George Mason University Antonin Scalia Law School


By Spring 2020 M-VETS Student-Advisor Joshua McKenney

In the wake of the global COVID-19 pandemic, frontline health workers around the world are receiving well-deserved social recognition for their efforts. But it is necessary that the law reflect equal recognition for these frontline health workers who place themselves at risk in service to their communities. Specifically, these workers are experiencing numerous psychological stressors during this pandemic that place them at high risk for developing mental health conditions such as posttraumatic stress disorder (“PTSD”). And unfortunately, the law in Virginia regarding compensation for workers struggling with job-related mental health conditions is inadequate to address this concern.


A growing number of states including Colorado, Connecticut, Florida, Louisiana, Minnesota, Texas, and Vermont have passed legislation to provide workers’ compensation to first responders suffering from PTSD.[1] Virginia joined this trend in February of 2020.[2] The Virginia House and Senate passed two bills, House Bill 438 and Senate Bill 561, both aimed toward recognizing PTSD as an occupational disease. This would allow those affected to seek treatment and workers’ compensation. Those bills passed and became law on April 22, 2020.[3] However, these reform efforts are too narrow. The drafting of these bills was urged in part by the Director of Government Relations for Virginia Professional Firefighters. And the scope of the legislation reflects this. It specifically allows workers’ compensation to be awarded to qualifying law-enforcement officers and firefighters suffering from a mental health condition as the result of a traumatic event occurring in the line of duty on or after July 1, 2020.

Virginia has the same problem that many jurisdictions have. It has taken important steps in the right direction, but reform efforts are too restrictive. A second example can be found in Connecticut where a bill permitted workers’ compensation benefits related to mental health conditions for police officers but not paramedics. Some of these laws, as is the case in Virginia, also fail to consider the cumulative effect of traumatic events. Diagnoses are limited to PTSD resulting from a single qualifying event. While these legislative efforts show that progress can be made, it also reveals a tendency to underestimate and oversimplify the issue of job-related mental health conditions.


While the sense of normalcy has shifted across the world, this shift is especially apparent and dangerous in health systems. Dr. Shaili Jain, the Medical Director of the Primary Care-Behavioral Health Team at VA Palo Alto, described health workers as standing on the “frontline in the global war on COVID-19.”[4] The patient population has increased, more patients are seen in critical condition, and there is a shortage of necessary protective equipment. Breaks are sometimes not possible with critically ill patients, and health workers struggle to balance the need for social distancing against the need for self-care through traditional support networks. One DC nurse expressed concern that nurses may suffer from PTSD going forward.[5] Dr. Jain further stressed that the impact of this pandemic on large numbers of essential workers over a short period is concerning and stressors could lead to “mass traumatization.”

This concern highlights that the current COVID-19 pandemic is not only an unprecedented strain on health systems, but it also represents an unprecedented strain on the mental health of frontline workers. According to the National Center for PTSD, health workers treating COVID-19 patients are exposed to stressors including constant awareness and vigilance regarding control procedures, isolation, increased daily workload, and external stigma regarding health workers.[6] An article from The Independent cites the usual ratio of nurses to patients in the UK’s National Health System (“NHS”) as 1:1.[7] Now, it is 1:6. Health workers are doing whatever they can, sometimes at the expense of their own wellbeing. This is both laudable and concerning because health workers may continue to work despite experiencing symptoms of a mental health condition. Like many first responders and servicemembers, health workers tend to be service-oriented. With the fear of removal at such a critical time, many health workers may postpone or forgo seeking the psychological support they need. Such delay could lead to worsening mental health conditions in frontline health workers over time. Employers should therefore expect a “readjustment period” after treating COVID-19 patients, and the National Center for PTSD recommends that health workers consider formal treatment for stress lasting longer than two to three weeks.[8] Although most frontline health workers will recover naturally from the psychological toll of the pandemic, many will not.[9]

For those who do not recover naturally, it is necessary to seek medical treatment. Mental health conditions, particularly PTSD, can dramatically impact a person’s life. If left untreated, PTSD is often accompanied by addiction, depression, suicide, and an increased risk for heart disease. And unfortunately, PTSD is a well-established consequence for health workers in disease outbreaks. A case study from doctors working through the 2014 – 2016 Ebola outbreak described stressors including the death of colleagues, the high stakes that do not allow time for grieving and processing emotions, and isolation measures which cut off traditional support systems.[10] Frontline health workers in the current pandemic face these same stressors and share the heightened risk of developing a mental health condition. The first step is to ensure that immediate resources are available for personal safety. But a long-term, systematic response is necessary to identify vulnerable subgroups and offer psychological treatment if necessary. While effective psychological therapies exist, the burden of obtaining needed relief should not be shifted to frontline health workers. Sympathy for these health workers is not enough. Virginia must ensure a long-term, well-funded commitment to support these frontline health workers who put themselves at risk to protect their communities. The first step is allowing frontline health workers to seek workers’ compensation for PTSD under the existing framework.



