Fenwick v. Oklahoma State Penitentiary

KAUGER, Justice,

with whom OPALA, Vice Chief Justice, and DOOLIN, Justice, join, dissenting:

A plain reading of the applicable statutory provisions leads invariably to two conclusions: 1) psychological injury in the absence of accompanying physical trauma is not excluded from workers’ compensation coverage; and 2) it never has been. The facts presented here support the conclusion that the hostage suffered accidental personal injury during the course of his employment. Under the authority of Vanderpool v. State, 672 P.2d 1153, 1157 (Okla. *671983), recovery should be allowed in this case, but in no others until the Legislature acts.

I

FACTS.

The claimant, who offered himself as a hostage to secure the release of three female hostages while attempting to mediate a crisis at the Oklahoma State Penitentiary on August 8, 1979, first suffered serious psychological problems in December of that year when he experienced marital dysfunction and extreme anxiety. Because of Fenwick’s mental condition, he left the stress of the prison job, and accepted a position with a community mental health center. It is undisputed that in order to continue even at this occupation, he needs the benefit of counseling.

The State Insurance Fund recognized that Fenwick had been harmed — it paid for his medical and psychiatric treatment for almost four years. It was only after he filed a claim for permanent partial disability that the Fund denied that he had been injured in the course of his employment. If recovery is foreclosed under the Act, Fenwick is left without redress. The Governmental Tort Claims Act, 51 O.S.1981 § 151 et seq., immunizes the state and its political subdivisions from any action arising as a result of civil disobedience, riot, insurrection, or rebellion.1 Under similar circumstances, i.e. guard-hostage situations, the federal courts have denied recovery in 1983 actions.2 Recovery would surely have been granted to the hostage’s survivors had he been killed while being held hostage;3 however, he is denied recovery for a life-altering trauma.

II

THE EVIDENCE SUPPORTS A FINDING OF ACCIDENTAL PERSONAL INJURY ARISING OUT OF THE COURSE OF EMPLOYMENT.

Even if there is no recognition of the compensability of a predominantly psychic injury, recovery should be allowed. The hostage’s mental injury is associated with sufficient physical side-effects to support an award under the theory requiring physical impact. He suffered from marital dysfunction, severe headaches, tingling in his extremities, and dizziness. During the hostage situation, he was faced with an inmate wielding a homemade knife. This fact alone would be enough to support a cause of action for assault.4 No physical contact *68is necessary to constitute an assault. Pursuit with the intent to cause fright is sufficient.5 AH that is necessary to prove the crime of assault is a general intent to perform the act.6 Unquestionably, the inmate intended to strike fear in his hostage. When faced with the inmate’s weapon, Fen-wick undoubtedly had some concern for his bodily safety.

The irony here, is that the majority, which has recognized tortious liability outside the scope of employment, will not recognize an analogous injury in the context of a job situation. The very factor which relieves the employer of tort liability — the lack of duty on the part of the employer to provide an assault-free environment— should be compensable within the Act. Even if employers in general would have no duty to protect against assaults, this situation is a more or less routine part of the work environment for a prison employee. This is not an assembly line worker. We’re talking about an employee who suffers assault as an incidence of doing his job. Prison risks do not occur everyday, but they are certainly reasonably foreseeable. This is not a case of a malingerer— there is no question that there was an injury here.7 This is a case of a selfless act of heroism in which Fenwick was willing to lay down his life for his friends. This brave man exchanged his personal freedom for that of his female co-workers, and saved them from an unknown fate. Fen-wick disregarded his personal safety for that of his co-workers. The result of the majority opinion is to deter rather than to provide an incentive for other employees to do the same.

Ill

THE WORKER’S COMPENSATION ACT DOES NOT EXEMPT MENTAL STRESS FROM ITS PURVIEW.

There are three types of psychic injury: 1) a mental stimulus which causes a physical injury; 2) a physical trauma which causes a nervous injury; and 3) a mental stimulus which causes a nervous injury.8 Here, recovery is denied not because of lack of evidence of injury, but on the basis that there was no evidence of bleeding, bruising, or tearing, or of lasting physical injury, i.e., accidental personal injury.9 It *69is undisputed that the Act has never specifically excluded recovery for mental stress in the absence of physical injury. Nor has it specifically provided that physical trauma is a prerequisite to recovery for mental stress. The Court has engrafted this requirement to its definition of personal injury just as the Court had engrafted sovereign immunity into the common law — 10 by judicial fiat, not by legislative enactment.

