Fenwick v. Oklahoma State Penitentiary, 69691

• Decision Date: 15 May 1990
• Docket Number: No. 69691,69691
• Citation: 792 P.2d 60,1990 OK 47
• Parties: James Richard FENWICK, Petitioner, v. OKLAHOMA STATE PENITENTIARY, State Insurance Fund, and Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 60

792 P.2d 60

1990 OK 47

James Richard FENWICK, Petitioner, v. OKLAHOMA STATE PENITENTIARY, State Insurance Fund, and Workers' Compensation Court, Respondents.

No. 69691.

Supreme Court of Oklahoma.

May 15, 1990.

Crowe & Dunlevy by Randal A. Sengel, Oklahoma City, for petitioner.

Fred Nicholas, Jr. and Gary L. Warden, State Ins. Fund, Oklahoma City, for respondent Ins. Carrier.

HODGES, Justice.

This case arose after James R. Fenwick (Claimant) sought workers' compensation for permanent partial disability. The Workers' Compensation Court found that Claimant had not suffered an accidental injury. The Oklahoma Court of Appeals reversed the Workers' Compensation Court, and this Court granted the Petition for Writ of Certiorari. The issue on appeal is whether the claimant's mental stress, which arose out of an isolated incident, without any accompanying physical injury is compensable under the Workers' Compensation Act. We find that it is not.

On August 8, 1979, Claimant, while working as a psychological assistant at the Oklahoma State Penitentiary, encountered a situation where four women were being held hostage by an inmate. Claimant negotiated the release of three of the hostages in exchange for himself. Subsequently, the fourth woman was released. After being held hostage for approximately four and one-half hours, Claimant was released without physical injury.

Although Claimant took two days off work immediately following the hostage incident, he continued to work in the same position until October 1, 1982. At that time he resigned to take a similar job with the Carl Albert Community Mental Health Center.

On July 9, 1982, Claimant filed his Form 3 seeking disability compensation. The State Insurance Fund paid for Claimant's medical and psychiatric treatment until April, 1986. Then on January 6, 1987, Claimant filed a Form 9 seeking permanent partial disability.

Claimant was diagnosed by Dr. Nolan L. Armstrong as suffering from major depression, generalized anxiety disorder, and post-traumatic stress disorder. He was diagnosed by Dr. Larry M. Prater as suffering from post-traumatic stress disorder and personality disorder. Although Claimant complains of periodic shakiness, headaches, tingling in the hands, discomfort in the pit of his stomach, and several other physical disorders, none of the diagnosis included physical injury.

An employee is entitled to compensation, regardless of fault, when the employee suffers disability or death "resulting from an accidental personal injury ... arising out of and in the course of his employment." ¹ The causation of the claimant's mental disorders A definition of injury is provided in the Workers' Compensation Act (the Act) itself. ² This definition is more repetitive of the requirements set out under section 11 than it is definitive. Since the definition in the Act is not comprehensive, it has been the duty of the courts to further define "accidental personal injury."

are not disputed leaving the question of accidental personal injury as the only issue.

This Court has long recognized that "[a] disease of the mind or body which arises in the course of employment, with nothing more" is not an accidental injury and, thus, not compensable. ³ Claimant argues that the additional element requirement of "nothing more" is satisfied by the fact that the event which caused his stress is a definite and identifiable occurrence. This is not the case. This Court has consistently held that physical injury must be present for a disability to be compensable. ⁴ Just as physical symptoms such as pain, tingling of the limbs, and nausea do not constitute accidental injury, ⁵ neither does mental stress. Because there is no evidence in the present case that Claimant suffered any physical injury, he has not shown that he suffered an accidental injury. Therefore, his disability is not compensable under the Act.

In Daugherty v. ITT Continental Baking Company, ⁶ the claimant suffered from mental stress, without accompanying physical injury, after her company's sales manager and his superior visited her at her work location, criticized her job performance, and asked for her resignation. This Court held that the claimant had not suffered an accidental injury as defined by the Act.

We reached the same result in Vernon v. Seven-Eleven Stores. ⁷ Claimant failed a polygraph test which resulted in his being discharged. He then received psychiatric treatment but did not suffer physical injury. The claimant's doctor testified that the claimant's mental problems were caused by the polygraph test and the subsequent events. We found that the claimant had not suffered an injury compensable under the Act.