Filing for workers’ compensation in Virginia requires three basic steps. First, an employee must notify his or her employer of the injury within 30 days of its occurrence. That employee must then file a claim for benefits with the Virginia Workers’ Compensation Commission (“the Commission”) within two years of the accident causing injury. And third, the employee must seek medical treatment. This is simple enough, and these basic steps apply equally to both physical and mental injuries.

But beyond filing for compensation, receiving an award for job-related injury under the Virginia Workers’ Compensation Act[11] (“the Act”) is much more difficult for mental health conditions than for physical injuries. Under the Act, a physical “injury” only requires showing an injury by accident arising out of and in the course of the employment or an occupational disease. For a mental health condition to be compensable under the Act, the condition must qualify as an occupational disease or as a compensable ordinary disease of life. Occupational disease is defined as a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.[12] Whether a condition or disease is an ordinary disease of life or an occupational disease is essentially a medical question decided by the trier of fact based on the evidence.[13] Virginia courts have had few occasions to further define whether and how PTSD may be compensable under the Act. And in the few cases addressing the issue, the courts tend to oversimplify and undercompensate mental health conditions.

One of the earliest Virginia cases discussing the award of worker’s compensation for mental health conditions was the 1941 case of Burlington Mills Corp. v. Hagood.[14] There, the claimant was exposed to an electric flash and a loud sound while working near an electric motor that short circuited. Although no signs of physical injury from the machine malfunction existed, the claimant was diagnosed with traumatic neurosis and awarded benefits. The Virginia Supreme Court affirmed, noting the claimant’s injury was “fairly traced to a risk which arose out of and during the course of her employment.” This case follows the traditional understanding of a compensable injury, which is an injury resulting from an occupational injury. The more complex issue of a mental health condition arising separately from a job-related injury was not addressed until much later.

In 2002, the Virginia Supreme Court in Fairfax County Fire and Rescue Dept. v. Mottram addressed the compensability of what is referred to as a mental-mental claim.[15] Such a claim refers to a mental health condition that developed from a psychological or emotional stimulus rather than a physical accident. These claims are often the most difficult to prove due to the lack of supporting evidence and the lack of development in this area of the law. In Mottram, repeated exposure to “traumatic stressors” caused reactions in the claimant’s neurobiological systems similar to an immune reaction which the court had previously characterized as a disease under the Act.[16] The court looked to scientific literature which described that a person undergoing conditions of acute and severe psychological trauma mobilizes neurobiological systems for the purpose of survival.[17] The mobilization of these systems can cause long-term negative consequences manifesting as symptoms of PTSD. And because PTSD symptoms may relate to chemical or physical abnormalities in the body, it is therefore properly considered a disease under the Act. But that alone does not render PTSD a compensable condition. Although Mottram’s PTSD was considered a compensable occupational disease under the circumstances, the circumstances of each case are unique. And to complicate matters, the Virginia Supreme Court noted that PTSD could be considered an ordinary disease of life or an injury by accident under other circumstances.

Several years later in 2015, the Virginia Supreme Court clarified that physical injury is not a prerequisite to recovery for psychological injury in Virginia.[18] Therefore, mental-mental claims may be compensable as a preliminary legal matter. But to be compensable, psychological injuries not accompanied by physical injury must be related to “a sudden shock or fright arising in the course of employment.” In practice, this requirement makes it nearly impossible for many claimants to demonstrate the causal connection between their mental health condition and job-related stressors. It further seems to require that mental health conditions originate from one single incident to be compensable. The Virginia Court of Appeal’s latest attempt to clarify this test resulted in a decision which made an already difficult hurdle perhaps insurmountable for those most at risk of developing mental health conditions as a result of their occupational duties.

