IN THE SUPREME COURT OF OHIO
DEBORAH K. RADER,
Appellee,
V.
FIFTH THIRD BANK,
Appellant,
and
MARSHA RYAN, ADMINISTRATOR,OHIO BUREAU OF WORKERS'COMPENSATION,
Appellant.
On Appeal from theFranklin County Court of Appeals,Tenth Appellate District
Court of AppealsCase No. 09 APE-08-821
MEMORANDUM IN SUPPORT OF JURISDICTION OFAPPELLANT FIFTH THIRD BANK
RENNY J. TYSON CO., LPA
RENNY J. TYSON (0022576)1465 East Broad StreetColumbus, Ohio 43215(614) 253-7800Fax: (614) 253-7855rennyCa?tyson.tc
Attorney for AppelleeDeborah K. Rader
VORYS, SATER, SEYMOUR AND PEASE LLP
ROBERT A. MINOR (0018371)52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008(614) 464-6410Fax: (614) 464-6350raminor(a^vorys.com
Counsel for AppellantFifth Third Bank
RICHARD CORDRAYAttorney General of Ohio
SANDRA E. PINKERTON (0062217)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215(614) 466-6696Fax: (614) 728-9535spinkertonCa)aa.state.oh.us
Counsel for Appellant Administrator,Ohio Bureau of Workers' Compensation
TABLE OF CONTENTSPAGE
Explanation of Why This Case is of Public or Great General Interest ..............................1
Statement of the Case .....................................................................................................2
Statement of the Facts .....................................................................................................3
Proposition of Law and Argument....................................................................................4
Sole Proposition of Law ........................................................................................4
"Injury" as used in R.C. 4123.01 is limited to physical injuries and topsychiatric injuries that arise directly out of physical injuries oroccupational diseases to the claimant. Bailey v. RepublicEngineered Steels, Inc. (2001), 91 Ohio St. 3d 38, 741 N.E.2d 121overruled ...............................................................................................................4
Conclusion .....................................................................................................................12
Appendix
Judgment Entry of the Franklin County Court of Appeals (March 30, 2010) A-1
Opinion of the Franklin County Court of Appeals (March 30, 2010) A-2
Decision and Entry of the Franklin County Court of Common Pleas A-8
Explanation of Why This Case is of Public or Great General Interest
Appellant asks the Court to reconsider and overrule its decision in Bailey
v. Republic Engineered Steels, Inc. (2001), 91 Ohio St. 3d 38. In Bailey, the Court held
that an injured worker could recover under the Ohio workers' compensation system for a
psychological injury without having sustained a physical injury. As set forth in more
detail in the argument portion of this memorandum, the Court's decision in Bailey should
be viewed as being inconsistent with the scheme of the Ohio workers' compensation
law. Indeed, in McCrone v. Bank One Corp. (2005), 107 Ohio St. 3d 272, this Court
noted that not only was the vitality of the Bailev decision suspect, it was likely wrongly
decided:
When the entire definition of "injury" in R.C. 4123:01(C) isexamined, it is clear that workers' compensation coversphysical injuries and psychiatric injuries that arise directly outof physical injuries or occupational diseases to the ctaimant.[Emphasis in original.]
The facts in McCrone did not require addressing whether Bailey should be overruled.
However, the Court seemingly invited challenge to the Baile holding. Appellant would
accept such an invitation and respectfully submits that the facts underlying this appeal
would present a direct challenge to the holding in Baile .
In Westfield Ins. Co. v. Galatis (2003), 100 Ohio St. 3d 216, the Court
noted in its majority opinion:
The doctrine of stare decisis is designed to providecontinuity and predictability in our legal system. We adhereto stare decisis as a means of thwarting the arbitraryadministration of justice, as well as providing a clear rule oflaw by which the citizenry can organize their affairs.
^^^
However, a supreme court not only has the right, but itentrusted with the duty to examine its former decisions and,when reconciliation is impossible, to discard its formererrors.
This Appellant could only speculate as to the number of cases pending
before the administrative agency or the courts involving the issue raised by the Bailey,
decision. Appellant would acknowledge that the Bailey decision was effectively
overruled by the legislature in the 2006 amendment to R.C. 4123.01(C)(1). (2006
S.B. 7) However, and as set forth in more detail in the argument portion of its
memorandum, Appellant respectfully submits that the body of case law on the issue
presented in Bailey, and this Court's observations in McCrone as set forth above, make
it clear that the Baile decision was an aberration and wrongly decided. As the Court
noted in Westfield, supra, where such a situation exists, a court has a duty to cure the
error. Further, irrespective of the number of persons that the Bailey decision now
affects, the citizenry of Ohio have an interest in seeing a consistency between
legislative enactments and judicial interpretations.