In Haynes v. Pryor High School, ⁸ a coach suffered chest pains after trotting uphill 50-100 yards, but there was no evidence of myocardial infarction. We found that pain with actual physical injury was insufficient to constitute an accidental injury. Thus, compensation was denied.

All of these cases involved mental stress or physical pain unaccompanied by a physical injury and caused by an identifiable event which occurred at a definite time. Yet, in all three cases, the claimant's disability was not compensable. The present case presents the same situation. Here we have a disability without any evidence of a physical injury, caused by an identifiable event which occurred at a definite time.

For the first time in 1977, the American Medical Association (AMA) included a chapter on the evaluation of mental disorders in its guidelines. ⁹ Then in 1985, the Legislature mandated that the AMA's guidelines It has long been the rule that disability, either mental or physical, which is not accompanied by a physical injury is not compensible under the Act. ¹² This rule is based on the statutory definition of injury. ¹³ This definition has remained substantially unchanged since 1915 ¹⁴ even though the Act has frequently been amended. In fact, the Act has been amended annually since the establishment of this rule.

were to be used by physicians when evaluating impairment. ¹⁰ The legislative intent behind this mandate was to provide some consistency in the evaluations of mental disorders accompanied by physical injury. Had the Legislature intended to make disabilities from mental disorders without accompanying physical injury compensable, they would have changed the statutory definition of injury ¹¹ rather than only including a method for consistently evaluating mental disorders.

In Lekan v. P & L Fire Protection Co., ¹⁵ we stated:

Legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed. Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts which retain the same, or not substantially dissimilar, portions of provisions formerly in force will be accorded the construction identical to that placed upon them by preexisting case law.

Since the Legislature has not substantially changed the statutory definition of injury, nor has it enacted any statute which would conflict with our prior decision, we must presume that the Legislature is in agreement with our judicial interpretation. Therefore, without a legislative mandate, we decline to alter the rule that disability unaccompanied by physical injury is not compensable under the Act. The Workers' Compensation Court was correct in ruling that Claimant was not entitled to compensation.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED.

HARGRAVE, C.J., and LAVENDER, SIMMS and SUMMERS, JJ., concur.

OPALA, V.C.J., and DOOLIN, ALMA WILSON and KAUGER, JJ., dissent.

OPALA, Vice Chief Justice, with whom KAUGER, Justice, joins, dissenting.

Today the court reiterates extant precedent holding work-related psychic trauma unaccompanied by physical injury to be noncompensable. I recede from this pronouncement and join the dissent by Kauger, J. For me, there is no textually demonstrable legislative intent to exclude from compensability those accidental injuries that result in mental scarring alone. I write separately to explain why I cannot accede to the court's exposition of the governing act. ¹

I.

NEITHER PROCEDURAL NOR SUBSTANTIVE NORMS OF THE COMMON LAW

HAVE A PLACE IN THE COMPENSATION LAW'S REPARATIONS REGIME

The rule that work-related psychic injury must be connected with or accompanied by some physical trauma before it may be compensable is well established in Oklahoma's workers' compensation jurisprudence. ² This judicially crafted restriction on coverage is doubtless derived from last century's common-law principle of tort liability, which holds that without physical injury no damages for mental anguish may be recovered, either ex contractu ³ or ex delicto. ⁴ The workers' compensation reparations regime has no common-law antecedents; it is traceable to an English statute modeled after a German prototype of the Bismarck era. ⁵ Because the noncompensability of psychotrauma sans physical injury stands without any trace of explicit or implicit legislative warrant ⁶ and comes solely from the common law tradition, the concept is a foreign transplant that has no place in the textual exposition of the workers' compensation statute. ⁷

This court has consistently rejected and condemned past attempts to infuse common-law norms into the scheme of reparations that governs on-the-job harm. ⁸ The statutory compensation law "is an act of the Legislature complete in itself." ⁹ "Almost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced either to the importation of tort ideas, or, less frequently, to the assumption that the right to compensation resembles the right to the proceeds of a

                personal insurance policy." 10  (Emphasis added.)   I would today excise from the body of our case law the noncompensability of mental dysfunction.

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