[Cite as Armstrong v. John R. Jurgenson Co., 2011-Ohio-6708.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
: SHAUN ARMSTRONG Plaintiff-Appellant : C.A. CASE NO. 2011-CA-6
vs. : T.C. CASE NO. 10-CV-212
: (Civil Appeal from JOHN R. JURGENSON CO., et al. Common Pleas Court) Defendants-Appellees :
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of December, 2011.
Jeffrey W. Harris, Atty. Reg. No. 0077098, 9545 Kenwood Road, Suite 301, Cincinnati, OH 45242 Attorney for Plaintiff-Appellant Shaun Armstrong
Corey V. Crognale, Atty. Reg. No. 0017004, 250 West Street, Columbus, OH 43215 Attorney for Defendant-Appellee John R. Jurgenson Co.
Colleen Erdman, Atty. Reg. No. 0080765, 150 East Gay Street, 22nd Floor, Columbus, OH 43215 Attorney for Defendant-Appellee Ohio Bureau of Workers’ Compensation
GRADY, P.J.:
{¶ 1} Plaintiff, Shaun Armstrong, appeals from a final
judgment of the court of common pleas that denied Armstrong’s claim
for workers’ compensation benefits on a finding that the post 2
traumatic stress disorder from which Armstrong suffers is not a
compensable injury.
{¶ 2} In August of 2009, Defendant, John R. Jurgenson, Co.
(“Jurgenson Co.”) was performing work on improvements to Interstate
Route 70. Armstrong was employed by Jurgenson Co. as a dump truck
driver. On August 27, 2009, a van travelling at a high rate of
speed struck Armstrong’s fully-loaded dump truck from the rear.
The driver of the van was killed. Armstrong suffered physical
injuries.
{¶ 3} Armstrong had seen the van as it approached his truck,
but was unable to avoid the collision. He braced himself for the
impact, which caused Armstrong’s head to jerk back and forth and
his arm and shoulder to impact against the truck’s interior.
{¶ 4} After the impact, Armstrong looked to the rear again
and saw that the van was under his truck. After taking the truck
out of gear, Armstrong sat momentarily in “total shock.” When
he looked to the rear through his side-view mirror, Armstrong saw
the van driver’s head bob up and down. Armstrong called 911 for
assistance.
{¶ 5} Armstrong saw that antifreeze, oil, and gasoline were
leaking from his truck. Fearing that it might catch fire,
Armstrong exited the truck. He then saw that the van driver was
severely injured; the van driver’s chin was on his chest and blood
was coming from his nose. Armstrong waited for assistance to 3
arrive, believing that the van driver was probably dead.
{¶ 6} Armstrong was removed to a hospital and examined. He
was diagnosed as suffering from cervical, thoracic, lumbar and
left shoulder sprains, and a left post-labial tear. Armstrong
was released the same day. Some months later he underwent surgery
for his shoulder injury. Armstrong filed a claim for workers’
compensation benefits for these physical injuries. The claim was
allowed.
{¶ 7} Soon after the accident, Armstrong began having
nightmares from which he awoke in a state of severe anxiety, also
experiencing shaking and sweats. His dreams regularly involved
being struck inside the dump truck following the accident, unable
to get out, seeing the van driver’s face, and a slow-motion
re-enactment of the van hitting his dump truck.
{¶ 8} Armstrong experienced panic attacks while riding as a
passenger in an automobile, as well as other phobic responses to
being in an automobile. Armstrong also experienced bouts of
sadness and crying spells in response to references to the van
driver and his family.
{¶ 9} In September of 2009, Dr. Jennifer J. Stoeckel, a
licensed psychologist, diagnosed Armstrong’s symptoms as
post-traumatic stress disorder (“PTSD”). Armstrong amended his
workers’ compensation claim for his physical injuries to include
his PTSD injury, which the Industrial Commission allowed. 4
{¶ 10} Jurgenson Co. appealed from the Industrial Commission’s
order to the court of common pleas. Prior to trial, Armstrong
filed a motion in limine to prohibit any claim by Jurgenson Co.
that a psychological injury is not compensable when it arises
contemporaneous with a compensable physical injury or condition.
[Dkt. 18]. The record does not indicate that the trial court
ruled on the motion. The parties stipulated to the following
facts:
{¶ 11} “1) Shaun Armstrong was involved in a motor vehicle
accident during the course of his employment with John R. Jurgenson
Co. on August 27, 2009, when his vehicle was struck from behind
by an oncoming motorist.
{¶ 12} “2) As a result of the motor vehicle accident which
occurred on August 27, 2009, Mr. Armstrong suffers from conditions
which include a cervical sprain, thoracic sprain, lumbar sprain,
lumbar sprain, left shoulder sprain and left posterior labral tear.
{¶ 13} “3) Mr. Armstrong suffers from post-traumatic stress
disorder.” [Dkt. 19].
