by David B. Torrey & Donald T. DeCarlo
Mental Stress Causing Mental Disability under Workers’ Compensation Laws:
A Short History, The Competing Arguments, and a 2021 Inventory

56 ABA TTIPS Law Journal 91 (2021).

I have recently published, along with my distinguished co-author, a new article on mental stress causing mental disability cases, with fifty-state comparative tables as addenda. We also discuss at length the PTSD presumption laws that were a main topic of debate before the COVID crisis. The essay below is a modified version of our article’s introduction, where we state the issues and provide a roadmap of the article.  I am pleased to send you the whole article as a PDF if you would like one! I am hopeful that I got all the states right.

The law of mental stress causing mental disability, and its compensability under workers’ compensation (the law of the “mental-mentals”), has been the subject of considerable study.  The topic is treated in encyclopedias published for lawyers, most famously in the multi-volume treatise originally authored by Arthur Larson, and now carefully updated on the subject.  And, when mental-mentals constituted a crisis area of workers’ compensation, the academic law journals were full of pro and con analyses of whether coverage of such claims was proper and, if so, under what conditions.  Such analyses can still be found in the present day.

This article examines anew this still-controversial aspect of workers’ compensation.  It does so in a period when, after several decades during which many states withdrew or limited coverage, legislatures are enacting or considering presumption and other laws to ease the ability of first responders (police, fire, and emergency medical professionals) to secure coverage for mental injury and disability, particularly Post-Traumatic Stress Disorder (PTSD).  The present day is also marked by a seeming parallel trend: at least some state courts are reading their traditional laws in the mental-mental area liberally so as to award compensation to such traumatized workers. Finally, this examination of laws is undertaken in the aftermath of successive Middle East wars, which generated an epidemic of mental illness and suicide among soldiers, a phenomenon which raised awareness about PTSD and which only now is being fully analyzed.

This article features tables in which the laws of the state and federal programs are identified and specifically referenced by statute and/or important caselaw. The first table is an unabridged recounting of the mental-mental laws; the second identifies the special first responder laws which have been enacted, or which are being considered; and the third details the statutory features of the first responder laws that have been enacted as of December 28, 2020.

An introduction to the law in this area requires a definition of the term “mental-mental.”  These are claims in which the injured worker has experienced purely mental stress and thereafter sustains a purely mental disability.  An example is the bank teller faced with deadlines and mandatory overtime, without additional pay, who develops depression, agoraphobia, and panic attacks and, as a result, is unable to work.  Notably, while this mental-mental terminology may sound like an insensitive reductionism of a serious malady (this writer would not use the phrase in the presence of a distressed worker), the term is used by courts in published decisions, and by legislatures in statutes, and has taken hold universally.

More importantly, the mental-mental phrase, likely coined by Larson, is intended to set off such claims from two less controversial categories of mental injury.  These are the “physical-mentals” and the “mental-physicals.”  A physical-mental is typified by the worker who sustains a violent trauma to the body and is physically injured, but who is left, in the aftermath, with anxiety and depression.  A mental-physical, meanwhile, is typified by a worker who develops stress at work (for example, an encounter with a menacing supervisor) and who, in the aftermath, is left with a physical injury (for example, a heart attack). These types of injuries are universally held compensable as long as medical causation is established.

These three categories are crucial to the understanding of how mental injuries are treated by workers’ compensation laws.  With few exceptions, state laws place a heightened burden of causation (“abnormal working conditions” or the like) on the mental-mental cases, or even preclude them.  On the other hand, state laws freely accommodate the compensability of the physical-mentals and mental-physicals.

The subject of this article is the mental-mental cases but, as will be seen, on occasion lawyers and/or courts blur the distinction. Fortunately for the legal analyst, most courts have created impressive bright lines between the categories.

An introduction also requires appreciation of two phenomena that have attended the recognition of mental-mental injuries, a recognition that in itself has only widely existed since the 1970s.

First is the majority rule that, if a workers’ compensation statute will not allow, as a matter of law, a claim for mental stress causing mental disability, then presumably a negligence suit against the employer by the worker (typically based on a theory of failure to provide a safe workplace) will be cognizable. Second is the majority, if not universal, rule that a worker who has completely imagined his or her workplace stress will possess no cognizable claim; as the Larson treatise correctly declares, claims based on misperceived stress, though originally recognized by a few courts, “have not fared well.”

With these introductory items in mind, this article first provides an historical account of how mental injuries have been addressed in workers’ compensation laws.  This article then sets forth the arguments, pro and con, with regard to compensability.  Thereafter, this article, addressing the first of the tables, discusses the laws among the states on the subject of mental-mental injuries. In that discussion, a discrete examination of each jurisdiction’s laws is necessarily not undertaken (the current Larson treatise “digest,” which admirably undertakes this feat, runs to 275 pages), but the discussion sets forth key statutory features and details how lawyers and judges have approached and interpreted them. That discussion is followed by an analysis of the first responder PTSD laws, which constitutes the emerging development in this area.  That analysis addresses the tables of the second and third appendices.  This article concludes with recommendations for how mental-mental cases are best treated under workers’ compensation laws.