Statement of the Case
This case arose an as appeal taken pursuant to R.C. 4123.512 from a
decision of the Industrial Commission of Ohio allowing the workers' compensation claim
of appellee, Deborah K. Rader ("Ms. Rader"), assigned Claim No. 05-860607 on the
records of the Ohio Bureau of Workers' Compensation and filed against appellant Fifth
Third Bank ("Fifth Third"), her self-insuring employer. Ms. Rader's claim was allowed for
a psychological condition as a result of her witnessing the fatal shooting of a security
guard at the bank branch where she worked. The parties stipulated to all of the
essential facts of this case and the legal issue was presented to the trial court. The trial
2
court held that, pursuant to the Supreme Court's decision in Bailey v. Republic
Engineered Steels, Inc. (2001), 91 Ohio St. 3d 38, Ms. Rader was entitled to workers'
compensation benefits for her psychological condition. An appeal was taken to the
Court of Appeals for Franklin County, which affirmed the trial court's decision. This
appeal is taken from the appellate court's decision.
Statement of the Facts
The undisputed facts are contained in the Amended Stipulation of the
Parties. On or about January 6, 2005, Ms. Rader was working for Fifth Third at a
branch location in Franklin County, Ohio. While working in the course of and in the
scope of her employment, Ms. Rader witnessed the shooting and killing of a special
duty officer, Mr. Bryan Hurst, during an attempted robbery of the bank. Mr. Hurst was
shot and killed while he was working in the course and scope of his employment. As a
direct result of her witnessing the shooting and killing of the special-duty officer, Ms.
Rader developed psychological conditions described as a post-traumatic distress
disorder and a generalized anxiety disorder. Ms. Rader, however, sustained no
physical injury. The claim of Ms. Rader for workers' compensation benefits for the
psychiatric conditions was disputed. The issue was taken to the Industrial Commission
which found that Ms. Rader had sustained a compensable injury in the course of and
arising out of her employment on January 6, 2005. Her claim was allowed by the
Industrial Commission for post-traumatic distress disorder and a generalized anxiety
disorder. This matter was presented to the trial court as a proceeding de novo with
respect to the allowance of the claim for the above conditions. As set forth above, the
3
trial court found in favor of Ms. Rader and the decision was appealed to the Court of
Appeals for Franklin County.
Proposition of Law and Argument
Sole Proposition of Law
"Injury" as used in R.C. 4123.01 is limited to physical injuries and topsychiatric injuries that arise directly out of physical injuries oroccupational diseases to the claimant. Bailey v. Republic EngineeredSteels, Inc. (2001), 91 Ohio St. 3d 38, 741 N.E.2d 121 overruled.
In 1983, this Court decided the cases of Schultz v. Barberton Glass Co.
(1983), 4 Ohio St. 3d 131, and Paugh v. Hanks (1983), 6 Ohio St. 3d 72, in which the
Court abandoned the requirement of a contemporaneous physical harm in order for
there to be a recovery for emotional or mental distress in a negligence action. The
Court wrote in Paugh at Paragraphs 1 and 2 of its Syllabus:
1. A cause of action may be stated for the negligentinfliction of serious emotional distress. (Schultz v. BarbertonGlass, 4 Ohio St. 3d 131, followed)
2. A cause of action may be stated for the negligentinfliction of serious emotional distress without themanifestation of a resulting physical injury. Proof of aresulting physical injury is admissible as evidence of thedegree of emotional distress suffered.
In Pauph, the Court discussed the historical requirement of contemporaneous physical
harm and the reason for its abandoning that requirement in negligence actions. Please
see Paugh, supra, at pp. 74-77.
In 1986, the Ohio General Assembly, apparently recognizing the problems
that such a rule might create in the no-fault Ohio workers' compensation system,
amended the definition of a workers' compensation injury to exclude from the definition
4
of injury a mental condition arising solely from emotional distress, the so-called "mental-
mentaP" claim.
§ 4123.01 Definitions
As used in this chapter:
(c) "Injury" includes any injury whether caused by externalaccidental means or accidental and character end result,received in the course of, and arising out, the injuredemployee's employment. "Injury" does not include:
(1) Psychiatric conditions except where the conditions havearisen from an injury or occupational disease;
141 Ohio Laws S.B. 307.1
In 1992, the Court had occasion to review R.C. 4123.01(C)(1). In
Rambaldo v. Accurate Die Casting, 65 Ohio St. 3d 281, the Court held in paragraph 1 of
the syllabus to its decision:
"In the absence of a clearly expressed legislative intent torecognize mental conditions caused solely by work-relatedstress as occupational diseases within the purview of theWorkers' Compensation Act, such mental conditions are notcompensable as occupational diseases."
The Court noted that the General Assembly is charged with deciding which conditions
are to be compensated under the workers' compensation law.
' In amended Substitute Senate Bill No. 7, the General Assembly amended R.C. 4123.01(C), clarifyingthat the physical injury from which a claimed psychological condition arises must be a physical injurysustained by the person claiming workers' compensation benefits. That provision of the law becameeffective in 2006. The uncodified portion of the Bill. Section 3, provides:
This act applies to all claims pursuant to Chapter 4121., 4123., 4123., 4127., and 4131, of theRevised Code arising on or after the effective date of this act, except that division (H) ofSection 4123.512 as amended by this act also applies to claims that are pending on the effectivedate of this act.
