[Cite as Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237.]




          ARMSTRONG, APPELLANT, v. JOHN R. JURGENSEN COMPANY ET AL.,
                                      APPELLEES.
        [Cite as Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58,
                                   2013-Ohio-2237.]
Workers’ compensation—R.C. 4123.01(C)(1)—PTSD—No compensable physical
        injury—Judgment denying benefits affirmed.
     (No. 2012-0244—Submitted January 23, 2013—Decided June 4, 2013.)
                APPEAL from the Court of Appeals for Clark County,
                          No. 2011-CA-6, 2011-Ohio-6708.
                               ____________________
        FRENCH, J.
        {¶ 1} In this appeal, we consider whether, for a mental condition to be
compensable under the Ohio workers’ compensation system, a compensable
physical injury sustained by the claimant must cause the mental condition. We
hold that it must.
                             Facts and Procedural History
        {¶ 2} On August 27, 2009, appellant, Shaun Armstrong, was involved in
a motor-vehicle accident while operating a one-ton dump truck within the course
of his employment by appellee John R. Jurgensen Company. While stopped at a
yield sign on an access ramp to I-70 east, Armstrong observed a vehicle
approaching from behind with increasing speed.                Armstrong braced for a
collision, afraid he was going to be seriously injured. The approaching vehicle
struck the dump truck from behind, pushed it forward, and came to rest “basically
underneath” the dump truck.
        {¶ 3} After the collision, Armstrong was in shock and did not know the
extent of his injuries. Looking in his mirror, Armstrong saw the other driver with
                            SUPREME COURT OF OHIO




his head down and observed fluid leaking from the vehicles. Armstrong exited
the dump truck, afraid the vehicles would catch fire, and called 9-1-1. Armstrong
then noticed that the other driver was not moving and that blood was coming from
his nose; he suspected the driver was dead.        After being transported to the
emergency room, Armstrong was treated for physical injuries and released. He
was distressed to learn, while in the emergency room, that the other driver had, in
fact, died.
        {¶ 4} Armstrong filed a workers’ compensation claim for his physical
injuries, and his claim was allowed for cervical strain, thoracic strain, and lumbar
strain. He subsequently requested an additional allowance for posttraumatic-
stress disorder (“PTSD”). An Industrial Commission staff hearing officer allowed
Armstrong’s additional claim, finding his PTSD compensable because it was
causally related to his industrial injury and his previously recognized conditions.
Jurgensen appealed to the Industrial Commission, which refused the
administrative appeal.
        {¶ 5} After the Industrial Commission refused Jurgensen’s administrative
appeal, Jurgensen appealed to the Clark County Court of Common Pleas pursuant
to R.C. 4123.512. The parties stipulated that Armstrong suffers from PTSD, and
the trial court conducted a bench trial to determine Armstrong’s right to workers’
compensation benefits for that condition.
        {¶ 6} Both Armstrong and Jurgensen presented expert testimony
regarding the cause of Armstrong’s PTSD. Armstrong presented the videotaped
deposition testimony of Jennifer J. Stoeckel, Ph.D., who evaluated Armstrong and
diagnosed his PTSD. Dr. Stoeckel testified that Armstrong developed PTSD as a
result of the accident and that his physical injuries contributed to and were causal
factors in his development of PTSD. Jurgensen, on the other hand, presented the
testimony of William L. Howard, Ph.D., who agreed with Dr. Stoeckel that
Armstrong suffered from PTSD as a result of the accident, but opined that



