A very recent New York decision, 2010 NY Slip Op 07295 (10/14/10), demonstrates the consequences for the employer when an outsider traumatizes an employee. Since the employee was left permanently totally disabled, the names of the parties are omitted in this article.
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An employee at a gas station was cooperating with the police in a crime report. The police left but one returned when it was discovered that a police flashlight was missing. The employee was accused of having it. The flashlight was discovered in the police vehicle next to a seat. An officer continued the confrontation even after the flashlight was located and the employee was arrested and handcuffed. (WCxKit)
The employee, over age 50, began to experience severe stress symptoms after the arrest. Eventually, the employee was found to be permanently totally disabled by the WCB.
The employee brought a suit against the police and recovered a substantial amount, which was deducted from the future comp payments, but the employer still has substantial future liability.
The result seems extreme and bizarre. Admittedly, such an incident is stressful – but permanent total disability? And why is the employer, otherwise blameless, at risk for the entire award – minus the tort settlement?
First, people react differently to extreme stress and some, as in this case, will become permanently disabled. Second, the incident was without question work related. The employer was fortunate in that the outside force was held liable for most of the damage. (Armed robberies often result in such stress with little or no chance of recovering anything from the criminal.)
An employer cannot be cautioned to avoid hiring person at risk for extreme stress related disability. It is entirely unpredictable who will react and how they will recover. An employer is advised to provide emotional and financial support, through short-term and long-term disability, a group medical plan and assistance in filing for SSDB, while a comp claim runs its course through the system.
Early emotional, medical and financial support will greatly lessen the chances of permanent disability. The plans making payments until the comp claim is resolved will be reimbursed by the comp carrier.
Friction causes overheating and failure. Coordinating delivery of benefits reduces friction – and failure.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. He is a frequent writer and speaker and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Contact Attorney Ronca at 631-722-2100.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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