Making new claims

Employers, take heed before you seek denial of a worker’s claim for compensation due to a psychiatric condition.

A ruling by the Ohio Supreme Court early this year means you may have to cover an employee’s mental illness even when he or she had no related physical injury.

The original Stark County case started in 1996 when Leonard J. Bailey, an employee of Canton’s Republic Engineered Steels Inc., was operating a tow motor and accidentally ran over and killed a co-worker. Bailey’s claim for compensation for severe depression resulting from the accident was turned down by the Bureau of Workers’ Compensation and Stark County Common Pleas Court, which said Bailey’s condition did not arise from his own injury or occupational disease, so his depression would not be covered.

The 5th District Court of Appeals, however, reversed the decision and called the statute unconstitutional because it denies equal protection to workers suffering psychiatric or psychological conditions resulting from job-related accidents.

The Ohio Supreme Court then determined the statute was unclear — but did not address the question of whether it is unconstitutional.

“When they make that determination, it is then up to the court to interpret the ambiguous portion of the statute,” says Tom Sant, of counsel at Columbus’ Bricker & Eckler LLP. He is a former assistant law director for the bureau and now represents employers in administrative and court cases for workers’ compensation.

In the traditional 4-3 split that has aggravated business interests, Justices Andrew Douglas, Alice Robie Resnick and Paul Pfeifer concurred in Justice Francis Sweeney’s opinion that coverage should be granted for the psychiatric condition if it arose from a compensable injury — even that of a third party.

The case, which is pending, has been returned to the Stark County Common Pleas Court for a decision on whether Bailey has enough evidence to support his claim of depression.

“Our position is there’s no rational basis to exclude this type of claim,” says Richard F. Brian, a partner in Brian Law Offices, which represented Bailey. “We were hoping the court would go the full step and find the statute that precludes those claims unconstitutional.”

Business interests feared the Supreme Court ruling would lead to an onslaught of mental illness claims, but both the Bureau and the Industrial Commission say they’ve seen no such indication thus far.

Brian’s firm is handling another case through the appeals court that involves a psychological injury with no physical injury, however, so the constitutionality issue may arise again.

In the meantime, the Bailey case doesn’t mean all accident-related mental illness claims are automatically compensable, points out Mary E. Randall, a partner with Black, McCuskey, Souers & Arbaugh, which represents Republic Engineered Steels.

“Employers at this point just have to be familiar with the standard and understand, at least for now, the injury must be a compensable injury,” she says.

This means the injury would have to be to a covered employee. For example, if an employee of a trucking company accidentally struck and injured a child, the injury to the child would not be covered, Sant says, because the child is not an employee, so the driver in all likelihood would not have a successful claim of a resulting psychological condition.

Sant advises employers to provide counseling for workers who observe a terrible injury or a death.

“Make every effort to make the workplace as safe as possible,” he adds. How to reach: Richard Brian, Brian Law Offices, (330) 494-2121; Mary E. Randall, Black McCuskey, Souers & Arbaugh, (330) 456-8341; Tom Sant, Bricker & Eckler, (614) 227-2331

Joan Slattery Wall ([email protected]) is an associate editor and statehouse correspondent for SBN Magazine.