                                         2
                                January Term, 2013




Armstrong’s physical injuries did not cause his PTSD. Dr. Howard testified that
the PTSD was caused by witnessing the accident and “the mental observation of
the severity of the injury, the fatality, [and] the fact that it could have been life-
threatening to him at some point.” Dr. Howard believed that Armstrong would
have developed PTSD even without his physical injuries.
       {¶ 7} The trial court held that Armstrong’s PTSD was not compensable,
because it did not arise from his physical injuries. The Second District Court of
Appeals affirmed, holding that the applicable statutory definition of “injury”
includes psychiatric conditions only when they arise from a compensable physical
injury. The court of appeals further determined that competent, credible evidence
supported the trial court’s factual finding that Armstrong’s PTSD did not arise
from his physical injuries. 2011-Ohio-6708, 2011 WL 6884238, ¶ 39 (2d Dist.).
                                Question Presented
       {¶ 8} The question before us is whether R.C. 4123.01(C)(1) limits
workers’ compensation coverage for psychiatric conditions to those conditions
caused by the claimant’s compensable physical injury.
                                      Analysis
       {¶ 9}    The Ohio Constitution, Article II, Section 35 vests in the General
Assembly the right to establish a workers’ compensation system for the purpose
of providing workers and their dependents with compensation for death, injuries,
and occupational disease occasioned in the course of employment. Article II,
Section 35 “gives the General Assembly the sole authority to determine [workers’
compensation] coverage and to define which occupational injuries will be
covered.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505,
839 N.E.2d 1, ¶ 34, citing Rambaldo v. Accurate Die Casting, 65 Ohio St.3d 281,
288, 603 N.E.2d 975 (1992).
       {¶ 10} Aside from certain statutory exceptions, R.C. 4123.54(A)
provides that every employee who is injured or contracts an occupational disease




                                          3
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is entitled to receive compensation for loss sustained on account of the injury or
occupational disease. R.C. 4123.01(C) defines “injury” for purposes of workers’
compensation: “ ‘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.” 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).
       {¶ 11} This case presents an issue of statutory construction, centering on
whether Armstrong’s PTSD qualifies as an “injury” under R.C. 4123.01(C)(1).
Specifically, we must determine what nexus is required between a psychiatric
condition and a compensable physical injury for the psychiatric condition to
qualify as a compensable injury. Jurgensen maintains that R.C. 4123.01(C)(1)
requires a direct and proximate causal relationship between the physical injury
and the mental condition, but Armstrong maintains that Ohio courts have always
allowed compensation for mental conditions that arise contemporaneously with
physical injury, regardless of a causal relationship between the two. The Ohio
Association for Justice (“OAJ”), as amicus curiae, has filed a brief in support of
Armstrong’s position.
       {¶ 12} A court’s paramount concern in construing a statute is legislative
intent. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-
Ohio-4384, 833 N.E.2d 274, ¶ 21, citing State ex rel. Steele v. Morrissey, 103
Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. To discern legislative
intent, we first consider the statutory language, reading the words and phrases in
context, according to rules of grammar and common usage. R.C. 1.42; State ex
rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-
Ohio-5362, 840 N.E.2d 582, ¶ 40. The court may not delete or insert words, but
must give effect to the words the General Assembly has chosen.          Bailey v.



                                        4
                               January Term, 2013




Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 39-40, 741 N.E.2d 121
(2001). When a statute is unambiguous, a court must apply it as written. Id. at
40.
       {¶ 13} R.C. 4123.95 prescribes that the provisions of R.C. Chapter 4123
“shall be liberally construed in favor of employees.” R.C. 4123.95 does not,
however, license alteration of unambiguous statutory language.          Kilgore v.
Chrysler Corp., 92 Ohio St.3d 184, 189, 749 N.E.2d 267 (2001) (Moyer, C.J.,
dissenting) (“R.C. 4123.95 does not authorize this court to effectively rewrite the
statutory system in favor of claimants and their lawyers to assure them favorable
results”); Gleich v. J.C. Penney Co., Inc., 10th Dist. No. 85AP-276, 1985 WL
10104, *2 (Aug. 8, 1985). The language of R.C. 4123.01(C) is unambiguous, and
we must apply it as written. We will not rewrite the statute under the guise of
liberal construction.
       {¶ 14} Pursuant to the plain language of R.C. 4123.01(C)(1), a claimant
must sustain physical injury or occupational disease as a prerequisite to
recovering workers’ compensation benefits for a mental condition. A psychiatric
condition is not a workers’ compensation injury except when the condition has
“arisen from an injury or occupational disease sustained by that claimant.” R.C.
4123.01(C)(1).    R.C. 4123.01(C)(1) “explicitly codified that ‘mental-mental’
claims—psychiatric conditions arising solely from job-related emotional stress—
were not compensable under the system.” Bailey at 44 (Cook, J., dissenting); see
also Rambaldo, 65 Ohio St.3d at 283, 603 N.E.2d 975 (“No Ohio appellate court
has ever recognized a workers’ compensation claim for mental injury or mental
disease caused solely by job-related stress which is unaccompanied by physical
injury or occupational disease”).
       {¶ 15} Armstrong and OAJ urge this court to adopt a reading of the term
“injury” that embraces the entire episode or accident giving rise to a claimant’s
physical injuries. We decline to do so. R.C. 4123.01(C), in its entirety, sets forth