The Workers’ Compensation Act, 85 O.S. 1987 § 1 et seq., defines “injury or personal injury” and “occupational disease:”

“ ‘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.”
“ ‘Occupational disease’ means only that disease or illness which is due to causes and conditions characteristic of or peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.”

Injury is defined as an accidental injury arising out of and in the course of employment and includes occupational diseases, infections, or illnesses naturally arising therefrom due to causes and conditions characteristic of or peculiar to the employment. Purely personal injuries are excluded from coverage, and all injuries must be reasonably connected with the conditions of employment. Although occupational disease is defined by the Act, “disease” is not. Websters defines “disease” as:

“... A condition in which bodily health is seriously attacked, deranged, or impaired; sickness; illness; as mortality from disease; a particular form or instance of such condition; a malady; an ailment; as, infectious diseases.... Pathologically, disease is an alteration of state of the human body or any animal or plant organism, or of some of its organs or parts, interrupting or disturbing the performance of the vital functions, or a particular instance or case of this; any departure from the state of health presenting marked symptoms; also, a specific kind of such alteration; a particular ailment having special symptoms or causes; as, Addison’s disease, Bright’s disease, Panama disease, etc. Various forms of disease may be caused by parasites, filtrable viruses, and nutritional, environmental, or inherent deficiencies .... A derangement or disorder of the mind, moral character and habits »11

In Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1471 (11th Cir.1989), the Eleventh Circuit held that the Warsaw Convention (Convention) provides recovery for purely emotional injuries. Because the original treaty is written in French, the circuit court looked to the French meaning of bodily injury, lesion corporelle, as a basis for its determination. It found that although a literal translation of the phrase “lesion corporelle” would not encompass mental injury, use of the term would not by implication exclude emotional trauma. The court relied on a definition of bodily injury which under French law included “physical, mental, and moral damage, as well as any pecuiary loss resulting from personal inju*70ry.” It also found persuasive an interpretation of the use of “lesion” along with “death” and “wounding” which encompassed and contemplated “cases of trauma-tism and nervous troubles ...” The circuit court determined that if the Convention had intended to limit recovery to cases of physical injury, it would have done so expressly. Case law from other jurisdictions has defined disease as a deviation from the healthy or normal condition of any of the systems or tissues of the body which impairs vital functions 12 — including derange-ments or disorders of the mind, or morbid conditions of the mind or spirit.13

An increasing number of courts are recognizing that recovery is proper for mental injuries not associated with physical impact. There is already visible a distinct majority position supporting compensability for nervous injuries.14 The courts which find that mental injuries may be compensa-ble absent physical impact reason that there is no valid justification for distinguishing between mental disorders— whether caused by physical impact or injury caused or aggravated by emotional stimuli — in view of the policy of workmens’ compensation statutes to provide for work-related disabilities.15 Courts which do not allow compensation for disabling mental disorders resulting from a work-related emotional stimulus reason that an emotion*71al stimulus is not an “accident” or “injury” within the meaning of the compensation statutes.16 Some states prohibit recovery for mental or nervous injury by statutorily excluding such events from the definition of an injury arising out of the employment.17 Although we have relied on this premise to deny recovery in the past, the Oklahoma Act does not specifically exempt mental or neurological illness from its application,18 Denial of recovery for purely psychological injuries has been a judicial limitation rather than a statutory one.19 Twenty-six jurisdictions, with similar statutes, allow recovery for properly documented cases of mental disability caused by on-the-job stress and strain.20

Adoption of the majority rule will not disrupt the ordinary evidentiary burden. Rule 2021 of the Act sets forth the requirements for expert medical testimony. The difficulty of requiring physicians to appear at trials is recognized. The Rule provides the standards necessary for verified reports. Reports prepared for trial must contain a statement that “the evaluation is in substantial accordance with the latest ‘Guides to the Evaluation of Permanent Impairment’.”22 Chapter 14 of the Guide is devoted to the consideration of mental and behavioral disorders. The Guide provides a method of evaluation of diseases causing psychiatric impairment, and it is attached hereto as Appendix I.

The use of the Guide as an evaluative tool is also required by 85 O.S.Supp.1988 § 3(11).23 This section defines “permanent *72impairment” as “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.” This definition, like those of “injury or personal injury” and “occupational disease” does not specifically exclude mental injuries. Instead, its reference to “any abnormality” encompasses the physical as well as mental condition of the claimant.

