McCrone v. Bank One Corp.

[Cite as McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505.]

MCCRONE, APPELLEE, v. BANK ONE CORPORATION;

KIELMEYER, ADMR., APPELLANT.

[Cite as McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505.]

Workers’ compensation — R.C. 4123.01(C)(1) — Definition of “injury” —

Statutory exclusion of mental injuries from compensability under the

Workers’ Compensation Act does not violate equal protection.

(Nos. 2004-1063 and 2004-1065 — Submitted April 27, 2005 — Decided

December 28, 2005.)

APPEAL from and CERTIFIED by the Court of Appeals for Stark County,

No. 2003CA00092, 2004-Ohio-2538.

__________________

SYLLABUS OF THE COURT

1. Psychological or psychiatric conditions that do not arise from a

compensable physical injury or occupational disease are excluded from the

definition of “injury” under R.C. 4123.01(C)(1) and from workers’

compensation coverage.

2. R.C. 4123.01(C)(1) does not violate the Equal Protection Clauses of the

United States and Ohio Constitutions by excluding from the definition of

“injury” psychological or psychiatric conditions that do not arise from a

compensable physical injury or occupational disease.

__________________

LANZINGER, J.

{¶ 1} The question presented is whether R.C. 4123.01(C)(1) violates

equal protection by excluding psychological or psychiatric injuries from workers’

compensation coverage. We hold that it does not.

Facts and Procedure

SUPREME COURT OF OHIO

{¶ 2} Appellee, Kimberly McCrone, was an employee of Bank One

Corporation from 1998 to 2001. During her employment, the branch in which she

worked was robbed twice. At the first robbery on December 20, 2000, McCrone

was present but was not the teller involved; however, she was the teller robbed on

August 4, 2001. Although McCrone returned to work without claiming adverse

effects after the first robbery, after the second she was diagnosed with

posttraumatic stress disorder and has not worked for the bank since. She filed for

workers’ compensation benefits for her psychological condition stemming from

the second robbery, but benefits were denied because she had not suffered a

physical injury.1 McCrone exhausted her administrative appeals and then filed

suit in the Court of Common Pleas of Stark County. She challenged R.C.

4123.01(C)(1), the statute that excludes psychological or psychiatric conditions

from the definition of “injury” for workers’ compensation purposes, on

constitutional grounds, alleging that it violated the Equal Protection and Due

Process Clauses of the United States and Ohio Constitutions, as well as Section

35, Article II of the Ohio Constitution.2

{¶ 3} The bank filed a motion for summary judgment, which was denied,

and R.C. 4123.01(C)(1) was ruled unconstitutional as applied to McCrone. The

trial court found that the exclusion of psychological injuries from workers’

compensation coverage was not rationally related to a legitimate governmental

interest and thus found an equal protection violation. The Court of Appeals for

Stark County affirmed. McCrone v. Bank One Corp., 2nd Dist. No.

2003CA00092, 2004-Ohio-2538, 2004 WL 1111021.

1. Fortunately, it does not appear that anyone was harmed on that occasion.

2. As the arguments concerning due process and the violation of Section 35, Article II were not

raised in a proposition of law or in the certified conflict, we limit the constitutional analysis to the

equal protection claim.

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January Term, 2005

{¶ 4} These cases come before us upon acceptance of a discretionary

appeal of the Ohio Bureau of Workers’ Compensation (“BWC”), as well as upon

the certification of a conflict from the Court of Appeals for Stark County. We

found that a conflict exists. 103 Ohio St.3d 1459, 2004-Ohio-5056, 815 N.E.2d

676.

{¶ 5} The certified question asks “[w]hether R.C. 4123.01(C)(1) violates

the Equal Protection Clauses of the United States and Ohio Constitutions, where it

excludes from Workers’ Compensation coverage psychological or psychiatric

conditions occurring in the course of and arising out of the claimant’s

employment, but [which] do not arise from or occur contemporaneously with a

compensable physical injury.”

The Equal Protection Clauses

{¶ 6} Pursuant to the Fourteenth Amendment to the United States

Constitution, “[n]o State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.” In like

manner, Section 2, Article I, Ohio Constitution, provides that “[a]ll political

power is inherent in the people. Government is instituted for their equal

protection and benefit, and they have the right to alter, reform, or abolish the

same, whenever they may deem it necessary; and no special privileges or

immunities shall ever be granted, that may not be altered, revoked, or repealed by

the General Assembly.” Simply stated, the Equal Protection Clauses require that

individuals be treated in a manner similar to others in like circumstances.

