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Published online by Cambridge University Press: 05 April 2022
It has been over a decade since the Employees’ Compensation Act (ECA) came into force, introducing, for the first time under Nigeria's employees’ compensation scheme, mental stress as a basis for compensation. However, legal literature on salient aspects of Nigerian employees’ compensation remains scant. This article seeks to bridge this gap and provide a source of legal scholarship to aid the adjudication of mental stress claims in Nigeria. The article discusses when and how work-related mental stress is compensable within the context of the ECA. It finds that, notwithstanding the subjective nature of mental stress and the possibility of feigning mental injury, the ECA establishes broad bases for compensating mental stress, increasing the risk that employees may manipulate the system and obtain benefits even when mental stress is not work-related. The article therefore articulates criteria to defeat fraudulent claims and ensure that only legitimate mental stress claims are compensated.
LLB (University of Nigeria), LLM (Harvard). The author is admitted to practise law in Nigeria and the State of New York, USA.
1 O Uchenunu-Ibeh “Stemming incidence of mental illness in workplace” (23 July 2019) Leadership, available at: <https://leadership.ng/stemming-incidence-of-mental-illness-in-workplace/> (last accessed 10 November 2021).
2 L Olusola “Need for mental health awareness in workplace” (11 April 2019) The Guardian, available at: <https://guardian.ng/features/health/need-for-mental-health-awareness-in-workplace/> (last accessed 10 November 2021).
3 Cap E7A, Laws of the Federation of Nigeria 2010. The ECA came into force on 17 December 2010.
4 Cap W6, Laws of the Federation of Nigeria 2004.
5 Neumann, LA “Workers’ compensation and high stress occupations: Application of Wisconsin's unusual stress test to law enforcement post-traumatic stress disorder” (1993) 77/1 Marquette Law Review 147Google Scholar at 163–64.
6 ECA, sec 1(a).
7 Id, secs 33 and 56. An “experience account” is maintained for each employer, indicating the assessments levied and the cost of all claims chargeable to the employer: id, sec 41(1).
8 Id, secs 2(2), 31 and 32.
9 Id, secs 31(d), 32(d) and 55(4).
10 An employer “includes any individual, body corporate, Federal, State, or Local Government or any of the government agencies who has entered into a contract of employment to employ any other person as an employee or apprentice”: id, sec 73.
11 Id, sec 2(1).
12 WCA, sec 41 defines an “outworker” as “a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles”.
13 See id, secs 1 and 2.
14 ECA, sec 3.
15 Israel Membere v IGP (1965) All NLR 485.
16 ECA, sec 12(1) states: “The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies.” Legal practitioners have made different interpretations of this provision. One view is that the provision precludes an employee or her dependant from instituting an action against the employer or a co-employee independently of the ECA, with the exclusive remedy available to the employee being to proceed under the ECA. An opposing view, also held by the courts, is that the provision confers on the employee a right to elect whether to seek compensation under the ECA or to commence legal action. In Amina Hassan v Airtel Networks Limited and Another (2015) 58 NLLR (pt 201) 443 at 465–66, Adejumo J held: “the requirements of section 12(1) and (2) of the ECA … give the claimant a right of choice of approaching the court straight to ventilate her grievances once the action is connected with failure of duty of care on the part of the Defendant and arose in the course of work … Where the Claimant does not intend to pursue compensation under the Act and her action is based on common law simpliciter or negligence, and the injury in issue occurred during the course of work, the claimant is at liberty to institute an action directly against the tortfeasors without coming under the ECA”. See also Musbahu v Kano Electricity Distribution Company PLC (unreported) suit no NICN/KN/42/2017, judgment delivered on 17 April 2018 by Isele J at the National Industrial Court of Nigeria, Kano Division. This author prefers the former view as one that is consistent with the historical intents and purposes of workers’ compensation, hinged on the compromise that the employee would relinquish the right to bring a common law claim that may result in an unpredictable level of damages, while the employer assumes liability for employment-related injuries regardless of whether it is at fault. See Riley, ND “Mental-mental claims: Placing limitations on recovery under workers’ compensation for day-to-day frustrations” (2000) 65/4 Missouri Law Review 1023Google Scholar at 1030.
17 Where the employee elects to claim compensation under the ECA instead of commencing legal action, the NSITF is subrogated to the rights of the employee or her dependant and may, at its sole discretion, maintain an action against the liable party. If the NSTIF commences such an action and damages are recovered that exceed the compensation paid to the employee / dependant under the ECA, the excess is paid to the employee or her dependant, less costs and administration charges: ECA, sec 12(6)(7).