Historically, legal theories have evolved to keep pace with new technological and/or medical realities. In the law of torts, it is now recognized that there is no magic inherent in the name given a tort or a classification. Therefore, infliction of mental distress now stands as a cause of action in itself rather than in a symbiotic relationship with some other traditionally recognized tort.24 In Gaither v. City of Tulsa, 664 P.2d 1026, 1030 (Okla.1983), we found that a mother, who had suffered no physical injury, could recover mental anguish or emotional disturbance arising from the death of her child who drowned in a municipally erected drain. The controlling statute in Gaither, like the Act here, did not require a physical injury as a condition precedent to recovery.25

The nature of compensable injuries has changed since workers’ compensation laws were originally enacted. What was once a severed limb or debilitating lung disease has become a stress-induced heart attack or a permanent psychic injury. Out of a total of 29,030 workers surveyed in 1900, only 5,115 were white-collar workers. The other 23,915 were manual and farm laborers. By 1970 the figures had changed. Of 79,802 laborers surveyed, 37,857 of those counted were in white-collar jobs. The rest, 41,868 were manual and farm workers.26 By 1987 in Oklahoma, there were only 40,400 agricultural workers compared to 1,104,783 wage and salary earners.27 Blue-collar workers have gone from 40 percent of the national workforce in 1950 to 30 percent in 1982. The service sector has grown from 55 percent of the workforce to over 70 percent. Over two-thirds of today’s laborers are found in the fields of accounting, banking, engineering, consumer services, education, health care, legal work, transportation, wholesale, and retail trade.28 Instead of recognizing this shift, the majority mechanically transfers the non-physical injury concept designed to deter false claims by blue collar workers in routine industrial jobs to an environment *73where psychic trauma is a routine component of working conditions.

In the past, before the recognition of the relationship of mental and nervous injuries to physical symptoms and behavior, there was an understandable basis, i.e., apparently insoluble evidentiary difficulties, for denying recoveries based on such injuries, both in tort and in workers’ compensation law. That justification is no longer valid. The present Act predicates indemnification based, not on the label assigned to the injury — whether mental or physical, but upon the employee’s inability to work because of impairments flowing from his/her employment conditions.29

A human being is not constituted of mere blood, bones, muscles, ligaments, and tissues. He/she also has a nervous system, a brain and a psyche.30 The majority opinion ignores one of the major portions of the body — the nervous system. Mental stimuli may cause either physical or mental disease, and there is no creditable distinction, nor can a valid line be drawn under contemporary medical standards, between what is totally psychological and what is purely physical.31 No reason is suggested, and none appears, why injury in the form of debilitating depression, insomnia, and headaches, as well as injury to the cardiovascular system32 and other internal organs33 caused by work induced mental or emotional stress and strain, should not be covered if the cause and effect are established by competent evidence.

The consideration of mental factors for recovery under the workers’ compensation law is not new to us. In Bill Gover Ford Co. v. Roniger, 426 P.2d 701, 705 (Okla. 1967), we committed ourselves to the principle that heart disabilities may be caused by serial stresses and exertions, and that strain is not confined to muscular activity, but may also consist of unusual emotional, mental, or nervous anxiety or tension. Recovery was permitted after the Court determined that there was competent evidence to support the finding that the worker suffered a heart attack resulting from work-related strain and exertion. In reaching this result, we cited two cases from other jurisdictions — Lobman v. Bernhard Altmann Cory., 19 A.D.2d 931, 244 N.Y.S.2d 425, 427 (1963), aff'd, 254 N.Y. S.2d 113, 202 N.E.2d 559, 15 N.Y.2d 506 (1964) and Fink v. City of Paterson, 44 N.J.Super. 129, 129 A.2d 746, 748 (1957)— which hold that an injury resulting from mental or emotional distress need not be accompanied by physical trauma to be com-pensable. Lobman was cited with approval for the principle that an injury caused by emotional stress or strain may be found to be accidental within the contemplation of the Workmens’ Compensation Law.

The teaching of Roniger was followed in Oklahoma City v. Schoonover, 535 P.2d 688-89 (Okla.1975). The survivors in Schoonover received death benefits after a police officer died from a perforated ulcer initiated by on the job anxiety and apprehension. After finding that the ulcers were engendered by his working conditions and the nature of the employment, the Court held that disability caused by emotional stress and strain or anxiety is compensable. Recovery was allowed again in Decker v. Oklahoma State Univ., 766 P.2d 1371-72 (Okla.1988), based on the same principle.

Although Mississippi had consistently denied recovery for psychological injuries caused by purely mental or emotional stimuli, in 1988, the Supreme Court reversed its traditional position in Fought v. Stuart *74C. Irby Co., 523 So.2d 314, 317 (Miss.1988), and held that Mississippi workers are entitled to compensation for such injuries. The Act itself, and the time we live in, require a shifting of this Court’s perspective so that the Act may be interpreted to provide coverage. By doing so, we would be joining Mississippi as well as twenty-four other jurisdictions who have held under similar statutory provisions that mental injuries may be compensable absent physical impact.

