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




               MCCRONE, APPELLEE, v. BANK ONE CORPORATION;
                         KIELMEYER, ADMR., APPELLANT.
 [Cite as McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505.]
Workers’ compensation — R.C. 4123.01(C)(1) — Definition of “injury” —
       Statutory exclusion of mental injuries from compensability under the
       Workers’ Compensation Act does not violate equal protection.
     (Nos. 2004-1063 and 2004-1065 — Submitted April 27, 2005 — Decided
                                 December 28, 2005.)
      APPEAL from and CERTIFIED by the Court of Appeals for Stark County,
                        No. 2003CA00092, 2004-Ohio-2538.
                                __________________
                              SYLLABUS OF THE COURT
1.     Psychological or psychiatric conditions that do not arise from a
       compensable physical injury or occupational disease are excluded from the
       definition of “injury” under R.C. 4123.01(C)(1) and from workers’
       compensation coverage.
2.     R.C. 4123.01(C)(1) does not violate the Equal Protection Clauses of the
       United States and Ohio Constitutions by excluding from the definition of
       “injury” psychological or psychiatric conditions that do not arise from a
       compensable physical injury or occupational disease.
                                __________________
        LANZINGER, J.
        {¶ 1} The question presented is whether R.C. 4123.01(C)(1) violates
equal protection by excluding psychological or psychiatric injuries from workers’
compensation coverage. We hold that it does not.
                                 Facts and Procedure
                                    SUPREME COURT OF OHIO




         {¶ 2} Appellee, Kimberly McCrone, was an employee of Bank One
Corporation from 1998 to 2001. During her employment, the branch in which she
worked was robbed twice. At the first robbery on December 20, 2000, McCrone
was present but was not the teller involved; however, she was the teller robbed on
August 4, 2001. Although McCrone returned to work without claiming adverse
effects after the first robbery, after the second she was diagnosed with
posttraumatic stress disorder and has not worked for the bank since. She filed for
workers’ compensation benefits for her psychological condition stemming from
the second robbery, but benefits were denied because she had not suffered a
physical injury.1 McCrone exhausted her administrative appeals and then filed
suit in the Court of Common Pleas of Stark County.                           She challenged R.C.
4123.01(C)(1), the statute that excludes psychological or psychiatric conditions
from the definition of “injury” for workers’ compensation purposes, on
constitutional grounds, alleging that it violated the Equal Protection and Due
Process Clauses of the United States and Ohio Constitutions, as well as Section
35, Article II of the Ohio Constitution.2
         {¶ 3} The bank filed a motion for summary judgment, which was denied,
and R.C. 4123.01(C)(1) was ruled unconstitutional as applied to McCrone. The
trial court found that the exclusion of psychological injuries from workers’
compensation coverage was not rationally related to a legitimate governmental
interest and thus found an equal protection violation. The Court of Appeals for
Stark County affirmed. McCrone v. Bank One Corp., 2nd Dist. No.
2003CA00092, 2004-Ohio-2538, 2004 WL 1111021.




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

2. As the arguments concerning due process and the violation of Section 35, Article II were not
raised in a proposition of law or in the certified conflict, we limit the constitutional analysis to the
equal protection claim.




                                                 2
                                January Term, 2005




       {¶ 4} These cases come before us upon acceptance of a discretionary
appeal of the Ohio Bureau of Workers’ Compensation (“BWC”), as well as upon
the certification of a conflict from the Court of Appeals for Stark County. We
found that a conflict exists. 103 Ohio St.3d 1459, 2004-Ohio-5056, 815 N.E.2d
676.
       {¶ 5} The certified question asks “[w]hether R.C. 4123.01(C)(1) violates
the Equal Protection Clauses of the United States and Ohio Constitutions, where it
excludes from Workers’ Compensation coverage psychological or psychiatric
conditions occurring in the course of and arising out of the claimant’s
employment, but [which] do not arise from or occur contemporaneously with a
compensable physical injury.”
                           The Equal Protection Clauses
       {¶ 6} Pursuant to the Fourteenth Amendment to the United States
Constitution, “[n]o State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” In like
manner, Section 2, Article I, Ohio Constitution, provides that “[a]ll political
power is inherent in the people.       Government is instituted for their equal
protection and benefit, and they have the right to alter, reform, or abolish the
same, whenever they may deem it necessary; and no special privileges or
immunities shall ever be granted, that may not be altered, revoked, or repealed by
the General Assembly.” Simply stated, the Equal Protection Clauses require that
individuals be treated in a manner similar to others in like circumstances.
       {¶ 7} The limitations placed upon governmental action by the federal
and state Equal Protection Clauses are essentially the same. See Am. Assn. of
Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999), 87 Ohio
St.3d 55, 60, 717 N.E.2d 286 (confirming that Ohio’s Equal Protection Clause




