Workers’ Compensation Coverage for Mental Claims: Is limiting Coverage worth the Cost?

By Kristen McRee, Esquire and J. Keith Roberts, Esquire*


The existence of mental illness as a condition can be traced back as far as written records.[1] Early on, it was thought that an individual who suffered from mental illness was either possessed by demons or had angered the gods.[2] For a brief moment in time, mental illness was treated as a psychological disease due to Hippocrates’ efforts.[3] However, the skepticism surrounding the condition returned after the cessation of the Black Plague and continued during the Renaissance period shifting the focus to witches as a proximate cause.[4] The perceived validity of the condition has waxed and waned throughout the years slowly gaining traction. In 1946 President Harry Truman signed the National Mental Health Act calling for additional research of “the mind, brain, and behavior.”[5] Soon thereafter, in 1949, the National Institute of Mental Health (NIMH) was formed.[6]

In 1980, the American Psychiatric Association (APA) added PTSD [Post Traumatic Stress Disorder] to the third edition of the Diagnostic and Statistical Manual of Mental disorders (DSM-III).”[7] Inherent in legitimizing the condition by announcing its existence in writing, “was the stipulation that the etiological agent was outside the individual (i.e. a traumatic event) rather than an inherent individual weakness (i.e., at traumatic neurosis).”[8] This shifted the focus from a perceived internal inadequacy to an external hardship as the cause of the symptoms. It is this focus on an external hardship that fortifies the causal link between the mental injury and the workplace under many workers’ compensation laws.

Despite this shift, mental illnesses remain a stigmatized category of injuries under many state’s workers’ compensation laws. Concerns regarding coverage for purely mental injuries tend to focus on the difficulties of establishing a causal link between the injury and the employment and the costs associated with treatment.  In addressing these concerns, many states have limited the types and periods of benefits available or provided coverage under supplemental programs or alternate legal theories for claims involving solely mental injury sending potential Claimants on a witch-hunt for limited benefits. This could become a costly endeavor for carriers resulting in expensive tort lawsuits and decreases in productivity.

For example, South Carolina law provides a mechanism of recovery for work-related mental injuries.[9] In order to bring a successful claim for mental injury, a claimant must meet an elevated burden of proof to establish that the conditions causing the stress, mental injury, or mental illness “were extraordinary or unusual in comparison to the normal conditions of the particular employment” and provide medical evidence establishing the causal connection between the mental illness and the employment conditions.[10] The statute defines medical evidence as: expert opinion stated to a reasonable degree of medical certainty, documents, records, or other material offered by a licensed healthcare provider.[11] A claimant who has met the burden of proof, is awarded benefits under the State’s general disability statute as neither the scheduled injury statute nor applicable regulation includes the mind as a compensable body part.[12] These benefits are limited to a maximum of 500 weeks of compensation, which is further limited to a claimant’s average weekly wage for the 52 weeks preceding the accident, and reasonably necessary medical care tending to lessen the period of disability pursuant to a fee schedule.[13] Not only are the monetary damages limited, but the total number of mental-mental claims in 2021 ranged in the tenths of a percent statewide (0.3%).[14] Preliminary data suggests that indemnity payments approximated 0.4% of the total payments made by carriers that year and 0.3% of the total medical treatment costs.[15] Though this data excludes self-insured entities and potentially the first responders they insure, it is unclear whether and how much the costs would increase if the “unusual and extraordinary condition” requirement was removed.

Bodiford v. SC Dept. of Transportation[16] illustrates the point. On October 20th, 2015, South Carolina DOT worker Henry Norris was struck by a dump truck and killed on the job in Darlington County, South Carolina.[17] Mr. Norris’s supervisor, Calvin Bodiford, witnessed the accident.[18]  He filed a claim alleging a “mental-mental” injury and DOT admitted the claim and provided medical care including mental health treatment and medications.[19]  Mr. Bodiford’s physicians eventually placed him at maximum medical improvement and released him to return to work without restriction, with a 9% permanent impairment rating to the mind.[20] Despite his PTSD, he returned to work in another job, albeit one at a lower rate of pay that did not involve supervising employees.[21] In Mr. Bodiford’s case, he was awarded medical treatment in form of counseling and medications as prescribed by his authorized physicians, but no permanent disability compensation. His receipt of medical was limited to treatment tending to lessen the period of his disability pursuant to statute.