Adoption of the majority view would not constitute an abrupt break with precedent. The resolution of the question under consideration — whether compensation for an emotional, nervous, or psychological injury disassociated from overt external physical harm is precluded by the Act — has been clearly foreshadowed by the recent decisions of this Court. In Stiles v. Oklahoma Tax Comm’n, 752 P.2d 800, 803 (Okla. 1987), wé found that work-related stress which aggravated a preexisting condition of rheumatoid arthritis was compensable. In Decker, we recognized that a heart attack which may have been caused by overexertion or strain, more mental than muscular, was compensable. In Glenn v. State ex rel, Oklahoma Employment Sec. Comm’n, 782 P.2d 150, 152 (Okla.Ct.App. 1989), released for publication by this Court, the Court of Appeals found that an employee who had resigned her job because of severe reactive depression arising from on-the-job stress was entitled to unemployment compensation. In Bruner v. Rainbo Baking Co., No. 68,227 (Okla.Ct. App. Jan. 10, 1989), cert denied, (Okla. 1989), we denied certiorari after the Court of Appeals affirmed the award of compensation benefits for stress-related injuries. These findings are consistent with similar cases in which we have allowed recovery for work-related heart attacks, ulcers, and other internal injuries predicated by mental stimuli.34

IV

THE PUBLIC PURPOSE OF THE ACT.

Workers’ Compensation laws impose strict no-fault liability on employers for injuries or occupational diseases arising out of and in the course of employment. In exchange for a statutorily prescribed and limited measure of damages, the employer is granted immunity from tort liability,35 and the worker abandons his/her common law right of action against the employer. The theory underlying this approach to liability is that the fiscal responsibility for employment injuries should be treated as a cost of production to be borne by the employer. Although the Act is premised on these social and economic concerns, it does not exist solely for the benefit of the employer and the employee. It is based on the principle that an industry which requires people for its operation should shoulder the burden for their care, while shifting the loss from the injuries to the worker to those who ultimately benefit,36 i.e., the consumer. The purpose of the Act is not to indemnify a worker for injuries suffered on the job, but is rather to provide compensation for loss of earning power and the ability to work37 when those losses are causally related to employment,38 while not ignoring industrial and societal needs and expectations.

The existing Act is neither intended to provide a complete system of social insurance nor to require an employer to be a *75general health and accident insurer. Instead, the Act is an amalgamation of compromises which seek to accommodate the interests described above. Although it purports to be an exclusive remedy for workers with employment related injuries, diseases, or disorders, there are several exceptions to this rule. [For example, an intentional injury inflicted by the employer on the employee constitutes grounds for a common-law action for damages because an intentional act does not qualify as an accidental injury within the purview of the Act, nor as a risk or condition of employment.] 39

Early in this century, Workers’ Compensation Laws were enacted in response to increased industrial accidents because of inadequate and inconsistent recoveries by employees under common law doctrines and procedures. Legislatures enacted workers’ compensation laws to spare employees from expensive and speculative trials which posed the prospect of no recovery for clearly job-related injuries, as well as to protect employers from excessive common law judgments with their destabilizing impact.40

Notwithstanding these historical roots of the Act, with their underlying public policy considerations, the ultimate social and economic decisions are still the province of the Legislature, not of the courts. Our job is to determine whether an occupational disease or an injury arising out of and in the course of employment is compensable based on the statutory directives of the Legislature as they have been construed in our jurisprudence. Generally, injuries of this sort may be organized conceptually in three groups: physical trauma causing nervous injury; mental stimuli causing physical injury; and mental stimuli causing nervous injury. The first two categories are almost universally accepted as compen-sable. The third has been a highly-litigated, volatile field in the development of Workers’ Compensation Law.

V

THE VANDERPOOL DOCTRINE SHOULD BE INVOKED.

Apparently the majority’s reason for denying recovery is that the Act does not specifically list psychological injuries as being compensable. Although this Court has decided cases which lend credence to this argument, there is nothing within the four corners of the Act which reflects that the Legislature intended to bar recovery for purely mental injuries. This exemption has been engrafted by the Court — it has never been enacted by the Legislature. We are not free to bestow greater immunity from liability on employers or greater benefits on employees than the statute allows. We cannot erect an insurmountable barrier to recovery from a doubtful, ambiguous, or silent legislative text;41 nor may we infer immunity when it has not been statutorily *76granted. The Legislature has not expressed its intent to shield employers from liability for purely mental injuries,42 and we may not do so by judicial caveat.

