[Cite as Coleman v. KBO, Inc., 2018-Ohio-763.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 MICHELE COLEMAN                                  :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 2017-CA-82
                                                  :
 v.                                               :   Trial Court Case No. 17-CV-145
                                                  :
 KBO, INC., et al.                                :   (Civil Appeal from
                                                  :    Common Pleas Court)
         Defendants-Appellees                     :
                                                  :

                                             ...........

                                             OPINION

                            Rendered on the 2nd day of March, 2018.

                                             ...........

MICHAEL J. MULDOON, Atty. Reg. No. 0034007, 1375 Dublin Road, Columbus, Ohio
43215
      Attorney for Plaintiff-Appellant

BRIAN C. THOMAS, Atty. Reg. No. 0074043, 312 Walnut Street, Suite 1800, Cincinnati,
Ohio 45202
      Attorney for Defendants-Appellees

                                            .............
                                                                                         -2-


FROELICH, J.

       {¶ 1} Michele Coleman appeals from a judgment of the Clark County Court of

Common Pleas, which entered summary judgment in favor of KBO Inc., d.b.a.

Klosterman’s Bakery, finding that there was no genuine issue of material fact that

Coleman was ineligible for workers’ compensation for a psychiatric condition diagnosed

five years after a workplace injury. For the following reasons, the judgment of the trial

court will be reversed, and the matter will be remanded for further proceedings.

       {¶ 2} The underlying facts are undisputed. In September 2009, Coleman was

involved in an accident at her workplace, KBO, as a result of which she sustained physical

injury to her right wrist. Her claim for workers’ compensation with respect to this injury

(a sprain) was allowed, and her claim was amended to include right wrist synovitis and

ulnocarpal abutment syndrome in 2010 and 2012, respectively. Coleman had surgeries

as a result of these conditions in June 2010 and April 2013.

       {¶ 3} In January 2015, Coleman sought workers’ compensation for an additional

condition of “major depression, single episode, non-psychotic, moderate” (hereinafter,

“depression”), which she related to the same injury. A district hearing officer of the

Industrial Commission of Ohio denied the addition of this condition, and a staff hearing

officer affirmed the district hearing officer’s decision. Coleman appealed to the Industrial

Commission, which refused her appeal without a hearing.

       {¶ 4} On March 7, 2017, Coleman appealed to the Clark County Court of

Common Pleas, in the form of a complaint, pursuant to R.C. 4123.512.          KBO and the

Bureau of Workers’ Compensation filed answers. KBO served Coleman with a set of

requests for admissions, and Coleman’s admissions were filed with the court. These
                                                                                         -3-


admissions evinced a lack of treatment for and Coleman’s failure to report symptoms of

depression between 2009 and 2014.

       {¶ 5} On July 21, 2017, KBO filed a motion for summary judgment on Coleman’s

claim that she was entitled to workers’ compensation for the additional claim of

depression. KBO asserted that there was no genuine issue of material fact whether

Coleman’s depression arose from her previously-allowed physical conditions, and

therefore that KBO was entitled to judgment as a matter of law. Coleman opposed the

motion for summary judgment, relying on a psychologist’s affidavit which stated that her

depression “was directly caused by her workers’ compensation injury” in 2009.

       {¶ 6} On August 22, 2017, the trial court granted KBO’s motion for summary

judgment. The trial court concluded that, due to the five years between the physical

injury and the diagnosis of a psychiatric condition and to Coleman’s assertions that she

was not suffering from depression during the intervening period, reasonable minds could

only conclude that the psychiatric condition did not arise from the physical injury. The

trial court further found that Coleman’s expert’s affidavit attesting to a causal connection

did not create a genuine issue of material fact, because it was “self-serving” and

contradicted Coleman’s prior “testimony” that she was not depressed.

       {¶ 7} Coleman appeals, raising one assignment of error.