{¶ 7} The limitations placed upon governmental action by the federal

and state Equal Protection Clauses are essentially the same. See Am. Assn. of

Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999), 87 Ohio

St.3d 55, 60, 717 N.E.2d 286 (confirming that Ohio’s Equal Protection Clause

3

SUPREME COURT OF OHIO

tracks its federal counterpart), reversed on other grounds (1999), 526 U.S. 124,

119 S.Ct. 1162, 143 L.Ed.2d 227; Porter v. Oberlin (1965), 1 Ohio St.2d 143,

151-152, 30 O.O.2d 491, 205 N.E.2d 363; State ex rel. Struble v. Davis (1937),

132 Ohio St. 555, 560, 8 O.O. 552, 9 N.E.2d 684.

{¶ 8} “A statutory classification which involves neither a suspect class

nor a fundamental right does not violate the Equal Protection Clause of the Ohio

or United States Constitutions [sic] if it bears a rational relationship to a

legitimate governmental interest.” Menefee v. Queen City Metro (1990), 49 Ohio

St.3d 27, 29, 550 N.E.2d 181. Since no one argues that fundamental rights or

suspect classes are implicated in this case, the correct standard to be applied is the

rational-basis test. Under this test, “ ‘a State does not violate the Equal Protection

Clause merely because the classifications made by its laws are imperfect. If the

classification has some “reasonable basis,” it does not offend the Constitution

simply because the classification “is not made with mathematical nicety or

because in practice it results in some inequality.” Lindsley v. Natural Carbonic

Gas Co. [1911], 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369].’ ” State ex rel.

Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173, 179, 2 OBR 715, 443 N.E.2d

962 (Krupansky, J., dissenting), quoting Dandridge v. Williams (1970), 397 U.S.

471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491.

{¶ 9} The rational-basis test involves a two-step analysis. We must first

identify a valid state interest. Second, we must determine whether the method or

means by which the state has chosen to advance that interest is rational. See

Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d

260, 267, 652 N.E.2d 952. A statute will not be held to violate the Equal

Protection Clause, and this court will not invalidate a plan of classification

adopted by the General Assembly, unless it is clearly arbitrary and unreasonable.

State ex rel. Lourin v. Indus. Comm. (1941), 138 Ohio St. 618, 620, 21 O.O. 490,

37 N.E.2d 595, overruled on other grounds, Caruso v. Alum. Co. of Am. (1984),

4

January Term, 2005

15 Ohio St.3d 306, 15 OBR 436, 473 N.E.2d 818. Thus, provided that the statute

is rationally related to a legitimate government interest, it will be upheld.

{¶ 10} Section 35, Article II of the Ohio Constitution vests in the General

Assembly the right to establish a workers’ compensation system. It provides:

“For the purpose of providing compensation to workmen and their dependents, for

death, injuries or occupational disease, occasioned in the course of such

workmen’s employment, laws may be passed establishing a state fund to be

created by compulsory contribution thereto by employers, and administered by

the state, determining the terms and conditions upon which payment shall be

made therefrom. Such compensation shall be in lieu of all other rights to

compensation, or damages, for such death, injuries, or occupational disease, and

any employer who pays the premium or compensation provided by law, passed in

accordance herewith, shall not be liable to respond in damages at common law or

by statute for such death, injuries or occupational disease.”

{¶ 11} McCrone claims that her equal protection rights have been violated

because she is unable to benefit from workers’ compensation coverage, since she

has suffered no physical injury. First we must examine the statutory definition at

issue.

Definitions and Classifications of Injury

{¶ 12} The General Assembly first defined the word “injury” for workers’

compensation purposes as “any injury received in the course of, and arising out

of, the injured employee’s employment.” G.C. 1465-68, 117 Ohio Laws 109,

effective July 10, 1937. In 1959, the following italicized language was added to

the term “injury” in R.C. 4123.01(C): “ ‘Injury’ includes any injury, whether

caused by external accidental means or accidental in character and result,

received in the course of, and arising out of, the injured employee’s employment.”

Am.Sub.H.B. No. 470, 128 Ohio Laws 743, 745, effective November 2, 1959.

5

SUPREME COURT OF OHIO

{¶ 13} In 1986, R.C. 4123.01(C) was amended to define what constitutes

a workers’ compensation injury and what does not. Am.Sub.S.B. No. 307, 141

Ohio Laws, Part I, 718. R.C. 4123.01(C) provides:

{¶ 14} “ ‘Injury’ includes any injury, whether caused by external

accidental means or accidental in character and result, received in the course of,

and arising out of, the injured employee’s employment. ‘Injury’ does not include:

{¶ 15} “(1) Psychiatric conditions except where the conditions have arisen

from an injury or occupational disease.”

