A strong call from the Bench for legislative reform . . . Now what?
When the South Carolina Supreme Court issued its July 11, 2012 opinion in Bentley v. Spartanburg Co. and S.C. Association of Counties SIF, Opinion No. 27140, it strictly construed S.C. Code Ann. §42-1-160(B) to hold that a law enforcement officer’s shooting and killing of a person in the line of duty did not constitute an unusual and extraordinary condition when viewed under the particular conditions of a law enforcement officer’s employment. The defendants in the case did not dispute the claimant suffered causally-related mental injury in the form of post-traumatic stress disorder, but there is no evidence of physical injury caused by the shooting. As such, in workers’ compensation jargon, we refer to this type of claim as a “mental-mental injury.”
The majority opinion is replete with references to the Court’s reluctance to reach that decision but acknowledges the Court’s role not as a legislator but as a strict interpreter of the law as written in the South Carolina Code of Laws. The dissent strongly believes Officer Bentley’s case satisfied the unusual and extraordinary conditions standard. My friend and Collins & Lacy colleague, Christian Boesl, wrote last week of the immediate implications of the Court’s decision.
You’ve heard it before in an infomercial – “But wait, there’s more.” Well, to be more accurate, perhaps there’s more to come. In this post, we examine what the future may hold for the South Carolina Legislature, the Courts and the workers’ compensation community in determining compensability of mental-mental injuries under this statute. In its current form, S.C. Code Ann. §42-9-160(B) reads:
(B) Stress, mental injuries, and mental illness arising out of and in the course of employment unaccompanied by physical injury and resulting in mental illness or injury are not considered a personal injury unless the employee establishes, by a preponderance of the evidence:
(1) that the employee’s employment conditions causing the stress, mental injury, or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and,
(2) the medical causation between the stress, mental injury, or mental illness, and the stressful employment conditions by medical evidence.
(emphasis added)
As an initial matter, note that Officer Bentley has an opportunity to file a Petition for Rehearing pursuant to S.C. Appellate Court Rule 221. To succeed, he must convince the Court that it overlooked or misapprehended points put forth in brief and/or oral argument such that a re-examination of the case is necessary to consider those points. It is not my purpose to examine whether the Court missed or misapprehended points briefed and argued by the parties or presented in the Amicus brief. I simply note the rehearing possibility to insert the caveat that an examination of potential legislative reform of the statute at issue may be rendered moot should the Court modify its decision. Nor is it my purpose to 1) call for any measure of reform, or 2) disagree with the Court that reform should be considered. This is simply an examination of, “Well, where can we go from here?”
The Legislature could certainly choose not to reform the statute. As it stands, the law remains unchanged and the Supreme Court’s decision in Bentley only helped to define the current standard of unusual and extraordinary circumstances, at least in cases factually specific to law enforcement officers. The Legislature could reject the Court’s assertion in Bentley that the existing “proximate cause” standard in all workers’ compensation claims combined with the explicit exclusion of normal employee/employer relations put forth in S.C. Code Ann. §42-1-160(C) would prevent a “flood of litigation” over alleged mental-mental injuries. In so choosing, the message would be rather clear that the heightened standard to prove causation in §42-1-160(B) is, in the opinion of lawmakers, not in contradiction with the South Carolina Workers’ Compensation Act’s intended purpose to err on the side of coverage.
For purposes of further discussion, let us assume the Legislature chooses to reform the statute by removing the unusual and extraordinary conditions standard. It stands to reason, then, that mental-mental injuries would be compensable under the Act if they satisfy the proximate cause standard that the injuries arose out of and occurred in the course of employment and do not arise from acts of normal employer/employee relations. I won’t attempt redrafting the statutory section here, but the modification would likely eliminate most of the current subsection (B) and revise it to add inclusionary language with the limiting employer/employee relations language of subsection (C).
Revising the statute in this way would greatly reduce the standard of proof required to prove a compensable mental-mental injury. That is the Supreme Court’s desire. Even with the proximate cause requirement and exclusion of incidents of employer/employee relations, there could be an increase in the number of mental-mental claims filed. That is not to say there will be an increase in benefits paid in compensable mental-mental claims – proximate cause and the employer/employee relations exclusion may wash many of those claims out of the system. Whether there is an increase in benefits paid depends upon the Commission’s and Courts’ application of the new standard of proof to particular factual scenarios. I could write an epic tale of wild factual scenarios that may or may not meet the reduced standard, and I’m sure readers could match mine in number with hypothetical situations of their own. That might be an enjoyable debate, but suffice it to say there’s no question in this writer’s mind that Officer Bentley would have proven his case compensable under the reduced standard proposed by the Court.
But if it’s a “flood of litigation” the Court (and perhaps the Commission) hopes to avoid, might there be another way? It occurred to me in considering the implications of this decision that there might be legislative action taken in the form of carving out in the statute a category of employee that would be subject to a different standard of proof in a mental-mental claim. For example, some sort of defined category of “first responders” that covered law enforcement, fire and emergency medical personnel could be an option. I won’t venture into which groups would be included or what their particular standard of proof would be, but carving out categories of employees in the Workers’ Compensation Act is certainly not a new concept. See S.C. Code Ann. §§42-1-130 (defines “employee”), 42-1-360 (excludes various specific categories of employee from the Act), 42-1-400 through -450 (owners, contractors and subcontractors), 42-1-480 through -505 (prisoners, parolees), 42-1-660 (architects, engineers, etc., on construction projects), 42-7-60 (clients of state Vocational Rehabilitation, students in work study programs), 42-7-65 (average weekly wage for certain categories of employee), 42-7-67 (State and National Guard members), 42-11-30 (cardiac and/or pulmonary injuries to firefighters and law enforcement officers).
I simply offer this as a possibility to address what the South Carolina Supreme Court clearly considers to be a harsh, yet statutorily correct, result in the Bentley case. We can be certain that discussion will transpire at the State House. We cannot be certain of any product of that discussion. Stay tuned for any updates or developments.UPDATE: South Carolina Lawyers Weekly recently interviewed both Mikell Wyman and Christian Boesl regarding the Bentley case and the Court’s call for reform. Read the July 20, 2012 article “Supreme Court advocates for workers’ comp reform.”