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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.
On 7/11/23, new telehealth regulations went into effect in New York State. These regulations outline the circumstances in which injured workers in New York may receive telehealth services from a health care provider and the types of providers authorized to provide telehealth services. Notably missing from the proposed regulations are details on the method and manner by which employers and carriers may object to an injured worker’s use of telehealth services in circumstances where it may not be warranted.
The new permanent telehealth regulations are in Section 325-1.26 of Title 12 of the NYCRR. Telehealth was at one time limited to rural or remote communities; however, since the COVID-19 pandemic, telehealth has been more widely embraced. The New York Workers’ Compensation Board adopted emergency regulations during the pandemic to allow for expanded use of telehealth. The new permanent regulations do not simply make the old emergency regulations permanent. The emergency regulations provided more latitude to providers in the use of telehealth services. The new regulations limit the use of telehealth depending on the type of provider and the phase of the claimant’s injury.
Certain providers may not provide telehealth services at all. These include: chiropractors, acupuncturists, physical therapists, and occupational therapists. This makes sense, as the treatment modalities offered by these providers are “hands-on” and, presently, the best clinical practice for these providers involve in-person visits.
Physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers are permitted to provide telehealth services to claimant via two-way audio or audio and visual communication subject to limitations depending on the care provided and the phase of injury. Additionally, those providers using telehealth must be able to meet the claimant at the provider's office within a reasonable travel time and distance from the claimant's residence.
The regulations divide the phases of a claimant’s injury into acute/sub-acute, chronic, and maximum medical improvement (“MMI”). The acute/sub-acute phase of injury is defined as within the first three months following the date of injury. Use of telehealth during the acute/sub-acute phase is at the clinical discretion of the treating provider, except that at least every third visit must be in person. 
After three months from the date of injury is considered the “chronic” phase of injury under these regulations. During the chronic phase of injury, the provider is permitted to use telehealth at their discretion except that there must be an in person visit at least every three months or until the provider feels that the claimant has reached maximum medical improvement.
Once the treating provider feels that the claimant has reached MMI, further telehealth visits may be at the provider’s clinical discretion except that there must be an in-person visit by the providers at least annually.
Telehealth treatment for mental health conditions by psychologists and licensed clinical social workers are treated differently under these regulations. For mental health treatment, the only limitation is that the telehealth treatment be medically appropriate and permitted under the Medical Treatment Guidelines. Mental health treatment is not subject to the phase of injury limitations noted above for physicians, podiatrists, nurse practitioners, and physician assistants. The regulations state that remote mental health treatment should be limited to those situations where there is "no benefit" to in-person services. Additionally, treating mental health professional needs to document the reason for the use of remote services for each telehealth visit. There is no indication in the regulations as to what constitutes an adequate reason for use of telehealth services for mental health treatment.
The regulations define “medically appropriate for telehealth” as where an in-person physical examination of the claimant is not needed to assess the claimant’s clinical status, need for further diagnostic testing, appropriate treatment, or to determine causal relationship of level of disability. This section of the regulations (12 NYCRR 325-1.26(c)(1) and (2)) goes on to provide factors or parameters where an in-person physical examination may or may not be necessary but note that such factors should not be used by carriers or employers as the basis for a denial of services. This implies that employers and carriers have no recourse if the provider is using telehealth in a situation where it is not warranted. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth over an in-person exam.
Moreover, the factors that address where no in-person physical exam may be necessary, 12 NYCRR 325-1.26(c)(1)(i)–(viii), are vague. For example, 12 NYCRR 325-1.26(c)(1)(i), provides that telehealth could be appropriate for management of chronic conditions where the provider has previously conducted a medically appropriate and comprehensive in person assessment of the patient and condition and is fully familiar with the applicable medical history; however, factor (i) does not provide a timeframe for when this prior in person exam might have occurred or if the specific provider conducted this exam, i.e., another treatment provider in the same office conducted the in-person exam. Also, factor (viii) provides a catch-all scenario as prescribed in the Medical Treatment Guidelines or other related Board communications; however, it is unclear what this would mean in terms of supporting a telehealth visit over that of in person.
12 NYCRR 325-1.26(c)(2)(i)-(ix) provides for the factors that would indicate the necessity of a physical exam. Notably, factor (vi) focuses on an in-person exam to address degree of disability or range of motion. Degree of disability is a basic component of medical evidence submitted to the Board. Claimants in the temporary phase of disability are required to submit medical evidence regarding degree of disability every 90 days to maintain their entitlement to benefits. It is unclear how telehealth could be useful as factor (vi) acknowledges that degree of disability and range of motion should be addressed only in an in-person exam. Further, factor (ix) provides that although causal relationship should be addressed in an in-person exam, the provider could in theory ascribe causal relationship if the provider is able to articulate in the medical record why an in-person exam was not necessary to determine causal relationship. Causal relationship is routinely addressed in the acute phase of an injury. 12 NYCRR 325-1.26(c) provides that the absence or existence of these factors should not serve as a basis of a denial by carriers, self-insured employers, or third-party administrators, but causal relationship is a viable defense routinely raised by the carrier, self-insured employers, or third-party administrators. 12 NYCRR 325-1.26(c)(2)(ix) would seem indicate that the provider may now support causal relationship with a lesser burden of proof, i.e., not the physical exam findings, but some other factor in the medical record.
Nothing in the new regulations addresses when and how an employer or carrier might deny telehealth treatment that was rendered inappropriately. This would suggest that employers and carriers have no recourse if the provider is simply opting to use telehealth. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth versus an in-person exam.
The Board acknowledged the lack of guidance in an email sent on 7/13/23. That email, entitled “Telehealth Guidance” addressed the proper method for payers to object to treatment via telehealth, in instances where the payer believes the use of telehealth was inappropriate and inconsistent with the regulation. The email provides little relief for employers and carriers who want to ensure that providers are providing telehealth services consistent with the new regulations because the email states that the fact that medical treatment was provided via telehealth cannot be the sole reason for an objection to a medical bill. Rather, the employer or carrier should instead file an RFA-2, check box “K” and request a direction for future in-person visit in accordance with the regulation, and state why the visit should not be performed via telehealth.
Even after filing the request for further action, employers and carriers should not expect much help from the Board. This is because the email also indicated that the Board would not entertain C-8.1 objections from employers and carriers who object to telehealth treatment by providers who were previously directed to provide in-person treatment. Rather, the Board stated that such providers would be subject to “administrative action.”
Only in cases where a chiropractor, acupuncturist, physical therapist, or occupational therapist provides telehealth services would the Board entertain a C-8.1 objection from an employer or carrier. We do not expect that there will be many situations where this comes up.
Finally, the regulations state that Independent Medical Examinations (“IMEs”) may be conducted via telehealth when all parties of interest consent to a telehealth examination and where the IME is not offering an opinion on permanent impairment. This may provide an opportunity for employers and carriers to secure an IME on mental health claims where it is difficult to find a psychiatrist or psychologist in the claimant's home community.
With the permanent implementation of these regulations, telehealth is here to stay. Despite the numerous requirements for providers, there is no enforcement mechanism for employers or carriers to ensure compliance with these regulations. They can only rely on the Board's promise of "administrative action." At a minimum, employers and carriers should update their processes to ensure that any telehealth visit by a chiropractor, acupuncturist, physical therapist, or occupational therapist is objected to with a C-8.1. For other providers who use telehealth inconsistent with the new regulations, employers and carriers can file an RFA-2 and request a direction that the provider provide in-person visits in the future.