{¶ 16} Both before and after these amendments, courts have held that

compensable injuries under the workers’ compensation system require a physical

component suffered by the claimant.3 In Malone v. Indus. Comm. (1942), 140

Ohio St. 292, 23 O.O. 496, 43 N.E.2d 266, overruled on other grounds, Village v.

Gen. Motors Corp. (1984), 15 Ohio St.3d 129, 15 OBR 279, 472 N.E.2d 1079,

this court held that the term “comprehends a physical or traumatic damage or

harm.” (Emphasis added.) Malone at paragraph one of the syllabus. Conditions

suffered by the claimant could be mental disorders, provided that they arose from

a physical injury. See, e.g., State ex rel. Clark v. Indus. Comm. (2001), 92 Ohio

St.3d 455, 459, 751 N.E.2d 967.

{¶ 17} The Bureau of Workers’ Compensation itself has required a

physical injury to the claimant before granting compensation for a psychiatric

condition, both before and after the 1986 amendments. See, e.g., Andolsek v.

Kirtland (1994), 99 Ohio App.3d 333, 335, 650 N.E.2d 911; Connors v. Sterling

Milk Co. (1993), 98 Ohio App.3d 711, 649 N.E.2d 856; Fields v. Youngstown

(May 30, 1989), Mahoning App. No. 88 C.A. 89, 1989 WL 59014.

3. See Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 489, 575 N.E.2d 428; Rambaldo v.

Accurate Die Casting (1992), 65 Ohio St.3d 281, 287, 603 N.E.2d 975; Bunger v. Lawson Co.

(1998), 82 Ohio St.2d 463, 466, 696 N.E.2d 1029.

6

January Term, 2005

{¶ 18} In Rambaldo v. Accurate Die Casting (1992), 65 Ohio St.3d 281,

287, 603 N.E.2d 975, we discussed whether nonphysical injuries could be claimed

as occupational diseases under R.C. 4123.01(C)(1). We held that “[i]n the

absence of a clearly expressed legislative intent to recognize mental conditions

caused solely by work-related stress as occupational diseases within the purview

of the Workers’ Compensation Act, such mental conditions are not compensable

as occupational diseases.” Id. at syllabus. Similarly, we now hold that

psychological or psychiatric conditions that do not arise from a compensable

physical injury or occupational disease are excluded from the definition of

“injury” under R.C. 4123.01(C)(1) and from workers’ compensation coverage.

{¶ 19} Because the General Assembly has classified mental conditions as

compensable under workers’ compensation laws only when they are accompanied

by physical injury, the question becomes whether that classification violates the

Equal Protection Clause of either the United States or Ohio Constitution.

Equal Protection Analysis

{¶ 20} Legislative enactments are presumed to be constitutional. State ex

rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d

59, paragraph one of the syllabus. However, the constitutional guarantee of equal

protection requires that laws operate equally upon persons who are identified in

the same class. State ex rel. Patterson v. Indus. Comm. (1996), 77 Ohio St.3d 201,

204, 672 N.E.2d 1008.

{¶ 21} With the exception of the Court of Appeals for Stark County in this

case, all appellate decisions hold that the exclusion of mental injuries from the

workers’ compensation definition of “injury” does not violate the Equal

Protection Clause of either the United States or Ohio Constitution.4

4. Wood v. Ohio State Hwy. Patrol, 156 Ohio App.3d 725, 2004-Ohio-1765, 808 N.E.2d 887;

Crutcher v. Butler Twp. (1999), 135 Ohio App.3d 582, 735 N.E.2d 25; Chrisulis v. U.S.X. Corp.

7

SUPREME COURT OF OHIO

{¶ 22} In this matter, the Court of Appeals for Stark County cited a case

in which we held that a claimant could obtain workers’ compensation benefits for

a mental condition when a co-worker, rather than the claimant, had suffered a

compensable physical injury: Bailey v. Republic Engineered Steels, Inc. (2001),

91 Ohio St.3d 38, 40, 741 N.E.2d 121. McCrone v. Bank One Corp., 2nd Dist.

No. 2003CA00092, 2004-Ohio-2538, 2004 WL 1111021, at ¶ 17. In Bailey, the

claimant, a forklift operator, had accidentally killed his co-worker and claimed

severe depression as a resulting work-related injury. In an atypical holding, the

Bailey court held that “[a] psychiatric condition of an employee arising from a

compensable injury or an occupational disease suffered by a third party is

compensable under R.C. 4123.01(C)(1).” Id. at the syllabus. We now question

that holding.