Ms. Rader's injury occurred on January 6, 2005, before the effective date of the amendment.
5
In Bunger v. Lawson Co. (1988), 82 Ohio St. 3d 463, the Court again
reviewed the issue of whether a psychological injury arising from work-related stress or
emotional trauma is an "injury" under the workers' compensation law. Ms. Bunger was
an employee of a convenience store and was the victim of a robbery. She did not
sustain a physical injury. She was found not entitled to workers' compensation benefits
for her resulting emotional condition based on R.C. 4123.01(C)(1). She then pursued a
direct liability action against her employer. Her employer argued that the exclusivity of
the workers' compensation remedy barred her pursuit of a negligence action. The Court
reviewed R.C. 4123.01(C) and concluded:
Thus, for the purpose of R.C. Chapter 4123, psychiatricconditions that do not result from a physical injury do notconstitute an "injury". Thus, those psychological injuries arenot included in the purview of the statute.
If psychological injuries are not included within the definitionof "injury" used in the statutory chapter, those injuries cannotbe included in the chapter's grant of employer immunity fromsuits for any "injury" suffered by an employee.
Bunger, supra, at p. 464. Justice Lundberg-Stratton, in her concurring opinion, noted:
If employers want immunity under the Workers'Compensation system from civil action for an employee'spsychological injuries, employers should urge the GeneralAssembly to include psychological injuries without physicalinjuries in the definition of "injury" in R.C. 4123.01(C).
Bunger, supra, at p. 467.
Thus, the law seemed clear: in order for an injured worker to recover for
emotional distress, the injured worker had to have sustained a physical harm. See,
e.g., Bunqer, supra, at p. 463. However, in Bailey v. Republic Engineered Steels, Inc.,
(2001), 91 Ohio St. 3d 38, a divided Court held that an employee who witnesses a
6
compensable injury may recover for emotional distress under the workers'
compensation law. In Bailey, an employee was operating an industrial truck when he
accidentally ran over and killed a co-worker. The truck operator filed a claim for
workers' compensation benefits for his emotional distress. He had sustained no
physical injury, the denial of his workers' compensation claim was appealed to court,
and the issue was pursued to the Supreme Court. Justice Frances Sweeney, writing for
the majority, noted:
The plain reading of the statue reveals that the intent of theGeneral Assembly is to limit claims for psychiatric conditionsto situations where the conditions arise from an injury oroccupation disease. However, R.C. 4123.01(C)(1) does notspecify who must be injured or who must sustain anoccupational disease.
Bailey, supra, at p. 40. The majority went on to hold that a person who suffers an
emotional disability as a result of witnessing a co-worker's physical injury may recover
compensation for his emotional distress.
In 2005, the Court revisited the issue of compensating emotional distress
in McCrone v. Bank One Corp., 107 Ohio St. 3d 272. Ms. McCrone was an employee
of Bank One Corporation. The branch in which she worked was robbed on two
occasions while she was employed. During the first robbery, she was present but was
not the teller involved. However, she was the teller who was robbed during the second
robbery. She was diagnosed with post traumatic stress disorder and was unable to
continue to work. She filed for workers' compensation benefits for her psychological
condition. Such benefits were denied because she did not sustain a physical injury.
The matter was pursued to the Supreme Court and the Court interpreted the exclusion
set forth at R.C. 4123.01(C)(1) as precluding her claim for workers' compensation
7
benefits. There was no physical injury to Ms. McCrone; there was no physical injury to
anyone at the bank during either of the robberies.
In Wood v. Ohio State Hwy. Patrol (2004), 156 Ohio App. 3d 725, the
Court of Appeals for the Fifth Appellate District held that a state highway trooper could
not recover workers' compensation benefits for his post traumatic stress disorder. In
that case, the trooper alleged developing the mental condition as a result of four events:
(1) the fatal shooting of an armed suspect; (2) a high speed pursuant of gang members;
(3) his responding to a fatal car crash; (4) his cruiser catching fire after it got stuck in the
median of a roadway. Relying on Rambaldo, supra, and Bunger, supra, the court of
appeals held that the trooper had not stated a valid claim to workers' compensation
benefits.
These three decisions [Rambaldo, Bunger, and Bailey] fromthe Ohio Supreme Court clearly recognized the GeneralAssembly's authority to define the types of injuries anddiseases that are compensable under the workers'compensation statutes. The General Assembly has clearlyexcluded psychological conditions from the definition of"injury". Irrespective of whether this exclusion makes goodpublic policy, the General Assembly is permitted to make thisdecision, and it has chosen not to extend coverage for suchconditions.
Therefore, we conclude that Section 35, Article 11 of the OhioConstitution did not envision the compensability of purelypsychological conditions, without regard to whether suchconditions arise from a compensable physical injury.
