December 16, 2024

Last week we sent you a brief news item regarding the Governor having recently signed S.6635/A.5745- legislation that amends current Worker’s Compensation law and allows ANY worker in NYS to file for Workers Compensation for specific types of mental injury. From everything I have seen and read to date, the new law will impact ALL workers – not just the state workforce.

Previously, only select first responders were allowed to file for this type of benefit. If we come upon any information to the contrary we will of course let you know.

History: This legislation was brought by PEF (Public Employees Federation) and has been around (but never made it over the goal line) in one version or another since 2017.

Connecting the dots: On October 24 we sent you an article depicting a situation in which the Governor had received a call from the President of PEF who requested that the patient be transferred out of the state hospital. Apparently the Governor made the call, contacted the local police department and the patient landed at Riker’s on the mental health unit.

Core of the legislation:
“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.”

(Directly below please find a recent article in Insurance Journal, 12/9/24):

New York Expands Workers’ Compensation Benefit For to All Workers

The new law, which goes into effect January 1, 2025, allows any worker to file for workers’ compensation for specific types of mental injury premised on extraordinary work-related stress. This expands coverage to all workers in New York. A law enacted in 2017 made only first responders facing post-traumatic stress disorder (PTSD) eligible for such benefits. The new law by its own language expands coverage to cover all workers to “ensure that work-related PTSD is properly identified and treated as part of the workers compensation system.

The Workers’ Compensation Board may not disallow the claim by finding that the stress was not greater than that which usually occurs in the normal work environment.

“Not all injuries are physical, but all workers should get support for injuries sustained on the job,” said State Senator Jessica Ramos, a sponsor of the bill.

“Workers’ compensation is here for workers who have been injured or made ill on the job, whether their injury is one you can see or not,” said New York State Workers’ Compensation Board Chair Clarissa M. Rodriguez.

While labor endorsed the measure, businesses including insurance lobbyists opposed it.

New York State AFL-CIO President Mario Cilento applauded Hochul for signing the bill. “This law removes significant hurdles workers face when accessing care and benefits for workplace mental health claims,” Cilento said.

Cost Concerns

In opposing the measure, employer and insurance groups cited in part the uncertainty over the cost of the added benefit. Hochul had cited the unknown cost as a reason for vetoing the same bill last year.

The New York Insurance Association (NYSIA) warned that the new law will “dramatically expand the class of employees who can file this type of claim, from simply police officers, firefighters, and EMTs, who have an extremely high stressed, public service profession, to now all employees, regardless of their type of work performed.”

Insurers said the law will also “transfer the burden of proof for such claims onto the employer, thereby allowing work-related stress claims to be upheld, upon subjective allegations alone.”

NYSIA expressed concern that the term “extraordinary work stress” is left undefined, suggesting that it would be “very difficult to actually determine what ‘stress’ is actually uniquely attributable to work, as compared to stress that is intertwined with the vagaries and vicissitudes of life, and intrinsically a part of the human condition.”

The Business Council of New York State (BCNYS) similarly objected to the law because determining what qualifies as “extraordinary” will be up to workers’ compensation law judges and will result in extensive litigation.

“We believe that in addition to increasing the cost of litigation, this bill would transfer the cost of treatment and disability for psychological conditions that are now not considered work-related to the workers’ compensation system. Given the fact that close to half of all Americans in surveys complain of stress, the cost could be substantial,” NYSIA added.

While many states allow for workers’ compensation for mental health conditions, states differ in their definitions and eligibility. First responders generally have more access to benefits for mental health than others. The industry’s National Council on Compensation Insurance (NCCI) monitored 52 bills addressing workers’ compensation for workplace-related mental injuries. Several states considered bills to expand coverage for mental injuries to additional workers including Vermont that enacted a bill expanding PTSD coverage to include certain state employees.