{¶ 23} When the entire definition of “injury” in R.C. 4123.01(C) is

examined, it is clear that workers’ compensation covers physical injuries and

psychiatric injuries that arise directly out of physical injuries or occupational

disease to the claimant. R.C. 4123.01(C) states:

{¶ 24} “ ‘Injury’ includes any injury, whether caused by external

accidental means or accidental in character and result, received in the course of,

and arising out of, the injured employee’s employment. ‘Injury’ does not include:

{¶ 25} “(1) Psychiatric conditions except where the conditions have arisen

from an injury or occupational disease.”

{¶ 26} Only three years before Bailey, this court recognized that the

limited scope of the workers’ compensation system requires limiting

(June 29, 1994), Lorain App. Nos. 93CA005599 and 93CA005618; Andolsek v. Kirtland (1994),

99 Ohio App.3d 333, 650 N.E.2d 911; Connors v. Sterling Milk Co. (1993), 98 Ohio App.3d 711,

649 N.E.2d 856; Fields v. Youngstown (May 30, 1989), Mahoning App. No. 88 C.A. 89; Neil v.

Mayfield (July 22, 1988), Montgomery App. No. CA 10881; Zaricki v. Laco Die Casting Co. (July

8, 1982), Cuyahoga App. No. 44254.

8

January Term, 2005

compensability to claims involving physical injury to the claimant. Bunger v.

Lawson Co. (1998), 82 Ohio St.3d 463, 465-466, 696 N.E.2d 1029. Bunger was

unacknowledged by the Bailey majority. In Bunger, we stated: “The workers’

compensation system was not designed to resolve every dispute that arises

between employers and employees. It was designed to manage the compensation

of individuals who suffer physical injuries or contract occupational diseases on

the job.” Id. at 465, 696 N.E.2d 1029.

{¶ 27} The facts in Bunger are similar to those now before us, for the

claimant was seeking benefits for mental stress suffered as a result of a robbery at

the workplace. We explained that certain cases were not covered by the workers’

compensation system and observed, “A majority of states allow compensation to

workers for some purely psychological injuries suffered in the workplace. * * *

Ohio’s General Assembly has yet to make such injuries compensable under

workers’ compensation statutes. * * * [P]sychological injuries are removed from

the coverage of the Act * * *.” Id. at 466, 696 N.E.2d 1029. As we also noted in

Rambaldo: “No workers’ compensation claim for a psychological condition,

whether the condition was denominated as a disease or an injury, has been

recognized by this court when the mental disease or injury was based solely on

job-related stress.” Id., 65 Ohio St.3d at 284, 603 N.E.2d 975.

{¶ 28} Thus, in allowing workers’ compensation for a mental condition

arising from a third party’s injury, Bailey created an aberration. Nonetheless,

even if we were to apply Bailey, physical injury is still required (albeit to a third

party) before a claimant’s mental condition becomes compensable. In McCrone’s

case, there was no physical injury whatsoever. Any reliance by the appellate court

on Bailey was misplaced.

{¶ 29} The General Assembly has defined the types of injuries and

diseases that are compensable through workers’ compensation. Psychological or

psychiatric conditions, without an accompanying physical injury or occupational

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SUPREME COURT OF OHIO

disease, are not compensable under R.C. 4123.01(C)(1). We must determine

whether this exclusion has a rational basis to support it.

Rational-Basis Standard

{¶ 30} The guarantee of equal protection of the laws requires the

existence of rational grounds for making a distinction between those within and

those outside a designated class. State v. Buckley (1968), 16 Ohio St.2d 128, 45

O.O.2d 469, 243 N.E.2d 66, paragraph three of the syllabus; Porter v. Oberlin, 1

Ohio St.2d 143, 30 O.O.2d 491, 205 N.E.2d 363, paragraph two of the syllabus.

The General Assembly has determined that those who have mental conditions

along with a compensable physical injury or occupational disease are covered

within the workers’ compensation system, while those claimants with purely

psychiatric or psychological conditions are excluded from coverage. Legislative

enactments that do not involve a suspect classification are “presumptively

rationally related to legitimate social and economic goals, unless the ‘varying

treatment of different groups or persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only conclude that the

legislature’s actions were irrational.’ ” State ex rel. Doersam v. Indus. Comm.

(1988), 40 Ohio St.3d 201, 203, 533 N.E.2d 321, quoting Vance v. Bradley

(1979), 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171.

{¶ 31} Here, the court of appeals rejected cost-based reasons to justify the

statute, citing State ex rel. Patterson v. Indus. Comm. (1996), 77 Ohio St.3d 201,

672 N.E.2d 1008, and State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d at 177,

2 OBR 715, 443 N.E.2d 962. McCrone, Stark App. No. 2003CA00092, 2004-

Ohio-2538, 2004 WL 1111021, at ¶ 24. As the dissenting judge in McCrone

noted, however, in Patterson and Nyitray, the injuries suffered were already

covered by workers’ compensation, and the issues related to the amount of

benefits to which the claimants were entitled. Id. at ¶32 (Edwards, J., dissenting).

