Grant v. Ohio Dept. of Liquor Control

• Decision Date: 29 January 1993
• Docket Number: No. C-900657,C-900657
• Citation: 619 N.E.2d 1165,86 Ohio App.3d 76
• Parties: GRANT, Appellant, v. OHIO DEPARTMENT OF LIQUOR CONTROL et al., Appellees. *
• Court: Ohio Court of Appeals

Page 76

86 Ohio App.3d 76

619 N.E.2d 1165

GRANT, Appellant, v. OHIO DEPARTMENT OF LIQUOR CONTROL et al., Appellees. ^*

No. C-900657.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Jan. 29, 1993.

E.S. Gallon & Associates and Glenda Morgan Hertzman, Cincinnati, for appellant.

Lee Fisher, Atty. Gen., and Dianna K. Bond, Asst. Atty. Gen., Cincinnati, for appellees.

GORMAN, Presiding Judge.

Plaintiff-appellant, Theresa Grant, appeals from the trial court's order granting summary judgment in favor of the Industrial Commission of Ohio, and denying her claim for workers' compensation benefits. Her two assignments of error address the same issue--the common pleas court committed error when it restricted her appeal to a purely mental or emotional condition, which is not compensable. We agree.

On July 16, 1983, Grant, a clerk in a state liquor store, was the victim of an armed robbery. It was the second time within a year that she had been robbed at gunpoint on the job. On November 14, 1984, Grant filed her application for workers' compensation benefits, describing the nature of the injury as "Anxiety Reaction" to the "Mind." The district hearing officer denied her claim for the reason that Grant alleged a purely emotional condition without a contemporaneous physical injury, which is not compensable under R.C. 4123.01(C). The Dayton Regional Board of Review upheld the district hearing officer's finding and the Industrial Commission refused her appeal.

In her appeal to the Hamilton County Common Pleas Court, Grant's complaint alleged that she suffered "anxiety and depression" caused by the robbery. On January 15, 1987, an assistant attorney general deposed Grant. She testified that during the robbery she ripped her finger by removing a ring at the gunman's command, and then while attempting to open the door with the gun pointed at her back, she aggravated an injury to her arm and shoulder. Dr. Max L. Lurie, a psychiatrist who evaluated Grant on June 8, 1987, was deposed on December 16, 1987. He diagnosed Grant as having developed posttraumatic stress syndrome and a peptic ulcer as a result of the robbery.

On January 26, 1988, upon the evidence gathered in the depositions, Grant moved to amend her complaint to allege that in addition to her psychiatric condition she sustained a contemporaneous arm injury during the robbery, and subsequently, because of her psychiatric condition, she developed an ulcer. On February 23, 1988, the week before the scheduled trial date, the trial court overruled Grant's motion for leave to file an amended complaint. On August 6, 1990, the trial court granted the commission's motion for summary judgment.

In her first assignment of error, Grant contends that the common pleas court erred in denying her motion for leave to amend her complaint. Grant requested leave to recast her claim from a stress-related mental or emotional condition (mental-mental) to (1) a mental or emotional condition resulting from physical injuries to her arm and finger (physical-mental), and also (2) a physical injury manifested by an ulcer occasioned by her mental or emotional condition (mental-physical).

Entitlement to benefits by a claimant is determined by the statutes in effect on the date of the injury. State ex rel. Kirk v. Owens-Illinois, Inc. (1986), 25 Ohio St.3d 360, 361, 25 OBR 411, 412, 496 N.E.2d 893, 895. The events which are the basis for Grant's claim occurred before August 22, 1986, the effective date of the amendment to R.C. 4123.01(C), which now expressly excludes purely mental or emotional conditions that do not arise from a physical injury. Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 718, 739. Neither is a mental-mental claim compensable where the claim is made for an occupational disease. Rambaldo v Accurate Die Casting (1992), 65 Ohio St.3d 281, 603 N.E.2d 975. This court is also in line with the other courts of appeals that have considered the issue, holding that a mental or emotional condition caused solely by job related stress was not compensable before the 1986 amendment. Harover v. Norwood (1988), 48 Ohio App.3d 312, 549 N.E.2d 1194, approved in Rambaldo v. Accurate Die Casting, supra, 65 Ohio St.3d at 285, 603 N.E.2d at 978, fn. 3. However, Ohio courts have long recognized a claimant's right to participate in the fund for mental or emotional disabilities resulting from a work-related contemporaneous physical injury. State ex rel. Anderson v. Indus. Comm. (1980), 62 Ohio St.2d 166, 16 O.O.3d 199, 404 N.E.2d 153, overruled on other grounds in State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503, 384 N.E.2d 693, followed in Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, paragraph one of the syllabus. Likewise, in Ryan v. Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379, a case predating the 1986 amendment to R.C. 4123.01(C), the Ohio Supreme Court determined that a heart attack caused solely by a mental or emotional stimulus is compensable without a contemporaneous "physical-contact injury" (resulting from "physical impact or trauma," id. at 409, 28 OBR at 464, 503 N.E.3d at 1381-1382). See Mental Stress and Ohio Workers' Compensation: When is a Stress-Related Condition Compensable? (1992), 40 Cleve. St.L.Rev. 35. ¹

