Fenwick v. Oklahoma State Penitentiary

LAVENDER, SIMMS, customers, HODGES, to their we are un- businesses WILSON, KAUGER, JJ., whether unlawful dis- ALMA able determine crimination has here occurred. We do be- concur. Ratepayers have shown suffi-

lieve OPALA, V.C.J., part, concurs controversy so as to allow their cient in part. dissents theory be submitted to a claims on this part fact. Plaintiffs case is trier of J., C.J., DOOLIN, HARGRAVE, for further the trial court remanded to disqualified. proceedings. determined to provision If discriminatory, and therefore unlawfully

unenforceable, then court must the trial remaining parts

determine whether Re contract are also unenforceable. (Second) Contracts statement remaining enforceability of the Petitioner, FENWICK, Richard James expectations portions dependent upon parties. If the invalid contractual agree part is an essential provision PENITENTIARY, STATE OKLAHOMA have parties and the would not ment Fund, and Workers’ State Insurance provision, then the en agreed absent Court, Respondents. Id.; unenforceable. Zerbetz tire contract is No. 69691. Center, 708 P.2d Energy Alaska However, (Alaska 1985). if dis Supreme Court of Oklahoma. criminatory provi and hence unenforceable May essential, the offend sion is considered and the re ing provision will excised

maining portions of contract will be

enforced. Id. trial court deter-

Additionally, should the provisions complained to be

mine

unlawfully discriminatory it shall deter- ag- to the the amounts refundable

mine provide a plaintiffs, and Ratepayer

grieved accomplishing the refunds

method due. sums as are

such

CONCLUSION

Summary proper as to adjudication was consideration, alleging lack of theories portion of the trial court’s Order However, summary judgment

is affirmed. allegations of improper as to the fiduciary duty, as Trustees’

breach as of unlawful discrimination based

well public policy. Several factual

violation portions of the Those

disputes remain. reversed, and the court’s Order are

trial to the District Court is remanded

cause proceedings with our consistent

further

ruling.

Court, granted and this Court the Petition appeal for Writ of Certiorari. The issue on stress, is whether claimant’s mental incident, which arose out of an isolated any accompanying physical injury without under the Workers’ Com- pensation Act. We find that it is not. 8, 1979, Claimant, August On while working psychological aas assistant at the Penitentiary, Oklahoma State encountered being a situation where four women were hostage by nego- held an inmate. Claimant hostages tiated the three release of in exchange Subsequently, for himself. the fourth released. woman was After be- ing hostage approximately held four hours, and one-half Claimant was released injury. without Although days Claimant took two off immediately following hostage work in- cident, he continued to work the same position until October 1982. At that resigned job time he to take a similar with Community the Carl Albert Mental Health Center. 9, 1982, July

On Claimant filed his Form seeking disability compensation. paid State Insurance Fund for Claimant’s psychiatric medical and treatment until 6, 1987, April, January 1986. Then on seeking permanent filed a Form 9 Claimant partial disability. diagnosed by Dr. Nolan L.

Claimant was Armstrong suffering major depres- as sion, disorder, generalized anxiety post-traumatic stress disorder. He was di- Dunlevy by Sengel, Crowe & Randal A. agnosed by Larry Dr. M. suffer- Prater as City, petitioner. Oklahoma ing post-traumatic stress disorder and personality Although disorder. Claimant Nicholas, Warden, Gary Fred Jr. and L. shakiness, headaches, complains periodic Fund, City, Ins. Oklahoma for re- State hands, tingling pit in the discomfort in the spondent Ins. Carrier. stomach, of his and several other HODGES, disorders, diagnosis none of the included Justice. physical injury. This case arose after James R. Fenwick (Claimant) compensation, sought employee workers’ An is entitled to fault, employee permanent partial disability. regardless when the suf- “resulting Compensation disability found that fers or death from an Court arising personal injury not suffered an accidental accidental ... out Claimant had employment.” injury. Appeals The Oklahoma Court of of and in the course of his mental dis- reversed the Workers’ The causation of the claimant’s 1. Okla.Stat.tit. 11 anee, disputed leaving resignation. her ques- and asked for

orders are tion accidental as had not suf- Court held that the claimant only issue. defined fered an Act. provided of injury

A definition is in the (the Act) Compensation Act it- reached the same result in Vernon v. We repetitive definition more self.2 This Seven-Eleven Stores.7 Claimant failed a requirements set out under the section being test in his polygraph which resulted it the than is definitive. Since definition discharged. psychiatric He then received comprehensive, it Act is not has been the inju physical treatment but did not suffer the further duty the courts to define ry. doctor testified that the The claimant’s injury.” “accidental problems by caused claimant’s mental were subsequent and the polygraph test long recognized This Court has that the claimant had events. We found body disease of the mind or that “[a] injury compensable under not suffered an employment, in the course with arises nothing injury more” is not an accidental the Act. and, thus, compensable.3 ar not Claimant School,8 Haynes Pryor High a In gues require that element additional pains trotting chest after coach suffered “nothing by ment of more” is satisfied yards, there was no evi- uphill 50-100 but caused fact that the event which his stress myocardial dence of infarction. We found a definite and occurrence. identifiable pain physical injury with was actual This is not the case. This Court has con inju- insufficient constitute accidental sistently physical held must Thus, ry. compensation was denied. compensable.4 present disability a to be All of these involved mental stress cases pain, as such physical symptoms as Just pain unaccompanied by physi- a physical limbs, tingling and nausea do not and caused an identifiable cal injury,5 neither does constitute a which occurred at definite time. event there is no evi stress. Because cases, Yet, in all three claimant’s dis- present dence in the case that Claimant present ability compensable. not injury, he not any suffered Here presents the same situation. we case inju he an accidental shown that suffered any disability evidence of a have a without Therefore, disability compen- ry. his injury, caused an identifiable Act. sable under the which occurred at definite time. event Bak- Daugherty v. ITT Continental In the first time in the American For

ing Company,6 the claimant suffered from (AMA) a chap- Medical Association included stress, accompanying physi- without of mental disorders in ter on evaluation company’s her man- injury, cal after sales guidelines.9 Legisla- Then in her ager superior visited her at location, guidelines job perform- her ture mandated that the AMA’s work criticized School, (1981) 3(7) provides: Haynes Pryor High 4. tit. 2. Okla.Stat. (Okla.1976); Daugherty v. ITT Bak- Continental personal injury" "Injury means acci- (Okla.1976); ing Company, P.2d 393 Vernon injuries arising and in course dental out of Stores, (Okla. v. Seven-Eleven 547 P.2d 1300 disease or infection such 1976). may naturally therefrom and occu- result pational arising disease out of and in the Haynes, 5. at employment as herein defined. course of Provided, only injuries having as their source (Okla.1976). P.2d 393 purely personal but one that is risk not reasonably with the connected conditions (Okla.1976). 7. 547 P.2d 1300 employment shall out of be deemed arise employment. (Okla.1976). 8. 566 P.2d 852 Court, Keeling v. State Industrial Association, (Okla.1964) (quoting Guides to Eval- v. United States 9. American Medical Shoren (AMA Impairment, p. 149 Company, uation Permanent Rubber 87 R.I. A.2d (1958)). it enacted statute ry, nor has by physicians when evalu- to be used were decision, prior we conflict with our would legislative intent impairment.10 The ating Legislature is in presume must some provide was to this mandate behind interpretation. judicial our agreement with of mental consistency in the evaluations mandate, Therefore, legislative without injury. by physical accompanied disorders disability rule that to alter the we decline make disa- intended to Legislature Had the injury is not unaccompanied by physical ac- without from mental disorders bilities Act. The Workers’ compensable under the compensable, physical injury companying ruling was correct Compensation Court statutory def- changed the they would have compen- not entitled that Claimant was only includ- injury11 rather than inition of sation. consistently evaluating ing a method for mental disorders. PREVIOUSLY GRANT- CERTIORARI ED; OPINION OF APPEALS’ COURT disability, long the rule that It has been VACATED; THE WORKERS’ ORDER OF is not ac- physical, which either mental or SUSTAINED. COMPENSATION COURT not com- by physical injury is companied a rule is the Act.12 This pensible under inju- statutory definition on the