In other states that provide coverage for purely mental injuries, similar attempts have been made to address proximate cause but the types of benefits available remain limited.  The definition of “injury” in the Texas Workers’ Compensation Act, for example, includes only “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.”[22] “Physical structure of the body” has been interpreted broadly to include emotional distress, but only where the distress was caused by a particular event.[23] A Texas Claimant successful in proving a compensable mental injury may receive medical benefits and indemnity subject to limitations.[24]

Montana provides some coverage for mental injuries but only if the mental injury results from a compensable physical injury.[25] Ohio,[26] Georgia,[27] Kentucky, and Florida[28] all have similar statutes.[29] The exclusion of mental injuries from coverage under these workers’ compensation schemes opens the door to potentially expensive tort claims. Though the exclusion of these injuries from coverage may insulate workers compensation carriers from liability, it shifts the burden of coverage to other entities, such as an employee’s health insurance. Tort claims are not subject to the same limitations on damages as workers’ compensation claims and, therefore, financial responsibility for these increased costs shifts to an alternate carrier. For example, in Montana, if a claimant is unable to satisfy the statutory requirements for mental injuries, a recovery may still be permitted for mental-mental injuries as the workers’ compensation exclusive remedy provisions may not apply leaving an employer potentially liable in tort.[30]

In states that permit recovery for mental-mental claims, assuming a Claimant satisfies a heightened burden of proof, damages are statutorily limited to compensation and medical treatment. A Virginia Claimant must prove, in addition to the standard requirement that the psychological injury arise out of the employment, “that a triggering event or a sudden shock or fright causing the injury occurred in the course of employment.”[31] Thereafter, receipt of benefits is limited by statutory valuations for compensation rate during a defined period and fee schedule maximums set the limits for medical costs.[32]

California permits recovery for psychiatric injuries if: the disorder causes disability or the need for medical treatment, the disability is diagnosed using the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria, the employment event was the predominant cause of the psychiatric injury, and the employee was employed by the employer for at least 6 months.[33] The statute sets forth the specific legislative intent to establish a heightened burden of proof despite existing limitations on payments for medical treatment and compensation.[34] Oregon compensates mental injury claims but only “if the employment conditions producing the mental disorder are conditions other than [those] generally inherent in every working situation,” the diagnosis is recognized by the medical community, and “it is proven by clear and convincing evidence that the mental disorder arose out of and in the course of employment.”[35] Even if a claimant is able to clear these hurdles, recovery is limited to a statutory cap on weekly benefits and medical benefits are subject to a fee schedule.[36]  A claimant’s entitlement, and an employer’s liability, are further limited because general damages, such as pain and suffering available in a tort suit, are generally not part of the workers’ compensation benefit calculus.

The combination of a heightened burden of proof and limited statutory damages could operate as an inherent limitation on mental injury claim costs. Subjecting first responders to these evidentiary standards; however, may unduly restrict recovery for that high-risk class of claimants. “LEOs, EMT/paramedics, and FFs are exposed to death, serious injury, and violence at significantly higher rates than most civilian professionals.”[37] “Studies show that LEOs develop PTSD at rates ranging from [approximately] 6% to 32%, EMT/paramedics at rates ranging from [approximately] 9% to 22%, and FFs at rates ranging from [approximately] 17% to 32%.”[38]Another study by the National Council on Compensation Insurance (NCCI) suggests that approximately 14% of EMTs experience PTSD, 7.3% of FFs, and 4.7% of LEOs.[39] Overall, first responders experience PTSD at an average of 10%.[40] In comparison, between 6.1 – 12% of adults in the general public will develop PTSD.[41] As of 2021, the National Council on Compensation Insurance (NCCI) estimated that first responder risk-classes account for approximately 1.6% of privately insured costs.[42] Because it is generally stipulated that PTSD arises from an external trigger and first responders as a class are exposed to such external triggers at a significantly higher rate, causation becomes less of a concern though claim costs remain an issue.

During the 2023 legislative session, the South Carolina Senate considered two separate but similar bills removing the requirement that first responders involved in a significant traumatic event prove that their PTSD was caused by extraordinary and unusual working conditions.[43] The two proposed senate bills differ slightly in the language used and include different definitions of “first responder.”[44] However, both serve as a narrowly defined carve-out from South Carolina’s current statute in an attempt to target coverage for an increasingly at-risk population by recognizing the causal connection between the alleged injury and the inherent dangers of the employment. Both proposals retain the medical evidence requirement and a claimant would still be limited to the statutory benefits available. Legislation proposed during prior sessions further curtailed a first-responder’s recovery by requiring that medical benefits received pursuant to the South Carolina Law Enforcement Assistance Program (SCLEAP), South Carolina First Responders Assistance and Support Team (SC FAST), or successor program be exhausted before medical care is received under the state workers’ compensation law.[45] Further confounding the funding issues for these claims, is the fact that first responders in South Carolina may be covered by individual public self-insured workers’ compensation funds. Funding for either the self-insured fund or the SCLEAP program emanates from the same source: state government. It is a matter of financial semantics which specific government fund is utilized to pay claims. The cost remains. None of the proposed bills were enacted.