                                         5
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a comprehensive definition of “injury” for purposes of workers’ compensation.
We must read the term “injury” in the R.C. 4123.01(C)(1) exception as consistent
with the general definition in R.C. 4123.01(C), which focuses on the resulting
harm, not on the cause or means underlying the harm.
       {¶ 16} R.C. 4123.01(C) requires that an injury be “received in the course
of, and arising out of, the injured employee’s employment.” The phrase “in the
course of” relates to the time, place, and circumstances of an injury, and “arising
out of” contemplates a causal connection between the injury and the employment.
Fisher v. Mayfield, 49 Ohio St.3d 275, 277-278, 551 N.E.2d 1271 (1990). The
“injury,” however, is distinct from those considerations. While the cause and
underlying circumstances are relevant to the question of compensability, once the
prerequisites to coverage are met, it is the resultant harm that constitutes the
“injury” received or sustained by the claimant, and it is from that harm that the
claimant’s psychiatric condition must arise.
       {¶ 17} Beyond requiring physical injury or occupational disease, R.C.
4123.01(C)(1) also defines the required nexus between the physical injury or
occupational disease and a corresponding mental condition. As relevant here, to
be compensable, the mental condition must have “arisen from an injury * * *
sustained by th[e] claimant.” (Emphasis added.) R.C. 4123.01(C)(1). “Arisen
from,” as used in R.C. 4123.01(C)(1), contemplates a causal connection between
the mental condition and the claimant’s compensable physical injury. “Arise”
means “to originate from a specified source[;] to come into being[;] to become
operative.” Webster’s Third New International Dictionary 117 (1986). “From” is
“a function word to indicate a starting point: * * * [or] to indicate the source or
original or moving force of something as * * * the source, cause, means, or
ultimate agent of an action or condition.” Id. at 913. Based on the language of
R.C. 4123.01(C)(1), the court of appeals held that “[t]o be compensable, a
psychiatric condition must have been started by and therefore result from a



                                         6
                               January Term, 2013




physical injury or occupational disease the claimant suffered.” 2011-Ohio-6708,
2011 WL 6884238, at ¶ 35. We agree, reading these terms together in context,
that the statute requires a causal connection between a claimant’s physical injury
and the claimant’s mental condition.
       {¶ 18} The phrase “arisen from” in R.C. 4123.01(C)(1) parallels the
language in R.C. 4123.01(C), which states that “injury” includes any injury
“received in the course of, and arising out of, the injured employee's
employment.”     (Emphasis added.)      “[A]rising out of” contemplates a causal
connection between the injury and the employment.             Fisher at 277-278.
Armstrong would have us construe the analogous language in R.C. 4123.01(C)(1)
as devoid of a similar causative element, thus setting a broad standard requiring
only temporal proximity.     We discern no basis for distinction and will not
overlook the well-established construction of the phrase “arising out of” as
relating to causation. The plain language of R.C. 4123.01(C) and (C)(1) requires
that to constitute a compensable injury for purposes of workers’ compensation, a
psychiatric condition must be causally related to the claimant’s compensable
physical injury. Accordingly, the statute must be applied as written.
       {¶ 19} Despite the plain statutory text, Armstrong maintains that Ohio
courts have concluded that under R.C. 4123.01(C)(1), psychiatric or
psychological   conditions    with     contemporaneous    physical      injuries   are
compensable,    while    psychiatric    or   psychological    conditions      without
contemporaneous physical injuries are not.         Armstrong relies heavily on
McCrone, 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, which addressed
limitations on workers’ compensation coverage for mental conditions in the
context of an equal-protection challenge to R.C. 4123.01(C)(1).
       {¶ 20} The McCrone claimant applied for workers’ compensation for
PTSD, which she developed after two robberies of the bank where she worked as
a teller. The claimant suffered no physical injuries in the robberies, and, as a