The majority uses legislative intent, i.e. legislative silence, as a shield to avoid reevaluation of an issue that is a reality in today’s society — job-related stress. We are not free to impose our own views in the interpretation of statutes. Had the Legislature intended to exempt purely mental injuries, it could have done so — and if that is the legislative intent, it is urged to do so.

After reaching the conclusion that the judicially imposed exclusion for psychic injury in the absence of physical trauma cannot not be supported by either reason or justice for the reasons expressed infra, and being mindful of the overwhelming trend against such restrictions, our duty under the current legislation is unmistakable.43 However, these are matters which lie within the Legislative sphere, and its consideration of the many problems presented is invited. It may be that the Legislature would want to establish, as has been done in some jurisdictions, very stringent guidelines for recovery for purely mental injuries.44 This is a important area, and the Legislature should act to either include or exclude mental stress, psycho trauma, or psychological injury within the purview of workers’ compensation coverage. By no means is the opening of the floodgates of litigation encouraged. Until such time as the Legislature considers these matters, were I writing for the majority, under the authority of Vanderpool, I would allow recovery in this case, but in no others awaiting Legislative guidance.

. Title 51 O.S.Supp.1989 § 155 provides in pertinent part:

"The state or a political subdivision shall not be liable if a loss or claim results from ... (6) Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection...."

Provisions almost identical to the current statute have been in effect since before the claimant was taken hostage on August 8, 1979.

. Walker v. Rowe, 791 F.2d 507, 510 (7th Cir. 1986), cert, denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986); Smith v. Dodrill, 718 F.Supp. 1293, 1295 (N.D.W.Va.1989); Sheets v. Indiana Dept, of Corrections, 656 F.Supp. 733, 739 (S.D.Ind.1986).

Title 42 U.S.C. § 1983 (1981) provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, an Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

. See, Werner v. State, 441 N.Y.S.2d 654, 657, 53 N.Y.2d 346, 424 N.E.2d 541, 544 (1981), involving the death of prison guard held hostage in a prison revolt. The New York appellate court found that recovery allowed by that state’s workers’ compensation statute was exclusive. Title 85 O.S.1981 § 3.1 defines beneficiaries of the Act's death benefit provision. Title 85 O.S. Supp.1987 § 22(8) sets out the benefits payable to the survivors.

. The tort of assault protects a person’s interest in freedom from apprehension of a harmful or offensive contact with the person. No actual contact is necessary to support a cause of action for assault. See, W. Keeton, Prosser & Keeton on the Law of Torts, Ch. 2, § 33, p. 43 (5th Ed. West Pub. Co. 1984). See also, Restatement *68(Second) of Torts § 21 (1965) which provides in pertinent part:

"(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension ...”

. Vaughn v. Baxter, 488 P.2d 1234, 1237 (Okla. 1971).

. Joplin v. State, 663 P.2d 746-47 (Okla.Crim. App.1983); Morris v. State, 515 P.2d 266, 269 (Okla.Crim.App. 1973).

. Although the State’s examining physician linked the claimant’s mental problems to other stressful occurrences in his life, he recognized that the hostage incident and the post-traumatic stress disorder were causally related.

. Consolidated Freightways v. Drake, 678 P.2d 874, 876 (Wyo.1984).

. Although the hostage does not allege that he was sexually assaulted, and there is certainly no evidence that he was, under the majority opinion, these purely hypothetical scenarios illustrate the diverse and illogical results which would be reached under the majority view:

Example Result
1) A male hostage is forced to commit oral sodomy. He does not bleed, bruise, or tear, or suffer lasting physical injury. He suffers debilitating psychological injury. No recovery.
2) A male hostage is forced to commit oral sodomy. His mouth bleeds, bruises, or tears. Recovery allowed.
3) A male hostage is forced to commit anal sodomy. He does not bleed, bruise, or tear, or suffer lasting physical injury. He suffers debilitating psychological injury. No recovery.
4) A male hostage is forced to commit anal sodomy. He bleeds, bruises, or tears. Recovery allowed.
5) A multi-partem female hostage is raped. She does not bleed, bruise, or tear, or suffer lasting physical injury. She suffers debilitating psychological injury. No recovery.
6) A virgin female hostage is raped. She bleeds, bruises, Recovery or tears. allowed.

