1 M Dugeri asserts that compensation for mental stress is a completely novel provision; see “The Employee's Compensation Act 2010: Issues, prospects and challenges” (2013) SSRN Electronic Journal, DOI:10.2139/ssrn.3509243 (last accessed 14 July 2022), 1 at 18. Also see Anushiem, MI and Oamen, PE “Nigerian Employees’ Compensation Act 2010: Issues arising” (2017) 1 African Journal of Constitutional and Administrative Law 53 at 60Google Scholar; and Atilola, O “The challenges of assessing and providing compensation for mental stress under Nigeria's 2010 Employee's Compensation Act” (2012) 65/4 International Social Security Review 31CrossRefGoogle Scholar.

2 Anushiem and Oamen, ibid.

3 Omoro, JO and Okaka, EO “Evaluation of the implementation of ECA Amendment Act 2011 of Nigeria” (2016) 11 International Journal of Development and Management Review 187 at 189Google Scholar.

4 Ibid.

5 [1995] 6 NWLR (Pt 402) 474, 484.

6 See for instance Pattison, P and Varca, P “Workers’ compensation for mental stress claims in Wyoming” (1994) 29/1 Land & Water Law Review 146 at 167Google Scholar.

7 ECA, secs 7 and 8.

8 Chermiss, C Staff Burnout (1980, Sage)Google Scholar, cited in Atilola, B and Atilola, O “Compensation for mental stress under the new Employees’ Compensation Act 2010: Implications for human resource and management” (2011) 5/3 Labour Law Review 58 at 65Google Scholar.

9 In tort, initially, “stress”, “mental stress or “distress” per se could not be a ground for awarding damages or compensation to an employee. However, presently under the law of tort, there is a significant shift, though restricted, towards compensation in these cases, as seen in the decisions of Walker v Northumberland County Council [1995] IRLR 35; Robb v Salamis Ltd [2006] URHL 56; Dickens v 02 plc [2009] IRLR 58; and Hatton v Sutherland [2002] EWCA Civ 76. For critical discussion of the workplace stress compensation regime in tort, see Marshall, D Compensation for Stress at Work (2009, Jordan Publishing Company)Google Scholar.

10 JO Skoppek “Stress claim in Michigan: Worker's compensation entitlement for mental disability” (1995), available at: <http://www.mackinac.org/5244 > (last accessed 14 July 2022).

11 See Resnick, PJ “Malingering of post-traumatic disorders” in Rogers, R (ed) Clinical Assessment of Malingering and Deception (1988, Guilford Press) 84 at 85–86Google Scholar.

12 Skoppek “Stress claim”, above at note 10 at 181.

13 See Hohlstein v St. Louis Roofing Co [1932] 49 SW 2d 226 (Mo Ct App) (the employee's mental injury resulted from the physical injury he received when he fell twenty feet from the roof of the building he was working on to the ground); Rainbolt v Andrain Medical Center [2013] Mo WCLR Lexis 161; Lawson v Boone Hospital Center [2013] Mo WCLR Lexis 158.

14 [2012] Pa Common Lexis 328.

15 Ibid.

16 [2013] Ohio 2237, reported in D Whalen “Workers’ compensation covers injured employees’ mental condition only if caused by physical injury”, available at: <https://www.leagle.com/decision/inohco20130604527> (last accessed 23 July 2022).

17 ECA, sec 8(1)(b) (emphasis added).

18 Id, sec 8(1).

19 [1993] 502 NW 2d 12.

20 Pompeani, FJ “Mental stress and Ohio workers’ compensation: When is a stress-related condition compensable?” (1992) 40/1 Cleveland State Law Review 35 at 39Google Scholar. See also Zaratsky v Stringer [1978] 384 NE 2d at 695; Ralto Lead and Zinc Co v State Industrial Commission [1925] 112 OK1a 101, 240; General Tool & Supply v Somers [1987] 731 p 2d 581; Hohlstein v St. Louis Roofing Co, above at note 13.

21 Ralto, ibid at 103.

22 Ibid.

23 Emphasis added.

24 Above at note 20.

25 See generally Gureje, O and Alem, A “Mental health policy development in Africa” (2000) 78/4 Bulletin of the World Health Organization 475Google ScholarPubMed, cited in Atilola and Atilola “Compensation for mental stress”, above at note 8 at 178.

26 Armstrong v John R Jurgensen Co, above at note 16.

27 See Montgomery County v Grounds [1993] 862 SW 2d 35; the deputy police chief suffered a heart attack after the sheriff failed to inform the deputy that he would not be indicted for altering reports.