based LAVENDER, HARGRAVE, C.J., and remained substan- ry.13 This definition has SUMMERS, JJ., concur. SIMMS though even tially unchanged since 191514 DOOLIN, OPALA, V.C.J., ALMA In amended. frequently Act has been KAUGER, JJ., dissent. WILSON annually fact, the Act has been amended this rule. the establishment of since OPALA, Justice, with Vice Chief Co.,15 Fire Protection In Lekan v. P & L Justice, KAUGER, joins, whom we stated: dissenting. judi- familiarity with extant Legislative prece- extant Today the court reiterates pro- in the of statutes cial construction psychic trauma holding dent work-related presumed. Un- being amended is cess of by physical injury to be unaccompanied clearly appears or contrary intent

less a pro- I recede from noncompensable. amend- the terms of plainly expressed, by Kau- join the dissent nouncement same, atory acts which retain me, textually de- For there is no ger, J. dissimilar, pro- portions of substantially to exclude intent legislative monstrable will be accorded formerly force visions in- compensability those accidental placed to that construction identical scarring in mental that result juries case law. by preexisting them upon why I separately explain I write alone. exposition of to the court’s has not substantial- cannot accede Legislature Since governing act.1 inju- statutory definition ly changed the alleged only that 3(11) pro- Claimant has (Supp.1985) disease" since the tit. 10. Okla.Stat. resulting disability "acciden- part: he suffered vides injury." tal examining physician evaluate im- [A]ny shall with such pairment accordance in substantial 3(7) (1981). impair- permanent guides tit. to the evaluation Okla.Stat. officially approved as have been ment Compensation Court. majority of the Workers’ 575 states: 14. 1915 Okla.Sess.Laws include, guides may but shall not be These injury" means "Injury to, the Evaluation of the "Guides to limited arising out of and in published Impairment” in 1971 Permanent disease or and such course of Medical Association.... the American unavoidably may naturally and infection result therefrom. accompanying text. supra note 2 and 11. See (Okla.1980). 15. 609 P.2d Stores, P.2d 1300 v. Seven-Eleven 12. Vernon (Okla.1976); Bak- Daugherty Continental v. ITT Act, 85 O.S.1981 Co., (Okla.1976). 1. The Workers’ is no There ing P.2d 393 seq. "occupational 1 et §§ the definition need to discuss I. era.5 noncom- the Bismarck Because the pensability psychotrauma physical sans NEITHER NOR SUB- PROCEDURAL explicit any trace of injury stands without NORMS THE STANTIVE OF COM- implicit legislative and comes warrant6 LAW HAVE PLACE IN THE MON tradition, the solely from the common law LAW’S REP- COMPENSATION foreign transplant has no concept that REGIME ARATIONS place in the work- exposition textual psychic injury The rule work-related ers’ statute.7 accompanied by with or must be connected consistently rejected and This court has it some trauma before -past attempts to com condemned infuse in Okla- is well established rep into the scheme mon-law norms compensation jurispru- homa’s workers’ on-the-job governs harm.8 arations judicially dence.2 This crafted restriction act statutory compensation law “is an coverage last doubtless derived from Legislature complete in itself.”9 century’s principle of lia- common-law tort major every “Almost error that can bility, which holds without compensa development observed anguish may damages no for mental law, judicial legislative, whether tion recovered, ex ex either contractu3 or importation either can traced rep- compensation delicto.4 The workers’ of ideas, or, frequently, less to the as tort regime arations has no common-law ante- cedents; English sumption right it is traceable to an stat- proceeds prototype right a to the of a ute modeled after German resembles the Court, Okl., law, recovery 2. psychic Keeling v. 389 6. At common trauma See State Industrial 1) (1964) court); (or fright) generally (syllabus 1 was denied because P.2d 487 ¶ measuring monetary Baking difficulty terms, Daugherty Company, v. ITT Continental in Okl., 393, 2) (1976). precise physical consequences, P.2d The remoteness of 558 395 4) 3) Keeling precedent lack of in issue in was whether the claimant’s a fear Keeton, posture litigation. from a creased See Prosser “nervous breakdown” assumed Prosser, ed.1984) 360; (5th sewing operating at machine constituted Law Torts while Suffering; injury, the functional Intentional Infliction of Mental whether Tort, 874, There, (1939). denying the loss was recoverable. in New 37 Mich.L.Rev. Telegraph upon Cho court relied Lead & Zinc See. also Western Union Co. v. claim the Rialto 4, Commission, 101, teau, supra 112 115 P. at 886 and 888. Co. v. State Industrial Okl. note dysfunction 240 where mental P. 96 physical compen- Inc., Okl., held Time-DC, work-related P.2d 7. McDonald v. 773 1252, (1989). sable. compen- 1255 n. “Workmen’s 13 outgrowth law sation not an common Seidenbach’s, Williams, Okl., 3. See employers’ liability legislation; Inc. v. 361 it is the (1961) (the 1). syllabus expression entirely principle of an new social ¶ P.2d court’s 185 having nineteenth-century origins in Germa- Law, Larson, Compensation ny." 1 Workmens’ 4. English early American authorities For at Civil tradition both rule, 5.00 law includes announcing Knight, Lynch see v. 9 meaning psychic physical and harm 577, 598, (1861); Eng.Rep. 11 Victo- .within H.L.C. 854 legal injury." Floyd "bodily v. term Coultas, (1888 Eng.) Railway Comrs. v. L.R. rian Inc., Airlines, 1462, (11th PC; F.2d 1471 222, Eastern 872 Spade App.Cas. E.R.C. v. 13 8 405— Cir.1989). 285, Co., Lynn 47 & B.R. 168 Mass. N.E. 88 (1897). point cases On this Oklahoma include Time-DC, 234, Inc., Co., e.g., supra 2 Okl. v. Western Union Tel. 37 McDonald v. Butner 13; (1894) (the 5); syllabus Compa- & West- 7 at n. United Brick Tile P. court's note 1255 ¶ 1087 Choteau, 664, Okl., 107, (1960); Roy, Telegraph ny 109 Smith Co. v. 28 Okl. ern Union Commission, 433, (1911) (the syllabus); St. 182 Okl. 78 court’s v. State Industrial 115 P. 288, Keiffer, Ry. Territory 48 Okl. P.2d Indian Illuminat- Louis & San Francisco Co. Crown, (1915) (the 3); syllabus ing Oil Co. v. Okl. P. court’s ¶ Co., Bottling Hoy Van v. Oklahoma Coca-Cola (the (1951) P.2d court's 205 Okl. compensa- examples For other of "distortion of Norman, Okl., 1); City syllabus lines v. ¶ Larson, concepts,” law see 1 Work- tion tort (the (1960) syllabus P.2d court's ¶ Law, Compensation 1.20 mens’ at 2-4. Crown, Larson, Law, Illuminating 5. See 1 Compensation Territory Oil 9. Indian Co. v. Workmens’ supra note at 692. § 5.10 at 33-34. effective policy.” (Emphasis overhaul which became insurance added.) Perhaps response to the today July I excise from the would law, one of the 1977 noncompensability law the then-extant case body of our case concept “permanent came to define dysfunction. It is a amendments of mental including textually impairment” for want of demonstrable flawed functional loss, abnormality or even nonanatomica support and alien to the law’s institutional if l.13 design reparations.11 for workers’ present this state’s Workers’ text of makes no distinction be- II. Act in both injuries that result tween accidental THE THE TERMS OF ACT DO NOT psychic disability and those COMPENSATION FOR DISALLOW produce solely functional loss from IMPAIRMENT PSYCHIC ALONE dysfunction psychic impairment.14 Mental purview compens- clearly lies within the upon the court The decisional law ability. episode here in suit— The harmful an erroneous inter today relies manifests hostage restraint as a claimant’s Act and thus undermines pretation of the during prison revolt —unfolds a classic legislative policy. age of that authori example of work-related mental strain that ty poses no obstacle to a critical reexami psychic leaves trauma its wake. past are to correct a nation. Courts free interpreta statutory erroneous course of tion, long-standing no matter how III. jurisprudence may be.12 aberrational MEETS THE ACT’S CRI- THIS CLAIM all the flawed cases