The Patterson constitutional challenge arose from an award to the dependent of a

10

January Term, 2005

work-relief employee that was much smaller than the amount awarded to a

dependent of a non-work-relief employee for the same injury. Patterson, supra, at

the syllabus. The Nyitray challenge was based upon the disparity between paying

accrued temporary total disability benefits when an employee died of non-work-

related causes yet withholding those benefits when death was due to work-related

causes. Id. at the syllabus. We stated that “conserving funds is not a viable basis

for denying compensation to those entitled to it.” Id., 2 Ohio St.3d at 177, 2 OBR

715, 443 N.E.2d 962. Here, the question is not whether Kimberly McCrone is

entitled to payment of a specific amount of accrued compensation, but whether

she is entitled to coverage at all.

{¶ 32} “The problems of government are practical ones and may justify, if

they do not require, rough accommodations, — illogical, it may be, and

unscientific.” Metropolis Theater Co. v. Chicago (1913), 228 U.S. 61, 69-70, 33

S.Ct. 441, 57 L.Ed. 730. “A statutory discrimination will not be set aside if any

state of facts reasonably may be conceived to justify it.” McGowan v. Maryland

(1961), 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393; Dandridge v. Williams,

397 U.S. at 485, 90 S.Ct. 1153, 25 L.Ed.2d 491. Our focus of inquiry, therefore,

is whether there exist any reasonable bases for the disputed legislative

classification.

Reasons for Classification of Injuries

{¶ 33} In support of R.C. 4123.01(C)(1), the BWC argues that it is

reasonable to classify psychological and psychiatric conditions differently from

those accompanied by physical injury because it is often difficult to prove the

existence of, as well as the cause of, mental injuries. McCrone relies on Ryan v.

Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379, paragraph one

of the syllabus (workplace injury resulting solely from stress is compensable

under R.C. 4123.01(C)), seeming to suggest that we have rejected all problems of

proof associated with psychological and psychiatric claims. However, she ignores

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SUPREME COURT OF OHIO

that it was a stress-related physical injury in Ryan that was held compensable. In

mental injury claims, the problem arises of establishing the existence of that

injury itself. Although a physical injury may or may not cause a psychological or

psychiatric condition, it may furnish some proof of a legitimate mental claim.

McCrone also cites Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4

OBR 376, 447 N.E.2d 109, for the proposition that we have rejected problems of

proof. But Schultz is a tort case, where fear of fraudulent claims was not

considered to be a valid reason to disallow a claim for negligent infliction of

emotional distress when a physical injury was not present. Id. at 133-134, 4 OBR

376, 447 N.E.2d 109. As Schultz was not a workers’ compensation case, its

reasoning is not applicable here.5

{¶ 34} The BWC also emphasizes the government’s interest in making the

most efficient use of a finite fund. Section 35, Article II of the Ohio Constitution

gives the General Assembly the sole authority to determine coverage and to

define which occupational injuries will be covered. Rambaldo, 65 Ohio St.3d at

288, 603 N.E.2d 975. Applying the rational-basis test to this justification for the

exclusion of psychological or psychiatric conditions, we conclude that the state

has a legitimate interest. It is reasonable to expect government to protect the self-

supporting nature of the Workers’ Compensation Fund, to distribute available

resources so that benefit payments are kept at an adequate level for covered

injuries rather than at an inadequate level for all potential disabilities, and to

maintain a contribution rate not unduly burdensome to participating employers.6

5. The workers’ compensation system, nonetheless, is not the exclusive potential remedy for

mental injuries. This court determined in Bunger v. Lawson Co. (1998), 82 Ohio St.3d 463, 465-

466, 696 N.E.2d 1029, that, because these claims are excluded from workers’ compensation, an

employee can bring a private claim in tort for which the employer does not have immunity.

6. This is the general rationale that has been accepted in the following cases: Wood v. Ohio State

Hwy. Patrol, 156 Ohio App.3d 725, 2004-Ohio-1765, 808 N.E.2d 887; Chrisulis v. U.S.X. Corp.

12

January Term, 2005

{¶ 35} The BWC thus offers legitimate reasons that relate to the

constitutional purpose underlying the workers’ compensation statute. It cannot be

said that denying workers’ compensation benefits to claimants who simply allege

mental disorders or emotional stress due to their jobs is irrational, particularly

when the requirement of a physical injury enables the state to distribute the

limited resources of the fund to disabilities determined by the state to be covered.