28 Larson, A Workers’ Compensation Law (1993, Matthew Bender) at 56–59Google Scholar, cited in L Copeley “Applicability of workers’ compensation acts to mental disabilities: The plaintiff's perspective”, available at: <https://pdf4pro.com/download/applicability-of-workers-compensation-1c28e.html> (last accessed 28 July 2022) at 5.

29 [1986] 503 NE 2d 1379.

30 Northwestern Refining Co v State Industrial Commission [1930] 145 Okla 72 291, 533.

31 Larson Workers’ Compensation Law, above at note 28 at 190.

32 Insurance Department v Dinsmore [1958] 223 Miss 569.

33 Bill Gover Ford Co v Romiger [1967] 426 p 2d 701.

34 Stuckey v Underground Services Co [2011] Mo WCLR Lexis 216.

35 In McGarrah v SAIF [1983] 676 p 2d 159, the Oregon Supreme Court stated: “It seems that no problem in recent years has given court and commissions administering workers’ compensation more difficulty than on-the-job mental stress which results in either emotional or physical illness. The causal relationship between employment stress and a resulting mental or emotional disorder presents one of the most complex issues in workers’ compensation law.” See Darnell v North Dakota Workers’ Compensation Bureau [nd 1990] 450 NW 2d 271; L Joseph “The causation issue in workers’ compensation mental disability cases: An analysis, solution and a perspective” (1983) 36 Vanderbilt Law Review 263. See also A Tucker “How denying mental-mental claims frustrates the central purposes of workers’ compensation law” (2010) 31/4 Journal of Legal Medicine 467.

36 Larson Workers’ Compensation Law, above at note 28 at 42–45, cited in RJ Guite and LA Rodeghiero “Stratemeyer v Lincoln County: Mental injuries and workers’ compensation policy” (1994) 55/2 Montana Law Review 525.

37 The Minnesota Supreme Court recently restated in Schnette v City of Hutchinson [2014] 843 NW 2d 233 that mental disability without physical injury was not compensable under the Minnesota Workers’ Compensation Law.

38 Larson Workers’ Compensation Law, above at note 28 at 842.

39 In 1996 Kentucky eliminated its liability for mental-mental claims by excluding them from the statute, in Kentucky Revised Statute, S 342-20011(1) (1997), which provides that “injury” is “not to include a psychological, psychiatric or stress-related change in the human organism, unless it is a direct result of a physical injury”.

40 CL Da Vader and A Gaimpetro-Meyer “Reducing managerial distress about stress: An analysis and evaluation of alternatives for reducing stress-based workers’ compensation claims” (1990) 31 Santa Clara Law Review 1 at 11, cited in FJ Pompeani “Mental stress”, above at note 20 at 52.

41 JR Martin “A proposal to reform the North Carolina Workers’ Compensation Act to address mental-mental claims” (1997) 32 Wake Forest Law Review 193 at 196, cited in ND Riley “Mental-mental claims: Placing limitation on recovery under workers’ compensation for day-to-day frustration” (2000) 65/4 Missouri Law Review 1023 at 1032.

42 A Larson “Mental and nervous injury in workmen's compensation” (1970) 23/6 Vanderbilt Law Review 1243.

43 Indemnity Insurance Co of North America v Loftus [1961] 120 SE 2d 656.

44 Sparks v Tulane Medical Center, Hospital & Clinic [1989] 546 So 2d 138, 146. See also Bailey v American General Insurance Co [1955] 154 Texas 430, SW 2d.

45 Wade v Anchorage Schott District [1987] 741 p 2d 634.

46 In Crochiere v Board of Education [1993] 630 A 3d 1027, the court enthused that “this court has never hypothesized that mental injuries alone could not be the object of compensation provided it was actually causally connected to the employee's work”.

47 See WC Carmody “The logical recognition of gradual stress disability under Oklahoma's Workers Compensation Law” (1988) 23/3 Tulsa Law Review 461 at 463.

48 Work Safe BC, “Policy item C3-13.00: Rehabilitation services and claim manual, Vol. II”, available at: <https://www.worksafebc.com/en/forms-resources#sort=Relevancy&f:topic-facet=[Law%20and%20Policy]&f:language-facet=[English]> (last accessed 28 July 2022).