                                         7
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result, the Bureau of Workers’ Compensation (“BWC”) denied her application for
benefits. On appeal, the claimant argued that R.C. 4123.01(C)(1) violated the
Equal Protection Clauses of the United States and Ohio Constitutions.
       {¶ 21} Tracking      the   statutory   language,    this   court   held   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.”
McCrone at ¶ 18 and paragraph one of the syllabus. McCrone did not address
whether a relationship between the mental condition and the physical injury was
necessary because the claimant, unlike Armstrong here, had not suffered a
physical injury. Thus, the court considered only whether the requirement of a
physical injury or occupational disease in R.C. 4123.01(C)(1) violated equal
protection.
       {¶ 22} Based on several sentences in McCrone, Armstrong argues that
“arisen from” is interchangeable with “contemporaneous with.” For example,
Armstrong cites a portion of the following statement: “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.”             (Emphasis added.)
McCrone, 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, at ¶ 30.
Elsewhere in McCrone, the court stated that “[p]sychological or psychiatric
conditions, without an accompanying physical injury or occupational disease, are
not compensable under R.C. 4123.01(C)(1).” (Emphasis added.) Id. at ¶ 29.
Those statements, however, must be read in the larger context of the case, which
involved no physical injury at all. The court noted the importance of that factor
just prior to those quotations, in its rejection of the appellate court’s reliance on




                                         8
                               January Term, 2013




Bailey, 91 Ohio St.3d 38, 741 N.E.2d 121, because, unlike in Bailey, “[i]n
McCrone’s case, there was no physical injury whatsoever.” McCrone at ¶ 28.
       {¶ 23} In McCrone, the absence of physical injury, not the nexus
between a physical injury and a mental condition, was determinative. In holding
that R.C. 4123.01(C)(1) did not violate equal protection, we considered whether
there was a rational basis for the General Assembly’s requirement of a physical
injury or occupational disease.      Because the relationship between mental
conditions and physical injuries was not at issue, use of the terms
“accompanying” and “along with” to describe that relationship does not constitute
a holding that mental conditions arising contemporaneously with a physical injury
are compensable under R.C. 4123.01(C) without regard to a causal connection.
Likewise, the absence of a specific statement that a mental condition must be
caused by the physical injury does not amount to a contrary holding. Instead, it
represents this court’s apposite exercise of judicial restraint in not deciding an
unnecessary issue. See State ex rel. Ohio Democratic Party v. Blackwell, 111
Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, ¶ 50 (recognizing the
cardinal principle that a court must not decide more than is necessary). McCrone
does not answer the question before this court, nor does it compel a different
result than we have reached based on the unambiguous statutory language.
       {¶ 24} Like McCrone, the other cases upon which Armstrong relies are
not only distinguishable but also silent on the specific question now before this
court. Bunger v. Lawson Co., 82 Ohio St.3d 463, 696 N.E.2d 1029 (1998), and
Rambaldo, 65 Ohio St.3d 281, 603 N.E.2d 975, both concerned applications for
workers’ compensation coverage for purely psychiatric conditions, when the
claimant had not suffered a physical injury. While State ex rel. Clark v. Indus.
Comm., 92 Ohio St.3d 455, 751 N.E.2d 967 (2001), involved a claimant who
suffered both physical injuries and severe stress and anxiety as a direct result of
having been held hostage and beaten, the sole issue on appeal was whether the