*69Under the majority’s position, two sexual assaults conducted under identical circumstances would reach differing results insofar as recovery under the Act is concerned. The person who is raped and bleeds, bruises, or tears, thus suffering accidental personal injury, would be compensated. The person who is raped, has a legitimate fear during the hostage situation and suffers permanent mental trauma, but does not bleed, bruise, tear, or suffer lasting physical injury, would be denied compensation. This surely cannot be. Recovery premised on past sexual experiences cannot be used as the yardstick to determine whether a rape is either benign or malignant, and whether the assault is compensable.

. Vanderpool v. State, 672 P.2d 1153, 1157 (Okla.1983).

. W. Neilson, Websters New International Dictionary of the English Language, p. 746 (2nd Ed. G. & C. Merriam Co., 1952).

. Blalock v. City of Portland, 206 Or. 74, 291 P.2d 218, 221 (1955); McGregor v. General Accident Fire & Life Assurance Corp., 214 N.C. 201, 198 S.E. 641-42 (1938); Brinkoetter v. Pyramid Life Ins. Co., 377 S.W.2d 560, 563 (Mo.App.1964).

. See, Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 348 (1948); Chapman v. Finlayson Lease, 56 Ariz. 224, 107 P.2d 196, 198 (1940) (Both cases recognize neurosis as a disease.).

. IB Larsen, "The Law of Workmen's Compensation," p. 7-639, § 42.23 (1987).

. Thirty jurisdictions allow recovery for psy-chotrauma in the absence of physical injury: Butler v. District Parking Management Co., 363 F.2d 682, 684 (D.C.Cir.1966); American Nat'l Red Cross v. Hagen, 327 F.2d 559, 561 (7th Cir.1964); Globe Sec. Sys. Co. v. Workmen’s Compensation Appeal Bd., 518 Pa. 544, 544 A.2d 953, 956 (1988); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988); Wade v. Anchorage School Dist., 741 P.2d 634, 637 (Alaska 1987); Gentry v. E.I. Dupont De Nemours & Co., 733 S.W.2d 71, 73 (Tenn.1987); Hansen v. Von Duprin, Inc., 507 N.E.2d 573, 576 (Ind.1987); Martin v. Rhode Island Pub. Transit Auth., 506 A.2d 1365, 1368 (R.I.1986); Kelly’s Case, 394 Mass. 684, 477 N.E.2d 582-83 (1985); Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332, 334 (1984); Baker v. Wendy's of Montana Inc., 687 P.2d 885, 891 (Wyo.1984); Hammons v. City of Highland Park Police Dept., 421 Mich. 1, 364 N.W.2d 575, 580 (1984); McGarrah v. State Accident Ins. Fund Corp., 296 Or. 145, 675 P.2d 159, 170 (1983); Breeden v. Workmen’s Compensation Comm’r, 168 W.Va. 573, 285 S.E.2d 398, 400 (1981); Townsend v. Maine Bureau, 404 A.2d 1014, 1020 (Me.1979); Martinez v. University of Cal, 93 N.M. 455, 601 P.2d 425, 427 (1979); Fireman's Fund Ins. Co. v. Industrial Comm., 119 Ariz. 51, 579 P.2d 555, 558 (1978); Pathfinder Co. v. Industrial Comm., 62 III.2d 556, 343 N.E.2d 913, 917 (1976); Yocom v. Pierce, 534 S.W.2d 796, 800 (Ky.1976); Swiss Colony, Inc. v. Department of Indus., Labor & Human Rel., 72 Wis.2d 46, 240 N.W.2d 128, 130 (1976); Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 369 N.Y.S.2d 637, 641, 330 N.E.2d 603, 606 (1975); Royal State Nat’l Ins. Co. v. Labor & Indus. Rel. Appeal Bd., 53 Haw. 32, 487 P.2d 278, 282 (1971); Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291, 293 (1941); Badeaux v. lim Walter Corp., 517 So.2d 1146, 1149 (La.App. 1987); City of Aurora v. Industrial Comm'n, 710 P.2d 1122-23 (Colo.Ct.App. 1985); Barrett v. Arkansas Rehabilitation Serv., 10 Ark.App. 102, 661 S.W.2d 439-40 (1983); Ditler v. Workers' Compensation Appeals Bd., 131 CaI.App.3d 803, 182 Cal.Rptr. 839, 845 (1982); Sargent v. Board of Educ., 49 Md.App. 577, 433 A.2d 1209, 1213 (1981); Todd v. Goostree, 493 S.W.2d 411, 420 (Mo.App. 1973); Simon v. R.H.H. Steel Laundry, Inc., 25 N.J.Super. 50, 95 A.2d 446, 448 (1953), aff’d, 26 N.J.Super. 598, 98 A.2d 604 (1953). See also, Annot., "Mental Disorders as Compensable Under Workmen’s Compensation Acts,” 97 A.L. R.3d 161, 166 (1980).