In 2017, the Virginia Court of Appeals decided Hess v. Virginia State Police.[19] In Hess, a 10-year veteran of the Virginia State Police was denied compensation for PTSD which resulted from responding to a particularly gruesome auto accident. In Virginia, the court opined, the types of events giving rise to purely psychological but still compensable injuries are consistently described as shocking and unexpected. The court asserted that the claimant’s presence at a fatal auto accident as a state trooper was an “unfortunately frequent” occurrence which his training and experience should have prepared him for. Although the experience was subjectively traumatic, his condition was found not to be the result of an unexpected fright.

Therefore, the nature of a claimant’s profession and requisite training can disqualify PTSD as a compensable injury in Virginia by rendering certain traumatic events as objectively expected. This ruling is difficult to square both with contemporary understandings of PTSD and with the need to protect our most vulnerable and essential populations of workers. Certain professions train employees to encounter shocking and unexpected events. And this is desirable because such training could reduce the mental health impact of such incidents on essential workers. But under Hess, such training and experience makes it more costly for these individuals to receive necessary mental health treatment despite the expectation that they will be exposed to these stressors. Under the current state of Virginia law, it is difficult to see how a frontline health worker’s claim for PTSD could succeed. In a sense, properly trained and experienced health workers are far less likely to receive compensation than an ordinary employee with less training and less exposure to risk. This cannot be what the Virginia legislature intended, and the legislation adopted on April 22 in fact demonstrates the opposite. Those reform efforts indicate a shift toward greater workers’ compensation coverage for those most at risk.


We should all be appreciative of the essential work being done by frontline health workers during this pandemic. But those workers deserve more than our appreciation. They deserve access to the resources necessary to treat any mental health conditions which may result from their service during this extraordinary period. Legislative reform is needed to ensure that those sacrificing for the benefit of their communities receive the assistance they deserve to obtain the mental health resources they need.

[1] Rene Ebersole, First Responders Struggle with PTSD caused by the Emergencies, Deaths, Tragedies They Face Every Day, the Washington Post, (Oct. 26, 2019).

[2] Adriana De Alba, Virginia House and Senate pass bills to help first responders with PTSD (Feb. 12, 2020 18:58).

[3] Openstates, Virginia House Bill 438 Workers’ compensation; post-traumatic stress disorder, law-enforcement officers and firefighters,; Openstates, Virginia Senate Bill 561 Workers’ compensation; post-traumatic stress disorder, law-enforcement officers and firefighters,

[4] Shaili Jain, M.D., Bracing for an Epidemic of PTSD Among COVID-19 Workers, (Apr. 13, 2020).

[5] Mimi Montgomery, “They Fall Off a Cliff:” A DC-Area ICU Nurse on the Overflow of Covid-19 Patients She’s Seeing,

[6] National Center for PTSD, Managing Healthcare Workers’ Stress Associated with the COVID-19 Virus Outbreak,

[7] Shaun Lintern, Coronavirus: Doctors and nurses will need PTSD treatment after Covid-19 virus peaks in hospitals, warn health leaders, (6 Apr. 2020 17:15).

[8] National Center for PTSD, supra note 5.

[9] Shaili Jain, supra note 4.

[10] Lorenzo Paladino et al., Reflections on the Ebola Public Health Emergency of International Concern, Part 2: The Unseen Epidemic of Posttraumatic Stress among Health-care Personnel and Survivors of the 2014—2016 Ebola outbreak, J. Global Infect. Dis. 45-50 (2017),

[11] Va. Code § 65.2-100 et seq.

[12] Va. Code § 65.2-400(A).

[13] Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544, 550, 425 S.E.2d 525, 529 (1993).

[14] Burlington Mills Corp. v. Hagood, 177 Va. 204, 210-11, 13 S.E.2d 291, 293 (1941).

[15] Fairfax County Fire and Rescue Dept. v. Mottram, 263 Va. 365, 373, 559 S.E.2d 698, 702 (2002).

[16] A New Leaf, Inc. v. Webb, 257 Va. 190, 511 S.E.2d 102 (1999).

[17] Steven M. Southwick et al., Neurobiology of Post-Traumatic Stress Disorder in PSYCHOTRAUMATOLOGY, KEY PAPERS AND CORE CONCEPTS IN POST-TRAUMATIC STRESS 49, 53 (George S. Everly, Jr. & Jeffrey M. Lating eds., 1995).

[18] Jackson v. Ceres Marine Terminals, Inc., 64 Va. App. 459, 464, 769 S.E.2d 276, 279 (2015).

[19] Hess v. Virginia State Police, 68 Va. App. 190, 806 S.E.2d 413 (2017).