       Summary Judgment Standard

       {¶ 8} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
                                                                                         -4-

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

       {¶ 9} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is

a genuine issue of material fact for trial.     Id.   Throughout, the evidence must be

construed in favor of the nonmoving party. Id.

       {¶ 10} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.

De novo review means that this court uses the same standard that the trial court should

have used, and we examine the evidence, without deference to the trial court, to

determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,

2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

       Compensability of Mental Condition Under Workers’ Compensation

       {¶ 11} The purpose of Ohio’s workers’ compensation system is to provide

compensation to employees and their families for injuries or death that occur while on the

job. Section 35, Article II, Constitution; Schramm v. Appleton Papers, Inc., 162 Ohio

App.3d 270, 2005-Ohio-3663, 833 N.E.2d 336, ¶ 21 (2d Dist.); Lynch v. Mayfield, 69 Ohio
                                                                                        -5-


App.3d 229, 233, 590 N.E.2d 351 (2d Dist.1990).              For purposes of workers’

compensation, an “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.”       R.C. 4123.01(C).     Both the “received in the

course of” and the “arising out of” components in this formula must be satisfied, and the

statute must be liberally construed in favor of awarding benefits. Fisher v. Mayfield, 49

Ohio St.3d 275, 277-278, 551 N.E.2d 1271 (1990); R.C. 4123.95.

      {¶ 12} Psychiatric conditions are excluded from the general definition of “injury,”

“except where the claimant’s psychiatric conditions have arisen from an injury or

occupational disease sustained by that claimant.” R.C. 4123.01(C)(1); Armstrong v.

John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237, 990 N.E.2d 568, ¶ 10. To

be compensable, a psychiatric condition must have been started by and therefore result

from a physical injury or occupational disease the claimant suffered, and there must be a

causal connection between a claimant’s physical injury and the claimant’s mental

condition. Armstrong at ¶ 17.

      Analysis

      {¶ 13} In support of its motion for summary judgment, KBO argued that Coleman’s

depression did not “arise from” the 2009 injury. KBO did not submit its own expert or

similar evidentiary materials; rather, it relied on Coleman’s admissions and the fact that

more than five years had passed between Coleman’s physical injury and her claim related

to depression. In her admissions, Coleman stated that: 1) prior to January 2015, she

received no psychiatric treatment or psychotropic medications and had not been

hospitalized for any psychiatric condition; 2) in 2009, 2010, 2011, 2012, 2013, and 2014,
                                                                                         -6-


no medical professional had diagnosed her with depression because of her wrist injuries;

3) she completed patient medical histories in August 2013, September 2013, and

December 2013 in which she marked a box “No” regarding depression; 4) the first medical

professional to diagnose her with “major depression” was Dr. Michael Glenn Drown,

Ph.D., in January 2015.       Coleman also admitted that the Industrial Commission

terminated her entitlement to temporary total disability benefits in January 2014.

       {¶ 14} In her Motion Contra KBO’s Request for Summary Judgment, Coleman

relied on an affidavit from Dr. Drown in which he stated that, in his professional opinion,

“she was suffering from a diagnosis of major depression, single episode, non-psychotic,

moderate” and that this psychological diagnosis “was directly caused by her workers’

compensation injury which occurred on September 30, 2009” while she was employed

with KBO. Dr. Drown attached to his affidavit a copy of his “Psychological Evaluation,”

other reports and “diagnostic evidence,” and a letter detailing specific criticisms of KBO’s

expert’s methodology and conclusion that Coleman did not “have a psychological

diagnosis that could possibly be work related.”1

       {¶ 15} KBO argues that, because Coleman did not report and, in fact, expressly

disclaimed any depression from the time of her wrist injury in 2009 through 2014, there

was no genuine issue of material fact that her “2009 industrial injury did not start her

psychiatric condition.” In its motion, KBO relied on Armstrong, 136 Ohio St.3d 58, 2013-

Ohio-2237, 990 N.E.2d 568, ¶ 10, in support of its position.