                                        3
                             SUPREME COURT OF OHIO




tracks its federal counterpart), reversed on other grounds (1999), 526 U.S. 124,
119 S.Ct. 1162, 143 L.Ed.2d 227; Porter v. Oberlin (1965), 1 Ohio St.2d 143,
151-152, 30 O.O.2d 491, 205 N.E.2d 363; State ex rel. Struble v. Davis (1937),
132 Ohio St. 555, 560, 8 O.O. 552, 9 N.E.2d 684.
       {¶ 8} “A statutory classification which involves neither a suspect class
nor a fundamental right does not violate the Equal Protection Clause of the Ohio
or United States Constitutions [sic] if it bears a rational relationship to a
legitimate governmental interest.” Menefee v. Queen City Metro (1990), 49 Ohio
St.3d 27, 29, 550 N.E.2d 181. Since no one argues that fundamental rights or
suspect classes are implicated in this case, the correct standard to be applied is the
rational-basis test. Under this test, “ ‘a State does not violate the Equal Protection
Clause merely because the classifications made by its laws are imperfect. If the
classification has some “reasonable basis,” it does not offend the Constitution
simply because the classification “is not made with mathematical nicety or
because in practice it results in some inequality.” Lindsley v. Natural Carbonic
Gas Co. [1911], 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369].’ ” State ex rel.
Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173, 179, 2 OBR 715, 443 N.E.2d
962 (Krupansky, J., dissenting), quoting Dandridge v. Williams (1970), 397 U.S.
471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491.
       {¶ 9} The rational-basis test involves a two-step analysis. We must first
identify a valid state interest. Second, we must determine whether the method or
means by which the state has chosen to advance that interest is rational. See
Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d
260, 267, 652 N.E.2d 952. A statute will not be held to violate the Equal
Protection Clause, and this court will not invalidate a plan of classification
adopted by the General Assembly, unless it is clearly arbitrary and unreasonable.
State ex rel. Lourin v. Indus. Comm. (1941), 138 Ohio St. 618, 620, 21 O.O. 490,
37 N.E.2d 595, overruled on other grounds, Caruso v. Alum. Co. of Am. (1984),




                                        4
                                January Term, 2005




15 Ohio St.3d 306, 15 OBR 436, 473 N.E.2d 818. Thus, provided that the statute
is rationally related to a legitimate government interest, it will be upheld.
         {¶ 10} Section 35, Article II of the Ohio Constitution vests in the General
Assembly the right to establish a workers’ compensation system. It provides:
“For the purpose of providing compensation to workmen and their dependents, for
death, injuries or occupational disease, occasioned in the course of such
workmen’s employment, laws may be passed establishing a state fund to be
created by compulsory contribution thereto by employers, and administered by
the state, determining the terms and conditions upon which payment shall be
made therefrom.      Such compensation shall be in lieu of all other rights to
compensation, or damages, for such death, injuries, or occupational disease, and
any employer who pays the premium or compensation provided by law, passed in
accordance herewith, shall not be liable to respond in damages at common law or
by statute for such death, injuries or occupational disease.”
         {¶ 11} McCrone claims that her equal protection rights have been violated
because she is unable to benefit from workers’ compensation coverage, since she
has suffered no physical injury. First we must examine the statutory definition at
issue.
                      Definitions and Classifications of Injury
         {¶ 12} The General Assembly first defined the word “injury” for workers’
compensation purposes as “any injury received in the course of, and arising out
of, the injured employee’s employment.” G.C. 1465-68, 117 Ohio Laws 109,
effective July 10, 1937. In 1959, the following italicized language was added to
the term “injury” in R.C. 4123.01(C): “ ‘Injury’ includes any injury, whether
caused by external accidental means or accidental in character and result,
received in the course of, and arising out of, the injured employee’s employment.”
Am.Sub.H.B. No. 470, 128 Ohio Laws 743, 745, effective November 2, 1959.




