Dunn v. Mayfield

• Decision Date: 12 March 1990
• Docket Number: No. 88-CA-1773,88-CA-1773
• Citation: 66 Ohio App.3d 336,584 N.E.2d 37
• Parties: DUNN, Appellant, v. MAYFIELD, Admr., et al., Appellees.
• Court: Ohio Court of Appeals

Page 336

66 Ohio App.3d 336

584 N.E.2d 37

DUNN, Appellant, v. MAYFIELD, Admr., et al., Appellees.

No. 88-CA-1773.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided March 12, 1990.

Chester T. Freeman Co., L.P.A., and William R. Polhamus, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Merl H. Wayman, Asst. Atty. Gen., Columbus, for appellees.

HARSHA, Judge.

Plaintiff-appellant, William Dunn, appeals from the trial court's granting of summary judgment in favor of defendants-appellees. Appellant advances two assignments of error:

"I. The trial court erred in granting defendants-appellees' motion for summary judgment in ruling that plaintiff-appellant was raising new conditions on his court appeal in his workers' compensation claim as no new issues or conditions are being raised on appeal.

"II. The trial court erred in granting defendants-appellees' motion for summary judgment when the court ruled that plaintiff-appellant's workers' compensation claim should be denied because plaintiff-appellant did not have a compensable injury for his mental and emotional injuries."

On October 14, 1985, appellant was employed by the Southern Ohio Correctional Facility as a correctional officer. On that date, appellant and another guard were taken hostage by four inmates. In December 1985, appellant filed two claim applications with the Bureau of Workers' Compensation requesting compensation for the following injuries, respectively: "ANXIETY STATE (NERVOUS CONDITION) (Post Traumatic Stress Disorder Acute)" and "POST TRAUMATIC STRESS DISORDER ACUTE."

A Bureau of Workers' Compensation investigator obtained an affidavit from appellant which was typed March 6, 1986 and filed with the Industrial Commission of Ohio. Contained in the affidavit were allegations that the inmates had discharged two fire extinguishers under the door of the bathroom in which appellant had locked himself. The contents of the extinguishers caused appellant to choke and his lungs to burn. After being forced out of the bathroom, appellant was shoved, handcuffed and jerked around by the inmates. In his affidavit, appellant states that as a result of this incident he experienced elevated blood pressure and cuts on his fingers, as well as burning lungs and choking.

Following the bureau's investigation, the claims were scheduled for a district hearing on April 8, 1986. Although no transcript was made, appellant's affidavit was filed with the commission and, therefore, became part of the record before the district hearing officer. The district hearing officer put on an interim order wherein he stated the claim would be held open for thirty days "to give the claimant an opportunity to submit additional medical evidence that he suffered physical injuries in the 10/14/85 hostage incident." Ultimately, the claim was disallowed on May 27, 1986 for failure to submit the requested evidence in a timely manner.

The matter proceeded to the Columbus Regional Board of Review, which upheld the district hearing officer's finding. The matter was appealed to the staff hearing officers of the commission where the appeal was denied again. Appellant then filed a notice of appeal to the Scioto County Court of Common Pleas pursuant to R.C. 4123.519. At this level, appellees filed a motion for summary judgment on the grounds that appellant's complaint failed to state a claim upon which relief can be granted and that the trial court lacked subject matter jurisdiction.

In support of the motion, appellees characterized appellant's original claim before the Industrial Commission as being one involving a mental disability caused by an emotional stimulus, i.e., no physical injury or stimulus being involved. Because Ohio does not recognize mental disability caused solely by an emotional stimulus as being compensable, appellees argued that the complaint failed to state a claim upon which relief could be granted. Appellees further argued that appellant was attempting to raise new conditions before the common pleas court, by alleging a contemporaneous physical injury, and that the trial court was without jurisdiction to consider these new "claims." The trial court granted the motion for summary judgment finding that the appellant was indeed attempting to assert new conditions not raised in the administrative proceedings and was barred from doing so. Furthermore, the trial court held that appellant's claim was for a mental disability caused solely by an emotional stress, and accordingly was not compensable under Ohio law.

In his first assignment of error, appellant contends that summary judgment was not properly granted in that he was not raising new conditions in his appeal to the common pleas court. A reviewing court is obligated to examine the record on appeal in a light most favorable to the party opposing summary judgment. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924; Watson v. Toledo Labor Service (1988), 46 Ohio App.3d 141, 546 N.E.2d 424. With that standard in mind, we agree that the trial court erred in finding that appellant was attempting to raise new claims.

After reviewing the court's record, which includes documents filed with the commission, we find that appellant has not asserted new conditions on appeal which were not presented previously to the commission. There is evidence that appellant initially asserted contemporaneous physical injury when he filed his claims for "post traumatic stress disorder acute" with the commission, as well as when he filed his complaint with the Scioto County Court of Common Pleas. In appellant's affidavit filed with the commission, he specifically alleges such contemporaneous physical injuries as choking, cuts, bruises, and elevated blood pressure. These are the identical conditions which appellant has asserted in his complaint to the trial court. Further, the district hearing officer's entry filed May 27, 1986, granted appellant permission to file "additional medical evidence that he suffered physical injuries * * *." (Emphasis added.) The language of the order indicates that at least some evidence of physical injury had been proffered by appellant at the district hearing level. Clearly, based upon the affidavit on file and the district hearing officer's entry, the issue of contemporaneous physical injury was raised by appellant at the district hearing level.

Appellees cite several unreported cases standing for the proposition that a plaintiff cannot raise new conditions on appeal to the common pleas court that were not submitted previously to the Industrial Commission. These cases are inapposite. In Williams v. Timken Co. (Oct. 1, 1984), Stark App. No. CA-6346, unreported, 1984 WL 3906, the court of appeals would not permit plaintiff to amend his complaint to include the injury of "pain in the left...