                                        9
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claimant was entitled to receive workers’ compensation benefits for the same
period he was receiving hostage-leave benefits under his collective-bargaining
contract.   Although BWC allowed the claimant’s PTSD as a compensable
condition, no party challenged the allowance, and thus the compensability of that
condition was not an issue on appeal. Simply put, this court has never held that a
mental condition is compensable solely because it developed contemporaneously
with a compensable physical injury.
       {¶ 25} Consistent with the plain language of R.C. 4123.01(C)(1), several
Ohio courts of appeals have recognized that mental conditions are compensable
under the workers’ compensation system only when a physical injury causes
them. See Dunn v. Mayfield, 66 Ohio App.3d 336, 341, 584 N.E.2d 37 (4th
Dist.1990) (“to state a claim upon which relief can be granted for an emotional
disability, an employee must allege either that a physical injury proximately
caused the emotional disability * * * or that the emotional stress proximately
caused a physical injury”); Neil v. Mayfield, 2d Dist. No. 10881, 1988 WL 76179,
* 1 (July 22, 1988), citing Lengel v. Griswold, Inc., 8th Dist. No. 53054, 1987 WL
20459 (Nov. 25, 1987) (“an emotional injury is not compensable, despite a
contemporaneous physical injury, unless the physical injury causes the emotional
problems”); Karavolos v. Brown Derby, Inc., 99 Ohio App.3d 548, 552, 651
N.E.2d 435 (11th Dist.1994) (R.C. 4123.01(C)(1) “prohibits compensation for
psychiatric conditions unless they are found to have ‘arisen from’ a physical
injury, i.e., were proximately caused by a physical injury received in the course of
employment”); Jones v. Catholic Healthcare Partners, Inc., 2012-Ohio-6269, 986
N.E.2d 486, ¶ 31 (7th Dist.) (rejecting an argument that physical injury must be
the sole cause of a mental condition, but affirming summary judgment for a
claimant based on the uncontested evidence that a compensable physical injury
was a proximate cause of her psychiatric condition).




                                        10
                                 January Term, 2013




       {¶ 26} In addition to the arguments asserted by Armstrong, OAJ argues
that requiring a claimant to prove a causal connection between a mental condition
and a compensable physical injury would make recovery for many claimants
“nearly impossible.” While we appreciate and respect OAJ’s concerns regarding
the difficulty of proving causation, that argument is more properly addressed to
the General Assembly, the branch of state government charged by the Ohio
Constitution with making policy choices for the workers’ compensation fund.
The General Assembly may determine that mental conditions that develop
contemporaneously with compensable physical injuries, or that arise out of the
same accident or occurrence as the physical injuries, should be compensable, and
amend the statutory language accordingly. Absent a mandate from the General
Assembly that such conditions are compensable, however, we will not expand
workers’ compensation coverage to them.
       {¶ 27} Armstrong’s final argument concerns the effect of the 2006
amendment to R.C. 4123.01(C)(1), which added the following italicized language
to the statute: injury does not include “[p]sychiatric conditions except where the
claimant’s psychiatric conditions have arisen from an injury or occupational
disease sustained by that claimant.” Am.Sub.S.B. No. 7, 151 Ohio Laws, Part I,
1019, 1046. The parties agree that the purpose of the amendment was to counter
the decision in Bailey, 91 Ohio St.3d 38, 741 N.E.2d 121, which allowed a claim
for depression after the claimant accidentally killed a coworker, even though the
claimant did not suffer any physical injury himself. By amending the statute, the
General Assembly clarified that the claimant, not a third party, must sustain the
physical injury required under R.C. 4123.01(C)(1). The amendment did not alter
the statutory language regarding the necessary nexus between a physical injury
and a psychiatric condition, and the sole effect of the amendment here is to
preclude Armstrong from establishing the compensability of his PTSD by arguing
that it arose from the other driver’s injuries or death.