                                        5
                               SUPREME COURT OF OHIO




        {¶ 13} In 1986, R.C. 4123.01(C) was amended to define what constitutes
a workers’ compensation injury and what does not. Am.Sub.S.B. No. 307, 141
Ohio Laws, Part I, 718. R.C. 4123.01(C) provides:
        {¶ 14} “ ‘Injury’ includes any injury, whether caused by external
accidental means or accidental in character and result, received in the course of,
and arising out of, the injured employee’s employment. ‘Injury’ does not include:
        {¶ 15} “(1) Psychiatric conditions except where the conditions have arisen
from an injury or occupational disease.”
        {¶ 16} Both before and after these amendments, courts have held that
compensable injuries under the workers’ compensation system require a physical
component suffered by the claimant.3 In Malone v. Indus. Comm. (1942), 140
Ohio St. 292, 23 O.O. 496, 43 N.E.2d 266, overruled on other grounds, Village v.
Gen. Motors Corp. (1984), 15 Ohio St.3d 129, 15 OBR 279, 472 N.E.2d 1079,
this court held that the term “comprehends a physical or traumatic damage or
harm.” (Emphasis added.) Malone at paragraph one of the syllabus. Conditions
suffered by the claimant could be mental disorders, provided that they arose from
a physical injury. See, e.g., State ex rel. Clark v. Indus. Comm. (2001), 92 Ohio
St.3d 455, 459, 751 N.E.2d 967.
        {¶ 17} The Bureau of Workers’ Compensation itself has required a
physical injury to the claimant before granting compensation for a psychiatric
condition, both before and after the 1986 amendments. See, e.g., Andolsek v.
Kirtland (1994), 99 Ohio App.3d 333, 335, 650 N.E.2d 911; Connors v. Sterling
Milk Co. (1993), 98 Ohio App.3d 711, 649 N.E.2d 856; Fields v. Youngstown
(May 30, 1989), Mahoning App. No. 88 C.A. 89, 1989 WL 59014.




3. See Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 489, 575 N.E.2d 428; Rambaldo v.
Accurate Die Casting (1992), 65 Ohio St.3d 281, 287, 603 N.E.2d 975; Bunger v. Lawson Co.
(1998), 82 Ohio St.2d 463, 466, 696 N.E.2d 1029.




                                           6
                                   January Term, 2005




        {¶ 18} In Rambaldo v. Accurate Die Casting (1992), 65 Ohio St.3d 281,
287, 603 N.E.2d 975, we discussed whether nonphysical injuries could be claimed
as occupational diseases under R.C. 4123.01(C)(1).               We held that “[i]n the
absence of a clearly expressed legislative intent to recognize mental conditions
caused solely by work-related stress as occupational diseases within the purview
of the Workers’ Compensation Act, such mental conditions are not compensable
as occupational diseases.” Id. at syllabus.             Similarly, we now hold that
psychological or psychiatric conditions that do not arise from a compensable
physical injury or occupational disease are excluded from the definition of
“injury” under R.C. 4123.01(C)(1) and from workers’ compensation coverage.
        {¶ 19} Because the General Assembly has classified mental conditions as
compensable under workers’ compensation laws only when they are accompanied
by physical injury, the question becomes whether that classification violates the
Equal Protection Clause of either the United States or Ohio Constitution.
                               Equal Protection Analysis
        {¶ 20} Legislative enactments are presumed to be constitutional. State ex
rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d
59, paragraph one of the syllabus. However, the constitutional guarantee of equal
protection requires that laws operate equally upon persons who are identified in
the same class. State ex rel. Patterson v. Indus. Comm. (1996), 77 Ohio St.3d 201,
204, 672 N.E.2d 1008.
        {¶ 21} With the exception of the Court of Appeals for Stark County in this
case, all appellate decisions hold that the exclusion of mental injuries from the
workers’ compensation definition of “injury” does not violate the Equal
Protection Clause of either the United States or Ohio Constitution.4



4. Wood v. Ohio State Hwy. Patrol, 156 Ohio App.3d 725, 2004-Ohio-1765, 808 N.E.2d 887;
Crutcher v. Butler Twp. (1999), 135 Ohio App.3d 582, 735 N.E.2d 25; Chrisulis v. U.S.X. Corp.




                                           7
                               SUPREME COURT OF OHIO




        {¶ 22} In this matter, the Court of Appeals for Stark County cited a case
in which we held that a claimant could obtain workers’ compensation benefits for
a mental condition when a co-worker, rather than the claimant, had suffered a
compensable physical injury: Bailey v. Republic Engineered Steels, Inc. (2001),
91 Ohio St.3d 38, 40, 741 N.E.2d 121. McCrone v. Bank One Corp., 2nd Dist.
No. 2003CA00092, 2004-Ohio-2538, 2004 WL 1111021, at ¶ 17. In Bailey, the
claimant, a forklift operator, had accidentally killed his co-worker and claimed
severe depression as a resulting work-related injury. In an atypical holding, the
Bailey court held that “[a] psychiatric condition of an employee arising from a
compensable injury or an occupational disease suffered by a third party is
compensable under R.C. 4123.01(C)(1).” Id. at the syllabus. We now question
that holding.
        {¶ 23} When the entire definition of “injury” in R.C. 4123.01(C) is
examined, it is clear that workers’ compensation covers physical injuries and
psychiatric injuries that arise directly out of physical injuries or occupational
disease to the claimant. R.C. 4123.01(C) states:
        {¶ 24} “ ‘Injury’ includes any injury, whether caused by external
accidental means or accidental in character and result, received in the course of,
and arising out of, the injured employee’s employment. ‘Injury’ does not include:
        {¶ 25} “(1) Psychiatric conditions except where the conditions have arisen
from an injury or occupational disease.”
        {¶ 26} Only three years before Bailey, this court recognized that the
limited scope of the workers’ compensation system requires limiting