18 WCA, sec 25(1). A Adeogun “Thirty years of Workmen's Compensation Act in Nigeria” (1971) 5 Nigerian Law Journal 57 at 71.
19 (1957) WRNLR 29.
20 See also Perkins v Stevenson (1940) 1 KB 56; Young v Bristol Aeroplane Co (1944) KB 178 CA.
21 Hassan v Airtel, above at note 16 at 464.
22 Ifere v Truffods Nigeria Ltd (2008) WRN 30; Famuyiwa v Falawiyo (1972) All NLR (pt 2) 5 SC.
23 See Ogunnsi v Lagos City Caretaker Committee (unreported) suit no YB/26/69, decided on 28 May 1973 by Taylor CJ at the Lagos State High Court.
24 Atilola, B and Atilola, O “Compensation for mental stress under the new Employees’ Compensation Act (2010): Implications for human resource management” (2011) 5/3 Labour Law Review 58Google Scholar at 65.
25 LE Standryk “Mental stress in the workplace” (26 November 2004, Lancaster Brooks & Welch), available at: <http://www.lbwlawyers.com/publications/mental-stress-in-the-workplace/> (last accessed 10 November 2021).
26 Rao, JV and Chandraiah, K “Occupational stress, mental health and coping among information technology professionals” (2012) 16/1 Indian Journal of Occupational and Environmental Medicine 22CrossRefGoogle ScholarPubMed, available at: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3482704/> (last accessed 10 November 2021).
27 JO Skoppek “Stress claims in Michigan: Worker's compensation entitlement for mental disability” (15 September 1995, Mackinac Center for Public Policy), available at: <https://www.mackinac.org/S1995-07> (last accessed 10 November 2021).
33 Rainbolt v Audrian Medical Center (2013) MO WCLR Lexis 161.
34 Workers Compensation Act, RSBC 1996, cap 492, available at: <https://www.bclaws.ca/civix/document/id/consol17/consol17/96492_01#> (last accessed 10 November 2021). The extant workers’ compensation law in British Columbia is the Workers Compensation Act 2020.
35 M Shain and C Nassar Stress at Work, Mental Injury and the Law in Canada: A Discussion Paper for the Mental Health Commission of Canada (revised 21 February 2009, Mental Health Commission of Canada) at 80, available at: <https://www.mentalhealthcommission.ca/sites/default/files/Workforce_Stress_at_Work_Mental_Injury_and_the_Law_in_Canada_ENG_0_1.pdf> (last accessed 10 November 2021).
36 T McKenna “Guide for filing WorksafeBC mental disorder claims” (15 May 2015, Canadian Union of Public Employees) at 6, available at: <https://d3n8a8pro7vhmx.cloudfront.net/josho/pages/16250/attachments/original/1457451894/WCB_-_Guide_for_Filing_WorkSafeBC_Mental_Disorder_Claims.pdf?1457451894> (last accessed 10 November 2021).
39 (2009) BCCA 188.
40 To be compensable, physical injuries and diseases are only required to have arisen out of or in the course of employment, or otherwise be work-related. See ECA, secs 7, 9 and 10.
41 McKenna “Guide for filing”, above at note 36. In Shope v Industrial Commission (1972) 17 Ariz App 23 (1972), the court reasoned (at 25) that: “The conflicts [with a customer] which the petitioner experienced were part of the usual, ordinary and expected incidents of his employment … [T]o grant petitioner his requested relief would literally open Pandora's Box permitting compensation to any disgruntled employee who leaves his job in a huff because of an emotional disturbance”.
42 (2005) NBCA 70.
44 Policy EN-18 “Mental stress: Entitlement” in Client Services Policy Manual (2018, WorkplaceNL) at 2, available at: <https://workplacenl.ca/site/uploads/2019/06/policy-en-18-mental-stress-201810308.pdf> (last accessed 10 November 2021).
45 St John's Transportation Commission v Newfoundland (Workplace Health, Safety and Compensation Review Division) (2009) NLTD 102.
46 International Harvester v Labour & Industry Review Commission 116 Wis 2d 298 at 303 (1983).
47 “Mental disorder claims” (WorkSafeBC compensation practice directive C3-3, January 2013) at 2, available at: <http://www.worksafebc.com/regulation_and_policy/practice_directives/compensation_practices/assets/pdf/C3-3.pdf> (last accessed 10 November 2021).
48 The Michigan workers’ compensation statute is more express in this regard. It provides that “mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof”: Michigan's Workers’ Disability Compensation Act 1969 (as amended), sec 401(2)(b).