McCrone has not shown that the reasons advanced to support the distinctions

drawn by the General Assembly are invalid.

{¶ 36} We accept the appellant Bureau of Workers’ Compensation’s

position and hold that R.C. 4123.01(C)(1) does not violate the Equal Protection

Clauses of the United States and Ohio Constitutions by excluding from the

definition of “injury” psychological or psychiatric conditions that do not arise

from a compensable physical injury or occupational disease.

Conclusion

{¶ 37} Undoubtedly, psychological and psychiatric injuries may arise

from an individual’s employment, and we do not discount their impact on those

who suffer them. The General Assembly, however, is the branch of state

government charged by the Ohio Constitution to make public policy choices for

the Workers’ Compensation Fund. The legislatively created scheme sets forth a

framework to determine which disabilities will be covered by the compensation

system and which disabilities will not. Requiring that a mental disorder be

incident to a physical injury or the contraction of an occupational disease is

(June 29, 1994), Lorain App. Nos. 93CA005599 and 93CA005618; Andolsek v. Kirtland (1994),

99 Ohio App.3d 333, 650 N.E.2d 911; Connors v. Sterling Milk Co. (1993), 98 Ohio App.3d 711,

649 N.E.2d 856; Fields v. Youngstown (May 30, 1989), Mahoning App. No. 88 C.A. 89; Neil v.

Mayfield (July 22, 1988), Montgomery App. No. CA 10881; Zaricki v. Laco Die Casting Co. (July

8, 1982), Cuyahoga App. No. 44254.

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rationally related to legitimate governmental interests. As we noted in Bunger,

“[t]he workers’ compensation system was not designed to resolve every dispute

that arises between employers and employees. It was designed to manage the

compensation of individuals who suffer physical injuries or contract occupational

diseases on the job.” Id., 82 Ohio St.3d at 465, 696 N.E.2d 1029. At some point,

the General Assembly may determine that psychological or psychiatric conditions

arising in the workplace are compensable without regard to attendant physical

injury or occupational disease. Until then, however, claims for such conditions

are limited to the extent that R.C. 4123.01(C)(1) provides.

{¶ 38} Appellee Kimberly McCrone has not met her burden to show that

the state’s reasons for the statutory exclusion are invalid. We therefore reverse

the appellate court’s finding of unconstitutionality, because R.C. 4123.01(C)(1)

rationally advances legitimate governmental interests.

Judgment reversed

and cause remanded.

MOYER, C.J., LUNDBERG STRATTON, O’CONNOR and O’DONNELL, JJ.,

concur.

RESNICK and PFEIFER, JJ., dissent.

__________________

LUNDBERG STRATTON, J., concurring.

{¶ 39} I agree with Justice Resnick’s dissenting opinion that

psychological injuries can be as real as physical injuries. However, I do not agree

that a court has the authority to conclude that a psychological or psychiatric

condition alone is a compensable workplace injury when the General Assembly’s

definition of “injury” expressly requires a physical component.

{¶ 40} First, there is no constitutional history to suggest that

psychological injuries were contemplated by the drafters of Section 35, Article II

of the Ohio Constitution at the time that section was written. Therefore, I believe

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January Term, 2005

that it is the role of the General Assembly to determine whether a psychological

or psychiatric condition resulting from workplace trauma should be a

compensable injury or occupational disease for purposes of workers’

compensation. In making that determination, I believe several issues should be

subject to public debate: criteria for diagnosis, the types of conditions to be

included, and how to distinguish the effects of a personal trauma from workplace

trauma.

{¶ 41} The General Assembly should examine competing views on the

topic, including expert testimony, and set goals, priorities, and standards before a

purely psychological or psychiatric condition is defined as an “injury” for

purposes of workers’ compensation. Unlike conditions originating from an

organic or chemical cause, trauma-related psychological and psychiatric

conditions are very subjective and require balancing of evidence. Even modern

medicine differs widely over diagnoses as well as treatment.

{¶ 42} Perhaps a purely psychological or psychiatric condition should be

a compensable injury for purposes of workers’ compensation; however, it is not

mandated under Section 35, Article II of the Ohio Constitution or subject to

coverage under the current workers’ compensation laws. It is a matter for our

General Assembly, and I urge our legislators to consider extending workers’

compensation to these injuries . However, I would not mandate coverage by

judicial fiat. Therefore, I reluctantly concur in the majority’s decision.

O’CONNOR and O’DONNELL, JJ., concur in the foregoing opinion.

__________________

ALICE ROBIE RESNICK, J., dissenting.