Moreover, preserved TERIA OF COMPENSABILITY today’s pronouncement as viable were ipso an Work-related strain -is comprehensive the Act’s decided facto before Court, Larson, Law, Compensation 104 L.Ed.2d 526 where the Workmens’ uniformity symmetry and 1.20 at 2-3. in order to achieve § statutory interpretation, overruled a 1953 case to law, damages anguish for mental un- 11. In tort Securities Act to hold a claim based on may by physical injury accompanied be recov- be arbitrable. for intentional infliction of emotional dis- ered Way Freight, Lee See Williams v. Motor tress. Okl., 3(11), O.S.Supp.1977 perti- whose § 13. See 85 (1984); Eddy v. to those of that subsec- nent terms are identical Brown, Okl., (1986); 76-77 Restate- general- present quoted note 14. tion’s version infra (Second), 46. See also § ment of Torts ly Keeton, (5th Law Prosser and of Torts statutory "injury” and 14. See the definitions 1984) at § ed. O.S.Supp.1988 “permanent impairment,” 85 jurisdictions damages negligent for in- In some 3(7) 3(11), respectively, and §§ infra. sought as fliction of emotional distress are; 3(7) O.S.Supp.1988 § The terms of 85 See, e.g., Thing independent v. La Chu- an tort. “(7) injury’ only 'Injury personal means 865, 880-881, sa, Cal.Rptr. 48 Cal.3d injuries arising out of and in the accidental general- see also employment course of and such disease Right ly, recover for Annot.: Comment Note— may naturally as result therefrom infection and or its conse- emotional disturbance arising occupational disease out of and in impact ac- quences, in the absence of or other employment as herein defined. the course of Provided, 100; wrong, Ropiequet, 64 A.L.R.2d tionable injuries having as their source Malprac- in Medical "Emotional Distress Claims purely is a risk not but one Defense, Cases,” (April For the at 13 tice reasonably connected with the conditions of contrary in the Restatement of view found to arise out of shall be deemed 436A, (Second), states: § Torts added.) employment.” (Emphasis creating negligent conduct is as the actor’s "If 3(11) O.S.Supp.1988 pertinent § terms of 85 bodily causing either an unreasonable risk are: another, harm or emotional disturbance "(11) impairment’ means an- 'Permanent emotional disturbance and it results such abnormality or loss af- atomical or functional alone, compen- bodily harm or other without medical treatment has been ter reasonable achieved, damage, is not liable such the actor sable abnormality phy- or loss the added.) (Emphasis disturbance." emotional capable being evalu- to be sician considers "* * * rating is made. Rodriguez Quijos ated at the time the de 12. See Shearson/Ameri- added.) -, Inc., (Emphasis Exp., S.Ct. 490 U.S. can Were current insurance rates. the occurrence of tors and on injury,15 and accidental court, I announce writing I for the would compensa- qua an accident is a sine non contravening legislation today that unless bility.16 is not to mus- “Strain” confined date, court harm-dealing passed a certain It includes were cular exertion. recognition withdraw its continued bearing on mind would forces infused aberrationally common-law body.17 present psychic claim is compensability for on-the- norm that bars a strain suffered when deficit from purely psychic def- by prisoners job loss from captive held dur- functional claimant was workplace icit.20 ing an at state uprising —a facility. This claimant thus correctional loss to definite on-

traces his functional V. the-job of harm meets episode injury prescribed in criteria of an SUMMARY 3(7) 3(H).18 The O.S.Supp.1988 §§ Yesteryear’s jurisprudence fashioned “injury or personal define cited subsections it norm when embraced aberrational impairment.” injury” “permanent the com- (cid:127)the Act short, impairment In measurable solely to notion that an mon law’s loss psychic constitutes functional deficit absque un- injuria mind is one’s damnum When, 3(11). meaning within the §of Any accompanied by physical harm. less here, medically ascribable to a loss is (physical accident-related loss functional event at stress-filled confrontational compensable under the cur- psychic) impairment workplace, the mental 3(11). of the Act’s rent text accident-dealt, on-the-job compensable as I am in For these reasons dissent 3(7) worker in the sense.19 harm to the join the pronouncement court's Kauger, views of J. IV. OPALA, KAUGER, J., KAUGER, Justice, BY WISELY with whom