Wood, supra, at p. 730. The Supreme Court affirmed the judgment of the Court of
Appeals on authority of McCrone, supra, at 108 Ohio St. 3d 105 (2006).
The vitality of the decision in Bailey is doubtful. In its discussion of Bailey
in the McCrone decision, this Court wrote as follows:
8
In this matter, the Court of Appeals for Stark County cited acase 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 acompensable physical injury: Bailey v. Republic EngineeredSteels, 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, theclaimant, 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 heldthat "[a] psychiatric condition of an employee arising from acompensable injury or an occupational disease suffered by athird party is compensable under R.C. 4123.01(C)(1)." Id. Atthe syllabus. We now question that holding. [Emphasisadded]
When the entire definition of "injury" in R.C. 4123.01(C) isexamined, it is clear that workers' compensation coversphysical injuries and psychiatric injuries that arise directly outof physical injuries or occupational diseases to the claimant.[Emphasis in original]
"'Injury' includes any injury, whether caused by externalaccidental means or accidental in character and result,received in the course of, and arising out of, the injuredemployee's employment." 'Injury' does not include:
"(1) Psychiatric conditions except where the conditions havearisen from an injury or occupational disease."
Only three years before Bailey, this court recognized that thelimited scope of the workers' compensation system requireslimiting compensability to claims involving physical injury tothe claimant. Bunger v. Lawson Co. (1988), 82 Ohio St. 3d463, 465-466, 696 N.E.2d 1029. Bungerwasunacknowledged by the Baile majority. In Bunger, westated: "The workers' compensation system was notdesigned to resolve every dispute that arises betweenemployers and employees. It was designed to manage thecompensation of individuals who suffer physical injuries orcontract occupational diseases on the job." Id. at 465, 696N.E.2d 1029.
McCrone, supra, at p. 277.
9
In the case at hand, no physical harm was sustained by Ms. Rader. In
accordance with the Court's review of the definition of "injury" in McCrone, the Court
should find that Ms. Rader's developing emotional or psychological conditions as a
result of the events of January 6, 2005, does not meet the definition of "injury" at R.C.
4123.01(C) because her emotional or psychological conditions did not arise out of a
physical injury sustained by her.
Appellant is mindful of the doctrine of stare decisis and appreciates that it
requests that the Court overrule Bailey, a decision that is less than a decade old. Stare
decisis came to the United States with the adoption of the English common law.
Although articulated in different ways, the principle of stare decisis is that deference
should be shown to an issue that has been decided so as to give consistency and
predictability to the common law. However, stare decisis is not an inflexible doctrine
and American courts, while treating stare decisis as creating a presumption in favor of a
precedential decision's correctness, have treated the presumption as rebuttable.
Please see a discussion of the doctrine of stare decisis and exceptions thereto in
Abundant Dulcibus Vitiis Justice Kennedy: in Lawrence v. Texas, An Eloquent and
Overdue Vindication of Civil Rights Inadvertently Reveals What is Wrong with the Wa
the Renguist Court Discusses Stare Decisis, 78 Tul. L. Rev. 969 (Feb., 2004) at pgs. 3
through 5.
In Westfield Insurance Co. v. Galatis (2003), 100 Ohio St. 3d 216, this
Court discussed its duty to examine its former decisions and to correct errors. The
Court recognized that it would serve "no valid public purpose to allow incorrect
opinions" to remain the law of Ohio. The Court held that it would reexamine a decision
10
and overrule it where "(1) the decision was wrongly decided at that time, or changes in
circumstances no longer justify continued adherence to the decision, (2) the decision
defies practical workability, and (3) abandoning the precedent would not create an
undue hardship for those who have arrived upon it." Westfield Insurance Co., supra at
Syllabus, ¶ 1. As set forth earlier in this memorandum, this Court has acknowledged
that a supreme court not only has the right, but the duty, to examine its former decisions
and to discard its former errors. A reading of the cases as set forth above and the
Court's observations in McCrone can lead to but one conclusion and that is that Bailey
was wrongly decided. Appellant respectfully suggests that the Bafley decision is one
that should be revisited and overruled in accordance with the above principles.
11
Conclusion
For the foregoing reasons, the Court should accept jurisdiction over this
case and revisit its decision in Bailey, supra.
Respectfully submitted,
VORYS, SATER, SEYMOUR AND PEASE LLP
By:RobertA. Minor (0018371)52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008(614) 464-6410(614) 464-6350 (Fax)[email protected]
Attorneys for AppellantFifth Third Bank
CERTIFICATE OF SERVICE
The undersigned, being one of the counsel for Appellant Fifth Third Bank
certifies that a true copy of the foregoing has been served upon counsel for Appellee,
Mr. Renny J. Tyson, Renny J. Tyson Co., LPA, 1465 East Broad Street, Columbus,
Ohio 43205, and upon counsel for Appellant, Ms. Sandra E. Pinkerton, Assistant
Attorney General, Workers' Compensation Section, 150 East Gay Street, 22"d Floor,
Columbus, Ohio 43215-3130, by depositing same in the U.S. mail, postage prepaid, this
14th day of May, 2010.
