“This Court has consistently held that physical injury must be present for a disability to be compensable. Just as physical symptoms such as pain, tingling of the limbs, and nausea do not constitute accidental injury, neither does mental stress.”
How later courts described this case
- “This Court has consistently held that physical injury must be present for a disability to be compensable. Just as physical symptoms such as pain, tingling of the limbs, and nausea do not constitute accidental injury, neither does mental stress.”
- “No physical contact is necessary to constitute an assault. Pursuit with the intent to cause fright is sufficient.”
Written by the judges who cited it.
The opinion
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 Kau-ger, 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
*64 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 noncom-pensability 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 *65 personal insurance policy.” 10 (Emphasis added.) I would today excise from the body of our case law the noncompensability of mental dysfunction. It is a concept flawed for want of textually demonstrable support and alien to the law’s institutional design for workers’ reparations. 11
II.
THE TERMS OF THE ACT DO NOT DISALLOW COMPENSATION FOR PSYCHIC IMPAIRMENT ALONE
The decisional law upon which the court relies today manifests an erroneous interpretation of the Act and thus undermines legislative policy. The age of that authority poses no obstacle to a critical reexamination. Courts are free to correct a past course of erroneous statutory interpretation, no matter how long-standing the aberrational jurisprudence may be. 12 Moreover, all the flawed cases preserved as viable by today’s pronouncement were decided before the Act’s comprehensive overhaul in 1977, which became effective July 1, 1978. Perhaps in response to the then-extant case law, one of the 1977 amendments came to define “permanent impairment” as including any functional abnormality or loss, even if nonanatomical. 13
The present text of this state’s Workers’ Compensation Act makes no distinction between accidental injuries that result in both physical and psychic disability and those that produce solely functional loss from psychic impairment. 14 Mental dysfunction clearly lies within the purview of compens-ability. The harmful episode here in suit— claimant’s physical restraint as a hostage during a prison revolt — unfolds a classic example of work-related mental strain that leaves psychic trauma in its wake.
III.
THIS CLAIM MEETS THE ACT’S CRITERIA OF COMPENSABILITY
Work-related strain -is ipso facto an *66 accidental injury, 15 and the occurrence of an accident is a sine qua non of compensa-bility. 16 “Strain” is not confined to muscular exertion. It includes harm-dealing forces bearing on the mind or on the body. 17 The present claim is for psychic deficit from a strain suffered when the claimant was held captive by prisoners during an uprising at his workplace — a state correctional facility. This claimant thus traces his functional loss to a definite on-the-job episode of harm that meets the criteria of an accidental injury prescribed in 85 O.S.Supp.1988 §§ 3(7) and 3(H). 18 The cited subsections define “injury or personal injury” and “permanent impairment.”
In short, measurable impairment from psychic deficit constitutes functional loss within the meaning of § 3(11). When, as here, the loss is medically ascribable to a stress-filled confrontational event at the workplace, the mental impairment is compensable as accident-dealt, on-the-job harm to the worker in the § 3(7) sense. 19
IV.
THE DISSENT BY KAUGER, J., WISELY COUNSELS IN FAVOR OF CHANGE THAT WOULD NOT BE APPLIED RETROSPECTIVELY
I espouse the reluctance by Kauger, J., retrospectively to recede from the noncom-pensability of on-the-job psychotrauma. The sharp break from the past that is counseled both in her and in this dissent should not be applied to claims other than the present. The lawmakers must be afforded ample time to study the effect which recovery for psychotraumatic functional loss will likely have on the private and public sectors and on current insurance rates. Were I writing for the court, I would announce today that unless contravening legislation were passed by a certain date, this court would withdraw its continued recognition of the aberrationally infused common-law norm that bars compensability for on-the-job functional loss from purely psychic deficit. 20
V.
SUMMARY
Yesteryear’s jurisprudence fashioned an aberrational norm when it embraced for •the Workers’ Compensation Act the common law’s notion that an injury solely to one’s mind is damnum absque injuria unless accompanied by physical harm. Any accident-related functional loss (physical or psychic) is compensable under the current text of the Act’s § 3(11).
For these reasons I am in dissent from the court's pronouncement and join the views of Kauger, J.
. The Workers’ Compensation Act, 85 O.S.1981 §§ 1 et seq.
. See Keeling v. State Industrial Court, Okl., 389 P.2d 487 (1964) (syllabus ¶ 1 by the court); Daugherty v. ITT Continental Baking Company, Okl., 558 P.2d 393, 395 (1976). The precise issue in Keeling was whether the claimant’s “nervous breakdown” from a posture assumed while operating a sewing machine constituted an accidental injury, not whether the functional loss was recoverable. There, in denying the claim the court relied upon Rialto Lead & Zinc Co. v. State Industrial Commission, 112 Okl. 101 , 240 P. 96 (1925), where mental dysfunction from a work-related physical injury was held compen-sable.
. See Seidenbach’s, Inc. v. Williams, Okl., 361 P.2d 185 (1961) (the court’s syllabus ¶ 1).
. For English and early American authorities announcing this rule, see Lynch v. Knight, 9 H.L.C. 577, 598, 11 Eng.Rep. 854 (1861); Victorian Railway Comrs. v. Coultas, (1888 Eng.) L.R. 13 App.Cas. 222, 8 E.R.C. 405 — PC; Spade v. Lynn & B.R. Co., 168 Mass. 285 , 47 N.E. 88 (1897). On this point Oklahoma cases include Butner v. Western Union Tel. Co., 2 Okl. 234 , 37 P. 1087 (1894) (the court's syllabus ¶ 5); Western Union Telegraph Co. v. Choteau, 28 Okl. 664 , 115 P. 879 (1911) (the court’s syllabus); St. Louis & San Francisco Ry. Co. v. Keiffer, 48 Okl. 434 , 150 P. 1026 (1915) (the court’s syllabus ¶ 3); Van Hoy v. Oklahoma Coca-Cola Bottling Co., 205 Okl. 135 , 235 P.2d 948 (1951) (the court's syllabus ¶ 1); lines v. City of Norman, Okl., 351 P.2d 1048, 1049 (1960) (the court's syllabus ¶ 4).