THE DISSENT DOOLIN, Justice, Justice, IN FAVOR OF CHANGE Vice COUNSELS Chief join, dissenting: BE APPLIED THAT WOULD NOT RETROSPECTIVELY applicable statu plain reading of the A J., invariably two con tory provisions leads to espouse by Kauger, I the reluctance 1) psychological injury in the ab to noncom- clusions: retrospectively recede accompanying physical trauma psychotrauma. sence of pensability on-the-job that not excluded from workers’ past from the is coun- sharp The break 2) The coverage; and it never been. and in this dissent should seled both in her support the conclusion presented than the facts here applied be to claims other hostage per that the suffered accidental must be afforded present. The lawmakers em injury during the course of his study which recov- sonal ample the effect time authority ployment. Under the of Vander functional loss will ery psychotraumatic (Okla. State, 1153, 672 P.2d 1157 private public pool v. likely on the and sec- have Okl., 111, Okl., Roniger, Company v. Neely, 17. Ford Young P.2d Bill Gover v. Bateman, (1967) (the County syllabus 208 Okl. Choctaw P.2d court’s (1953). See also H.J. ¶ Okl., Grisham, Line v. 397 P.2d Truck Jeffries explanation an 3(7) O.S.Supp.1988 §§ the terms of 85 For compensable acci the context of a "strain" in 3(11), supra see note 14. and dent. 1) accident, injury" on-the-job “accidental must be 19. For the definition of an work-related, 2) particular traceable to one supra see note 16. a effect of series of event to the cumulative instance, 3) every unex in micro-trauma pected. Okl., State, Vanderpool 20. See Okl., Tullis, Munsingwear, Inc. v. (1983). 1983), seq., be in this et the state and its recovery should allowed immunizes case, Legislature political until subdivisions action aris- but in no others riot, disobedience, a result of civil ing acts. insurrection, or rebellion.1 Under similar circumstances, guard-hostage i.e. situa- I tions, the federal recov- courts have denied FACTS. Recovery in actions.2 sure- ery would ly granted hostage’s sur- have been to the claimant, a offered himself as who being he been held vivors had killed while fe- hostage of three to secure release however, hostage;3 he is denied hostages attempting male to mediate while life-altering for a trauma. Penitentiary a crisis State at the Oklahoma August first suffered serious psychological problems December II experienced dys- year he marital when THE EVIDENCE A FINDING SUPPORTS anxiety. function and extreme Because ACCIDENTAL PERSONAL INJU- OF condition, he left Fenwick’s mental THE RY ARISING OUT OF COURSE accepted a prison job, stress of the EMPLOYMENT. OF community health position with undisputed center. It is order recognition if there is Even no occupation, this he needs continue even at predominantly psychic of a compensability counseling. the benefit of injury, recovery should allowed. recognized hostage’s is associated with Insurance Fund State support paid had harmed—it sufficient side-effects to Fenwick been theory requiring physi- an under the psychiatric his treatment for award medical dys- impact. he He from marital years. almost It was after cal suffered four function, headaches, in his permanent partial tingling severe filed claim for disabili- extremities, During the hos- ty that Fund denied that he had been dizziness. situation, inmate employment. tage he was faced injured in the course with Act, wielding If under the a homemade knife. fact recovery is foreclosed enough support a cause Fenwick left redress. The Gov- alone would be without Act, for assault.4 No contact ernmental Tort Claims 51 O.S.1981 action injured perti- party in an ac- O.S.Supp.1989 provides be liable to 1. Title shall law, part: proper equity, nent suit in or other tion at purposes proceeding political for redress. For the "The subdivision shall not state or section, applicable Congress a loss or claim results from ... an Act liable if disobedience, riot, (6) exclusively insurrection Civil to the of Columbia shall District provide, to the the failure or rebellion or to be a of the District of be considered statute police, providing, law enforcement method of Columbia.” protection...." or fire 657, State, 654, See, to stat- almost identical the current Provisions Werner v. 441 N.Y.S.2d 53 3. 346, 541, claimant ute in effect since before the have been involv- N.Y.2d 424 N.E.2d 544 8, hostage August was taken on 1979. hostage prison guard in ing held a the death of appellate prison The New York court revolt. Rowe, 507, (7th Cir. 791 F.2d 510 Walker v. 2. by that allowed state’s found cert, 1986), denied, U.S. 479 107 S.Ct. was exclusive. workers’ statute Dodrill, 93 L.Ed.2d Smith v. § 3.1 defines beneficiaries of Title 85 O.S.1981 (N.D.W.Va.1989); F.Supp. Sheets v. provision. benefit Title 85 O.S. the Act's death Corrections, F.Supp. Dept, Indiana of 22(8) payable Supp.1987 sets out the benefits § (S.D.Ind.1986). to the survivors. (1981) provides: § Title 42 U.S.C. who, any "Every person under color of stat- protects person’s a tort of assault interest ute, ordinance, custom, regulation, usage, or apprehension of a harmful or in freedom from Territory any of of Columbia, or or the District State person. contact with the No actual offensive subjected, subjects, or causes to be necessary support of is to a cause action contact any per- of the United States or other citizen Keeton, W. & assault. Prosser Keeton jurisdiction dep- the son thereof to within Torts, (5th p. 43 Ed. rights, privileges, on the Law Ch. immuni- or rivation also, laws, 1984). Co. Restatement West Pub. ties the Constitution secured an question Pur- no there was necessary to constitute an assault. there is fright act the intent cause is suffi- here.7 a case of a selfless suit with to This is willing necessary prove AH that is to in to cient.5 of heroism which Fenwick was general per- intent to lay crime of assault a his life for his friends. down Unquestionably, inmate form the act.6 his freedom exchanged brave man hostage. co-workers, strike fear in his intended to his for that of female weapon, the inmate’s Fen- When faced with Fen- from unknown fate. saved them an undoubtedly his wick had some concern for personal safety for disregarded his wick bodily safety. The result of that of his co-workers. to opinion to deter rather than majority here, irony majority, is that employees to provide an incentive for other recognized liability which tortious out- do the same. rec- scope employment, side the will not analogous ognize an the context Ill job very a which situation. The factor employer liability of tort