12
511412010 8350117
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Deborah K. Rader,
Plaintiff-Appellee,No. 09AP-821
V. No. 09AP-1007(C.P.C. No. 07CVD06-8266)
Fifth Third Bancorp andMarsha P. Ryan, Administrator (REGULAR CALENDAR)Bureau of Workers' Compensation,
Defendants-Appellants.
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
March 30, 2010, appellants' assignments of error are overruled, and it is the judgment
and order of this court that the judgment of the Franklin County Court of Common Pleas
is affirmed. Costs shall be aasessed equally b-.*.'c^n the appeliants.
SA^uLER, J., TYACK, P.J., and FRENCH, J.
ByJudge Lisa L. Sadler
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT v P,
Deborah K. Rader,
Plaintiff-Appellee,No. 09AP-821
V. No. 09AP-1007(C.P.C. No. 07CVD06-8266)
Fifth Third Bancorp andMarsha P. Ryan, Administrator (REGULAR CALENDAR)Bureau of Workers' Compensation,
Defend ants-Ap pel lants.
D E C I S I 0 N
Rendered on March 30, 2010
Renny J. Tyson Co., LPA, and Renny J. Tyson, for appellee.
Vorys, Sater, Seymour & Pease, LLP, and Robert A. Minor,for appellant Fifth Third Bancorp,
f?ichai-d Corcijay, Atforney General, and Sandra E. Pinkerton,for appellant Marsha P. Ryan, Administrator Bureau ofWorkers' Compensation.
APPEALS from the Franklin County Court of Common Pleas.
SADLER, J.
(¶t } In these consolidated appeals, appellants Fifth Third Bancorp ("Fifth Third")
and the Administrator of the Bureau of Workers' Compensation ("BWC") (collectively
Nos. 09AP-821 and 09AP-1007 2
"appellants"), seek reversal of a judgment by the Franklin County Court of Common Pleas
denying Fifth Third's appeal from an order by the Industrial Commission of Ohio
("commission") granting the right-to-participate claim of appellee, Deborah K. Rader
("appellee"). For the reasons that follow, we affirm.
{¶2} Appellee's right-to-participate claim arose from her employment at a Fifth
Third branch in Franklin County. On January 6, 2005, Columbus Police Officer Bryan
Hurst was shot and killed while serving as a special duty off{cerat that branch, which
appellee witnessed. Appellee did not incur any physical injuries as a result of the
incident, but the commission allowed appellee's claim for psychological injuries she
suffered as a result of witnessing Officer Hurst's death.'
{1(3} The trial court conducted a de novo review of the commission's order. Fifth
Third argued that appellee's psychological injuries were not compensable under Ohio
workers' compensation law in the absence of any physical injuries suffered by appellee.
The trial court disagreed, finding that the case was controlled by the decision of the
Supreme Court of Ohio in Bailey v. Republic Erigineered Steels, Inc., 91 Ohio St.3d 38,
2001-Ohio-236. In reaching this conclusion, the trial court rejected Fifth Third's argument
that Bailey was overruled by the Supreme Court of Ohio in McCrone v. Bank One Corp.,
107 Ohio St.3d 272, 2005-Ohio-6505. Thus, the trial court affirmed the commission's
decision granting appellee the right to participate based on her psychological injuries.
The various cases and statutory provisions relevant to the question before us appear to use"psychological," "psychiatric," and "mental" interchangeably. Becausethe parties here use the term"psychological" in describing appellee's injuries, we will use that term when referring to her claim, but willotherwise employ the term used in ttie case or statute discussed.
Nos. 09AP-821 and 09AP-1007 3
{114} Fifth Third and BWC each appealed. For its assignment of error, Fifth Third
alleges:
The trial court erred in finding that plaintiff-appellee wasentitled to participate in the compensation and benefitsprovided under the Ohio workers' compensation laws for apsychological condition which did not result from a physicalinjury sustained by plaintiff-appellee.
{1[5} BWC alleges as its assignment of error:
Baitey L. Repub;ic Engineered Steels, tnc. (2041); 91 Oh,ioSt.3d 38 was effectively overruled by the Ohio SupremeCourt's decision in McCrone v. Bank One Corp. (2005), 107Ohio St.3d 272, 2005-Ohio-6505.
{¶6} Appellants' assignments of error are essentially identical, and will therefore
be addressed together. Resolution of these appeals depends upon a determination of
whether Bailey continues to have any validity after the Supreme Court's decision in
McCrone.