In contrast, some states have removed some of the compensability hurdles for first responders’ mental injury claims. In Florida, mental injuries are not compensable unless accompanied by a physical trauma.[46] However, a first responder may receive medical benefits for a qualifying mental-mental claim unless the claimant suffers from PTSD.[47] If a first responder is diagnosed with PTSD, it is compensable as an occupational disease and is not subject to certain statutory limitations. [48] Despite the inapplicability of these limitations, “NCCI estimate[d] the fiscal impact of the [legislation] on the state’s workers’ compensation system is around 0.2% or $7 million.”[49] Texas law also provides a carve-out for first responders suffering from work-related PTSD, but claimants must prove both that an event occurred in the course and scope of the employment and that the disorder was caused by the event.[50] A first responder in Connecticut who is diagnosed with PTSD caused by a qualifying event while in the line of duty could be covered under the state’s workers’ compensation laws.[51] Though this bill was ultimately enacted, financial concerns plagued legislative debates on the issue.[52] However, the proof of increased costs remains as elusive as the diagnosis itself.[53] Saying something doesn’t make it so.

Views have come a long way from blaming witches or individual weaknesses for psychological trauma.  The stigmatization around mental trauma is fading, and states are acknowledging such by passing laws allowing workers’ compensation benefits for mental-mental injuries.  Yet the stigma that expanding coverage for mental-mental injuries will result in runaway cost increases remains.  However, the belief that expanding coverage for mental-mental claims will dramatically increase costs is largely unsupported by the empirical evidence.  Florida expanded PTSD coverage for first responders and only saw a 0.2% increase in costs.[54]  Mental-mental claims represent a very small portion of the total claims filed.[55] The Bodiford case in South Carolina (above) demonstrates that there are significant limitations already in place to contain the costs.  He had to prove by medical evidence a causal relation between his condition and the accident he witnessed.  His recovery was limited to the general disability statute and medical treatment that would tend to less the period of disability only.

Mr. Bodiford also had to clear the hurdle that the event he witnessed was “unusual and extraordinary”.  For a construction supervisor, proving that witnessing another human being die because of a collision between a pedestrian and a motor vehicle was “unusual and extraordinary” was an easy hurdle to clear.  However, The Supreme Court of South Carolina has held that whether an event was “unusual or extraordinary” must be evaluated from the perspective of that particular job, not from the perspective of employment generally.[56]  Witnessing death from a motor vehicle accident is a far too common experience for many first responders.  Had Mr. Bodiford been a first responder, he would have had to further struggle to recover the already limited benefits he received by proving the incident witnessed was unusual and extraordinary.  For police officers working patrol, firefighters, EMTs, and other first responders that see motor vehicle accidents and their aftermath on a daily basis, the “unusual and extraordinary” requirement may be a hurdle too high to clear.  First responders are critical to society.  They deserve to be on equal footing with everyone else when it comes to recovering workers’ compensation benefits for mental trauma.

* Kristen McRee is the Director of Administration for the South Carolina Workers’ Compensation Commission and can be reached at  J. Keith Roberts is General Counsel for the S.C. Workers’ Compensation Commission and can be reached at