The law firm of Goldberg Segalla – a national firm with a specialty in Worker’s Compensation cases recently posted a brief analysis of the new law on its’ website:

A major part of this law is that now all employees in New York can apply for workers’ compensation if they feel they are undergoing a mental health crisis caused by their job. In the past, this option was only available for select first responder positions.

Unlike other accidental injuries, there are two requirements in a claimant’s case that are unique to stress claims. In addition to all ordinary requirements the claimant has to meet, the claimant will also be required to show the stress to which he or she was subjected to at work was “greater than the usual irritations to which all workers are occasionally subjected,” and the claimant may also need to show that the disability was not the direct consequence of a lawful personnel decision taken in good faith. In 2017, legislation was enacted to remove the restriction that the stress suffered by designated first responders no longer needs to be greater than the normal stress sustained by similar workers.

Given the expansion of the previous statutory carveout for first-responder positions and the reduction in the restriction for compensability, there is likely to be an increase in claims filed due to extraordinary work-related stress. For instance, under the prior legislation, a bank teller who was at work during a robbery had a viable stress claim although they are not a first responder, as the stress due to the robbery is greater than the usual irritations to which all workers are occasionally subjected. Under the new legislation a bank teller may seek a stress claim based on the usual irritations of what working as a bank teller entails.

As with physical injuries, the question of whether a causal relationship exists between a work activity and an ensuring psychological disability is an issue of fact for resolution by the Workers’ Compensation Board. The onus to determine what qualifies as “extraordinary,” a standard that is not defined by statute, will be placed on law judges. Extensive litigation on the issue of what constitutes “extraordinary” stress and increased administrative expenses on IMEs and medical testimony may resolve on a case-by-case basis

And, an analysis of the newly enacted amended Worker’s Comp statute is here:

Impact of New NYS Workers’ Compensation Work-Related Stress Relief on Discrimination Claims

Andrew Lieb discusses how New York State’s expansion of workers’ compensation benefits, (effective 1/1/25), to cover claims for mental injury premises upon extraordinary work-related stress will impact an employee’s workplace discrimination claim.

December 13, 2024 at 11:06 AM

By Andrew Lieb, Lieb Law Firm
Starting on Jan. 1, 2025, Workers’ Compensation Law §10(3)(b) has been amended, by A5745, to permit all “worker[s to] file[] claim[s] for mental injury premised upon extraordinary work-related stress incurred at work.”

Previously, workers’ compensation for mental injury premised upon extraordinary work-related stress was limited to only such stress that occurred “in a work-related emergency” where such benefits were only available to “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,” not all workers.

Now that workers’ compensation benefits for all extraordinary work-related stress is available to all workers, the question arises of the impact of a worker filing, under §10(3)(b), if such worker also plans to bring a discrimination case under Title VII and/or Executive Law §296 (New York State Human Rights Law) against their employer, where discrimination is typically a major cause of extraordinary work-related stress.

In fact, a major aspect of damages in an employment discrimination case is mental anguish (a/k/a, emotional distress) suffered from major depression, panic disorder, and posttraumatic stress disorder that are causally related to the harassment and discrimination. As such, practitioners in both fields (workers’ compensation and discrimination) must be mindful of whether a filing for Workers’ Compensation helps or hurts a prospective employment discrimination victim’s Title VII and/or Executive Law §296 claim, and these practitioners are going to need to collaborate in their representation moving forward.

As a threshold issue, workers’ compensation practitioners need to know if their filings for their clients will preclude a later discrimination case based upon the exclusivity provision of the Workers’ Compensation Law or even Res Judicata, because if it will, they will certainly need to obtain an informed consent letter from their clients prior to filing.

Fortunately, workers’ compensation practitioners have Appellate Division precedent to guide them on this issue from Kondracke v. Blue, 277 A.D.2d 953, 954 (4th Dept., 2000).

In Kondracke, the Appellate Division held that “[r]es judicata is inapplicable here, where petitioners were statutorily precluded from obtaining complete relief, i.e., compensatory damages, in the worker’s compensation action [internal citation omitted]. In addition, the exclusivity provisions of the Workers’ Compensation Law do not bar this proceeding pursuant to the Human Rights Law.”