relieves —the ACT THE WORKER’S COMPENSATION duty employer to part lack of on MENTAL NOT EXEMPT STRESS DOES provide environment— an assault-free FROM ITS PURVIEW. Act. should be within the psychic types injury: employers general have There are three Even if would 1) assaults, physi- a mental stimulus which causes duty protect against no a 2) physical trauma which part injury; cal a situation is a more or less routine 3) employ- injury; a a prison for a causes nervous the work environment injury.8 assembly line stimulus which causes nervous ee. not an worker. This is Here, recovery not employee suf- is denied because talking We’re about an who injury, but the basis doing lack of evidence of fers assault as incidence bleeding, evidence of job. everyday, risks not occur there no Prison do lasting physical reasonably bruising, tearing, or or of they certainly are foreseea- but i.e., personal injury.9 It malingerer— injury, of a This is not case ble. (Second) (1965) illogical provides diverse trate the results of Torts majority view: would be reached under pertinent part: Example liability "(1) subject to another An actor is Result 1) hostage is forced to A male if for assault sodomy. oral He (a) commit intending or he acts to cause harmful bruise, bleed, or does tear, person of the other offensive contact with lasting physical or suffer person, apprehen- or an imminent a third injury. He suffers debilita- contact, and sion of such a recovery. ting psychological injury. No (b) thereby put in such imminent the other is 2) hostage male is forced to apprehension ...” sodomy. oral His commit (Okla. bleeds, bruises, Baxter, Recovery Vaughn P.2d mouth 1971). allowed. tears. 3) hostage A male is forced State, (Okla.Crim. Joplin sodomy. P.2d anal He commit bruise, State, bleed, App.1983); Morris v. does not tear, lasting physical suffer (Okla.Crim.App. injury. He suffers debilita- examining Although physician ting psychological injury. recovery. State’s No 4) problems other hostage linked the claimant’s mental A male is forced life, recognized sodomy. Recovery anal He he commit stressful occurrences in bleeds, bruises, post-traumatic hostage or tears. incident and the allowed. 5) multi-partem causally A female hos- were related. stress disorder raped. tage is does not She Drake, bleed, bruise, tear, Freightways or suf- 8. Consolidated or lasting physical injury. (Wyo.1984). fer debilitating psy- She suffers chological allege he Although hostage not injury. recovery. does No assaulted, certainly 6) sexually virgin hostage there is no and A female bleeds, bruises, was, majority opin- raped. Recovery he under the She evidence that ion, tears. purely hypothetical scenarios illus- or allowed. these Act, specif- by is defined “disease” is not. undisputed that the Act has never ease defines “disease” as: Websters recovery for stress ically excluded physical injury. bodily Nor has health is the absence of “... condition which attacked, seriously deranged, im or specifically provided trau- it sickness; illness; paired; mortality prerequisite recovery for mental ma is a disease; particular or in a form engrafted The has this re- stress. Court condition; malady; of such a stance personal inju- quirement to its definition of ailment; as, infectious diseases.... ry just engrafted as the had sover- Court Pathologically, is an alteration of disease by eign immunity into the common law—10 body any or animal or state of the human fiat, legislative judicial enactment. plant organism, organs or of some Act, 85 O.S. parts, interrupting disturbing or or person- seq., “injury 1987 1 et defines or functions, or a performance of vital “occupational injury” al disease:” this; any particular instance or case of “ injury’ ‘Injury personal or means departure from the state of health injuries arising of and in also, accidental out presenting symptoms; marked a alteration; employment and such dis- specific partic the course of kind of such having special symptoms ular ailment may naturally or infection as result ease causes; as, disease, Bright’s Addison’s occupational aris- therefrom and disease disease, disease, Panama etc. Various ing employ- in the course of out of and by para forms of disease be caused Provided, only ment as herein defined. viruses, nutritional, sites, filtrable having a risk not injuries as their source environmental, or inherent deficien purely personal one that is reason- but derangement cies .... A or disorder of em- ably connected with the conditions of mind, moral character and habits deemed to arise out of ployment shall be »11 employment.” “ Airlines, Inc., Floyd In v. Eastern only that ‘Occupational disease’ means Cir.1989), (11th F.2d the Elev is due to causes disease or illness which enth Circuit held that the Warsaw Conven pecu- and conditions characteristic of or (Convention) provides recovery for tion trade, particular occupation, liar to the injuries. Because the purely emotional process which the em- French, original treaty is written in ployee exposed to such disease.” meaning to the French circuit court looked defined as an accidental Injury is corporelle, as a bodily injury, lesion employ- arising out of and in the course of It found that basis for its determination. diseases, occupational and includes ment phrase although a literal translation of infections, naturally arising or illnesses encompass corporelle” would not “lesion due to causes and conditions therefrom injury, use of the term would not employ- peculiar of or to the characteristic implication emotional trauma. The exclude injuries exclud- Purely personal are bodily injury ment. court relied on a definition coverage, “physical, and all must be ed from which under French law included mental, reasonably damage, the conditions of as well as connected with moral personal inju occupational pecuiary resulting loss Although dis- employment. yard- experiences majority’s position, cannot be used as the two sexual as- sexual Under the rape identical circumstances conducted under is either be- saults stick to determine whether differing insofar as recov- reach results malignant, would nign the assault is and whether person ery under the Act is concerned. compensable. tears, bleeds, bruises, raped thus who is injury, suffering would be State, Vanderpool person raped, compensated. who is (Okla.1983). during hostage legitimate situation and fear trauma, permanent but does not mental suffers Neilson, Dic- W. Websters New International 11. bleed, bruise, tear, lasting physical or suffer (2nd English Language, p. tionary 746 Ed. compensation. injury, would be denied Co., 1952). G. & C. Merriam past surely Recovery premised on cannot be. 70 physical with injuries not associated interpre mental persuasive found