                                          11
                             SUPREME COURT OF OHIO




       {¶ 28} The court of appeals noted Armstrong’s reliance on case law that
predated Am.Sub.S.B. No. 7, but it did not suggest that its rejection of
Armstrong’s contemporaneous-injury argument was related to the amendment.
Rather, the court focused on statutory language that Am.Sub.S.B. No. 7 did not
change and concluded that Armstrong did not establish that his PTSD arose from
the physical injuries he had sustained in the accident.
                                    Conclusion
       {¶ 29} Armstrong undisputedly suffered compensable physical injuries
as a result of the accident, and his PTSD undisputedly arose contemporaneously
as a result of the accident. For Armstrong’s PTSD to qualify as a compensable
injury under R.C. 4123.01(C)(1), however, more is required; he must establish
that his PTSD was causally related to his compensable physical injuries and not
simply to his involvement in the accident. The record contains contradictory
evidence of whether Armstrong’s physical injuries were a contributing cause of
his PTSD. Dr. Howard testified that Armstrong’s physical injuries did not cause
his PTSD, while Dr. Stoeckel testified that Armstrong’s physical injuries were
causal factors in his development of PTSD. The trial court, having heard all the
evidence, found Dr. Howard’s testimony more credible. The court of appeals
appropriately determined that the record contains competent, credible evidence
supporting the trial court’s finding that Armstrong’s physical injuries did not
cause his PTSD and that Armstrong’s PTSD is, therefore, not a compensable
injury under R.C. 4123.01(C)(1).
       {¶ 30} For these reasons, we affirm the judgment of the court of appeals.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
       PFEIFER and O’NEILL, JJ., dissent.
                             ____________________




                                         12
                                January Term, 2013




       PFEIFER, J., dissenting.
       {¶ 31} This case boils down to whether “arisen from” means the same
thing as “caused by.”     Given that we are required to liberally construe the
provisions of R.C. Chapter 4123 in favor of employees, R.C. 4123.95, I would
hold that there is a distinction between the two terms and that the condition in
R.C. 4123.01(C)(1) that psychological injuries are compensable only if they have
“arisen from” physical injuries requires that the physical and psychological
injuries be related but does not necessarily require a direct causal link between the
two.
       {¶ 32} In McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-
6505, 839 N.E.2d 1, this court considered whether R.C. 4123.01(C)(1) violated
equal protection by excluding psychological or psychiatric injuries from workers’
compensation coverage.       This court held that the one substantive reason
supporting the continued disparate treatment between workers who suffer
psychological injuries in the workplace and workers who suffer physical injuries
in the workplace is the issue of proof. That is, it is harder to prove psychological
injuries than physical injuries. (The only other rational basis offered in McCrone
was that the discrimination saves money.) This court stated, “In mental injury
claims, the problem arises of establishing the existence of the 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.” (Emphasis
added.) Id. at ¶ 33.
       {¶ 33} Thus, the court concentrated not on causation, but on the evidence
that a contemporaneous physical injury provides that supports the existence of a
psychological injury. In this case, we have no issue of proof. Armstrong’s
employer stipulates that Armstrong suffers from posttraumatic-stress disorder
(“PTSD”), and there is no dispute that the accident occurred while Armstrong was
on the clock and performing job-related duties.             Armstrong suffered a