(June 29, 1994), Lorain App. Nos. 93CA005599 and 93CA005618; Andolsek v. Kirtland (1994),
99 Ohio App.3d 333, 650 N.E.2d 911; Connors v. Sterling Milk Co. (1993), 98 Ohio App.3d 711,
649 N.E.2d 856; Fields v. Youngstown (May 30, 1989), Mahoning App. No. 88 C.A. 89; Neil v.
Mayfield (July 22, 1988), Montgomery App. No. CA 10881; Zaricki v. Laco Die Casting Co. (July
8, 1982), Cuyahoga App. No. 44254.




                                           8
                                January Term, 2005




compensability to claims involving physical injury to the claimant. Bunger v.
Lawson Co. (1998), 82 Ohio St.3d 463, 465-466, 696 N.E.2d 1029. Bunger was
unacknowledged by the Bailey majority. In Bunger, we stated: “The workers’
compensation system was not designed to resolve every dispute that arises
between employers and employees. It was designed to manage the compensation
of individuals who suffer physical injuries or contract occupational diseases on
the job.” Id. at 465, 696 N.E.2d 1029.
       {¶ 27} The facts in Bunger are similar to those now before us, for the
claimant was seeking benefits for mental stress suffered as a result of a robbery at
the workplace. We explained that certain cases were not covered by the workers’
compensation system and observed, “A majority of states allow compensation to
workers for some purely psychological injuries suffered in the workplace. * * *
Ohio’s General Assembly has yet to make such injuries compensable under
workers’ compensation statutes. * * * [P]sychological injuries are removed from
the coverage of the Act * * *.” Id. at 466, 696 N.E.2d 1029. As we also noted in
Rambaldo: “No workers’ compensation claim for a psychological condition,
whether the condition was denominated as a disease or an injury, has been
recognized by this court when the mental disease or injury was based solely on
job-related stress.” Id., 65 Ohio St.3d at 284, 603 N.E.2d 975.
       {¶ 28} Thus, in allowing workers’ compensation for a mental condition
arising from a third party’s injury, Bailey created an aberration. Nonetheless,
even if we were to apply Bailey, physical injury is still required (albeit to a third
party) before a claimant’s mental condition becomes compensable. In McCrone’s
case, there was no physical injury whatsoever. Any reliance by the appellate court
on Bailey was misplaced.
       {¶ 29} The General Assembly has defined the types of injuries and
diseases that are compensable through workers’ compensation. Psychological or
psychiatric conditions, without an accompanying physical injury or occupational




                                         9
                             SUPREME COURT OF OHIO




disease, are not compensable under R.C. 4123.01(C)(1). We must determine
whether this exclusion has a rational basis to support it.
                              Rational-Basis Standard
       {¶ 30} The guarantee of equal protection of the laws requires the
existence of rational grounds for making a distinction between those within and
those outside a designated class. State v. Buckley (1968), 16 Ohio St.2d 128, 45
O.O.2d 469, 243 N.E.2d 66, paragraph three of the syllabus; Porter v. Oberlin, 1
Ohio St.2d 143, 30 O.O.2d 491, 205 N.E.2d 363, paragraph two of the syllabus.
The General Assembly has determined that those who have mental conditions
along with a compensable physical injury or occupational disease are covered
within the workers’ compensation system, while those claimants with purely
psychiatric or psychological conditions are excluded from coverage. Legislative
enactments that do not involve a suspect classification are “presumptively
rationally related to legitimate social and economic goals, unless the ‘varying
treatment of different groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that the
legislature’s actions were irrational.’ ” State ex rel. Doersam v. Indus. Comm.
(1988), 40 Ohio St.3d 201, 203, 533 N.E.2d 321, quoting Vance v. Bradley
(1979), 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171.
       {¶ 31} Here, the court of appeals rejected cost-based reasons to justify the
statute, citing State ex rel. Patterson v. Indus. Comm. (1996), 77 Ohio St.3d 201,
672 N.E.2d 1008, and State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d at 177,
2 OBR 715, 443 N.E.2d 962. McCrone, Stark App. No. 2003CA00092, 2004-
Ohio-2538, 2004 WL 1111021, at ¶ 24. As the dissenting judge in McCrone
noted, however, in Patterson and Nyitray, the injuries suffered were already
covered by workers’ compensation, and the issues related to the amount of
benefits to which the claimants were entitled. Id. at ¶32 (Edwards, J., dissenting).
The Patterson constitutional challenge arose from an award to the dependent of a