So, does filing for workers’ compensation benefits otherwise impact, beyond preclusion, a worker who later brings their discrimination case against the employer and/or a case for aiding and abetting against co-workers? Again, we have binding Appellate Division precedent to guide practitioners from Grand Union Co. v. Mercado, 263 A.D.2d 923, 925 (3rd Dept., 1999).

In Grand Union Co., the Appellate Division held that “monetary recovery for the intentional acts of discrimination in the DHR proceeding was offset by the amount of workers’ compensation benefits she was paid. Workers’ Compensation Law §29, which was designed to prevent the receipt of double recovery [internal citation omitted], was not frustrated in this case and, therefore, respondent was not barred from receiving lost wages pursuant to DHR’s determination.”

For clarity, the DHR proceeding referenced is an Administrative Proceeding before the State Division of Human Rights, which is a forum available to a claimant in an employment discrimination case to elect to prosecute their claims pursuant to Executive Law §297.

Now, we are left with ambiguity in understanding the nature of this “offset” and how it will play out in the future is left unknown. Is it an offset for the pecuniary loss only in terms of the therapy costs incident to the work-related stress, or is it for the entirety of the emotional distress damages as a dollar-for-dollar offset, in toto, or, could it even be a categorical offset of all emotional distress damages that were caused by the work-related stress?

This ambiguity is now a litigation concern, requiring extra work by discrimination counsel if their client previously accepted workers’ compensation benefits, which can be surmised by a review of the Appellate Division’s holding in Raponi v. Orange & Rockland Utilities Inc., 221 A.D.2d 786, 787 (3rd Dept., 1995), which involved an apportionment of a similar offset that was determined in a proceeding to apportion certain settlement proceeds pursuant to Workers’ Compensation Law §29(5).

There, the Appellate Division explained the issue as one in the nature of “prevent[ing] an injury victim from receiving a double recovery,” in citing Workers’ Compensation Law §29, while providing the illustration that “[s]uch does not occur when a spouse receives an award for loss of services and respondents have no lien on the spouse’s award. While an apportionment of 100% of a settlement to a loss of services claim could be an area of abuse, where such a claim, in its own right, far exceeds the available funding, that potential is lessened.”

Clearly, recipients of workers’ compensation benefits who later and/or contemporaneously sue for discrimination will wind up in a Raponi type of apportionment litigation (and/or settlement negotiations) to determine the exact amount of the offset and based on Raponi it seems most likely to be analyzed in the dollar-for-dollar offset framework where latitude will be afforded to settling parties so long as they do not play games in avoiding the offset completely.

However, binding guidance as to the results of this offset litigation between workers’ compensation benefits and discrimination claims will have to wait for another day because there is no precedent yet on this brand-new area of cross-over law.

Nonetheless, and before even getting the opportunity to establish offset precedent, the question remains if it is advantageous for an employment discrimination victim to pursue workers’ compensation benefits for the causally related mental injury premised upon extraordinary work-related stress incurred at work, pursuant to §10(3)(b), in the first instance. The answer is a resounding yes. This is because discrimination related non-pecuniary damages for egregious emotional distress, in 2025, will start at $647,368.42, whereas damages for significant / substantial emotional distress will start at $118,421.05, and garden variety emotional distress will start at $39,210.53, based on an extrapolation from the case law over 19 years [See Duarte v. St. Barnabas Hospital, 341 F.Supp.3d 306, 320 (SDNY, 2018); Rainone v. Potter, 388, F.Supp.2d.120 (EDNY, 2005) citing to Evaluating Emotional Distress Damage Awards to Promote Settlement of Employment Discrimination Claims in the Second Circuit, 65 Brook. L.Rev. 393, 427–28 (1999).