1
  According to Coleman’s brief, Dr. Michael Murphy, KBO’s expert, opined in the
administrative proceedings that Coleman’s psychological condition was not related to
her work injury, but Dr. Murphy’s opinion was not presented in support of KBO’s motion
for summary judgment.
                                                                                           -7-

       {¶ 16}   In Armstrong, the claimant sought workers’ compensation for a psychiatric

injury (post-traumatic stress disorder) after he witnessed a fatality in a traffic accident in

the course of his employment, as well as for physical injuries that he suffered in the same

accident. The claim for his physical injuries was allowed, but the claim for PTSD was

not, and the denial of benefits for PTSD was appealed to the court of common pleas.

The experts for both parties agreed that Armstrong experienced PTSD, but they

disagreed about whether his physical injuries were causal factors in the development of

PTSD. The employer’s expert testified that the PTSD “was caused by witnessing the

accident and ‘the mental observation of the severity of the injury [to another driver], the

fatality, [and] the fact that it could have been life-threatening’ ” to Armstrong. After a

bench trial, the court credited the employer’s expert’s testimony in concluding that the

PTSD did not arise from Armstrong’s physical injuries, but rather from his observations of

the accident and its injuries to others.

       {¶ 17}   The court of appeals and the supreme court affirmed. In affirming the

denial of Armstrong’s benefits for PTSD, the supreme court held that Armstrong’s mental

condition had not “arisen from an injury * * * sustained by th[e] claimant,” as required by

R.C. 4123.01(C)(1), and that there was no causal connection between his physical injury

and his mental condition. The court declined to adopt a more expansive definition of

“injury” that “embraced[d] the entire episode or accident giving rise to a claimant’s

physical injuries,” as Armstrong had urged. In this context, the supreme court stated that

“to be compensable, a psychiatric condition must have been started by and therefore

result from a physical injury or occupational disease the claimant suffered.” (Emphasis

added.) Id. at ¶ 17, quoting the court of appeals decision in the same case, 2d Dist.
                                                                                           -8-


Clark No. 2011-CA-6, 2011-Ohio-6708, ¶ 35.

       {¶ 18} KBO relied on the language in Armstrong that the psychological injury

“must have been started by * * * the physical injury” in support of its argument that too

much time had elapsed between Coleman’s physical injury and her depression to

conclude that there was a causal connection.         We disagree with this interpretation.

Armstrong holds that there must be a causal connection between the physical and

psychological injuries in order to obtain workers’ compensation for the psychological

injury, but it does not discuss or in any way suggest that the psychological injury must

occur contemporaneously with or within a certain period of time of the physical injury to

be compensable. Of course, the passage of time is one factor to be considered in

factually determining whether a causal connection has been established, and may make

it more difficult for the claimant to establish such a connection. But Armstrong does not

stand for the proposition that the absence of a psychological injury at the time of the

physical injury, or sooner thereafter, is determinative.

       {¶ 19} KBO also cites in its brief two cases in which a substantial amount of time

had passed between the physical injury and the claimed psychological injury, and no

causal connection between the physical and psychological injury was found.

       {¶ 20} In Hippely v. Lincoln Elec. Holdings, Inc., 8th Dist. Cuyahoga No. 96439,

2011-Ohio-5274, the claimant was injured in 2001 in a physically demanding job. He

refused a recommended surgery out of concern about the risks and side effects and, in

light of his physical limitations, was eventually given a job in the employer’s cafeteria.

He worked in the cafeteria for six years, but he stated that he “hated” it, found it

“degrading,” and felt “worthless”; he was eventually awarded temporary total disability.
                                                                                       -9-


      {¶ 21} In 2009, almost eight years after the physical injury, Hippely sought

workers’ compensation for “major depressive disorder.” At trial, the parties presented

conflicting expert opinions as to the cause of Hippely’s depression. Hippely’s expert

found that the 2001 injury was the cause, along with Hippely’s loss of employment. Id.

at ¶ 12. The employer’s expert attributed Hippely’s depression to his loss of work, his

continuing unemployment, his negative feelings about how his employment had ended,

and the death of his father around the time he stopped working; he found no causal

relationship to the injury and opined that, if there were a connection, he would have

expected the depression to manifest itself closer to the time of the injury. Id. at ¶ 13.