49 Newfoundland Workplace Health, Safety and Compensation Act, 1998, sec 2.

50 Ibid.

51 Ibid. See Payes v Workers’ Compensation Appeal Board [2013] Pa Lexis 2588. Cf Brown & Root Construction Co v Duckworth [1985] 475 2d 813, cited in Skoppek “Stress claim”, above at note 10 at 181, and Simon v RHH Steel Laundry [1953] 25 NJ Super 505 A2d 445.

52 See Quebec Act Respecting Industrial Accidents and Occupational Diseases, sec 2.

53 “Policy Item C3-13.00”, above at note 48.

54 Alberta Workmen's Compensation Policy, available at: <https://www.wcb.ab.ca/assets/pdfs/public/policy/manual/printable_pdfs/complete_policy_manual.pdf> (last accessed 28 July 2022).

55 Children's Aid Society of Cape Breton-Victoria v Nova Scotia (Workers’ Compensation Appeals Tribunal) (WCAT) [2005] N & J No 75.

56 See International Harvester v Labour & Industry Review Commission [1983] 16 WIS 2d 298.

57 The Michigan workers’ compensation statute is more explicit in this regard. It provides that “mental disabilities will be compensable when arising out of actual events of employment not unfounded perception thereof” (emphasis added). See Michigan's Workers’ Disability Compensation Act at 418-301(2), cited in Skoppek “Stress claim”, above at note 10.

58 [1994] 445 Mich 23.

59 The section provides that a worker will have to demonstrate that the mental stress is a reaction to “one or more traumatic events arising out of and in the course of the worker's employment” to be compensable.

60 Riley “Mental-mental claims”, above at note 41 at 1033.

61 Troost, GM “Workers’ compensation and gradual stress in the workplace” (1985) 133/4 University of Pennsylvania Law Review 847 at 848CrossRefGoogle Scholar.

62 ECA, sec 73, defines an “accredited medical practitioner” as a registered medical practitioner or specialist accredited by the Social Insurance Trust Fund Management Board.

63 ECA, sec 8(3).

64 [1960] 361 Michigan 577.

65 See Short, SED “The compensability of chronic stress: A policy dilemma for Ontario workers compensation board” (1995) 21/2 Canadian Public Policy 219 at 22Google Scholar.

66 [2009] BCCA 188. The Supreme Court of Canada has also deprecated an attempt to restrict gradual stress claims as being discriminatory and a violation of the principle of equality; see Nova Scotia v Martin [2003] SCC No 54 and Nova Scotia v Laseur [2003] SCC 514.

67 [1978] 199 Arizona 51.

68 [1988] 141 AD 2d 232.

69 [1986] 506 A 2d 1365.

70 [2009] Nos A-0379-0813 (App Div), reported in “Employee entitled to workers compensation for mental stress resulting from hostile work environment”, available at: <https://ogletree.com/insights/employee-entitled-to-workers-compensation-for-mental-stress-resulting-from-hostile-work-environment/> (last accessed 12 August 2022).

71 Rizzo v Kean University [2014] NJ super unpub Lexis 1358.

72 O Atilola and O Ige “Global best practices in mental health in the workplace: Focus on the Nigerian setting” (2013) 7/1 Labour Law Review 61 at 47.

73 Above at note 64. This case is a typical illustration of a change in work or working conditions.

74 [2008] 660 SE 2d 260.

75 ECA, secs 7, 8, 10 and 11.

76 See WCA, sec 3(1). With regards to the repealed WCA, Uvieghara posits that “there is a greater acceptance of the view that the phrase ‘arising out of and in the course of employment’ has two arms and that both arms must be satisfied for a claim to succeed”. Uvieghara, EE Labour Law (2001, Malthouse Press) at 25Google Scholar.

77 Riley “Mental-mental claims”, above at note 41 at 1033.

78 Norton v EA Coven Construction Co [1964] 391 p 2d 785, 788. See also Novak v MCA Lister [1956] 301 p 2d 234.

79 Above at note 16.

80 Carmody “The logical recognition”, above at note 47 at 468.

81 Work Safe BC “Policy Item C3-13.00”, above at note 48.

82 Otuturu, GG “Employer's liability for personal injuries under the Workmen's Compensation Act” (2007) 1/4 Labour Law Review 1 at 5Google Scholar; Moore v Manchester Lines Ltd [1910] A C 498; Smith v Elder Dempster Lines Ltd [1944] 17 NLR 145.

83 Carmody “The logical recognition”, above at note 47 at 469.

84 Ibid.

85 [1978] 403 Mich 1, 268 NW 2d 1. Here the court ruled that compensation should be awarded even if there is only a strictly subjective causal nexus between the trauma and the mental injury.