[1] Natasha Tracy, The History of Mental Illness, HealthyPlace (October 23, 2019), available at
[2] Id.
[3] Id.; Beatriz Quintanilla, MD, PhD, Witchcraft or Mental Illness?, Psychiatric Times (June 21, 2010), available at Witchcraft or Mental Illness? (
[4] Quintanilla, supra.
[5] Tracy, supra note 1.
[6] Id.
[7] Matthew J. Friedman, MD, PhD, PTSD History and Overview, available at PTSD History and Overview – PTSD: National Center for PTSD (, last accessed on August 2, 2023.
[8] Id.
[9] S.C. Code Ann. § 42-1-160(B)(2007, as amended). It was not until 1996 that the South Carolina General Assembly passed an Act recognizing stress and mental injuries unaccompanied by a physical injury. 1996 SC Act No. 424, § 13. This statute was updated to its modern form in 2007. 2007 SC Act. No. 111, Pt. I, § 6.
[10] Id.
[11] S.C. Code Ann. § 42-1-160(G)(2007, as amended)
[12] See S.C. Code Ann.. § 42-9-30 (2007, as amended); S.C. Code Ann. Regs. 67-1101 (year).
[13] S.C. Code Ann. § 42-9-10 (2007, as amended); S.C. Code Ann. § 42-1-40 (1996, as amended); S.C. Code Ann. § 42-15-60 (A)(2007, as amended); S.C. Code Ann. § 42-15-90 (2012, as amended);  1976 S.C. Code Ann. Regs. 67-1302 (1997, as amended).
[14] Paul Hendrick, FCAS MAAA, Director and Actuary, Actuarial and Economic Services National Council on Compensation Insurance (NCCI), 2023.
[15] Id. Another study by the National Council on Compensation Insurance (NCCI) suggests that approximately 14% of EMTs experience PTSD, 7.3% of FFs, and 4.7% of LEOs.
[16] Bodiford v. SC Dep’t of Transp., No. 1520276, 2019 WL 12499733 (S.C. Work Comp. Comm., August 15, 2019).
[17] Kelly Matter, SCDOT Worker Struck and Killed by Dump Truck in Darlington Co., WBFM News, Oct. 20, 2015,
[18]Bodiford 2019 WL 12499733 at 2.
[19] Id.
[20] Id.
[21] Id.
[22] Tex. Lab. Code Ann. § 401.011 (26)(2023).
[23] GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 610-611 (1999).
[24] Tex. Lab. Code Ann. § 408.021 (2023); Tex. Lab. Code Ann. § 408.081 (26)(2023); Tex. Lab. Code Ann. § 408.121 (2023); Tex. Lab. Code Ann. § 408.141 (2023); Tex. Lab. Code Ann. § 408.161 (2023); Tex. Lab. Code Ann. § 408.061 (2023); Tex. Lab. Code Ann. § 408.062 (2023).
[25] Mont. Code. Ann.  § 39-71-119(3)(a) (2021, as amended); Yarborough v. Montana Mun. Ins. Authority, 928 P.2d 679 (Mont. 1997)(Firefighter’s PTSD was held not compensable as it arose out of a mental injury secondary to witnessing the explosion and did not arise from the second degree burns he suffered physically which “healed quickly and without incident.”).
[26] Ohio Rev. Code Ann. § 4123.01 (2022, as amended).
[27] Ga. Code Ann. § 34-9-1 (4)(2015). “[I]n order for a psychological injury to be compensable, it must satisfy two conditions precedent: (1) it must arise out of an accident in which a compensable physical injury was sustained; and (2) while the physical injury need not be the precipitating cause of the psychological condition or problems, at a minimum the physical injury must contribute to the continuation of the psychological trauma.” Columbus Fire Department/Columbus Consol. Government v. Ledford, 523 S.E.2d 58 (Ga. Ct. App. 1999); see also Dekalb County of Bd. of Educ. v. Singleton, 668 S.E.2d 767 (Ga. Ct. App. 2008)(holding that Claimant’s anxiety and depression was compensable as the conditions arose out of physical injuries secondary to a compensable work-related asthma attack).
[28] Fla. Stat. Ann. § 440.093(1)-(2)(2023)(mental injuries sustained as a manifestation of a compensable physical injury are compensable if the mental injury is proven by clear and convincing medical evidence by a license psychiatrist and the physical injury was the major contributing cause of the mental condition).
[29] 2022 Ky. Rev. St. Ann. & R. Serv. 342.0011 (Banks- Baldwin); Kentucky State Police v. McCray, 415 S.W.3d 103 (Ky. Ct. App. 2013)(reversing the Board’s award of compensation to a police officer who alleged mental injuries from witnessing a shooting while in the line of duty where the officer sustained no physical injury as a result of the occurrence).
[30] See Stratemeyer v. Lincoln County (Stratemeyer II), 276 Mont. 67, 915 P.2d 175 (Mont. 1996).
[31] See Hess v. Virginia State Police, 806 S.E.2d 413 (Va. Ct. App. 2017) (“[T]o be compensable, a psychological injury as with a physical injury, must arise out of the employment while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment.”).
