[Cite as Haas v. Univ. of Toledo Med. Ctr., 2013-Ohio-3636.]



                                                        Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us

KELLY HAAS

       Plaintiff

       v.

UNIVERSITY OF TOLEDO MEDICAL CENTER

       Defendant

Case No. 2010-11005

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On February 13, 2013, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On March 4, 2013, plaintiff filed a response. On March 12,
2013, defendant filed a reply and a motion for leave to file the same. Defendant’s
motion for leave is GRANTED and the motion for summary judgment is now before the
court on a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2010-11005                         -2-                                    ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶ 4} Plaintiff’s claims arise from an incident in which Michael A. Rees, M.D., a
surgeon, struck plaintiff, a surgical technician, with his foot during a surgery at the
defendant hospital on June 6, 2009.         Following an evidentiary hearing, the court
determined that “Dr. Rees intentionally kicked plaintiff to gratify personal feelings of
animosity or resentment arising out of plaintiff taking her scheduled break.”
Accordingly, the court found that Dr. Rees acted outside the scope of his employment
and that he was therefore not entitled to civil immunity pursuant to R.C. 2743.02(F) and
9.86.
        {¶ 5} Defendant contends that defendant is immune from liability and that
plaintiff’s claims are compensable only through workers’ compensation pursuant to R.C.
4123.74, which provides, in pertinent part: “Employers who comply with section 4123.35
of the Revised Code shall not be liable to respond in damages at common law or by
statute for any injury, or occupational disease, or bodily condition, received or
contracted by any employee in the course of or arising out of his employment * * *.”
        {¶ 6} R.C. 4123.01 provides, in pertinent part:
        {¶ 7} “(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. ‘Injury’ does not include:
        {¶ 8} “(1) Psychiatric conditions except where the claimant's psychiatric
conditions have arisen from an injury or occupational disease.”
        {¶ 9} Defendant argues that both plaintiff’s physical and emotional injuries arise
out of the assault, thereby barring this action pursuant to R.C. 4123.74.           Plaintiff
contends that, in addition to her physical injuries, she suffered psychological injuries as
a result of defendant’s actions after the assault by Dr. Rees.        Specifically, plaintiff
alleges that, after the incident, she began to feel unsafe at work. Plaintiff argues that
Case No. 2010-11005                        -3-                                   ENTRY

psychological injuries, such as those suffered as a result of being subjected to sexual
harassment, are not within the definition of injury in R.C. 4123.01, citing Kerans v.
Porter Paint Co., 61 Ohio St.3d 486 (1991). In Kerans, the Supreme Court of Ohio held
that an employee who suffers a purely psychological injury in the course of her
employment may pursue a statutory or common law remedy based upon the concern
that employees with purely psychological injuries would end up with minimal provable
economic damages if such claims were pursued through the workers’ compensation
program. Id. at 489.
      {¶ 10} However, the Tenth District Court of Appeals distinguished claims
involving purely psychological injuries, such as in Kerans, with those that were related
to a physical injury. Harrison v. Franklin Co. Sheriff’s Dept., 10th Dist. No. 00AP-240
(Dec. 12, 2000). The court of appeals noted that the psychological injures in Kerans
“were not connected to a physical injury and therefore there was no possible relief
available under the workers' compensation statutes even though the origin of
psychological claims were acts that occurred in the course of employment.” Id.
      {¶ 11} The plaintiff in Harrison was a deputy sheriff who was attacked and
overpowered by a prisoner, who then escaped. The plaintiff in Harrison claimed she
suffered physical and psychological injuries, including “distinct psychological injury due
to the fact that her gun, taken in the attack, was used to kill [another victim] later that
day.” Id. The court of appeals found that although Harrison’s psychological injuries
manifested after the attack, her injuries “were all a direct consequence of the attack on
her,” and consequently, her injuries were compensable through the workers’
compensation program. Id. The court further noted that “[p]sychological injuries often
arise later; yet, if related to the work-connected injury, they are compensable. To hold
otherwise would mean that, in many instances, there would be no recovery under
workers' compensation, and no alternate source of recovery.” Id.
      {¶ 12} Although plaintiff states in her affidavit that she was advised by agents of
defendant’s “billing department” that she was ineligible for workers’ compensation
Case No. 2010-11005                        -4-                                    ENTRY

benefits, plaintiff’s deposition testimony is inconsistent with that assertion.    Plaintiff
testified in her deposition that both her insurance company and a union representative
mentioned the need to file a workers’ compensation claim. Furthermore, “it is well
settled that, as a general rule, equitable estoppel is not applied against a state or its
agencies in the exercise of a governmental function.” Melick v. Admin. Servs., 10th
Dist. No. 04AP-821, 2005-Ohio-1850, ¶ 31, quoting State ex rel. Shumway v. State
Teachers Retirement Bd., 114 Ohio App.3d 280, 289 (1996).
       {¶ 13} In this case, the evidence shows that both plaintiff’s physical and
psychological injuries were a direct consequence of the assault by Dr. Rees. Therefore,
construing the facts most strongly in plaintiff’s favor, the court finds that there is no
genuine issue as to any material fact and that defendant is entitled to summary
judgment as a matter of law.
       {¶ 14} Accordingly, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant.         All previously scheduled events are
VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge

cc:


Anne B. Strait                                Scott D. Perlmuter
Assistant Attorney General                    William J. Novak
150 East Gay Street, 18th Floor               Tower City Center
Columbus, Ohio 43215-3130                     Skylight Office Tower
                                              1660 West Second Street, Suite 950
                                              Cleveland, Ohio 44113-1498
Case No. 2010-11005                -5-   ENTRY


004
Filed April 12, 2013
To S.C. Reporter August 22, 2013