                                        10
                                  January Term, 2005




work-relief employee that was much smaller than the amount awarded to a
dependent of a non-work-relief employee for the same injury. Patterson, supra, at
the syllabus. The Nyitray challenge was based upon the disparity between paying
accrued temporary total disability benefits when an employee died of non-work-
related causes yet withholding those benefits when death was due to work-related
causes. Id. at the syllabus. We stated that “conserving funds is not a viable basis
for denying compensation to those entitled to it.” Id., 2 Ohio St.3d at 177, 2 OBR
715, 443 N.E.2d 962. Here, the question is not whether Kimberly McCrone is
entitled to payment of a specific amount of accrued compensation, but whether
she is entitled to coverage at all.
        {¶ 32} “The problems of government are practical ones and may justify, if
they do not require, rough accommodations, — illogical, it may be, and
unscientific.” Metropolis Theater Co. v. Chicago (1913), 228 U.S. 61, 69-70, 33
S.Ct. 441, 57 L.Ed. 730. “A statutory discrimination will not be set aside if any
state of facts reasonably may be conceived to justify it.” McGowan v. Maryland
(1961), 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393; Dandridge v. Williams,
397 U.S. at 485, 90 S.Ct. 1153, 25 L.Ed.2d 491. Our focus of inquiry, therefore,
is whether there exist any reasonable bases for the disputed legislative
classification.
                        Reasons for Classification of Injuries
        {¶ 33} In support of R.C. 4123.01(C)(1), the BWC argues that it is
reasonable to classify psychological and psychiatric conditions differently from
those accompanied by physical injury because it is often difficult to prove the
existence of, as well as the cause of, mental injuries. McCrone relies on Ryan v.
Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379, paragraph one
of the syllabus (workplace injury resulting solely from stress is compensable
under R.C. 4123.01(C)), seeming to suggest that we have rejected all problems of
proof associated with psychological and psychiatric claims. However, she ignores




                                        11
                                 SUPREME COURT OF OHIO




that it was a stress-related physical injury in Ryan that was held compensable. In
mental injury claims, the problem arises of establishing the existence of that
injury itself. Although a physical injury may or may not cause a psychological or
psychiatric condition, it may furnish some proof of a legitimate mental claim.
McCrone also cites Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4
OBR 376, 447 N.E.2d 109, for the proposition that we have rejected problems of
proof.    But Schultz is a tort case, where fear of fraudulent claims was not
considered to be a valid reason to disallow a claim for negligent infliction of
emotional distress when a physical injury was not present. Id. at 133-134, 4 OBR
376, 447 N.E.2d 109. As Schultz was not a workers’ compensation case, its
reasoning is not applicable here.5
         {¶ 34} The BWC also emphasizes the government’s interest in making the
most efficient use of a finite fund. Section 35, Article II of the Ohio Constitution
gives the General Assembly the sole authority to determine coverage and to
define which occupational injuries will be covered. Rambaldo, 65 Ohio St.3d at
288, 603 N.E.2d 975. Applying the rational-basis test to this justification for the
exclusion of psychological or psychiatric conditions, we conclude that the state
has a legitimate interest. It is reasonable to expect government to protect the self-
supporting nature of the Workers’ Compensation Fund, to distribute available
resources so that benefit payments are kept at an adequate level for covered
injuries rather than at an inadequate level for all potential disabilities, and to
maintain a contribution rate not unduly burdensome to participating employers.6



5. The workers’ compensation system, nonetheless, is not the exclusive potential remedy for
mental injuries. This court determined in Bunger v. Lawson Co. (1998), 82 Ohio St.3d 463, 465-
466, 696 N.E.2d 1029, that, because these claims are excluded from workers’ compensation, an
employee can bring a private claim in tort for which the employer does not have immunity.

6. This is the general rationale that has been accepted in the following cases: Wood v. Ohio State
Hwy. Patrol, 156 Ohio App.3d 725, 2004-Ohio-1765, 808 N.E.2d 887; Chrisulis v. U.S.X. Corp.