The jury found in favor of the employer, and Hippely’s motions for judgment

notwithstanding the verdict and for a new trial were denied. The Eighth District Court of

Appeals affirmed on appeal.

      {¶ 22} In Phipps v. Internatl. Paper Co., 12th Dist. Clinton No. CA2013-02-003,

2013-Ohio-3994, the claimant, Phipps, was injured in a slip-and-fall accident at work in

1984; workers’ compensation was allowed for numerous conditions, and she underwent

several surgeries as a result of the fall, including a knee replacement in 2010. In 2011,

she applied for workers’ compensation for a depressive disorder, diagnosed in 2010,

which she and her expert believed was caused by her physical injury in 1984.   However,

at trial, the employer’s expert stated his conclusions that Phipps was “strongly disposed

to depression” based on her “childhood and family history,” which included dropping out

of school in 10th grade, becoming pregnant at age 16, marrying as a teen, and two close

relatives who had died by suicide. Id. at ¶ 17. The jury found that Phipps was not

entitled to workers’ compensation for her depression, and the trial court overruled her
                                                                                      -10-


motion for judgment notwithstanding the verdict. The Twelfth District affirmed on appeal.

      {¶ 23} Unlike Armstrong, the claimants in Hippely and Phipps alleged a provable

direct connection between their physical injuries and their subsequent psychological

conditions. But all of these cases emphasize the need to establish a causal connection

between a physical injury and an alleged psychological injury. However, these cases

are distinguishable from Coleman’s case in that they were decided at trial and not on

summary judgment. They do not stand for the proposition that, as a matter of law,

“psychological conditions [are] not proximately caused by workplace injuries when the

psychological conditions [are] diagnosed years after the accident,” as KBO’s brief seems

to suggest.

      {¶ 24} In Coleman’s case, Dr. Drown stated by affidavit that, in his opinion,

Coleman’s depression “was directly caused by her workers’ compensation injury” in 2009.

KBO argued that Coleman’s admissions that she had not experienced depression in the

several years following her injury undercut her assertion that there was a causal

connection. But Coleman need not have continuously experienced depression from the

time of her physical injury to establish that the depression she experienced in 2015 was

caused by the injury. Notwithstanding that Coleman acknowledged that she had denied

being depressed in 2009 through 2014, Dr. Drown’s affidavit created a genuine issue of

material fact as to whether her depression in 2015 was caused by her injury. As such,

summary judgment was not appropriate. Accord Hoelscher v. KBO, Inc., 2d Dist. Clark

No. 2017-CA-25, 2017-Ohio-5756, ¶ 8 (where experts disagree about cause of

employee’s psychological conditions, and claimant’s expert connects those conditions to

a workplace injury, eligibility for workers' compensation may not be resolved by summary
                                                                                           -11-


judgment).

       {¶ 25} Moreover, the trial court improperly concluded that it could not consider Dr.

Drown’s affidavit, because the affidavit “contradicted” Coleman’s “former deposition

testimony” without sufficient explanation, in an effort to defeat summary judgment. The

trial court did not cite any authority for this position, but Byrd v. Smith, 110 Ohio St.3d 24,

2006-Ohio-3455, 850 N.E.2d 47, is instructive.