ry.” It also along with the use of “lesion” already tation of visible a distinct impact. There is “wounding” which encom “death” and compensabili- supporting majority position trauma- contemplated “cases of passed and The courts which injuries.14 ty for nervous The circuit and nervous troubles ...” tism compensa- may be mental find that if the Convention court determined impact reason physical absent ble recovery to cases of intended to limit had for distin- justification there is no valid ex have done so physical injury, it would disorders— guishing between jurisdictions law from other pressly. Case inju- impact or by physical caused whether from the disease as a deviation has defined by emotional sti- aggravated ry caused any of the healthy condition of or normal policy of workmens’ of the muli—in view body im of the systems or tissues work- provide compensation statutes derange- including pairs vital functions 12— mind, do not or morbid ments or disorders related disabilities.15 Courts spirit.13 mind or conditions of the disabling mental compensation for allow a work-related resulting from disorders courts are increasing An number of that an emotion- reason proper for emotional stimulus recovery is recognizing that 51, 555, (1978); Portland, 74, City Ariz. 579 P.2d 558 v. 206 Or. 291 12. Blalock Pathfinder 556, Comm., 218, 343 McGregor Acci Co. v. Industrial (1955); 62 III.2d v. General P.2d 221 Pierce, 201, 913, (1976); Corp., Yocom v. 534 Fire & Assurance 214 N.C. N.E.2d 917 dent Life Colony, 796, Pyramid Inc. v. (Ky.1976); Swiss (1938); Brinkoetter v. S.W.2d 800 S.E. 641-42 198 Rel., Indus., 560, Co., & Human Department Labor (Mo.App. 72 Ins. 563 377 S.W.2d Life 128, 46, (1976); v. N.W.2d 130 Wis.2d 240 Wolfe 505, Co., Lindsay Sibley, & Curr 36 N.Y.2d 369 637, 641, 603, (1975); N.E.2d 606 Co., 330 N.Y.S.2d Ins. Tex. Hood v. Texas Indem. 146 Labor & Indus. Rel. Royal Nat’l Ins. Co. v. State 345, (1948); Chapman v. 522, 348 209 S.W.2d 278, Bd., 32, Appeal 282 196, Haw. 487 P.2d Lease, 224, 53 Finlayson P.2d 198 Ariz. 107 56 Hagood, Burlington Corp. (1971); Mills v. 177 (Both (1940) recognize as a dis- neurosis cases 204, 291, (1941); v. Badeaux Va. 13 S.E.2d 293 ease.). 1146, (La.App. Corp., Walter 1149 lim 517 So.2d Comm'n, 1987); City Industrial Aurora v. 710 Larsen, Compen- "The Law of Workmen's IB 1985); v. Barrett Ar (Colo.Ct.App. 1122-23 P.2d 7-639, sation," (1987). p. 42.23 Serv., 102, Ark.App. kansas Rehabilitation 10 (1983); Ditler v. Workers' S.W.2d 439-40 661 psy- Thirty jurisdictions allow Bd., 803, Compensation Appeals CaI.App.3d 131 injury: the absence of chotrauma (1982); Sargent v. Board 839, Cal.Rptr. 182 845 Co., Parking Management v. District 363 Butler Educ., Md.App. 577, 1209, 1213 433 A.2d 49 682, Nat'l (D.C.Cir.1966); American 684 F.2d Goostree, 411, (1981); v. 420 Todd 493 S.W.2d 559, (7th Hagen, Cross v. F.2d 561 Red 327 Laundry, 1973); Simon v. R.H.H. Steel (Mo.App. Sys. Co. v. Workmen’s Cir.1964); Globe Sec. Inc., 50, 446, N.J.Super. 95 A.2d 448 25 Bd., 544, Appeal A.2d Compensation Pa. 544 518 598, (1953). aff’d, N.J.Super. 98 A.2d 604 26 Co., (1988); Fought IrbyC. 953, v. Stuart 523 956 also, Annot., Compensable "Mental Disorders as Anchorage 314, (Miss.1988); Wade v. So.2d 317 Acts,” A.L. 97 Under Workmen’s Dist., 634, (Alaska 1987); 637 School 741 P.2d 161, R.3d 166 Co., Dupont Nemours & Gentry v. E.I. De 733 Dup such recoveries: 71, Ten states have disallowed (Tenn.1987); Hansen v. Von S.W.2d 73 Metal, 299, Inc., Winchell v. Falls Sheet 573, 235 Mont. rin, (Ind.1987); Martin N.E.2d 576 507 1313, City (1989); Auth., Sorensen v. P.2d 1315 766 Pub. Transit 506 A.2d Rhode Island v. 696, Omaha, 286, Case, 698 Neb. 430 N.W.2d Kelly’s 1365, (R.I.1986); 230 Mass. 394 1368 (1988); v. MCI Telecommunications Castner Hartley Mil 684, (1985); v. N.E.2d 582-83 477 (Minn.1987); Ryan Corp., v. 332, 688, 415 N.W.2d 873 ler-Stephan, 107 Idaho P.2d 334 692 406, 1379, Connor, Inc., 503 N.E.2d Wendy's 28 Ohio St.3d Montana (1984); 687 Baker v. (1986) (Allows recovery City where 885, 1381 (Wyo.1984); Hammons v. 891 P.2d v. injury.); Followill 1, Dept., stress results 364 Highland Park Police 421 Mich. Co., 791, 1050, Emerson Elec. 234 Kan. 674 Acci 575, (1984); McGarrah v. State 580 N.W.2d Maksyn, Transportation Ins. Co. v. (1984); 145, 159, 1053 Corp., Fund dent Ins. 296 Or. 334, 1979); Superior Mill (Tex. Compensa S.W.2d 337 (1983); Breeden v. Workmen’s Gabel, (Fla. 1956); 398, Comm’r, Work v. 89 So.2d S.E.2d tion W.Va. Co., Bureau, Fleming Appleton 214 S.C. 51 S.E.2d v. Maine (1981); 404 A.2d Townsend Penney Pigg, Co. v. (1949); J.C. University (Me.1979); Martinez Dougherty (Ala.Civ.App.1989); Cal, So.2d 93 N.M. Comm., County Lundy, Ga.App. Bd. v. Industrial Fund Ins. Co. v. Fireman's require- “injury” 2021 of the Act sets forth the stimulus is not an “accident” or Rule al meaning the within expert testimony. medical ments for prohibit recovery statutes.16 Some states requiring appear difficulty physicians of by statutorily injury mental or nervous for provides recognized. trials is The Rule at the definition excluding such events from necessary re- the standards for verified arising employ- an out of of con- ports. Reports prepared for trial must Although we have relied on this ment.17 that “the evaluation is tain a statement deny recovery past, in the premise to latest accordance with the substantial specifically Act does not ex- Oklahoma Permanent to the Evaluation ‘Guides empt neurological or illness mental Guide Chapter 14 Impairment’.”22 application,18 recovery Denial of is to the consideration of mental devoted psychological injuries has been a purely and behavioral disorders. The Guide pro- statutory judicial limitation rather than a diseases vides a method evaluation of Twenty-six jurisdictions, sim- with one.19 impairment, causing psychiatric and it is statutes, recovery properly allow ilar Appendix attached hereto as I. disability cases mental documented by on-the-job stress and strain.20 caused use of the Guide as an evaluative required by O.S.Supp.1988 is also tool majority rule will not Adoption of 3(11).23 ordinary “permanent section disrupt evidentiary burden. defines § denied, (1987), recovery, Ga.App. thirty jurisdictions allowing the -Massachusetts, cert. 20. Of S.E.2d Wisconsin, (1987). Michigan, and four— Rhode specifically Island —have statutes Chatham, Ga.App. Inc. v. 16. Hanson Buick See, injury. allow (1982). S.E.2d 428-29 1(7A) (West 1988), L.Ann. ch. § Mass.Gen Mich.Comp.Laws 418.301(2) (West Supp. §Ann. Florida, comparable Com- Workers’ 17. In 1989); 28-34-2(36) Wis. § R.I.Gen.Laws Act, 440.02(1) (Supp.1988) pensation § Fla.Stat. 102.01(2)(c) (West Supp.1988). § Stat.Ann. pertinent part: provides in recovery although plain allows Louisianna reading only unexpected means an or "... ‘Accident’ of its statute would indicate that result, suddenly. happening coverage. event or unusual should be excluded from fright See, 23:1021(7) (West 1985). mental or nervous due to § La.Rev.Stat.Ann. only ... be deemed not to "injury.” excitement shall statute does define The Illinois injury by arising 1990). (West accident of the em- para. out ch. IIl.Ann.Stat. 138.1 _’’ ployment Smith, also, City Ice & Fuel 56 So.2d See Div. O.S.Supp.1989 App. pro- Ch. 21. Rule (Fla.1952). Compensation is allowed if 329-30 part: pertinent vides in inju nervous physical trauma causes mental or Court, taking into consideration that "... Busquet, e.g., Sportswear ry. Marci Ann costly time-consuming physi- and to have it is (Fla.App.1981). So.2d 1132-33 actually appear at trial for cians the time of giving testimony, purpose encour- live Act, O.S. 18. The ages production of medical evidence 3(7) (10) provide: Supp.1988 report or declared which shall con- verified only "(7) 'Injury injury’ means following, applicable: where tain the injuries arising in the out of and (i) Any upon other detailed ... factors employment such disease course of physician’s permanent im- evaluation may naturally result therefrom infection as based, including pairment statement arising occupational out of and disease is in accordance the evaluation substantial defined. as herein the course Provided, 'Guides with the latest to the Evaluation injuries having only their source Impairment’ adopted publish- Permanent purely personal but one risk not American Association ed Medical reasonably conditions of connected with the effect which were in when the examination arise out of employment shall be deemed was made...." employment.” the "(10) 'Occupational means disease’ Engleberg, Guides to Perma- 22. A. Evaluation to causes and or illness which is due disease Ch, 14, (AMA Impairment, pp. nent peculiar to the characteristic of or conditions trade, occupation, process em- particular exposed employee ployment in which the 3(11) O.S.Supp.1988 provides: Title 85 disease.” such " impairment’ means anatom- 'Permanent Connor, abnormality after ical or functional or loss St.3d Ryan v. Ohio been medical treatment reasonable N.E.2d injuries has of “any or func- The nature impairment” as anatomical abnormality or loss after reasonable laws tional changed since workers’ achieved, treatment has been medical What was once originally were enacted. physician abnormality or loss the which debilitating lung disease or severed limb capable being to of evaluated considers attack heart a stress-induced become rating is made.” This defi- at the time the injury. of a permanent psychic Out or a nition, “injury like those of or 29,030 surveyed in of workers total “occupational disease” does not injury” and The 5,115 workers. only were white-collar injuries. In- specifically exclude mental 23,915 and farm labor- were manual other stead, “any abnormality” to its reference changed. figures had Of By ers. physical as well as mental encompasses the 37,857 79,802 surveyed, of those laborers of the claimant. condition jobs. The in white-collar counted were Historically, legal theories have evolved rest, 41,868 work- were manual and farm pace technological and/or keep to with new Oklahoma, there were By 1987 in ers.26 torts, it realities. In the law of medical 40,400 compared only agricultural workers magic in- recognized that there is no now 1,104,783 salary earners.27 wage and to given a or a classi- herent in the name tort gone per- from 40 Blue-collar workers have Therefore, infliction of mental fication. in 1950 to 30 cent of the national workforce in a cause of action distress now stands as The service sector has percent in 1982. symbiotic in a relation- itself rather than of the workforce to grown percent from 55 recog- traditionally ship with some other of to- percent. Over two-thirds over Tulsa, City tort.24 In nized Gaither of day’s are found in the fields of laborers (Okla.1983), we found accounting, banking, engineering, consum- mother, physi- no who had suffered that a care, services, education, legal health er anguish recover mental injury, cal could wholesale, work, and retail transportation, arising from the disturbance emotional shift, recognizing Instead of trade.28 in munici- drowned death of her child who majority mechanically transfers controlling stat- pally erected drain. injury concept designed to de- non-physical here, Gaither, the Act did not ute in like by collar workers ter false claims blue physical injury as a condition require a jobs to an environment recovery.25 routine industrial precedent to liability achieved, subject abnormality phy- to tional distress to another or loss capable being emotional distress ...” evalu- for such considers to be sician rating Except to cases where there has is made. as The rule is not limited ated at the time the (k) herein, examining bodily Comment to provided § been harm. otherwise impairment physician shall evaluate damages wrongful recoverable in a 25. The the Eval- with the latest 'Guides to accordance are in 12 O.S.1981 1053. § death action set forth Impairment’ adopted of Permanent uation part: provides pertinent It published by Medical Asso- the American grief examining physician The loss of consortium and the shall not "... ciation. The surviving spouse, guides except which shall be distribut- from said deviate surviving spouse.... guides. provided These ed to the specifically for in the grief companionship of the officially adopted guides the exclusive and loss of shall be decedent, parents testimony re- children and and conclusions with basis for according their permanent impairment distributed to them gard with the ex- shall be ” grief companionship.... and loss of ception title, paragraph of Section 22 of this relating member to scheduled Commerce, Dept, of Historical Statistics 26. U.S. loss; including pain impairment, or loss 1970, p. Times to the United States: Colonial respect strength, may be awarded with 1975). (Bureau of Census body specifi- areas of the those guides.” cally covered said Dikeman, Jr., Statistical Abstract 27. N. Torts, (4th Prosser, p. Oklahoma, (Center Law p. 24.W. for Economic & 1971); Publishing Research, Co. Restatement Ed. West (Second) Management Univ. Oklahoma 46(1) (1965) provides in 1988). of Torts part: pertinent Wright, Jobs & outrageous J. The American Almanac conduct who extreme and "One intentionally Salaries, (Avon recklessly pg. emo- xxii causes severe psychic compo- where trauma is routine strain is not to muscular activi confined working nent of ty, may conditions. but also consist unusual emo tional, mental, anxiety or nervous or ten past, recognition In the before the of the Recovery permitted sion. was after the relationship of mental and injuries nervous Court competent determined that there was physical symptoms behavior, to and there support evidence to the finding that basis, i.e., was an apparent- understandable resulting worker suffered a heart attack ly difficulties, evidentiary insoluble de- for from work-related strain and In exertion. nying on injuries, recoveries based such reaching result, we cited two cases in in compensation both tort and workers’ jurisdictions from other v. Bern —Lobman justification longer law. That is no valid. 931, Cory., hard Altmann 19 A.D.2d 244 present predicates The Act indemnification 425, 427 aff'd, N.Y.S.2d 254 N.Y. based, assigned not label 113, 559, S.2d 202 N.E.2d 15 N.Y.2d 506 injury or physical, mental but —whether (1964) Paterson, and City Fink 44 v. upon employee’s inability be- work 129, 746, (1957)— N.J.Super. 129 A.2d 748 impairments flowing cause of from his/her injury which hold resulting that an employment conditions.29 mental emotional distress need not be being A human is not constituted mere accompanied by physical trauma to be com- bones, blood, muscles, ligaments, tis- and pensable. approv Lobman was cited with system, sues. He/she also has a nervous principle al for the that an by caused psyche.30 majority brain and a The opinion may emotional stress or strain be found to ignores portions of the major one be the contemplation accidental within body system. nervous Mental stimuli —the the Workmens’ Law. may cause either dis- mental teaching Roniger The was followed in ease, distinction, and there is no creditable Schoonover, City Oklahoma v. 535 P.2d nor can a line valid be drawn under contem- (Okla.1975). 688-89 in survivors porary standards, medical between what death Schoonover received benefits after a totally psychological what purely and police perforated died officer ulcer physical.31 No suggested, reason is and by job anxiety appre- initiated on the and appears, why injury none in the form finding insomnia, hension. After debilitating depression, the ulcers and head- aches, engendered were by working as well as to the conditions cardiovascu- and nature system32 employment, lar and internal organs33 other disability Court held that caused work induced mental or emotion- caused emo- strain, al stress anxiety stress and should be covered tional and strain or by compensable. Recovery cause are established allowed if effect competent again Univ., evidence. in Decker v. State Oklahoma (Okla.1988), 1371-72 766 P.2d based on the of mental consideration factors principle. same recovery compensation under the workers’ Although law new to Mississippi consistently is not us. In Bill Gover Ford had de- 701, (Okla. Roniger, recovery injuries v. psychological Co. nied 1967), princi by purely we committed ourselves to the caused emotional sti- ple may by muli, 1988, that heart disabilities Supreme caused Court reversed exertions, serial position Fought stresses and that its traditional v. Stuart See, Larson, Parrent, IB "The Law of Constr. Workmen’s 32. K.P. Co. v. Death 7-655-56, 42.23(a) (1987). Compensation,” p. 501, (Okla.1977); Bill Gover Ford Co. v. 701, (Okla.1967). Roniger, 426 P.2d Loftis, Indemnity Ga.App. Ins. In Co. v. (1961). 120 S.E.2d 655-56 Schoonover, City 33. Oklahoma P.2d Co., Bailey (Okla.1975) (Ulcer.); Special American Gen. Ins. Fund v. Indem. Larson, McFee, (1948). Tex. S.W.2d 200 Okl. Injury "Mental and Nervous in Workmen’s Compensation," 23 Vanderbilt L.Rev. Co., (Miss.1988), findings with similar These are consistent Irby 523 So.2d C. Mississippi workers are enti- we have allowed cases which and held ulcers, attacks, injuries. such for work-related heart tled to in, itself, predicated by require the time live Act we other internal perspective so that shifting of this Court’s stimuli.34 cov- interpreted provide the Act so, joining