{¶7} An "injury" for purposes of Ohio's workers' compensation law is defined in
R.C. 4123.01(C). Under the version of R.C. 4123.01(C)(1) in effect at the time appellee
incurred her injuries, the definition of "injury" excluded "[p]sychiatric conditions except
where the conditions have arisen from an injury or occupational disease.i2
{118} Prior to the Bailey decision, the Supreme Court of Ohio generally concluded
that the exclusion from the definition of "injury" set forth in R.C. 4123.01(C)(1) meant that
solely mental conditions suffered by a claimant, in the absence of any physical injuries to
2 In S.B. 7 of the 126th General Assembly, R.C. 4123.01(C)(1) was amended to make it clear that theexclusion from the definition of "injury" does not apply to a claimant's psychiatric conditions arising from aninjury or occupational disease suffered by the claimant. The trial court concluded that the provisions of S.B.7 could not be applied retroactively to appellee's conditions, a conclusion with which appellants take noissue on appeal.
Nos. 09AP-821 and 09AP-1007 4
that claimant, were not compensable under the workers' compensation laws. See Bunger
v. Lawson Co., 82 Ohio St.3d 463, 1998-Ohio-407. However, in Bailey, the court reached
a different conclusion. In that case, the court held that a psychiatric injury suffered by a
claimant that arose as a result of a compensable injury or occupational disease suffered
by a third party is a compensable injury. Bailey at syllabus.
11(9} Bailey involved a claimant seeking workers' compensation for depression
suffered as the.result of an-accident in which-the elaimantwas operating atow riotor that
ran over and killed a co-worker. The court concluded that, since the version of R.C.
4123.01(C)(1) in effect at the time did not specify that the psychiatric conditions had to
arise from an injury suffered by the claimant, a psychiatric condition resulting from an
injury to a third party was covered. Bailey at 42.
{¶10} The Supreme Court revisited the issue of compensability of psychological
or psychiatric injuries in McCrone. That case involved an employee who sought workers'
compensation for purely psychological or psychiatric injuries suffered as a result of a pair
of bank robberies in which neither the employee nor any third person was physically
injured. The employee argued that the R.C. 4123.01(C) exclusion of psychiatric injuries
in the absence of any physical injuries was unconstitutional. The court rejected that
argument, and found the employee's purely psychiatric injuries were not compensable.
McCrone, paragraph one of the syllabus.
{¶11} In its decision, the Supreme Court questioned the continuing validity of
Bailey, describing the holding as "atypical." Id, at ¶22. The court further stated that "in
allowing workers' compensation for a mental condition arising from a third party's injury,
Bailey created an aberration." Id. at ¶28. However, the court did not specifically overrule
Nos. 09AP-821 and 09AP-1007 5
Bailey, because the psychiatric condition suffered by the employee did not result from any
physical injury to either the employee or a third party. Id.
{¶12} Some courts after Bailey, including cases decided after McCrone, have
sought to distinguish Bailey on factual grounds. For example, in Sanden v. Cincinnati,
174 Ohio App.3d 280, 2007-Ohio-6866, the First District Court of Appeals considered a
case in which a police officer sought workers' compensation for psychological conditions
arising fresn the deaths of three fellow officers in two separate incidents in which the
officer was directly involved. The court distinguished Bailey on the grounds that the
officer had neither directly witnessed nor caused the deaths of any of the three fellow
officers. Sanden at ¶17.
{9113} However, we do not see any factual distinction that allows us to avoid
Balle3ls applicability to the cases before us. The logic of the statutory interpretation
engaged in by the Bailey court would appear to apply to any situation in which a
... . _ , . . _i"ic"tii or S Chlatric coi uiiioi'f"'-"'^r^hio :: . i ias resulted from -^̀ ^al ii.i ur to a third party,p Y phys ical J Y Y,
regardless of whether the claimant seeking recovery for the psychological or psychiatric
condition witriessed the physical injury. ivioreover, under the facts of these cases,
appellee did witness the injury to Officer Hurst, rendering the distinction set forth by the
First District Court of Appeals in Sanden inapplicable.
(1114} Notwithstanding McCrone's discussion questioning the continued validity of
Bailey, in the absence of any Supreme Court ruling specifically overruling Bailey, we are
constrained to continue to adhere to that decision when considering cases involving
injuries occurring after Bailey, but prior to the S.B. 7 amendment to R.C. 4123.01(C)(1),
until or unless the Supreme Court takes further action.
Nos. 09AP-821 and 09AP-1007 6
{¶15} Accordingly, we overrule the assignments of error asserted by appellants,
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and FRENCH, J., concur.
IN THE FRANKLIN COUNTY COMMON PLEAS COURT
FRANKLIN COUNTY, OHIO
Deborah K. Rader
Plaintiff
vs.
Fifth Third Bancorp, et al.
Defendants
TERMINATION NO.
BY:
Case No. 07CVD 06 8266
JUDGMENT ENTRY
This matter came to the Court by way of Stipulated Agreement and Agreed
Waiver of Trial by Jury for a de novo review of the Ohio Industrial Commission's order,
pursuant to Ohio Revised Code §4123.512, with respect to the issue of whether Plaintiff
is entitled to participate in the benefits of the Ohio Workers' Compensation Fund for post
traumatic stress disorder and genera!ized anxiety disorder. The issue presented is a
matter of law and was submitted to the Court in lieu of trial as agreed by the parties.