                                         13
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contemporaneous physical injury, which, in the words of McCrone, may or may
not have caused a psychological or psychiatric condition, but furnished proof of
that condition. Why shouldn’t Armstrong recover?
       {¶ 34} Elsewhere in McCrone, this court discounted the requirement of a
direct causal link between the physical injury and the compensable psychological
trauma. Instead, the physical injury and psychological injury need only have
arisen from the same series of events: “Psychological or psychiatric conditions,
without an accompanying physical injury or occupational disease, are not
compensable under R.C. 4123.01(C)(1).” (Emphasis added.) Id. at ¶ 29. This
court also stated that “those who have mental conditions along with a
compensable physical injury * * * are covered within the workers’ compensation
system.” (Emphasis added.) Id. at ¶ 30. “Accompanying” and “along with” are
entirely different from “caused by.”
       {¶ 35} McCrone was decided in 2005; the General Assembly did not
make the relevant amendment to R.C. 4123.01(C) until 2006. Thus, the General
Assembly knew of this court’s interpretation of the physical-injury requirement
for psychological injuries when amending the statute. The General Assembly
knew that this court had written in McCrone that “a physical injury may or may
not cause a psychological * * * condition” but may simply furnish proof thereof,
that mental conditions are not compensable “without an accompanying physical
injury,” and that workers “who have mental conditions along with a compensable
physical injury” are covered under the system. Did the General Assembly change
the language of the statute to address this court’s interpretation of the statute that
there need not be a direct causal connection between a physical injury and a
compensable psychological condition?
       {¶ 36} It did not. In neither the present version of the statute nor in its
predecessor did R.C. 4123.01(C)(1) require a direct causal connection between
physical and psychological injuries. The General Assembly otherwise uses the



                                         14
                                January Term, 2013




word “cause” in R.C. 4123.01(C); it uses it in defining “injury” as including an
injury “caused by external accidental means.” In that same definition, it uses the
phrase “arising out of” in describing a compensable injury—the injury must be
“received in the course of, and arising out of, the injured employee’s
employment.” (Emphasis added.) In that use of the phrase “arising out of,” does
the General Assembly mean to say that the injury must be caused by the
employee’s employment? No—it means that the employee had to be engaged in
activity related to his employment when the injury-causing accident occurred in
order to receive compensation.           Likewise, R.C. 4123.01(C)(1) allows
compensation for psychiatric injuries that have “arisen from an injury * * *
sustained by that claimant.” (Emphasis added.) The “arisen from” language has
the same meaning as earlier in the statute—it requires a relationship between the
physical and psychological injuries rather than a direct causal link.
        {¶ 37} In Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38,
741 N.E.2d 121 (2001), syllabus, this court held, “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).”              In Bailey, the
claimant was operating a tow motor and accidentally ran over and killed a
coworker.     As a result of the accident, Bailey received treatment for severe
depression.    In Bailey, there was not a direct causal link between the death
suffered by the coworker and the claimant’s depression. Rather, it was Bailey’s
involvement in and responsibility for the deadly accident that caused his
depression. Thus, his psychological injury was related to the accident that caused
his coworker’s death. Likewise, in this case, Armstrong’s psychological injuries
are related to the accident that caused his own injuries.
        {¶ 38} Where does today’s decision leave employees who suffer from
PTSD?       If an employee is horribly injured in an accident, can he receive
compensation only for being depressed over the state of his body but not for




                                         15
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psychological injuries due to being haunted by the trauma of the original event?
Are those the kind of distinctions the General Assembly really intended—
depression over injuries is compensable but psychological effects arising from the
accident causing the traumatic injuries is not? Is it not enough that a worker’s
broken body provides the “proof” of psychological injury that this court said the
statute requires in McCrone, proof that a specific traumatic event has occurred?
Hasn’t Armstrong paid the required pound of flesh?
        {¶ 39} Finally, as I set forth in McCrone, I would find that R.C.
4123.01(C)(1) violates the Equal Protection Clauses of the United States and Ohio
Constitutions because it allows disparate treatment of persons suffering from
psychological injuries. McCrone, 107 Ohio St.3d 272, 2005-Ohio-6505, 839
N.E.2d 1, at ¶ 57 (Pfeifer, J., dissenting).
                              ____________________
        O’NEILL, J., dissenting.
        {¶ 40} I must respectfully dissent from the well-reasoned majority opinion
because this case presents a perfect opportunity to right a wrong in the area of
workers’ compensation law. The claimant here was involved in a truly gruesome
motor-vehicle accident, in the course and scope of his employment, that left him
traumatically psychologically impaired. He witnessed the sudden death of a
fellow motorist, and he suffers as a result of that accident to this day. That is
what the record reflects. From a legal-analysis standpoint, it is wholly irrelevant
whether the psychological condition arose from the accident or from the trauma
and drama incident to the allowed physical injuries. Either way, he was injured in
the course and scope of his employment. It is that simple.
        {¶ 41} As noted by the majority, this issue was addressed, I believe
wrongly, to some extent in this court’s earlier decision of McCrone v. Bank One
Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1. In that case, the
psychologically injured worker, an employee of a bank that was robbed twice,



