Lead Opinion
This аppeal presents the issue of whether disabilities caused solely by emotional stress without contemporaneous physical injury or physical trauma are compеnsable injuries under Ohio workers’ compensation laws. We hold that they are not.
In the early case of Indus. Comm. v. O'Malley (1931),
In denying compensation in O’Malley, this court determined that the absence of any physical injury as a contributing factor in the employee’s death barred his widow’s right to recover on the death claim. This same reasoning was applied over 20 years later in the case of Toth v. Standard Oil Co. (1953),
In Toth, the claimant, a truck driver, was suspected by the police of having been involved in a “hit-skip” accidеnt while in the course of his employment. He was questioned by the police, and submitted to a lie detector test. At the conclusion of the test, he was informed that he was not telling the truth about his noninvolvement in the accident. Six days later, while at home, he suffered a stroke and paralysis of the right side of his body.
This court framed the issue in Toth, at page 6, as “whether anxiety and worry conneсted with the employment constitutes an accidental injury***.” The court held that it did not.
In asserting that her disability is a compensable injury, appellee acknowledges this court’s holdings in O’Malley and Toth, but argues that they were legislatively overruled by the 1959 amendment to R. C. 4123.01(A) (128 Ohio Laws 743, 745). We cannot agree.
In 1959, the General Assembly amended R. C. 4123.01(C) to provide that:
“ ‘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.” (Emphasis denotes аmendment.)
We need not dwell upon the judicial and legislative history culminating in this amendment, for that was explained at length last term in Czarnecki v. Jones & Laughlin Corp. (1979),
The Malone case itself, upon which the amendment to R. C. 4123.01(C) is based, held, in paragraph one of the syllabus, that:
“The term ‘injury’ as used in the Constitution and in Section 1465-68, General Code (117 Ohio Laws, 109), as amended effective July 10, 1937, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.” (Emphasis added.)
The term “traumatic injury” was defined by this court in Malone, at page 302, as:
“[An injury] produced by any sudden violent attack upon the tissues or organs of a living body producing a wound, tear or an abnormal condition thereon or therein. The attack may result from contact with deleterious gases, destructive temperatures or forces of nature.”
It is clear that Malone did not depart from the reasoning of O’Malley that disabilities arising solely from emotional stress are not compensable. Since the 1959 amendment to R. C. 4123.01(C) is, in effect, a codification of the test for cоmpensability set forth in Malone, it follows that that amendment does not affect a claimant’s right to recover for disabilities arising from purely emotional stress.
We hold that disabilities, such as the оne in this cause, which are caused solely by emotional stress without contemporaneous physical injury or physical trauma are not compensable injuries within the meaning of R. C. 4123.01(C).
Appellee contends further that it is a denial of equal protection of the laws to exclude from compensation those disabled employees whose disаbilities arise solely from nonphysical and non-traumatic incidents related to their employment. An examination of the record discloses, however, that this issue was neither raised nor briefed in the courts below. The issue is not, therefore, properly before this court. Republic
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
Dissenting Opinion
dissenting. From thе majority’s redefining of the term “injury,” I must vigorously dissent.
Today, this court again conducts its periodic exercise in contorting the language of R. C. 4123.01(C). That statute simply and concisely states that “ ‘[i]njury’ 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.” It is inconceivable to this writer how the majority can derive from this definition a requirement that the injury must arise from physical contact or physical trauma.
The court’s reliance on Toth v. Standard Oil Co. (1953),
The Toth opinion has been sharply criticized in a leading treatise on this subject, IB Larson, Workmen’s Compensation Law, Sections 38.65 and 42.21. The author reviews the decisions in this country in which a mental, as opposed to a рhysical, impact results in a physical injury, and concludes that, except for one instance, the courts uniformly find compensability. Included in this analysis of such decisions, at pagе 7-593, Section 42.21, is the following observation:
“Against this backdrop, the one contra case, the Toth case in Ohio, stands out as distinctly out of line. It is odd that Ohio,
The prerequisitе to compensability of “contemporaneous physical injury or physical trauma” is an artificial distinction that is likely to lead to inequitable results. If the co-worker herein hаd slapped appellee across the face during their argument, the requisite physical contact would presumably exist, and, assuming a causal connection cоuld be established, the resulting heart attack would be a compensable injury. Yet, what logical basis is there for distinguishing this hypothetical from the instant facts? The court in Insurance Dept. of Miss. v. Dinsmore (1958),
“It seems unthinkable that, if hypertension may be aggravated either by physical or mental and emotional exertion, courts should be willing to accept the physical causative, but reject, as not accidental, a disability, proximately resulting from mental and emotional exertion.”
It appears to this writer that the majority’s refusal to recognize appellee’s heart attack as a compensable injury is based on a fear that a causal relationship cannot be adequately established between the emotionаl distress and the physical result. If such a fear does exist it should be squarely confronted, rather than dismissed through a convoluted application of the definitional statute.
As stated in my dissent to Bowman v. National Graphics Corp. (1978),
More specifiсally, with regard to emotional distress cases, I would adopt the test developed by New York courts that, in order for a heart attack or cerebral hemorrhage to be compensable, the claimant must show that it resulted from “ ‘greater emotional strain or tension than that to which all workers are occasionally subjected.’ ” Wilson v. Tippetts-Abbott-McCarthy-Stratton (1964),
Thus, rather than joining the majority’s desire to again needlessly complicate the legislative definition of an injury, I would affirm the Court of Appeals and remand to the trial court for evidence to be presented on the issue of causation.