Ten states have disallowed such recoveries: Winchell v. Falls Sheet Metal, 235 Mont. 299, 766 P.2d 1313, 1315 (1989); Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696, 698 (1988); Castner v. MCI Telecommunications Corp., 415 N.W.2d 873 (Minn.1987); Ryan v. Connor, 28 Ohio St.3d 406, 503 N.E.2d 1379, 1381 (1986) (Allows recovery where mental stress results in physical injury.); Followill v. Emerson Elec. Co., 234 Kan. 791, 674 P.2d 1050, 1053 (1984); Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 337 (Tex. 1979); Superior Mill Work v. Gabel, 89 So.2d 794-95 (Fla. 1956); Fleming v. Appleton Co., 214 S.C. 81, 51 S.E.2d 363, 365 (1949); J.C. Penney Co. v. Pigg, 544 So.2d 169, 170 (Ala.Civ.App.1989); Dougherty County Bd. v. Lundy, 183 Ga.App. 550, 359 *71S.E.2d 403, 406 (1987), cert. denied, 183 Ga.App. 906 (1987).

. Hanson Buick Inc. v. Chatham, 163 Ga.App. 127, 292 S.E.2d 428-29 (1982).

. In Florida, the comparable Workers’ Compensation Act, Fla.Stat. § 440.02(1) (Supp.1988) provides in pertinent part:

"... ‘Accident’ means only an unexpected or unusual event or result, happening suddenly. A mental or nervous injury due to fright or excitement only ... shall be deemed not to be an injury by accident arising out of the employment _’’

See also, City Ice & Fuel Div. v. Smith, 56 So.2d 329-30 (Fla.1952). Compensation is allowed if physical trauma causes mental or nervous injury. See e.g., Marci Ann Sportswear v. Busquet, 393 So.2d 1132-33 (Fla.App.1981).

. The Workers’ Compensation Act, 85 O.S. Supp.1988 § 3(7) and (10) provide:

"(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.”
"(10) 'Occupational disease’ means only that disease or illness which is due to causes and conditions characteristic of or peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.”

. Ryan v. Connor, 28 Ohio St.3d 406, 503 N.E.2d 1379, 1381 (1986).

. Of the thirty jurisdictions allowing recovery, four — -Massachusetts, Michigan, Wisconsin, and Rhode Island — have statutes which specifically allow recovery for mental injury. See, Mass.Gen L.Ann. ch. 152, § 1(7A) (West 1988), Mich.Comp.Laws Ann. § 418.301(2) (West Supp. 1989); R.I.Gen.Laws § 28-34-2(36) (1956), Wis. Stat.Ann. § 102.01(2)(c) (West Supp.1988). Louisianna allows recovery although a plain reading of its statute would indicate that mental injuries should be excluded from coverage. See, La.Rev.Stat.Ann. § 23:1021(7) (West 1985). The Illinois statute does not define "injury.” See, IIl.Ann.Stat. ch. 48, para. 138.1 (West 1990).

. Rule 20, 85 O.S.Supp.1989 Ch. 4, App. provides in pertinent part:

"... The Court, taking into consideration that it is costly and time-consuming to have physicians actually appear at the time of trial for the purpose of giving live testimony, encourages the production of medical evidence by verified or declared report which shall contain the following, where applicable:
... (i) Any other detailed factors upon which the physician’s evaluation of permanent impairment is based, including a statement that the evaluation is in substantial accordance with the latest 'Guides to the Evaluation of Permanent Impairment’ adopted and published by the American Medical Association which were in effect when the examination was made...."

. A. Engleberg, Guides to Evaluation of Permanent Impairment, Ch, 14, pp. 227-233 (AMA 1988).

. Title 85 O.S.Supp.1988 § 3(11) provides:

" 'Permanent impairment’ means any anatomical or functional abnormality or loss after reasonable medical treatment has been *72achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made. Except as otherwise provided herein, any examining physician shall only evaluate impairment in accordance with the latest 'Guides to the Evaluation of Permanent Impairment’ adopted and published by the American Medical Association. The examining physician shall not deviate from said guides except as may be specifically provided for in the guides. These officially adopted guides shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides.”

.W. Prosser, The Law of Torts, p. 52, § 12 (4th Ed. West Publishing Co. 1971); Restatement (Second) of Torts § 46(1) (1965) provides in pertinent part:

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress ...”

The rule is not limited to cases where there has been bodily harm. See, Comment (k) to § 46.