                                             12
                                   January Term, 2005




        {¶ 35} The BWC thus offers legitimate reasons that relate to the
constitutional purpose underlying the workers’ compensation statute. It cannot be
said that denying workers’ compensation benefits to claimants who simply allege
mental disorders or emotional stress due to their jobs is irrational, particularly
when the requirement of a physical injury enables the state to distribute the
limited resources of the fund to disabilities determined by the state to be covered.
McCrone has not shown that the reasons advanced to support the distinctions
drawn by the General Assembly are invalid.
        {¶ 36} We accept the appellant Bureau of Workers’ Compensation’s
position and hold that R.C. 4123.01(C)(1) does not violate the Equal Protection
Clauses of the United States and Ohio Constitutions by excluding from the
definition of “injury” psychological or psychiatric conditions that do not arise
from a compensable physical injury or occupational disease.
Conclusion
        {¶ 37} Undoubtedly, psychological and psychiatric injuries may arise
from an individual’s employment, and we do not discount their impact on those
who suffer them.        The General Assembly, however, is the branch of state
government charged by the Ohio Constitution to make public policy choices for
the Workers’ Compensation Fund. The legislatively created scheme sets forth a
framework to determine which disabilities will be covered by the compensation
system and which disabilities will not.          Requiring that a mental disorder be
incident to a physical injury or the contraction of an occupational disease is



(June 29, 1994), Lorain App. Nos. 93CA005599 and 93CA005618; Andolsek v. Kirtland (1994),
99 Ohio App.3d 333, 650 N.E.2d 911; Connors v. Sterling Milk Co. (1993), 98 Ohio App.3d 711,
649 N.E.2d 856; Fields v. Youngstown (May 30, 1989), Mahoning App. No. 88 C.A. 89; Neil v.
Mayfield (July 22, 1988), Montgomery App. No. CA 10881; Zaricki v. Laco Die Casting Co. (July
8, 1982), Cuyahoga App. No. 44254.




                                           13
                              SUPREME COURT OF OHIO




rationally related to legitimate governmental interests. As we noted in Bunger,
“[t]he workers’ compensation system was not designed to resolve every dispute
that arises between employers and employees. It was designed to manage the
compensation of individuals who suffer physical injuries or contract occupational
diseases on the job.” Id., 82 Ohio St.3d at 465, 696 N.E.2d 1029. At some point,
the General Assembly may determine that psychological or psychiatric conditions
arising in the workplace are compensable without regard to attendant physical
injury or occupational disease. Until then, however, claims for such conditions
are limited to the extent that R.C. 4123.01(C)(1) provides.
          {¶ 38} Appellee Kimberly McCrone has not met her burden to show that
the state’s reasons for the statutory exclusion are invalid. We therefore reverse
the appellate court’s finding of unconstitutionality, because R.C. 4123.01(C)(1)
rationally advances legitimate governmental interests.
                                                                  Judgment reversed
                                                                and cause remanded.
          MOYER, C.J., LUNDBERG STRATTON, O’CONNOR and O’DONNELL, JJ.,
concur.
          RESNICK and PFEIFER, JJ., dissent.
                                __________________
          LUNDBERG STRATTON, J., concurring.
          {¶ 39} I   agree   with   Justice    Resnick’s   dissenting   opinion   that
psychological injuries can be as real as physical injuries. However, I do not agree
that a court has the authority to conclude that a psychological or psychiatric
condition alone is a compensable workplace injury when the General Assembly’s
definition of “injury” expressly requires a physical component.
          {¶ 40} First, there is no constitutional history to suggest that
psychological injuries were contemplated by the drafters of Section 35, Article II
of the Ohio Constitution at the time that section was written. Therefore, I believe




                                        14
                                January Term, 2005




that it is the role of the General Assembly to determine whether a psychological
or psychiatric condition resulting from workplace trauma should be a
compensable injury or occupational disease for purposes of workers’
compensation. In making that determination, I believe several issues should be
subject to public debate: criteria for diagnosis, the types of conditions to be
included, and how to distinguish the effects of a personal trauma from workplace
trauma.
       {¶ 41} The General Assembly should examine competing views on the
topic, including expert testimony, and set goals, priorities, and standards before a
purely psychological or psychiatric condition is defined as an “injury” for
purposes of workers’ compensation.           Unlike conditions originating from an
organic or chemical cause, trauma-related psychological and psychiatric
conditions are very subjective and require balancing of evidence. Even modern
medicine differs widely over diagnoses as well as treatment.
       {¶ 42} Perhaps a purely psychological or psychiatric condition should be
a compensable injury for purposes of workers’ compensation; however, it is not
mandated under Section 35, Article II of the Ohio Constitution or subject to
coverage under the current workers’ compensation laws. It is a matter for our
General Assembly, and I urge our legislators to consider extending workers’
compensation to these injuries . However, I would not mandate coverage by
judicial fiat. Therefore, I reluctantly concur in the majority’s decision.
       O’CONNOR and O’DONNELL, JJ., concur in the foregoing opinion.
                               __________________
       ALICE ROBIE RESNICK, J., dissenting.
       {¶ 43} Semantics aside, appellee, Kimberly McCrone, was injured in the
course of her employment for Bank One Corporation, and her injury arose out of
that employment. She was injured as a result of a bank robbery that occurred at
her place of employment while she was the teller on duty. Her injury is real and




