Of the hundreds of prefiled bills for South Carolina’s upcoming two-year legislative session, only two directly address workers’ compensation.  Compare this to 10 for the 2011-12 session, 11 for the 2009-2010 session, and 32 for the 2007-2008 session. If prefiled bills are any indication, it looks like this is going to be a quiet two years.

The two prefiled bills deal with completely different issues. The first is House Bill 3141 introduced by Rep. Todd Rutherford. It provides for the election of workers’ compensation commissioners by the General Assembly.  This would mirror the system by which judges are elected. Presently, commissioners are appointed by the governor with advice and consent of the Senate.  If the bill passes the House and Senate, it would most certainly be vetoed by Governor Niki Haley.  While the legislature can override her veto (and often does), I doubt this bill makes it far given the lack of pre-session buzz. Even if it did, I see no concerns from the defense perspective.

The second bill hits closer to home and is more troubling to many of us in the defense Bar.  House Bill 3147 was prefiled by Reps. Pope, Tallon and Southard, and is already creating a bit of a stir. The bill significantly eases an employee’s burden of proof for a stress claim by eliminating the requirement the stress be caused by extraordinary and unusual conditions of employment to be compensable. The bill undoubtedly was introduced in response to the Brandon Bentley v. SpartanburgCounty and S.C. Association of Counties SIF case wherein a divided Supreme Court said the current law forced them to reluctantly conclude a sheriff’s deputy was ineligible to receive compensation for the debilitating depression and anxiety he experienced after shooting and killing a suspect. (See our previous posts on the case and H. 3147.)

If the bill becomes law, the employee need prove only medical causation between the conditions of the employment and the mental injury to be entitled to benefits. The bill also makes mental illness compensable if shown to be medically caused by the employment. While the representatives who introduced the bill likely had good intentions of remedying what they (and the Supreme Court) viewed as an injustice in the Bentley case, the unintended consequences are deeply troubling.  Any employee who is unhappy in his job can claim mental injury and, if he can find a psychologist or psychiatrist to agree, compensation could go on for 500 weeks.  New employees with pre-existing mental illness can claim the employment caused their condition to become symptomatic.  Employers could become liable for an employee’s depression, psychoses, and phobias.  Does this sound like the no-fault system envisioned to compensate employee for injuries by accident arising out of and in the course of employment?  I don’t think so.  If the General Assembly wants to carve out an exception in stress claims for policemen and firemen, few people would object.   The General Assembly did exactly that for heart attack cases.  However, the current bill is too broad and will lead to unintended results.  I suggest we all call our representatives and express our concern about House Bill 3147 and ask him or her to vote against it.