erage. By doing we would be IV other Mississippi twenty-four as as well OF THE ACT. THE PUBLIC PURPOSE under similar have held jurisdictions who impose Compensation laws provisions injuries Workers’ statutory liability employers for on im- strict no-fault may physical absent be arising out injuries occupational diseases pact. In employment. of and the course of not majority the view would Adoption prescribed exchange statutorily for precedent. abrupt an break with constitute damages, employer the limited measure question under con- of the The resolution liability,35 immunity from tort granted is an compensation for sideration —whether common and the worker his/her abandons emotional, nervous, injury psychological against employer. right law of action from overt external disassociated underlying approach this lia- theory precluded by Act—has been harm is for responsibility is that the fiscal bility by the recent deci- clearly foreshadowed injuries as a should be treated In v. Oklahoma sions of this Court. Stiles by borne the em- production cost 800, (Okla. Comm’n, 803 752 P.2d Tax on ployer. Although premised the Act is 1987), stress wé found that work-related concerns, it does social and economic these preexisting condition aggravated a em- solely the benefit of the not exist compensable. rheumatoid arthritis was on ployer employee. It based Decker, at- recognized that a heart In we industry an which re- principle may over- have been caused tack which operation quires people for should strain, than mus- more mental exertion care, burden for their while shoulder the v. cular, compensable. In Glenn was State injuries to the shifting the loss rel, Employment Sec. ex Oklahoma benefit,36 ultimately to those worker who 150, Comm’n, (Okla.Ct.App. 152 782 P.2d i.e., purpose consumer. The the Act publication by this 1989), released indemnify injuries not worker Court, Appeals an found that the Court of job, provide is rather to suffered on the but job resigned her be- employee had who power earning for loss of arising depression of severe reactive cause ability to work37 when those losses are un- on-the-job stress entitled to employment,38while causally related to In v. employment compensation. Bruner ignoring and societal needs and industrial 68,227 (Okla.Ct. Co., Baking No. Rainbo expectations. 1989), denied, (Okla. 10, App. cert Jan. existing intended to Act neither 1989), after Court we denied certiorari complete system insur- provide a of social compen- Appeals affirmed the award employer require an to be a injuries. ance nor to for stress-related sation benefits 363, Co., Downum, See, S.C. River Veneer 202 25 Co. 444 P.2d Savannah Flint Constr. v. 914, 235, 243, (1943). 200, (Okla.1968); Drilling v.Co. 147 A.L.R. 924 203 L.E. Jones S.E.2d 1965); Harris, 497, (Okla. Keeling v. 403 500 P.2d 487, Court, (Okla. 389 P.2d 490 State Indus. Cargill, Pipe Co. v. 37. Service Line (Okla.1955); Trigg Drilling Co. v. J.E. 961-62 644, 944, Daniels, (1943); P.2d 193 Okl. Inc., Armco, v. 35. Weber Wagnon, Mudge Okl. Oil Co. v. also, (Okla.1983). v. Aetna Ins. Co. Life (1943). P.2d Comm’n, 234 P. 765-66 Indus. Okl. State Porter, Corp. 38. Wilson Foods P.2d (Okla.1980); Y.M.C.A., Loggins v. Wetumka Gen. Caughman v. Columbia (Okla.1978). Hosp., Tedars 47 S.E.2d S.C. general In- statutory health accident insurer. based on the of the directives stead, amalgamation the Act is an of com- Legislature they as have been construed promises seek to accommodate the jurisprudence. our Generally, Although pur- interests described above. it organized this conceptually sort ports to remedy be an exclusive for work- groups: three causing trauma ers with employment injuries, related dis- injury; nervous causing stimuli eases, disorders, excep- there are several physical injury; causing and mental stimuli example, tions to rule. an inten- [For injury. nervous categories The first two tional employer inflicted universally accepted are almost compen- as employee grounds constitutes for a sable. The third been highly-litigat- damages action for common-law because ed, development volatile field in the an act qualify intentional does not Law. purview within the Act, nor risk or employ- as a condition of V ment.] Early in century, Compen- THE VANDERPOOL DOCTRINE sation in response Laws were enacted to SHOULD BE INVOKED. increased industrial accidents of because inadequate by Apparently majority’s the and inconsistent reason for de- recoveries employees nying recovery under common law doctrines is that the Act does not procedures. and Legislatures specifically enacted psychological injuries list as be- workers’ em- spare laws to ing compensable. Although this Court has ployees expensive speculative from tri- and cases lend decided credence to this posed recovery als which the of prospect no argument, nothing there is within the four clearly for job-related injuries, as well toas corners of the Act reflects that the protect employers from excessive common Legislature to recovery intended bar for judgments law with im- destabilizing their purely injuries. exemption has pact.40 engrafted by been the Court—it never by Legislature. been enacted the We are Notwithstanding these historical roots of greater immunity not to free bestow from Act, underlying public the with their policy liability employers greater on or considerations, benefits the ultimate social eco- employees on than the statute allows. province nomic We decisions are still the of erect an Legislature, cannot barrier to not of the courts. insurmountable job Our doubtful, ambiguous, to occupational determine whether an dis- or text;41 legislative injury arising may ease or an of silent nor we out and in infer employment immunity course of is statutorily when has not it been 39.Although purports employment, it to be an exclusive reme- in the course of his without re- dy inju- gard injury, for workers with related to fault as a of cause such in ries, diseases, disorders, disability only, exceptions except or event there are the injury where the by example, injury to is occasioned the willful intention of this rule. For an intentional injured employee bring injury by employer to employee about to inflicted on the con- another, injury himself or of or where the grounds stitutes for a common-law action directly results from the willful failure of the damages because an intentional act not does injured employee guard protection use a to or qualify pur- as an accidental within the against pursu- accident use Act, furnished his view of the nor as a risk or condition by ant to statute or order of the Commis- Co., employment. Tyner Paper v. Fort Howard Labor, directly sioner of results from the (10th Cir.1983); F.2d Title O.S. drug or chemical abuse of the intoxication Supp.1985 provides pertinent part: injured employee duty_” while "Every provisions employer subject to the also, Larson, 2A "The Law of Workmen’s Compensation pay, the Workers’ Act shall 13-1, p. Compensation,” § 68 provide required by Compen- as the Workers’ Act, compensation according sation Comm'n, Aetna Ins. Co. State Indus. 40. Life schedules of the Workers’ Act 35, supra. see note disability employee for the or death resulting Oklahoma, Ingram from an v. State (Okla.1990). by employee arising sustained out of has not Legislature ex-