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disabling, and its existence is supported by competent medical evidence. It is
work-related in every sense of the word, it was accidental in character and result,
and it has prevented appellee from returning to her former position of
employment.     It is not compensable under the Workers’ Compensation Act,
however, because it is psychological or mental in cause and effect, meaning that it
has no “physical component” and was unaccompanied by physical trauma or
damage. And yet this same injury—posttraumatic stress disorder—would be fully
covered under the statute if only the bank robber had been considerate enough of
appellee’s compensation position to have shoved her during the robbery so that
she could stub her toe and acquire the physical element that is deemed so essential
to her right of recovery.
       {¶ 44} Now what kind of rational explanation or legitimate state interest
could possibly justify distinguishing the compensability of one posttraumatic
stress disorder from another under equivalent life-threatening circumstances based
on the fortuity of a stubbed toe? Or consider the situation in which the bank
robber fires a gun at the teller but narrowly misses. Can it really be concluded
with any measure of rationality that there are reasonable grounds for making
compensability of the teller’s posttraumatic stress disorder turn on whether she
had the “good fortune” from a coverage standpoint to have twisted her back or
sprained a finger upon recoiling at the prospect of being shot to death? Does the
injured back or finger under these circumstances, or the stubbed toe in the
previous scenario, really provide such independent verification of the
posttraumatic stress disorder as to be rationally determinative of its
compensability?
       {¶ 45} The answers to these questions are as obvious as the physical-
injury prerequisite to coverage is absurd. Indeed, it is unsatisfactory, to say the
least, that the majority is constrained to fall back on the difficulty-of-
proof/conservation-of-resources rationale in order to justify the denial of coverage




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to an entire class of work-related injuries. Not only are workers’ compensation
claims routinely amended to include psychological injuries resulting from
previously allowed physical injuries, but the time has long since passed when
denying recoveries for “purely psychological” injuries can be excused on grounds
of evidentiary difficulties or illusory claims. We are no longer living in the 19th
century when it was considered impossible to accurately diagnose psychological
injuries.
        {¶ 46} As Professor Larson explains:
        {¶ 47} “[T]here is no really valid distinction between physical and
‘nervous’ injury. Certainly modern medical opinion would support this view, and
insist that it is no longer realistic to draw a line between what is ‘nervous’ and
what is ‘physical.’ It is an old story, in the history of law, to observe legal theory
constantly adapting itself to accommodate new advances and knowledge in
medical theory. Perhaps, in earlier years, when much less was known about
mental and nervous injuries and their relation to ‘physical’ symptoms and
behavior, there was an excuse, on grounds of evidentiary difficulties, for ruling
out recoveries based on such injuries, both in tort and in workmen’s
compensation. But the excuse no longer exists. And therefore a state which
would withhold the benefits of workers’ compensation from a worker who, before
an obvious industrial mishap, was a competent, respected iron-worker [or bank
teller], and after the mishap was totally incapacitated to do the only job he or she
was trained for, would nowadays be doing unjustifiable violence to the intent of
the workers’ compensation act, for reasons that are without support in either
legal or medical theory.” (Emphasis added.) 3 Larson’s Workers’ Compensation
Law (1999) 56-17 to 56-18, Section 56.04[1].
        {¶ 48} In Bunger v. Lawson Co. (1998), 82 Ohio St.3d 463, 696 N.E.2d
1029, Justice Lundberg Stratton explained:




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       {¶ 49} “A psychological injury is as real and may be as devastating as a
physical injury. Mental trauma that results from a robbery where one believes
that one may be injured or killed can be serious and genuinely debilitating. Yet
psychological injuries without accompanying physical injury are specifically
excluded from compensable injuries under the workers’ compensation statutes.”
Id. at 467, 696 N.E.2d 1029 (Lundberg Stratton, J., concurring).
       {¶ 50} But if “[a] psychological injury may exist without a concurrent
physical injury,” as Justice Lundberg Stratton suggested in Bunger, id., the
majority’s current justification for the exclusion, i.e., that “[i]n mental injury
claims, the problem arises of establishing the existence of the injury itself”
(emphasis sic), is implausible. Moreover, the majority’s cost-cutting justification
rings hollow. Since when is reducing governmental costs sufficient to nullify the
basic protections afforded by the Ohio Constitution? Is there a specific dollar
amount of savings that must be realized before ignoring the Equal Protection
Clause is justified?
       {¶ 51} I dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                              __________________
       PFEIFER, J., dissenting.
       {¶ 52} This case demonstrates the failure of Bunger v. Lawson Co.
(1998), 82 Ohio St.3d 463, 696 N.E.2d 1029, to allow a meaningful chance for
recovery for workers psychologically harmed by violent workplace attacks. In
Bunger, a case factually similar to this one, Rachel Bunger had been the victim of
a holdup while working at a Dairy Mart. She sued her employer in common pleas
court for negligence and also sought workers’ compensation benefits for her
psychological injuries. This court held that while Ohio’s workers’ compensation
statutes did not allow recovery for purely psychological injuries, Bunger could
pursue a negligence claim against her employer. We found that R.C. 4123.74’s