[32] Va. Code Ann. § 65.2-101 (2019) (generally defines average weekly wage as an employees’ earnings for the 52 weeks immediately preceding the accident and setting the minimum and maximum wage); Va. Code Ann. § 65.2-518 (1997)(maximum period for indemnity payments is 500 weeks); Va. Code Ann. § 65-2-605(B)(2023) (costs of medical treatment limited by fee schedule).
[33] Cal. Lab. Code § 3208.3 (2019).
[34] Cal. Lab. Code § 4600 (2023) (requiring the employer to provide reasonably necessary medical care that is required to provide a cure or relief from the injury and requiring that the treatment be provided pursuant to a utilization schedule); Cal. Lab. Code § 4653 (1974)(setting the compensation rate at 2/3 of the claimant’s average weekly wage); Cal. Lab. Code § 4654 (1974)(setting the compensation rate for temporary partial disability as 2/3 of the weekly loss in wages reduced by any unemployment compensation or extended duration benefits received during the period of disability); Cal. Lab. Code § 4656 (2023) (Maximum aggregate disability payments and periods).
[35] Or. Rev. Stat.  § 656.802 (2023).
[36] Or. Rev. Stat.  § 656.210 (2023)(providing the calculation for temporary total disability benefits); Or. Rev. Stat.  § 656.214 (2008)(providing the calculation for temporary partial disability benefits); Or. Rev. Stat.  § 656.216 (1974)(providing the calculation for permanent partial disability); Or. Rev. Stat.  § 656.206 (2018)(setting no maximum for permanent total disability benefits, but permitting the insurer to reassess permanent and total disability claims every two years to determine whether a claimant has materially improved); Or. Rev. Stat.  § 656.245 (2023, as amended)(requiring insurers to provide medical services for compensable conditions); Or. Rev. Stat.  § 656.248 (2010)(authorizing the Director of the Department of Consumer and Business Services to promulgate rules for developing a medical fee schedule).
[37] Nina F. Lewis-Schroeder, PhD, Kathryn Kieran, NP, Eth L. Murphy Md, PhD, et al., Conceptualization, Assessment, and Treatment of Traumatic Stress in First Responders: A Review of Critical Issues, Harv Rev Psychiatry (2018) available at
[38] Id. The results of these studies were derived from small scale samples and relied upon self-reporting.
[39] Bruce Spidell, Examining PTSD-What’s the Impact on Future Workers’ Compensation Costs, NCCI (June 17, 2021) available at Examining PTSD – What’s the Impact on Future Workers Compensation Costs (
[40] Spidell, supra.
[41] Lewis-Schroder, PhD, et. al., supra note 10.; Spidell, supra note 12. The statistics are not presented for confirmed statistical accuracy, but rather to provide an approximate benchmark for incidence rates.
[42] This statistic was extrapolated from jurisdiction in which NCCI provides ratemaking services.
[43] S. 251, 2023 Leg., 125th Sess. (SC 2023); S. 81, 2023 Leg. 125th Sess. (SC 2023).
[44] Id.
[45] H. 3939, 2021 Leg., 124th Sess. (SC 2021).
[46] See note 45, supra.
[47] Fla. Stat. Ann. § 112.1815(2)(a)(3)(2023).
[48] Fla. Stat. Ann. § 112.1815 (2023).
[49] Daylina Miller, Workers’ Comp to Cover PTSD for First Responders Starting Oct. 1, WUSF Public Media (September 17, 2018), available at (last accessed September 14, 2023).
[50] Tex. Lab. Code Ann. § 504.19(b) (2023, as amended). The 2023 amendments expanded the definition of “first responder.”
[51] Conn. Gen. Stat. Ann. § 31-294k (West 2021) amended by 2023 Conn. Legis. Serv. 23-25 (West).
[52] Louise Esola, Who Pays to Heal Mental Injuries of First Responders?, Business Insurance (December 7, 2016) available at (last accessed September 14, 2023).
[53] Id. (quoting Josh Rhodes, Assistant General Counsel for the South Carolina Association of Counties: “Actuaries can’t tell us; there are too many unknowns. We have no idea about the extent of claims and the extent of awards because of all the unknowns.”).
[54]  Daylina Miller, Workers’ Comp to Cover PTSD for First Responders Starting Oct. 1, WUSF Public Media (September 17, 2018), available at (last accessed September 14, 2023).
[55] “[I]ndemnity payments [for mental-mental claims] approximated 0.4% of the total payments made by carriers that year and 0.3% of the total medical treatment costs.”  Paul Hendrick, FCAS MAAA, Director and Actuary, Actuarial and Economic Services National Council on Compensation Insurance (NCCI), 2023.
[56] Bentley v. Spartanburg Co. 398 S.C. 418, 730 S.E.2d 296 (2012) (“Unusual or extraordinary conditions of employment resulting in a compensable mental injury refer to conditions of the particular job, not to the conditions of employment generally”).