The parties submitted legal briefs regarding this matter.
After review and analysis of the relevant case and statutory law, the Court finds
that although McCrone v. Bank One (2005), 107 Ohio St.3d 272, questions the holding
in Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, McCrone does
not overrule Bailey. Instead, McCrone's holding is narrowly confined to those cases in
which no physical injury has occurred, whether to the claimant or to a third party.
McCrone, 107 Ohio St.3d at ¶27-28. In the case sub judice, there was a physical injury,
albeit to a third party, that gave rise to Plaintiffs psychological condition. Thus, because
1A-8
McCrone does not overrule Bailey's holding regarding cases with physical injuries to
third parties that give rise to psychological injuries by a claimant, Bailey must control.
Applying Bailey to the instant facts, the psychological injuries suffered by Plaintiff
are compensable. A physical injury was suffered by Officer Hurst, which gave rise to
Plaintiff's conditions. Plaintiff may recover workers' compensation benefits as the pre-
amendment version of Ohio Revised Code §4123.01(C)(1) does not specify to whom
the physical injury must be but merely that the psychological injury have arisen from a
physical one.
Although it is true that McCrone questions Bailey and the amended version of
Ohio Revised Code §4123.01(C)(1) would bar workers' compensation benefits for
Plaintiff, Bailey remains good law and the pre-amendment version of Ohio Revised
Code §4123.01(C)(1) controls in this case. As such, Barley supports the conclusion that
Plaintiffs psychological injuries are compensable.
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff,
Deborah K. Rader, is entitled to participate in the benefits of the Ohio Workers'
Compensation law for the conditions described as post traumatic stress disorder and
generalized anxiety disorder.
It is further ORDERED that this judgment be certified to the Industrial
Commission of Ohio and that an attorney fee of Two Thousand Five Hundred and
00/100 ($2,500.00) Dollars be taxed against Defendant, Fifth Third Bancorp, and paid
to Renny J. Tyson, Attorney for Plaintiff.
Court costs to be paid by Defendant, Fifth Third Bancorp.
2A-9
IT IS SO ORDERED.
Dated: AIJUDGE TIMOTHY S. HORTON
APPROVED:
RENNY J. TYSON CO., LPA VQRYS, SATER SEYMOUR AND PEASE LLP
.
Renn J. Tyson (0022576)Attorney for Plaintiff, Deborah K. Rader1465 East Broad StreetColumbus, Ohio 43205
obert A. Minor (00118371)Attorneys for Defendant, Fifth Third Bancorp52 East Gay Street, Post Office Box 1008Columbus, Ohio 43216-1008
Telephone: 614-253-7800 T e l e p h o n e: 614-464-6410Fax: 614-253-7855 Fax: 614-719-4874
Email: [email protected] Email: [email protected]
3A-10
0812912009 Colambus 10694567
IN'TI-IE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OH1' 'itiLlY, C(?.
DEBORAHRADER> CP`t! t1t_ 28 PM Z, 09
Plaintiff,vs.
FIFTH THIRD BANCORP, et al.,
Defendants.
CASENO. 07 CVD 8266 f'L^^Pk , ,_^r COURTS
JUDGE TIMOTHY S. HORTON
DECISION AND ENTRY
Dated this ZE^^day of July, 2009
On January 6, 2005, Plaintiff Deborah K. Rader was etinployed by Defendant Fifth Third
Bancorp at a bank located in Franldin County, Ohio. On that day, while in the course and scope
of her employment, Plaintiff witnessed the shooting and killing of special-duty officer Bryan
Hurst during an atteinpted robbery of the bank. As a result of witnessing the shooting and
killing of Office• Elurst, Plaintiff developed post-traurnatic stress disorder and generalized
anxiety disorder. Plaintiff sustained no physical injury.
Plaintiff filed a workers' compensation claim seekin.g benefits for her emotional and
psychological injuries. Defendant Fifth Third disputed the claim, and argued that such injuries
are not co:npeusable under Ohio's workers' compeiisatiori law. The issue was heard'oefore "the
Industrial Commission, which found in favor of Plaintiff.
'The present matter is before tl,P Court as a de n.ovo appellate -. ..... of the Tndustrialrr.,....... . .
Commission's decision pursuant to R.C. § 4123.512. On August 11, 2008, the parties stipulated
to in.e above facts and waived their right to a trial by jury as there are no disputed factual
matters. On August 18, 2oo8, Defendant Fifth Third filed its brief and Plaintiff filed her brief on
September 16, 2oo8. No further briefs have been filed. The issue presented is entirely a matter
of law, and is submitted to the Court in lieu of Trial.