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grant of immunity from civil suits could not apply to a type of workplace injury
that is not included in the statutory definition of compensable injuries. Simply, an
employer could not be immune from a civil suit for an injury that was not eligible
for workers’ compensation benefits.
       {¶ 53} Because the case was before us on a Civ.R. 12(B)(6) dismissal and
the plaintiff had pleaded two different causes of action, the Bunger court was able
to resolve the case without having to pass on the constitutionality of Ohio’s
workers compensation law. Although Bunger recognized that a cause of action
for negligence in such situations is available, from a practical standpoint such a
cause of action is not often useful. The real-world truth is that employers can do
only so much to protect their employees from the evil that men do; the fault for
the trauma done to an employee in a robbery case usually lies entirely with the
thug committing the felonious act.       Therefore, a cause of action against an
employer for negligence is usually unwinnable, and accordingly, an employee is
left with no compensation for her very real workplace injury.
       {¶ 54} That result is all the more unacceptable because workers’
compensation benefits are in fact available for psychological injuries. Those
injuries are compensable through workers’ compensation as long as they are
accompanied by a physical injury. R.C. 4123.01(C)(1). The majority writes,
“Although a physical injury may or may not cause a psychological or psychiatric
condition, it may furnish some proof of a legitimate mental claim,” that is, a
physical injury may be proof of a work-related, cognizable triggering event
causing the psychological trauma. The injury tells us that something happened.
A physical injury is merely evidence of the event — it is the triggering event that
is significant. But injuries are not the only possible evidence of traumatic events.
       {¶ 55} If the criminal in this case had given a paper cut to the teller when
handing over his holdup note, would that have made her claims of mental distress
easier to prove?    Certainly not.    There is no rational basis to treat injured




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employees differently when both the physically injured and the nonphysically
injured employees each can identify the genesis of their psychological condition.
A cognizable triggering event, whether resulting in physical injury or not, is the
proper determinant for proof of psychological injury. A professional can evaluate
the injury and the event to determine whether compensation is appropriate.
        {¶ 56} Finding the workers’ compensation statutes unconstitutional as
they relate to workers psychologically harmed by a cognizable triggering event
would not open the floodgates for compensation for all forms of mental distress.
The court’s analysis and holding in this case should focus on the certain type of
psychological injuries alleged here, in Bunger, and in Bailey v. Republic
Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 741 N.E.2d 121 (worker
suffered severe depression as a result of accidentally killing coworker). We are
not dealing in these cases with a person claiming depression because she is bored
with her job and really wants to be an actress. This case, Bunger, and Bailey all
present instances in which the psychological injuries were demonstrably tied to a
specific traumatic, accidental event in the workplace. They do not present the
same issues of proof as “I hate my job”-type depression masquerading as a
workers’ compensation claim. Allowing benefits in this case does not mean
across-the-board compensation for all claims of mental illness. Allowing benefits
in this case allows for equal treatment of people with the same, equally provable
injuries.
        {¶ 57} Accordingly, I would find that R.C. 4123.01(C)(1) violates the
Equal Protection Clauses of the United States and Ohio Constitutions in this case.
                              __________________
        Brian Law Offices, Richard F. Brian, and Steven J. Brian, for appellee.
        Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P.
Carney, Senior Deputy Solicitor, Diane Richards Brey and Franklin E. Crawford,




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Deputy Solicitors, and J. Quinn Dorgan, Assistant Solicitor, for appellant,
Administrator, Bureau of Workers’ Compensation.
       Buckingham, Doolittle & Burroughs, L.L.P., Robert C. Meyer, and Brett
L. Miller, for Bank One Corporation.
       Philip J. Fulton Law Office, Philip J. Fulton, and William A. Thorman III,
urging affirmance for amicus curiae Ohio Academy of Trial Lawyers.
       Stewart Jaffy & Assoc. Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy,
urging affirmance for amicus curiae Ohio AFL-CIO.
                          ______________________




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