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Mental-Mental Claims: Where are we now?
By: Stephenie Conde and Adrienne Stemen
The Conflict
On April 1, 2004, the Fifth District Court of
Appeals in Ohio issued its decision in Wood
v. Ohio State Highway Patrol, 156 Ohio App.3d 725, 808 N.E.2d
887 (Ohio App. 5th Dist. 2004). In Wood, the Claimant, a former Ohio
State Highway Patrolmen, appealed the decision of the Industrial
Commission which denied him workers’ compensation
benefits for the psychological diagnosis of post traumatic stress disorder
(“PTSD”). Claimant allegedly contracted PTSD as a result
of several incidents which occurred during his years of employment
with the Highway Patrol. The trial court affirmed the Commission’s
decision which denied claimant the right to receive workers’ compensation
benefits.
On appeal, Claimant brought three issues before the court: (1) is
a purely psychological injury a compensable workers’ compensation claim; (2) by
not allowing Claimant to recover, were Claimant’s rights to equal protection
and due process under the law violated; and (3) does R.C. 4123.01(C)(1) violate
Section 35, Article II of the Ohio Constitution.
The Fifth District Court of Appeals affirmed the trial court’s decision, holding that claimant was not entitled to workers’ compensation benefits for a purely psychological condition. In rendering its decision, the court relied upon the General Assembly’s statutory definition of “injury” and performed an analysis as to the constitutionality of the provision, ultimately concluding that neither due process or equal protection were breached.
The confusion began on May 17, 2004, a mere 46 days after the Wood decision, when the same Appellate Court issued its decision in McCrone v. Bank One Corporation, 2004 WL 1111021 (Ohio App. 5th Dist.). Similar to Wood, the Claimant in McCrone also asserted the right to workers’ compensation benefits for a purely psychological condition. Claimant, an employee of Bank One Corporation (“Bank One”), was diagnosed with PTSD stemming from a bank robbery which had occurred while she was working as a bank teller. The trial court in McCrone held R.C. 4123.01(C)(1) was unconstitutional, and Bank One appealed.
On appeal, Bank One raised the identical issues
which were put before the court in Wood, however, this time the court
reached the opposite conclusion and affirmed the trial court’s
opinion that R.C. 4123.01(C)(1) was unconstitutional. Here the court
stated:
"We find no rational basis upon which to discriminate
between psychological injuries arising from physical injury to the
claimant or a co-worker and those which are purely psychological
in nature. Both have suffered work related injury and both should
be entitled to Workers’ Compensation..."
Both Wood and McCrone were appealed to the Ohio Supreme Court and both appeals were granted.
The Current Solution
On December 28, 2005, the Ohio Supreme Court issued its decision in McCrone. The question certified by the Court was “[w]hether R.C. 4123.01(C)(1) violates 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 Court held psychological conditions which fail to arise from a compensable injury were not included in General Assembly’s codified definition of “injury." The Court decided R.C. 4123.01(C)(1) was constitutional and reversed the Fifth District Court of Appeal’s decision. In its conclusion, the Court stated:
"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 the state government charged by the Ohio Constitution to make public policy choices for the Workers’ Compensation Fund."
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"Requiring that mental disorder be incident to a physical injury or the contraction of an occupational disease is rationally related to legitimate government 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 disease on the job.” (citation omitted)."
Is the Solution Here to Stay?
The Supreme Court stayed the briefing schedule in Wood in order to
address McCrone. While the Court has yet to issue its decision in Wood,
we can only assume that the decision will coincide with the decision
in McCrone and that mental-mental claims will be decidedly impermissible.
However, when we consider that the underlying decisions in these two
cases came from the same court within less than a two month time span
nothing seems set in stone.
While the Supreme Court’s decision in McCrone highlights that compensability
of psychiatric or psychological conditions is within the sole discretion of
the General Assembly, Justice Resnick’s dissenting opinion weighs heavily
on common sense. In her opinion, Justice Resnick wrote:
"Semantics aside, appellee, Kimberly McCrone, was injured in the course of her 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 disabling, and its existence is supported by competent medical evidence."
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"… 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 to recover."
Further, the Supreme Court’s decision in Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 741 N.E.2d 121 (2001) provides an additional factor when considering in which direction Ohio may move regarding psychological injuries. The claimant in Bailey sought workers compensation for depression resulting from his accidental running over and killing of co-worker. The Court in Bailey held that a workers’ compensation claimant could recover for a psychological injury sustained as the result of observing a coworker’s physical injury. While the Court in McCrone in referring to Bailey stated “[w]e now question that holding,” the case has yet to be overruled.
In conclusion, for the moment the psychological aspect of workers’ compensation claims have been limited to psychological injury which results from a compensable physical injury to the claimant or psychological injury which results from an observed compensable physical injury to a coworker. Currently the law does not allow mental-mental claims. The issue which remains is whether the General Assembly will pick up on the dissent in McCrone and change the statutory definition of a compensable injury thereby opening a claimant’s window of recovery far beyond Bailey; or whether the General Assembly will fail to be persuaded by the dissent in McCrone, adhere to its definition of a compensable injury and provide the Supreme Court the opportunity to overrule Bailey. It appears the law may swing to one end of the pendulum or the other in the near future. While the middle might be the most beneficial to both sides, the opinions on hand indicate the middle will not be the final resting place.
If you have any questions regarding the contents of this article, feel free to contact attorney within Roetzel & Andress, LPA’s Workers’ Compensation Practice Group.
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