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Case No. 07 CVD8266 Page 2
To obtain workers' compensation benefits, an employee must have suffered a
compensable injury. The version of R.C. § 4123.01 that was controlling in 2005, when the
incidents that gave rise to this claim occurred, defines compensable "injury" as:
(C) "Injury" includes any injury, whether caused by externalaccidental means or accidental in character and result, received inthe course of, and arising out of, the injured employee'semployment. "Injury" does not include:
(i) Psychiatric conditions except where the claimant's psychiatricconditions have arisen from an injury or occupational disease;
141Ohio Laws S.B. 307.
Because Plaintiff was not physically injured, the issue presented is whether the death of
Officer Hurst satisfies the requircment that the psychiatric conditions have arisen front an
injury or occupational disease under R.C. § 4123.01.
This Court notes that although the recently amended version of R.C. § 4123.o0)(1)
expressly requires that the injury or occupational disease must be sustained "by [the workers'
coinpensation] claimant," the pre-amendtnent version controls in the case at bar. The incident
that gave rise to this claim occurred in 2005 and the amendment was effective in 2oo6. An
amendment Lnay not be applied retroactively unless, at the very least, the legislature has
expressly indicated such retroactive intent, See Van Fossen v. Babcock & Wilcox Co. (1g88), 36
Ohio St. 3d 1oo,112 of the syllabus.
Plaintiff contends that the Ohio Supreme Court's decision in Bailey u. Republic
Engineered Steels, Inc. (2001), 91 Ohio St. 3d 38 is controlling. The Bailey court held that an
employee who witnesses a compensable injury may himself recover for emotional distress under
the pre-amendment workers' compensation law, reasoning that the statute does not specify who
must sustain the injury. Id. at 39•
Defendant argues that Bailey is no longer good law and cites McCrone v. Bank One
Corp. (2005),107 Ohio St. 3d 272. Specifically, Defendant relies on the following language from
McCrone:
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Case No. 07 CVll 8266 Page 3
In this matter, the Court of Appeals for Stark County cited a casein 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 injury. InBailey, the claimant, a forklift operator, had accidentally killed hisco-worker and claimed severe depression as a resulting work-related injury. In an atypical holding, the Bailey court held that"[a] psychiatric conditiou of an employee arising from acompensable injury or an occupational disease suffered by a thirdparty is compensable under R.C. 41.23.o1(C)(i)." We nowquestion that holding. (emphasis added).
When the entire definition of "injury" in R.C. 4123.01(C) isexamined, it is clear that workers' compensation covers physicalinjuries and psychiatric injuries that arise directly out of physicalinjuries or occupational diseases to the claimant.-^y
Only three years before Bailey, this court recognized that thelimited scope of the workers' compensation system requireslimiting compensability to claims involving physical injury to theclaimant. Bunger was unacknowledged by the Bailey majority. InBunger, we stated: "The workers' comperisation system was notdesigned to resolve every disprrte that arises between employersand employees. It was designed to manage the compensation ofindividuals who suffer physical injuries or contract occupationaldiseases on the job.
Id. at ¶ 22-26. (citations omitted).
This Court finds that although NlcCrone questions Bailey, it does not overrule it.
Iiistead, hicCrone's holding is narrowiy connned to tiiose cases in which no physical injury has
occurred, whether to the claimant or to a third par-ty. McCrone, 107 Ohio St. 3d at ¶ 27-28. In
the case sub;udice, there was aphysical injury, all;cit to a third party, that gave rise tc Plaintiffs
psychological condition. Thus, because McCrone does not overrule Bailey's holding regarding
cases with physical injuries to third parties that give rise to psychological injuries by a claimant,
Bailey must control.
Applying Bailey to the instant facts, the psychological injuries suffered by Plaintiff are
compensable. A physical injury was suffered by Officer Hurst, which gave rise to Plaintiffs
conditions. Plaintiff may recover workers' compensation benefits as the pre-amendment
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Case No. 07 CVD 8266 . Page 4
version of R.C. § 412,3.o1(C)(1) does not specify to whom the physical injury must be but merely
that the psychological injury have arisen from a physical one.
Although it is true that McCrone questions Bailey and the amended version of R.C. §
4123.o1(C)(1) would bar workers' compensation benefits for Plaintiff, Bailey remains good law
and the pre-amendment version of R.C. § 4.123.o1(C)(1) controls in this case. As such, Bailey
supports the conclusion that Plaintiffs psychological injuries are compensable.
Accordingly, the decision of the Industrial Commission in favor of Plaintiff Deborah K.
Rader is hereby AFFIRMED. Counsel for Plaintiff shall submit an entry pursuant to Loc. R.
25.01.
I`rIS SO ORDERED.
TIMOTHY S. HORTON, JUDGE
COPIES TO:
Rei nyTyso ,, Esq.1465 East Broad StreetColnmbus, Ohio 43205Counsel for Plaintiff, Deborah K. Rader
Robert Minor, Esq.
52 East Gay StreetP.O. Box ioo8Colutnbus, Ohio 43216Counsel for Defendant Fifth Third Bancorn