. See 1 Larson, Workmens’ Compensation Law, § 5.10 at 33-34.
. At common law, recovery for psychic trauma (or fright) was generally denied because of 1) difficulty of measuring the injury in monetary terms, 2) remoteness of physical consequences, 3) a lack of precedent and 4) the fear of increased litigation. See Prosser and Keeton, The Law of Torts (5th ed.1984) at 360; Prosser, Intentional Infliction of Mental Suffering; A New Tort, 37 Mich.L.Rev. 874, 875-878 (1939). See. also Western Union Telegraph Co. v. Choteau, supra note 4, 115 P. at 886 and 888.
. McDonald v. Time-DC, Inc., Okl., 773 P.2d 1252 , 1255 n. 13 (1989). “Workmen’s compensation is not an outgrowth of the common law or of employers’ liability legislation; it is the expression of an entirely new social principle having its origins in nineteenth-century Germany." 1 Larson, Workmens’ Compensation Law, § 5.00 at 33. Civil law tradition includes both physical and psychic harm .within the meaning of the legal term "bodily injury." See Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1471 (11th Cir.1989).
. See, e.g., McDonald v. Time-DC, Inc., supra note 7 at 1255 n. 13; United Brick & Tile Company v. Roy, Okl., 356 P.2d 107, 109 (1960); Smith v. State Industrial Commission, 182 Okl. 433 , 78 P.2d 288, 289 (1938); Indian Territory Illuminating Oil Co. v. Crown, 158 Okl. 51 , 12 P.2d 689, 692 (1932).
For other examples of "distortion of compensation law by tort concepts,” see 1 Larson, Work-mens’ Compensation Law, § 1.20 at 2-4.
. Indian Territory Illuminating Oil Co. v. Crown, supra note 8, 12 P.2d at 692 .
. 1 Larson, Workmens’ Compensation Law, § 1.20 at 2-3.
. In tort law, damages for mental anguish unaccompanied by physical injury may be recovered for intentional infliction of emotional distress. See Williams v. Lee Way Motor Freight, Okl., 688 P.2d 1294, 1296 (1984); Eddy v. Brown, Okl., 715 P.2d 74, 76-77 (1986); Restatement of Torts (Second), § 46. See also generally Prosser and Keeton, The Law of Torts (5th ed. 1984) § 54 at 359.
In some jurisdictions damages for negligent infliction of emotional distress may be sought as an independent tort. See, e.g., Thing v. La Chu-sa, 48 Cal.3d 644 , 257 Cal.Rptr. 865, 880-881 , 771 P.2d 814, 829-830 (1989); see also generally, Annot.: Comment Note — Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong, 64 A.L.R.2d 100 ; Ropiequet, "Emotional Distress Claims in Medical Malpractice Cases,” For the Defense, at 13 (April 1990). A contrary view is found in the Restatement of Torts (Second), § 436A, which states:
"If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compen-sable damage, the actor is not liable for such emotional disturbance." (Emphasis added.)
. See Rodriguez de Quijos v. Shearson/Ameri-can Exp., Inc., 490 U.S. -, 109 S.Ct. 1917, 1922 , 104 L.Ed.2d 526 (1989), where the Court, in order to achieve uniformity and symmetry in statutory interpretation, overruled a 1953 case to hold a claim based on the 1933 Securities Act to be arbitrable.
. See 85 O.S.Supp.1977 § 3(11), whose pertinent terms are identical to those of that subsection’s present version quoted infra note 14.
. See the statutory definitions of "injury” and “permanent impairment,” 85 O.S.Supp.1988 §§ 3(7) and 3(11), respectively, infra.
The terms of 85 O.S.Supp.1988 § 3(7) are;
“(7) 'Injury or personal injury’ means only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally result therefrom and occupational disease arising out of and in the course of employment as herein defined. Provided, only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of the employment.” (Emphasis added.)
The pertinent terms of 85 O.S.Supp.1988 § 3(11) are:
"(11) 'Permanent impairment’ means any anatomical or functional abnormality or loss after reasonable medical treatment has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made. * * * " (Emphasis added.)
. Young v. Neely, Okl., 353 P.2d 111, 113 (1960); Choctaw County v. Bateman, 208 Okl. 16 , 252 P.2d 465, 468 (1953). See also H.J. Jeffries Truck Line v. Grisham, Okl., 397 P.2d 637, 640-641 (1964), for an explanation of "strain" in the context of a compensable accident.
. A compensable “accidental injury" must be 1) work-related, 2) traceable to one particular event or to the cumulative effect of a series of micro-trauma and 3) in every instance, unexpected. See Munsingwear, Inc. v. Tullis, Okl., 557 P.2d 899, 903 (1976).
. Bill Gover Ford Company v. Roniger, Okl., 426 P.2d 701, 702 (1967) (the court’s syllabus ¶ 4).
. For the terms of 85 O.S.Supp.1988 §§ 3(7) and 3(11), see supra note 14.
. For the definition of an on-the-job accident, see supra note 16.
. See Vanderpool v. State, Okl., 672 P.2d 1153, 1157 (1983).