       {¶ 26} In Byrd, the supreme court considered a certified question regarding the

effect of a party’s conflicting statements by affidavit and deposition when ruling on a

motion for summary judgment. Byrd, who had been injured in a car accident while driving

his employer’s vehicle, sought coverage under his employer’s uninsured/underinsured

motorist policy. In a 2001 deposition, Byrd stated that he had been on a personal errand

to his father-in-law’s home at the time of the accident.        Id. at ¶ 14. But when the

employer filed a motion for summary judgment, in which it relied on the fact that Byrd was

not within the scope of his employment at the time of the accident, Byrd attached an

affidavit to his motion contra in which he contradicted his deposition testimony. Byrd’s

affidavit stated that “while he was employed by [the company], he wore a pager, he

received and responded to pages both during and outside ‘normal’ working hours, he

drove a truck with a sign that stated that [the company] was available for 24-hour service,

and, as long as he was driving a company vehicle with such signage, he considered that

he ‘was working and advertising for [the company].’ ” Id. at ¶ 5.

       {¶ 27}   The supreme court considered whether “it is proper for courts to disregard

an affidavit inconsistent with or contradictory to prior deposition testimony when ruling on

a motion for summary judgment.” Id. at ¶ 8. In resolving this issue, the court reiterated
                                                                                          -12-

its holding in Turner v. Turner, 67 Ohio St.3d 337, 617 N.E.2d 1123 (1993), that a moving

party’s contradictory affidavit may not be used to obtain summary judgment; “[w]hen a

litigant’s affidavit in support of his or her motion for summary judgment is inconsistent with

his or her earlier deposition testimony, summary judgment in that party’s favor is improper

because there exists a question of credibility which can be resolved only by the trier of

fact.” Byrd at ¶ 22, citing Turner, paragraph one of the syllabus.

       {¶ 28} The court noted, however, that with respect to evidence offered by a non-

moving party, the analysis “is a bit different,” and the court “must look to any explanation

for the inconsistency.” Id. at ¶ 27. This is because, unlike the moving party, the non-

moving party “receives the benefit of all favorable inferences when evidence is reviewed

for the existence of genuine issues of material facts.” Id. at ¶ 25, citing Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). See also Pettiford v.

Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, 934 N.E.2d 913 (holding that an expert

witness’s statement in opposition to summary judgment that contradicts that expert’s

former deposition testimony does not create a genuine issue of material fact unless the

expert sufficiently explains the contradiction).

       {¶ 29} In Coleman’s case, the trial court misapplied this rule in two respects in

concluding that it could not consider Dr. Drown’s affidavit. First, the rule set forth in

Turner, Byrd and Pettiford applies to contradictory sworn statements made by the same

person, and Dr. Drown did not make any self-contradictory statements.                Further,

because Dr. Drown was not a party to the case, the trial court also erred in concluding

that his statements were “self serving.”

       {¶ 30} Moreover, although not directly relevant to the question of the trial court’s
                                                                                       -13-


consideration of Dr. Drown’s affidavit for purposes of summary judgment, we also note

that Dr. Drown’s affidavit did not, in fact, contradict Coleman’s statements. Dr. Drown’s

opinion related to Coleman’s condition in 2015, and Coleman’s statements related to

whether she had received treatment for, been diagnosed with, or reported symptoms of

depression in prior years.

       {¶ 31} In granting the motion for summary judgment, the trial court also

concluded, based on the passage of five years and without further elaboration on its

reasoning, that reasonable minds could not conclude that Coleman’s 2015 condition

arose from the 2009 injury. This finding implies the existence of a bright-line rule as to

the time for filing claims for psychological injuries, when no such rule exists.      For

example, Hippely and Phipps, discussed above, each involved the passage of more time

than in this case before the claim for psychological injury was asserted, and those claims

did not fail as a matter of law due to the passage of time.

       {¶ 32} On the record before us, the trial court erred in finding that there was no

genuine issue of material fact as to whether Coleman’s psychological condition in 2015

was causally related to her prior physical injury in the workplace and in granting summary

judgment in favor of KBO.

       {¶ 33} The assignment of error is sustained.

       {¶ 34} The judgment of the trial court will be reversed, and the matter will be

remanded for further proceedings.

                                     .............

WELBAUM, P. J. and DONOVAN, J., concur.
                            -14-




Copies mailed to:

Michael J. Muldoon
Brian C. Thomas
Lisa Miller
Hon. Douglas M. Rastatter