. The recoverable damages in a wrongful death action are set forth in 12 O.S.1981 § 1053. It provides in pertinent part:

"... The loss of consortium and the grief of the surviving spouse, which shall be distributed to the surviving spouse....
The grief and loss of companionship of the children and parents of the decedent, which shall be distributed to them according to their grief and loss of companionship.... ”

. U.S. Dept, of Commerce, Historical Statistics of the United States: Colonial Times to 1970, p. 139 (Bureau of Census 1975).

. N. Dikeman, Jr., 1988 Statistical Abstract of Oklahoma, p. 417 (Center for Economic & Management Research, Univ. of Oklahoma 1988).

. J. Wright, The American Almanac of Jobs & Salaries, pg. xxii (Avon 1987).

. See, IB Larson, "The Law of Workmen’s Compensation,” p. 7-655-56, § 42.23(a) (1987).

. In Indemnity Ins. Co. v. Loftis, 103 Ga.App. 749, 120 S.E.2d 655-56 (1961).

. See, Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 319 (1955); Larson, "Mental and Nervous Injury in Workmen’s Compensation," 23 Vanderbilt L.Rev. 1243, 1252-53 (1970).

. K.P. Constr. Co. v. Death of Parrent, 562 P.2d 501, 503 (Okla.1977); Bill Gover Ford Co. v. Roniger, 426 P.2d 701, 703 (Okla.1967).

. Oklahoma City v. Schoonover, 535 P.2d 688, 692 (Okla.1975) (Ulcer.); Special Indem. Fund v. McFee, 200 Okl. 288, 193 P.2d 301, 303 (1948).

. See, Flint Constr. Co. v. Downum, 444 P.2d 200, 203 (Okla.1968); L.E. Jones Drilling Co. v. Harris, 403 P.2d 497, 500 (Okla. 1965); Keeling v. State Indus. Court, 389 P.2d 487, 490 (Okla. 1964).

. Weber v. Armco, Inc., 663 P.2d 1221, 1224 (Okla.1983). See also, Aetna Life Ins. Co. v. State Indus. Comm’n, 109 Okl. 65, 234 P. 765-66 (1925).

. See, Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788, 789-90 (1948); Tedars v. Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 243, 147 A.L.R. 914, 924 (1943).

. Service Pipe Line Co. v. Cargill, 289 P.2d 961-62 (Okla.1955); J.E. Trigg Drilling Co. v. Daniels, 193 Okl. 644, 145 P.2d 944, 946 (1943); Mudge Oil Co. v. Wagnon, 193 Okl. 466, 145 P.2d 185, 186 (1943).

. Wilson Foods Corp. v. Porter, 612 P.2d 261, 264 (Okla.1980); Loggins v. Wetumka Gen. Hosp., 587 P.2d 455, 459 (Okla.1978).

.Although it purports to be an exclusive remedy for workers with employment related injuries, diseases, or disorders, there are exceptions to this rule. For example, an intentional injury inflicted by the employer on the employee constitutes grounds for a common-law action for damages because an intentional act does not qualify as an accidental injury within the purview of the Act, nor as a risk or condition of employment. Tyner v. Fort Howard Paper Co., 708 F.2d 517-18 (10th Cir.1983); Title 85 O.S. Supp.1985 § 11 provides in pertinent part:

"Every employer subject to the provisions of the Workers’ Compensation Act shall pay, or provide as required by the Workers’ Compensation Act, compensation according to the schedules of the Workers’ Compensation Act for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, and in the event of disability only, except where the injury is occasioned by the willful intention of the injured employee to bring about injury to himself or of another, or where the injury results directly from the willful failure of the injured employee to use a guard or protection against accident furnished for his use pursuant to any statute or by order of the Commissioner of Labor, or results directly from the intoxication or drug or chemical abuse of the injured employee while on duty_”

See also, 2A Larson, "The Law of Workmen’s Compensation,” p. 13-1, § 68 (1987).

. Aetna Life Ins. Co. v. State Indus. Comm'n, see note 35, supra.

. Ingram v. State of Oklahoma, 786 P.2d 77, 80 (Okla.1990).

. See, Jarvis v. City of Stillwater, 669 P.2d 1108, 1111 (Okla.1983), aff’d, 732 P.2d 470 (Okla. 1987).

. Vanderpool v. State, see note 10, supra.

.See, Bush v. Industrial Comm’n, 136 Ariz. 522, 667 P.2d 222, 224 (1983); Seitz v. L & R Indus., Inc. 437 A.2d 1345, 1351 (R.I.1981); School Dist. No. 1 v. Department of Indus., Labor & Human Relations, 62 Wis.2d 370, 215 N.W.2d 373, 377 (1974).