As can be easily discerned, proving higher category emotional distress damages is a game changer in discrimination litigation results. Therefore, and while it is acknowledged that many factors go into determining the appropriate category of emotional distress damages for a specific victim, the failure to claim that the victim experienced “mental injury premised upon extraordinary work-related stress incurred at work,” pursuant to Workers’ Compensation Law §10(3)(b), seems to be a deal-breaker in later claiming that such emotional distress was egregious, or even significant / substantial.

More so, the availability of workers’ compensation benefits provides payment for treating therapists, which is often necessary for discrimination victims to receive necessary treatment. In fact, having a treating therapist who finds a causal relationship between the work mental injury and work-related stress is the trigger that often moves a victim’s recovery from receiving garden-variety emotional distress damages to receiving significant / substantial emotional distress damages.

As such, discrimination practitioners should refer their clients to workers’ compensation practitioners for an initial filing whereas workers’ compensation practitioners should familiarize themselves with discrimination law to screen prospects for possible discrimination claims and referral.

Andrew Lieb is the managing partner at Lieb at Law.

Article mentioned above re: PEF call to the Governor to move a patient in a state psych hospital:

Hochul has psychiatric patient arrested at behest of powerful union

Ethan Geringer-Sameth, 10/24, Crain’s Health Pulse

Gov. Kathy Hochul personally intervened to have a patient taken into police custody from a clinical setting in a state-run psychiatric hospital after a powerful union leader called her with concerns about violence in the facilities.

On Sept. 17, a patient at South Beach Psychiatric Center on Staten Island allegedly struck a nurse in the head, knocking him to the ground and causing bleeding in the brain, according to three employees with knowledge of the incident who spoke with Crain’s. The injury sent the nurse, a longtime supervisor responsible for managing direct care staff, into a coma for more than two weeks.

The incident, which has not been reported until now, led union leader Wayne Spence, president of the Public Employees Federation, to call Hochul and request her assistance in removing the patient from the hospital. The governor’s office then took the unusual step of orchestrating the patient’s arrest by the local precinct, an agency technically outside her jurisdiction, according to a union members’ newsletter obtained by Crain’s.

“The patient was arrested because President Spence called the governor, and the governor called the precinct,” wrote PEF Vice President Darlene Williams. The patient is now on Rikers Island awaiting a court hearing next month, she told Crain’s.

The extraordinary move to call the governor was a response to what Williams said were lax safety protocols and a dysfunctional emergency alert system at South Beach and facilities across the state. The incident follows a string of assaults on health care workers at state-run facilities that has raised alarms among employees and incensed union leadership.

But the governor’s response to the union’s demands was an exceedingly rare use of the office and one that undermines the probability of successfully treating the patient, said civil rights attorney Norman Siegel.

“That’s sort of unprecedented from my knowledge,” said Siegel, the former executive director of the New York Civil Liberties Union who first made a name for himself in the 1980s defending an anonymous woman known as “Billie Boggs” who was involuntarily hospitalized at Bellevue.

“It’s basically a political action to try to deal with this specific instance” of violence, he said. Instead, the state should have investigated the conditions in the facility and the circumstances that enabled the attack, he said. The governor could have used the considerable power of the state Office of Mental Health, which runs the hospital, to both continue treating the patient and identify any safety failings in its facilities, he added.

The episode is an example of the influence of one union over the governor, and of the governor over the New York City Police Department. The Public Employees Federation, which represents 50,000 workers across every state agency, has donated $67,000 to Hochul’s campaign since 2021, public records show. Meanwhile, the NYPD has received more than $121 million in state aid under Hochul, including $62 million directed by the governor to increase policing in the subway system, according to an analysis provided by the Citizens Budget Commission.

Hochul has made mental health care a signature priority of her tenure, spending $1 billion to shore up services intended to meet a range of patient needs from community-based therapy and supportive housing to hospitalization. The governor, along with Mayor Eric Adams, has placed a heavy premium on restoring psychiatric beds in private and municipal hospitals that were closed during the pandemic as an alternative to people living on the streets or going to jail with untreated mental illness.