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                                January Term, 2013




was denied workers’ compensation benefits because she had not received a
contemporaneous physical injury during the traumatic events. That she could not
return to work due to having been traumatized at work simply was not enough to
entitle her to workers’ compensation benefits.
        {¶ 42} Simply stated, the whole theory of workers’ compensation is to
ensure that when an injury, whether physical or mental, occurs in the workplace
and it is supported by competent medical evidence, it is compensable under the
Workers’ Compensation Act. As aptly stated in dissent by Justice Resnick:


        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.


Id. at ¶ 45.
        {¶ 43} On the other hand, if the justification for not allowing
psychological injuries is purely economic, drawing the line at psychological
injuries that occur simultaneously with a physical injury versus those that occur
without a physical injury is arbitrary at best. They are both real injuries. They
both result in loss to the worker. And they both are directly related to the incident
on the job. As stated by Justice Pfeifer in a dissent in McCrone:


        There is no rational basis to treat injured employees differently
        when both the physically injured and the nonphysically injured
        employees each can identify the genesis of their psychological




                                         17
                             SUPREME COURT OF OHIO




        condition. A cognizable triggering event, whether resulting in a
        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.


Id. at ¶ 55.
        {¶ 44} Reducing government costs, while an admirable goal, is not
acceptable when it nullifies the protections of the Ohio Constitution. Justice
Resnick asked the question “Is there a specific dollar amount of savings that must
be realized before ignoring the Equal Protection Clause is justified?” Id. at ¶ 50.
The answer must be a resounding no.              The reality is that there is no
constitutionally adequate explanation for the practice of treating psychologically
traumatized workers in a distinctly different manner from their counterparts who,
for example, break their arm or leg. It is government-sanctioned discrimination
with tragic results, as demonstrated by this case.
        {¶ 45} From an examination of the relevant code section, the conclusion I
reach is consistent with the law.      R.C. 4123.01(C)(1) allows for psychiatric
conditions to be compensable as long as the condition arose from an injury
sustained by the claimant. This version of the statute was enacted in 2006 to
ensure that compensation was permitted only when the physical injury was
sustained by the claimant rather than a third party. However, unlike the majority,
I believe it is sufficient that the psychological injury occurred contemporaneously
with the physical injury. The record in this matter is clear that the psychological
injury happened contemporaneously with the allowed physical injury. Therefore,
it was error for the trial court, and then the court of appeals, to disallow the claim.
It happened on the job, it is real, and it is compensable. The Bureau of Workers’
Compensation, and the Industrial Commission of Ohio, got it right.
        {¶ 46} Accordingly, I respectfully dissent.



                                          18
                               January Term, 2013




                            ____________________
       Harris & Burgin, L.P.A., and Jeffrey Harris, for appellant.
       Ice Miller L.L.P., Corey V. Crognale, and Meghan M. Majernik, for
appellee John R. Jurgensen Co.
       Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellee Administrator, Ohio Bureau of Workers’
Compensation.
       Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea J. Fulton, urging
reversal on behalf of amicus curiae Ohio Association for Justice.
                          ________________________




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