(4) Repetitive Mental Trauma
As discussed above, repetitive mental trauma injuries are not covered as compensable under the Workers' Compensation Act. However, this does create an apparent loophole in the system, in which actions that are arising out of the employment resulting in injury to an employee are tortious, but not either covered under workers' compensation or precluded by exclusive remedy restrictions.
The Texas Supreme Court has held that an employee may pursue a cause of action for repetitive mentally traumatic actions by the employer that rise to the level of intentional infliction of emotional distress.
Here, the employees alleged that the cause of their distress was the continuing harassment and abuse inflicted by Shields from May 1991 to October 1993. GTE does not point to any particular event that caused the mental distress, and instead refers to the scope of events occurring over two-and-a-half years. These allegations establish that the employees' injuries were caused by repetitive mental trauma rather than an ascertainable event. When there is no evidence of a particular event causing the mental injury, there can be no recovery under the Act . . . Because the injuries are not compensable under the Act, the Act does not bar the employees' intentional infliction of emotional distress claims.[27]
This has created an ability to get around the exclusive remedy provision for intentional torts involving mentally traumatic harassment.[28]
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