The governor’s office did not respond to requests for comment. The NYPD did not return an inquiry about fielding requests from the governor related to the arrest of psychiatric patients.

Alamy
Several patients have attacked employees at South Beach Psychiatric Center and other facilities in recent months.

A string of violence

Several patients have attacked employees at South Beach and other facilities in recent months, a troubling trend that stems from a lack of secure space or specialized staff for patients who have spent long periods of time in jail, according to three hospital employees who spoke with Crain’s.

South Beach has been forced to take on more patients from the justice system after Kirby Forensic Psychiatric Center, the state’s high-security facility on Ward’s Island, relocated to a smaller space in 2020, the employees said.

While the state hospitals house people from the general population and those entering through the criminal legal system, South Beach is not equipped to handle the system’s most dangerous patients, they said. Though most patients coming from jail are not violent, “a handful” have accounted for many of the recent incidents, said one employee.

South Beach closed its secure unit to make room for a higher ratio of elderly and medically compromised psychiatric patients in 2022, further limiting resources. The secure units usually have more staff, including therapy aides with training to work with patients who have a history of violence, the employees said.

“There would only be one or two patients on the unit at any given time, so it was like a massive waste of resources,” said one South Beach employee, speaking anonymously to discuss the matter candidly.

The attack was not the first episode of brutality in recent months. Two employees were stabbed by a patient in a residential program at Buffalo Psychiatric Center in April in what Williams called a “bloodbath.” Shortly after, a nurse was the victim of an attempted sexual assault at Hutchings Psychiatric Center in Syracuse, followed by the sexual assault of another nurse at the same facility within a matter of months, Williams told Crain’s.

At South Beach, the assault in September followed two others, including an employee who was stabbed at one of the facility’s day sites in Coney Island earlier this year and a nurse who was assaulted at South Beach’s inpatient unit last year, Williams said.

Staff at facilities carry personal alarm devices that are intended to trigger an emergency response at the push of a button. But in every one of these incidents the devices failed, Williams said.

The Office of Mental Health, which operates the facilities, did not respond to specific questions about what steps have been taken to promote patient safety following the rash of violence, including whether the faulty devices have been replaced. “We routinely review safety protocols and staffing levels to mitigate risk for our employees and the individuals under their care,” said spokesman Justin Mason, calling staff and patient safety a “top priority.”

The episode last month has fueled anxieties among South Beach staff about the risks of the job. On Oct. 7, state Mental Health Commissioner Ann Marie Sullivan went to South Beach to meet with center management and union brass, and to try to assuage fear and anger among the rank-and-file.

“We’ll be working with you to make sure that things are safe, that you are safe,” Sullivan said, according to a recording of the meeting reviewed by Crain’s.

But the lag between the attack and the commissioner’s visit signaled to some that few steps were being taken. “If a police officer or transit authority worker is injured, their people come and see about them,” Williams said, noting that many of the key changes the union wants, including working alarm devices and better security, have not been delivered. “We still haven’t had any sort of changes at South Beach Psychiatric Center.”

An unusual intervention

Siegel described a patient being arrested as “very unusual,” but not impossible. Patients who commit serious or repeated acts of violence while in psychiatric custody can be charged with a crime, said two hospital employees and a lawyer with Mental Hygiene Legal Services, the state agency that represents psychiatric patients, who was not authorized to speak with the press. The branch of the agency responsible for Staten Island cases did not return a request for comment.

But an arrest by local police and removal to jail is not the norm. More commonly patients are booked by state troopers and transferred to a separate state-run psychiatric unit with more supervision, said one South Beach employee.

“They’re going to put him in Riker’s where we already have so many mental health issues that no one’s dealing with,” Siegel said. “Sooner or later some leadership has to occur, locally as well as on the state level, that tries to approach this issue in a serious and substantial manner.”