86 Ibid.

87 This was demonstrated in Bentley v Associated Spring Company [1984] 133 Mich App 15 at 20–21, where a Michigan court observed that “in view of the financial gain – sometimes very substantial – any person who files a claim based on a psychiatric disorder will have strong motives to lie about his perception. The question then becomes whether that perception is ‘honest’ … Under this loose standard for recovery, Michigan employers are nearly becoming general health insurers for psychiatric disabilities. This is an alarming possibility.” See Troost “Workers’ compensation”, above at note 61 at 849.

88 See generally Riley “Mental-mental claims”, above at note 41 at 1032–34.

89 Larson Workers’ Compensation Law, above at note 28, cited in Riley “Mental-mental claims”, above at note 41 at 1030.

90 County of Washington v LIRC [2013] Wisc-App Lexis 26.

91 [1974] 62 Wis 2d 370 NW 2d 373. The court affirmed School District No 1 and extended the test to allow compensation for gradual, unusual stress in Swiss Colony Inc v Dept of Industry, Labour and Human Relations [1976] 72 Wis 2d 46.

92 Id at 377–78. See also Shealy v Aiken County [2000] 535 SE 2d 438.

93 Ibid.

94 [1986] 713 P 2d 187.

95 [1991] Pa Commw Lexis 308 59a A 2d.

96 Bedini v Frost [1996] 678 A 2d 893; Hoer Schengen v Von Hoffman Corporation [2012] Mo WCLR Lexis 119 713 P 2d 187.

97 Alberta WCB “Policies & Information Manual, Policy 03-01, Part 1.1.0”, available at: <https://www.wcb.ab.ca/about-wcb/policy-manual> (last accessed 28 July 2022).

98 Riley “Mental-mental claims”, above at note 41 at 1035.

99 For example, Caron v Marie School Administrative District No 27 [1991] 594 A 2d 560.

100 See Short “The compensability”, above at note 65 at 223.

101 For example, Williams v State Department of Revenue (938) [1997] P 2d 1065.

102 Powell v State of Missouri Department of Correction [2004] 152 S W3d 363. See generally Riley “Mental-mental claims”, above at note 41 at 1035–44.

103 Graves v Utah Power & Light Company [1986] 713 P 2d 187 at 193.

104 Troost “Workers’ compensation”, above at note 61 at 852; McGarrah v SAIF, above at note 35 at 170.

105 Troost, id at 853.

106 Alberta WCB “Policies & Information Manual”, above at note 97 at 4.

107 Work Safe BC “Policy Item C3-13.00”, above at note 48 at 6.

108 Ibid.

109 Ibid.

110 Ibid.

111 A McInerney and D Gregory “Stress and mental injuries – how to compensate?” (paper presented to the Actuaries Institute Injuries Schemes seminar, Gold Coast, 10–12 November 2013).

112 Larson Workers’ Compensation Law, above at note 28. The “egg-shell skull” principle means that the employer takes the employee as they find them.

113 [1975] 36 NY 2d 505, 510; [1975] 330 NE 2d 603.

114 Short “The compensability”, above at note 65 at 223.

115 Alberta WCB “Policies & Information Manual”, above at note 97.

116 [1998] 63 CCC 831.

117 See Knight v Audobon Savings Bank [2012] A-0173-1171 (App Div), unreported.

118 [2001] 65 CCC 1064.

119 [1991] 606 A 2d 539.

120 ECA, sec 8(2).

121 [1998] 63 California Compensation Cases 831 at 835.

122 Dunkerly v Concare [2012] PCAPC 132. See also County of San Bernardino v WCAB (McCoy) [2012] California Compensation Cases 219 77 (unpublished), and Taraghimo v Department of Correction [1977] 55 Comm App 19.

123 County of Sacramento v Workers Compensation Appeal Board [2013] Cal Reptr 3d.

124 Ibid.

125 Mastumotu, AV “Reforming of the reform: Mental stress claims under California's workers’ compensation system” (1994) 27/4 Loyola of Los Angeles Law Review 1327 at 1361Google Scholar.

126 Troost “Workers’ compensation”, above at note 61 at 855.

127 Ibid.

128 Carmody “The logical recognition”, above at note 47 at 466. See also Fax v Alacom, Inc [1986] 718 p 2d 977; McGarrah v SAIF, above at note 35; Breeden v Workmen's Compensation Commn [1981] 285 SE 2d 398, 490.

129 Troost “Workers’ compensation”, above at note 61 at 860.

130 Carmody “The logical recognition”, above at note 47 at 491.