{¶ 43} Semantics aside, appellee, Kimberly McCrone, was injured in the

course of her employment for Bank One Corporation, and her injury arose out of

that employment. She was injured as a result of a bank robbery that occurred at

her place of employment while she was the teller on duty. Her injury is real and

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disabling, and its existence is supported by competent medical evidence. It is

work-related in every sense of the word, it was accidental in character and result,

and it has prevented appellee from returning to her former position of

employment. It is not compensable under the Workers’ Compensation Act,

however, because it is psychological or mental in cause and effect, meaning that it

has no “physical component” and was unaccompanied by physical trauma or

damage. And yet this same injury—posttraumatic stress disorder—would be fully

covered under the statute if only the bank robber had been considerate enough of

appellee’s compensation position to have shoved her during the robbery so that

she could stub her toe and acquire the physical element that is deemed so essential

to her right of recovery.

{¶ 44} Now what kind of rational explanation or legitimate state interest

could possibly justify distinguishing the compensability of one posttraumatic

stress disorder from another under equivalent life-threatening circumstances based

on the fortuity of a stubbed toe? Or consider the situation in which the bank

robber fires a gun at the teller but narrowly misses. Can it really be concluded

with any measure of rationality that there are reasonable grounds for making

compensability of the teller’s posttraumatic stress disorder turn on whether she

had the “good fortune” from a coverage standpoint to have twisted her back or

sprained a finger upon recoiling at the prospect of being shot to death? Does the

injured back or finger under these circumstances, or the stubbed toe in the

previous scenario, really provide such independent verification of the

posttraumatic stress disorder as to be rationally determinative of its

compensability?

{¶ 45} The answers to these questions are as obvious as the physical-

injury prerequisite to coverage is absurd. Indeed, it is unsatisfactory, to say the

least, that the majority is constrained to fall back on the difficulty-of-

proof/conservation-of-resources rationale in order to justify the denial of coverage

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to an entire class of work-related injuries. Not only are workers’ compensation

claims routinely amended to include psychological injuries resulting from

previously allowed physical injuries, but the time has long since passed when

denying recoveries for “purely psychological” injuries can be excused on grounds

of evidentiary difficulties or illusory claims. We are no longer living in the 19th

century when it was considered impossible to accurately diagnose psychological

injuries.

{¶ 46} As Professor Larson explains:

{¶ 47} “[T]here is no really valid distinction between physical and

‘nervous’ injury. Certainly modern medical opinion would support this view, and

insist that it is no longer realistic to draw a line between what is ‘nervous’ and

what is ‘physical.’ It is an old story, in the history of law, to observe legal theory

constantly adapting itself to accommodate new advances and knowledge in

medical theory. Perhaps, in earlier years, when much less was known about

mental and nervous injuries and their relation to ‘physical’ symptoms and

behavior, there was an excuse, on grounds of evidentiary difficulties, for ruling

out recoveries based on such injuries, both in tort and in workmen’s

compensation. But the excuse no longer exists. And therefore a state which

would withhold the benefits of workers’ compensation from a worker who, before

an obvious industrial mishap, was a competent, respected iron-worker [or bank

teller], and after the mishap was totally incapacitated to do the only job he or she

was trained for, would nowadays be doing unjustifiable violence to the intent of

the workers’ compensation act, for reasons that are without support in either

legal or medical theory.” (Emphasis added.) 3 Larson’s Workers’ Compensation

Law (1999) 56-17 to 56-18, Section 56.04[1].

{¶ 48} In Bunger v. Lawson Co. (1998), 82 Ohio St.3d 463, 696 N.E.2d

1029, Justice Lundberg Stratton explained:

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{¶ 49} “A psychological injury is as real and may be as devastating as a

physical injury. Mental trauma that results from a robbery where one believes

that one may be injured or killed can be serious and genuinely debilitating. Yet

psychological injuries without accompanying physical injury are specifically

excluded from compensable injuries under the workers’ compensation statutes.”

Id. at 467, 696 N.E.2d 1029 (Lundberg Stratton, J., concurring).

{¶ 50} But if “[a] psychological injury may exist without a concurrent

physical injury,” as Justice Lundberg Stratton suggested in Bunger, id., the

majority’s current justification for the exclusion, i.e., that “[i]n mental injury

claims, the problem arises of establishing the existence of the injury itself”

(emphasis sic), is implausible. Moreover, the majority’s cost-cutting justification

rings hollow. Since when is reducing governmental costs sufficient to nullify the

basic protections afforded by the Ohio Constitution? Is there a specific dollar

amount of savings that must be realized before ignoring the Equal Protection

Clause is justified?

{¶ 51} I dissent.

