Note from Bob: Whoops! When I am wrong others will be the first to admit it. Apparently the New York legislature recognized the sheer stupidity of the new law discussed below, and passed legislation earlier this year to reverse it. I will have more on this in a day or so. Thanks to Adam Fowler of MyMatrixx for pointing out so quickly that I am a flawed human being. I hate it when that happens...
I hate to say it. I really do. But I was right. And they did. And I warned you this would happen.
Presumptions for first responders have been all the rage across the country for much of the past decade. Be it cardiovascular conditions, cancers, or just good ol’ stress, many states have passed rebuttable presumptions granting a host of potential benefits to first responders. Unfortunately, for many of these conditions, the only science that truly supports the effort is political. No politician wants to be seen denying benefits to front line heroes in their community.
The problem, of course, is that this has created a two-tiered benefits system, where people experiencing the same tragic conditions get two completely different levels of support, with the sole factor determining compensability being a job title. For example, under Florida’s now enacted PTSD legislation, if the Parkland shooting occurred today, the Sheriff’s Deputy who famously stood outside and never entered the building would receive an automatic presumption for PTSD benefits because he was “at the scene” of a mass casualty event. Yet the teachers, administrators, janitors, and teaching assistants inside the building witnessing the slaughter of their students would be entitled to bupkis. Nada. The big zilch.
Now someone – anyone – tell me that is fair.
As early as 2020 (perhaps earlier – I’m too lazy to research it further), I warned that this trend would eventually lead to the expansion of these presumptions to employment categories in the private sector. Not because it would make sense, but rather the sheer inequitableness of these provisions could not be tolerated forever, and the real solution, to apply common sense to first responder benefits, would be a political impossibility. Therefore, the solution for weak and feckless politicians will be to grant presumptions to all.
And regarding PTSD in New York, that is precisely what has occurred.
Effective January of this year, the State of New York now extends a PTSD presumption to any employee “for mental injury premised upon extraordinary work-related stress incurred at work.” With the passage and signing of Senate Bill S6635, the state has expanded a provision of the law originally only intended for first responders.
The summary of the bill provision reads:
Amends paragraph (b) of subdivision 3 of section 10 of the workers’ compensation law, as added by section 1 of subpart I of part NNN of chapter 59 of the laws of 2017 as follows: Where a worker files a claim for mental injury premised upon extraordinary work-related stress incurred the board may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment.
The key here is that they did not create legislation that generated new standards. They simply modified the language to extend existing statute to everybody. In other words, they did exactly as I predicted. The referenced section of the law is below, with the strikethroughs showing the deletions to the statute while All CAPS are additions:
Section 1. Paragraph (b) of subdivision 3 of section 10 of the workers’ compensation law, as added by section 1 of subpart I of part NNN of chapter 59 of the laws of 2017, is amended to read as follows:
(b) Where a police officer or firefighter subject to section thirty of this article, or emergency medical technician, paramedic, or other person certified to provide medical care in emergencies, or emergency dispatcher WORKER files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency AT WORK, the board may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment.
I do not envy New York employers. As is customary on these pages, I have a question or two.
What exactly is “extraordinary work-related stress incurred at work?” What does it look like? And who gets to define it?
Seems a tad vague. Is it the threat of physical violence? Or simply being criticized in a performance review? One person’s extraordinary work-related stress can be another’s normal day at the office. It seems the courts are going to have to continually refine and redefine that standard – since each case will need to be judged on its own merit.
Oy vey.
Also, I’m not a lawyer. I have never even played one on TV. I find it interesting nonetheless that the bill eliminated the comma in the final sentence of the statute. When I read, “the board may not disallow the claim upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment,” it appears compensability is a fait accompli. Shouldn’t that be “may disallow” if the factual finding showed the stress was normal? It sounds as though under this statute PTSD awards are virtually guaranteed in the state – for just about any reason.
Am I wrong in that interpretation? Is this an incredibly poor phrasing for the law, or am I just an idiot? (The question is rhetorical. Please don’t answer it.)
Regardless of my own potentially skewed and ignorant interpretations, the plain fact remains. The march toward expansion of stress related benefits has begun. Other occupational illnesses, and other states action, can’t be far behind.
At least you cannot say that you were not warned. Because, after all, I told you so.