49 “Mental disorder claims”, above at note 47.
50 Riley “Mental-mental claims”, above at note 16.
51 “Physical condition” in The Free Dictionary, available at: <https://www.thefreedictionary.com/physical+condition> (last accessed 10 November 2021).
52 See ECA, sec 73.
53 Id, sec 55(1).
54 Société Générale Bank (Nigeria) Ltd v Afekoro (1999) 11 NWLR (pt 628) 521 at 524.
55 ECA, sec 55(3).
56 FJ Pompeani “Mental stress and Ohio workers’ compensation: When is a stress-related condition compensable?” (1992) 40/1 Cleveland State Law Review 35 at 39.
57 ECA, sec 8(3).
58 Guite, RJ and Rodeghiero, A “Stratemeyer v Lincoln County: Mental injuries and workers’ compensation policy” (1994) 55/2 Montana Law Review 525Google Scholar at 525.
59 Martin, JR “A proposal to reform the North Carolina Workers’ Compensation Act to address mental-mental claims” (1997) 32/1 Wake Forest Law Review 193Google Scholar at 196–97.
60 “Mental condition” in The Free Dictionary, available at: <https://www.thefreedictionary.com/mental+condition> (last accessed 10 November 2021).
61 Troost, GM “Workers’ compensation and gradual stress in the workplace” (1985) 133/4 University of Pennsylvania Law Review 847CrossRefGoogle Scholar at 848, available at: <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4038&context=penn_law_review> (last accessed 10 November 2021).
63 ECA, sec 8(3).
64 McDonagh v Department of Labour & Industries 845 P2d 1030 (1993).
65 Gardner v Van Buren Public Schools 445 Mich 23 (1994) at 48.
66 Popovich v Irlando 811 P2d 379 at 383 (1991).
70 Vance, RC “Workers’ compensation and sexual harassment in the workplace: A remedy for employees, or a shield for employers?” (1993) 11/1 Hofstra Labor and Employment Law Journal 141Google Scholar at 188.
71 See, for example, British Columbia's Workers’ Compensation Act 2020, sec 135(1)(c), which expressly excludes compensation for mental stress “caused by a decision of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment”.
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 67.
73 ECA, sec 8(2) (emphasis added).
74 Matsumoto, AV “Reforming the reform: Mental stress claims under California's workers’ compensation system” (1994) 27/4 Loyola of Los Angeles Law Review 1327Google Scholar at 1361.
76 ECA, secs 7, 8, 10 and 11.
77 See WCA, sec 3(1). Regarding the WCA, Prof 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”: EE Uvieghara Labour Law in Nigeria (2001, Malthouse Law Books) at 256.
78 ECA, sec 73 states: “‘work-related’ in reference to a disability of an employee means a disability arising out of and in the course of employment of an employee”.
79 Riley “Mental-mental claims”, above at note 16.
80 Novak v McAlister 301 P 2d 234 (1956).
81  UKHL 267 at 272.
82 R v Industrial Injuries Commissioner (1966) 2 QB 31, per Lord Denning MR.
83 GG Otuturu “Employer's liability for personal injuries under the Workmen's Compensation Act” (2007) 1/4 Labour Law Review 1 at 5.
84 (1944) 17 NLR 145.
85 A similar decision was reached in Nagakam v Strabag (Nigeria) Ltd (1910) AC 498 and Scandinavian Shipping Agencies v Ajide (1994) 17 NLR 1.
86 See AO Obasuyi & Sons Ltd v Erumiawito (1999) 12 NWLR (pt 630) 227.
87 DT Decarlo “New legal rights related to emotional stress in the workplace” (1987) 1/4 Journal of Business and Psychology 313 at 321.
88 Atilola and Atilola “Compensation for mental stress”, above at note 24 at 73.
89 See ECA, secs 21–25.
90 WCA, sec 41.
91 The ECA also requires that compensation for temporary partial disability and temporary permanent disability are only payable in respect of a disability that lasts for a period not exceeding 12 months: ECA, secs 24(2) and 25(2).
92 Id, sec 21.
93 Id, sec 22(1)(2).
94 Id, secs 24(1) and 25(1).
95 See the discussion under “Physical condition” above.
96 See ECA, secs 8(2) and 64.
97 Id, sec 73.
98 Id, secs 16(1) and 58(b).
99 G Harnois and P Gabriel Mental Health and Work: Impact, Issues and Good Practices (2000, World Health Organization and International Labour Organization) at 3–4.
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