PFEIFER, J., concurs in the foregoing opinion.

__________________

PFEIFER, J., dissenting.

{¶ 52} This case demonstrates the failure of Bunger v. Lawson Co.

(1998), 82 Ohio St.3d 463, 696 N.E.2d 1029, to allow a meaningful chance for

recovery for workers psychologically harmed by violent workplace attacks. In

Bunger, a case factually similar to this one, Rachel Bunger had been the victim of

a holdup while working at a Dairy Mart. She sued her employer in common pleas

court for negligence and also sought workers’ compensation benefits for her

psychological injuries. This court held that while Ohio’s workers’ compensation

statutes did not allow recovery for purely psychological injuries, Bunger could

pursue a negligence claim against her employer. We found that R.C. 4123.74’s

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grant of immunity from civil suits could not apply to a type of workplace injury

that is not included in the statutory definition of compensable injuries. Simply, an

employer could not be immune from a civil suit for an injury that was not eligible

for workers’ compensation benefits.

{¶ 53} Because the case was before us on a Civ.R. 12(B)(6) dismissal and

the plaintiff had pleaded two different causes of action, the Bunger court was able

to resolve the case without having to pass on the constitutionality of Ohio’s

workers compensation law. Although Bunger recognized that a cause of action

for negligence in such situations is available, from a practical standpoint such a

cause of action is not often useful. The real-world truth is that employers can do

only so much to protect their employees from the evil that men do; the fault for

the trauma done to an employee in a robbery case usually lies entirely with the

thug committing the felonious act. Therefore, a cause of action against an

employer for negligence is usually unwinnable, and accordingly, an employee is

left with no compensation for her very real workplace injury.

{¶ 54} That result is all the more unacceptable because workers’

compensation benefits are in fact available for psychological injuries. Those

injuries are compensable through workers’ compensation as long as they are

accompanied by a physical injury. R.C. 4123.01(C)(1). The majority writes,

“Although a physical injury may or may not cause a psychological or psychiatric

condition, it may furnish some proof of a legitimate mental claim,” that is, a

physical injury may be proof of a work-related, cognizable triggering event

causing the psychological trauma. The injury tells us that something happened.

A physical injury is merely evidence of the event — it is the triggering event that

is significant. But injuries are not the only possible evidence of traumatic events.

{¶ 55} If the criminal in this case had given a paper cut to the teller when

handing over his holdup note, would that have made her claims of mental distress

easier to prove? Certainly not. There is no rational basis to treat injured

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employees differently when both the physically injured and the nonphysically

injured employees each can identify the genesis of their psychological condition.

A cognizable triggering event, whether resulting in physical injury or not, is the

proper determinant for proof of psychological injury. A professional can evaluate

the injury and the event to determine whether compensation is appropriate.

{¶ 56} Finding the workers’ compensation statutes unconstitutional as

they relate to workers psychologically harmed by a cognizable triggering event

would not open the floodgates for compensation for all forms of mental distress.

The court’s analysis and holding in this case should focus on the certain type of

psychological injuries alleged here, in Bunger, and in Bailey v. Republic

Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 741 N.E.2d 121 (worker

suffered severe depression as a result of accidentally killing coworker). We are

not dealing in these cases with a person claiming depression because she is bored

with her job and really wants to be an actress. This case, Bunger, and Bailey all

present instances in which the psychological injuries were demonstrably tied to a

specific traumatic, accidental event in the workplace. They do not present the

same issues of proof as “I hate my job”-type depression masquerading as a

workers’ compensation claim. Allowing benefits in this case does not mean

across-the-board compensation for all claims of mental illness. Allowing benefits

in this case allows for equal treatment of people with the same, equally provable

injuries.

{¶ 57} Accordingly, I would find that R.C. 4123.01(C)(1) violates the

Equal Protection Clauses of the United States and Ohio Constitutions in this case.

__________________

Brian Law Offices, Richard F. Brian, and Steven J. Brian, for appellee.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P.

Carney, Senior Deputy Solicitor, Diane Richards Brey and Franklin E. Crawford,

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January Term, 2005

Deputy Solicitors, and J. Quinn Dorgan, Assistant Solicitor, for appellant,

Administrator, Bureau of Workers’ Compensation.

Buckingham, Doolittle & Burroughs, L.L.P., Robert C. Meyer, and Brett

L. Miller, for Bank One Corporation.

Philip J. Fulton Law Office, Philip J. Fulton, and William A. Thorman III,

urging affirmance for amicus curiae Ohio Academy of Trial Lawyers.

Stewart Jaffy & Assoc. Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy,

urging affirmance for amicus curiae Ohio AFL-CIO.

______________________

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