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)raminor@vorys.com

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: admin@tyson.ldmi.net Email: raminor@vorys.com

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