granted. The employers DAVIS, pressed intent to shield Appellant, Jerry Thane purely injuries,42and we liability for judicial do so caveat. Oklahoma, Appellee. STATE intent, legislative majority i.e. uses silence, to avoid re-

legislative shield No. F-86-865. reality that is evaluation of an issue are Oklahoma. today’s society job-related Appeals stress. We Criminal Court — impose not free to our own views April Legis- interpretation of statutes. Had the exempt purely mental lature intended Rehearing May Denied it done so—and injuries, could have if intent, urged it legislative that is

do so. reaching the conclusion that

After psychic in- imposed exclusion for

judicially physical trauma can-

jury in the absence supported either reason

not not be infra, expressed reasons

justice overwhelming trend

being mindful of the restrictions, duty under

against such our legislation unmistakable.43

the current

However, which lie with- these are matters Legislative sphere, and considera-

in the many presented is problems

tion of the Legislature It be that

invited. establish, been done

would want to stringent guide- very jurisdictions, some inju- purely

lines for area, and the important This is a

ries.44 include or

Legislature act either should trauma, stress, psycho

exclude mental purview injury within

psychological coverage. By no

workers’ floodgates opening is the

means encouraged. such time as

litigation Until matters, considers these Legislature majority, under the writing I for the

were allow Vanderpool, I would

authority of case, in no others

recovery in this but guidance.

awaiting Legislative 44.See, Comm’n, Stillwater, 136 Ariz. City Bush v. Industrial Jarvis v. L & (Okla. v. R Seitz (Okla.1983), aff’d, 732 P.2d 470 (R.I.1981); Indus., A.2d Inc. 437 Indus., Department Labor Dist. No. 1 School Relations, 215 N.W.2d Wis.2d & Human State, supra. Vanderpool see note

Case Details

Case Name: Fenwick v. Oklahoma State Penitentiary

Court Name: Supreme Court of Oklahoma

Date Published: May 15, 1990

Citation: 792 P.2d 60

Docket Number: 69691

Court Abbreviation: Okla.