The commission contends that Grant cannot raise new conditions in the common pleas court, not already raised in the administrative proceedings, and that the common pleas court did not have jurisdiction to receive evidence of injuries to her arm and finger or concerning the ulcer. The procedure for an appeal to the common pleas court of "a decision of the Industrial Commission or of its staff hearing officer" is prescribed in R.C. 4123.519:

"(C) * * * Further pleadings shall be had in accordance with the Rules of Civil Procedure * * *. The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate * * * in the fund upon the evidence adduced at the hearing of the action.

" * * * "(F) If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate in the fund, the commission and the administrator shall thereafter proceed in the matter of the claim as if the judgment were the decision of the commission, subject to the power of modification provided by section 4123.52 of the Revised Code."

An appeal from the Industrial Commission pursuant to R.C. 4123.519 is a de novo determination of both the facts and law. See Afrates v. Lorain, supra. The claimant is not limited to the record of the evidence presented at the Industrial Commission but may offer evidence in the common pleas court as in any civil action. As the trier of fact, the judge or the jury upon the evidence adduced at the hearing decides de novo a single issue of the claimant's right to participate in the fund without deference to the decision of the Industrial Commission. Maitland v. St. Anthony Hosp. (Oct. 3, 1985), Franklin App. No. 85AP-301, unreported, 1985 WL 10455; see Marcum v. Barry (1991), 76 Ohio App.3d 536, 538-539, 602 N.E.2d 419, 420-422. In a de novo appeal to the common pleas court the findings of the Industrial Commission become "irrelevant," Skerya v. Indus. Comm. (1986), 30 Ohio App.3d 154, 155, 30 OBR 273, 274, 506 N.E.2d 1228, 1230, and unless the parties stipulate the evidence, it is error for the common pleas court to rely upon the evidence presented before the commission. See Kiefer v. Daugherty (Sept. 12, 1979), Crawford App. No. 3-78-15, unreported.

The several appellate districts that have concluded that a claimant's condition is precluded unless raised before the Industrial Commission do not focus on the nature of the de novo appeal provided by the legislature in R.C. 4123.519. Dunn v. Mayfield (1990), 66 Ohio App.3d 336, 584 N.E.2d 37; KALTENBACH V. MAYFIELD (APR. 27, 1990), PICKAWAY APP. NO. 89-CA-10, UNREPORTED, 1990 WL 54857;² Mull v. Jeep Corp. (1983), 13 Ohio App.3d 426, 13 OBR 514, 469 N.E.2d 923 (Douglas, J., dissenting). Instead, these courts rely generally upon the judicially created rule that to permit a party to raise an issue for the first time in the common pleas court "would frustrate the statutory system for having issues raised and decided through the administrative process." Mull v. Jeep Corp., supra, at 428, 13 OBR at 515-517, 469 N.E.2d at 925-926. However, in Mull, the court also specifically noted that it was not extending this rule of preclusion to all evidentiary issues, but only to cases where the claimant attempts to convert a claim for injury under R.C. 4123.01(C) to a claim for an occupational disease under R.C. 4123.68(BB). Courts have also resorted to the judicially created doctrine of exhaustion of remedies. ³

Rights under the Ohio workers' compensation system are conferred by Section 35, Article II of the Ohio Constitution, which delegates the exclusive power to the legislature to pass laws providing for injuries and occupational diseases occasioned in a worker's course of employment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. Under the right of appeal, created by the legislature in R.C. 4123.519, the only issue is "the right of the claimant to participate in the fund," see Felty v. AT & T Technologies, Inc. (1992), 65 Ohio St.3d 234, 237-240, 602 N.E.2d 1141, 1144-1146. Accordingly, the commission's challenge to the common pleas court's jurisdiction relates to substantive rights created by the legislature, which a court cannot abridge, enlarge, or modify by fiat or by a judicially created rule. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 540 N.E.2d 266; Alexander v. Buckeye Pipe Line Co. (1977), 49 Ohio St.2d 158, 3 O.O.3d 174, 359 N.E.2d 702.

In a trial de novo the issues "arise on the pleadings." R.C. 2311.01. The...