extraordinary.” Merriam-Webster.com. 2024. https://www.merriam-webster.com/dictionary/extraordinary (26 December 2024)). The use of this word in the statute suggests that run-of-the-mill stressors to which all workers are occasionally subjected are insufficient to support a claim for mental stress. Board Panel decisions following the 2017 amendment to WCL §10(3) which eliminated the “not greater than that which usually occurs in the normal work environment” defense for first responders suggests that the Board will require claimants to demonstrate exposure to extraordinary stress. For example, in Town of New Castle, 2018 WL 6132752 (WCB Case No. G1404105, decided 11/16/18), the claimant made a stress claim based on increased anxiety related to several incidents in which he saw blood at work. The Board found that the claimant’s exposure to blood over the course of his career as a police officer was not “extraordinary” and thus not compensable. The Board cited to an Appellate Division case, Cook v. East Greenbush Police Dep’t, 113 A.D.3d 1005 (3d Dep’t 2014) to explain its reasoning. In Cook, the claimant, a police officer, responded to an active shooter incident. Through binoculars, he saw the shooter firing an automatic rifle at officers. He directed a fellow officer to return fire, resulting in the shooter being killed. Following department procedures, the claimant approached the vehicle with other officers, handcuffed the suspect, and removed the firearm. In doing so, the claimant noted the suspect’s severe injuries, which included blood and visible brain matter. The Board Panel noted that even for a police officer, this was an “extraordinarily stressful event, which was unlikely to be repeated during claimant's career.” Although in Cook the Appellate Division affirmed the Board’s disallowance of the claim under the previously available defense that the claimant’s stress was not greater than that which usually occurs in the normal work environment (as a police officer), the Board Panel in Town of New Castle cited to the case to show an example of “extraordinary” work-related stress in the context of police work. In City of Schenectady, 2022 WL 5621898 (WCB Case No. G2914532, decided 10/03/22), the claimant, a police officer, made a stress claim predicated on an incident where he attempted to arrest a suspect. The Board Panel denied the claim, noting that the arrest in question did not meet the "extraordinary" standard as it involved a relatively routine incident in which the claimant was never threatened with imminent harm. In Village of Maybrook Police Dep’t., 2023 WL 1487253 (WCB Case No. G1837604, decided 1/31/23), another police officer claimant alleged work-related stress following an attempt to arrest a combative suspect without assistance or back up. The Board Panel denied the claim noting that the events of the case did not meet the “extraordinary” work-related stress standard because the incident involved a relatively routine arrest in which the claimant was never threatened with imminent harm. This echoed the language used by the Board Panel in City of Schenectady. These cases suggest that the Board will require a demonstration of “extraordinary” stress for all workers, as was required of first responder claimants making stress claims between 2017 and 2025. Ultimately, the rule outlined by the Appellate Division in Loh Lin v. Burroughs Corp., 75 A.D.2d 702 (3d Dep’t 1980), remains in place. That is, the stress alleged by a claimant must exceed the aggravation normally experienced in the usual give and take of employment. The amendment to WCL §10(3)(b) expands mental stress claim eligibility to all workers while removing defenses tied to normal work environment stress. However, as demonstrated by past Board Panel decisions, the term “extraordinary” remains a threshold that claimants must meet. Claimants will need to prove stressors that go beyond the ordinary pressures of employment, as mere dissatisfaction or routine challenges are insufficient to support a claim. The Board Panel cases cited above illustrate the Board’s application of this standard, emphasizing the need for evidence of exceptional stress. Ultimately, successful defense of mental stress claims following this legislative change will depend on the consistency with which the Board and its Law Judges interpret the word “extraordinary.” While the amendment appears to broaden access to mental stress claims, the use of the word “extraordinary” maintains an objective standard to prevent overreach. Moving forward, careful attention to Board and court decisions will be necessary to fully understand the practical implications of this expanded coverage for mental stress claims. This legislative change opens the door to more claims for mental stress than seen in the past. However, it does not necessarily mean that a significant number more will be established as compensable. Claimants will need to prove ‘extraordinary’ stress through testimony, and hopefully, Law Judges will limit compensable claims to those involving truly extraordinary stress, especially considering that most workers feel stress at some point during their careers that has some relationship to work. |
New York State is to resume In-person hearings at the Workers' Compensation Board on or after 10/7/24! Although the WCB has decided to reopen its hearing points for In-person hearings, it will continue to allow virtual attendance. In-person attendance is strictly voluntary. It remains to be seen how the reopening will be laid out across the state. It is also an unknown regarding whether claimants and attorneys will choose to attend hearings in-person.
New York State workers' compensation hearings have been held exclusively via the Board's virtual hearing system since the onset of the COVID-19 pandemic in March 2020.
Rule 325-1.26
· Treatment by chiropractors, acupuncturists, physical therapists, and occupational therapists must be done in person.
· Treatment by physicians, podiatrists, nurse practitioners, and P.A.s
o First exam in person
o For treatment within three months of injury date, every third exam in person
o For treatment more than three months from injury date, in person exam required every three months unless claimant at permanent MMI
§ If claimant at MMI, at least one in person exam per year required
· Treatment by Psychologists and Licensed Clinical Social Workers
o Remote visits allowed under certain circumstances
o For treatment more than three months after the injury date, in person exam is required every three months unless claimant at MMI
o IMEs may be done by telehealth when all parties consent and IME is not opining on permanency
Board Announcement
In mid-2024, the Board will start issuing notices of indexing for all cases where the file contains a C-3 or FROI-00 and a medical report which triggers the carrier’s obligation to file a Notice of Controversy
The minimum compensation rate was increased as a result of legislation signed by Governor Hochul (S1161-A/A2034-A). The new law provides that the minimum compensation rate in workers’ compensation claims will increase according to the following schedule:
- 01/01/2024—$275
- 01/01/2025—$325
- 07/01/2026—increased to one-fifth of the state average weekly wage
Maximum Compensation Rate: Effective 7/1/23 the maximum weekly indemnity rate under WCL §15(6) increased to $1,145.43 based on annual indexing of the state average weekly wage.
Board Offices Remain Closed to the Public. Hearings in New York workers’ compensation matters continue on a virtual basis only, with all parties, attorneys and witnesses appearing via computer and mobile phone connections from their offices or homes employing the Board’s statewide Virtual Hearing System. The Board closed all of its offices and hearing sites to the public on 3/17/20 as a public safety measure in response to the COVID-19 pandemic. The Board recently advised that it plans to reopen hearing sites to the public again, but as of this writing it still has not provided a date when in-person hearings will resume.
Certain other changes to Board procedure instituted during the COVID-19 pandemic remain. For example, the requirement for original handwritten signatures on several Board forms was suspended as a result of the pandemic and remains in effect.