{¶ 14} The case was tried to the court. In addition to
Armstrong’s testimony, the court heard the expert witness testimony
of Armstrong’s expert, Dr. Stoeckel, and Jurgenson Co.’s expert,
Dr. William Howard, who is also a licensed psychologist, by video
deposition. The experts agreed that Armstrong suffers from PTSD.
The disagreement was in its origin. 5
{¶ 15} Dr. Stoeckel testified that, in her opinion, Armstrong
suffers from PTSD as a result of the motor vehicle collision of
August 27, 2009. She explained that PTSD requires a traumatic
event, in this instance the accident that resulted in Armstrong’s
physical injuries, and therefore that Armstrong suffers from PTSD
as a result of that work-related accident. Dr. Stoeckel opined
that Armstrong’s physical injuries “contributed to” (Tr. 19) his
PTSD, and that his physical injuries “definitely . . . were causal
factors” (Tr. 33) in Armstrong’s development of PTSD.
{¶ 16} Dr. Howard testified that a diagnosis of PTSD “means
. . . that you’re exposed to a severe environmental stressor of
some sort . . . (that) . . . creates an indelible effect on your
mental state,” adding:
{¶ 17} “And then what happens is, even in other activities,
your mind has a videotape of this and keeps referring back to that
event via nightmares, flashbacks, revivification experiences, et
cetera, and then it can be associated with tendencies to avoid
some of the circumstances surrounding the initial trauma or injury.
Because that has a tendency to reactivate some of these
flashbacks, nightmares and whatnot.
{¶ 18} “So, basically, it’s this exposure to a severe trauma,
and you keep reexperiencing this trauma in different situations
afterwards for a period of time.” (Tr. 10-11).
{¶ 19} After being asked for his opinion whether Armstrong’s 6
PTSD arose out of his physical injuries, Dr. Howard testified:
{¶ 20} “Well, my opinion is that it was not actually caused
by the physical conditions, the cervicothoracic lumbar problems.
It was actually caused by being a visual witness of the incident.
The trauma that caused the posttraumatic stress disorder would
not be a strain injury or a physical injury. It would be the mental
observation of the severity of the injury. The fatality, the fact
that it could have been life-threatening to him at some point,
that sort of thing.
{¶ 21} “Q. Then do you believe, within a reasonable degree
of psychological certainty and probability, as to whether Mr.
Armstrong’s physical injuries had no impact on the proximate cause
of his posttraumatic stress disorder?
{¶ 22} “A. Yes. That’s – yeah, I guess that’s what I was
saying earlier, that the – even if he didn’t have any injury,
physical injury, I think he still would have a posttraumatic stress
disorder because of, you know, the life-threatening nature of the
incident, the fact that someone else died during the accident.
It’s all this – the experience of the injury or the incident, not
the actual physical trauma.” (Deposition Tr., pp. 20-21.)
{¶ 23} The trial court held that Armstrong's claim for PTSD
was not allowed because [i]n strictly construing the definition
of injury under [R. C. 4123.01(C)] * * * plaintiff's PTSD did not
arise out of his physical injuries. [Dkt. 21]. 7
{¶ 24} From the judgment of the trial court disallowing his
claim for PTSD, Armstrong appeals.
ASSIGNMENT OF ERROR
{¶ 25} “THE TRIAL COURT ERRED WHEN IT FOUND THAT PSYCHOLOGICAL
CONDITIONS SUFFERED CONTEMPORANEOUS TO RECOGNIZED PHYSICAL
INJURIES ARE NOT COMPENSABLE UNDER THE OHIO WORKERS’ COMPENSATION
SYSTEM.”
{¶ 26} Section 35, Article II of the Ohio Constitution
authorizes the General Assembly to enact laws “[f]or the purpose
of providing compensation to workmen and their dependents, for
death, injuries or occupational disease, occasioned in the course
of such workmen’s employment . . .”
{¶ 27} The Workers Compensation Act, R.C. Chapter 4123, was
enacted to protect those who suffer injuries arising out of and
in the course of their employment. Ruddy v. Industrial Commission
(1950), 153 Ohio St. 475. The rights the Act confers are purely
statutory, and because such statutory rights are not based on
principles of the common law, they are limited to those conferred
by statute. Westenberger v. Industrial Commission (1939), 135
Ohio St. 211.
{¶ 28} When exercising its constitutional power, the General
Assembly may include all reasonable provisions that are necessary
to make the law effective and to accomplish its stated purpose.
Fassig v. State (1917), 95 Ohio St. 232. R.C. 4123.95 declares 8
that the law “shall be liberally construed in favor of employees
and the dependents of deceased employees.” However, the principle
of liberal construction cannot be applied to permit an award of
compensation in the case of an injury that clearly falls outside
the comprehension of the statute. Georgejakakis v. Wheeling Steel
Corporation (1949), 151 Ohio St. 458; State ex rel. Jonak v. Beall
(1940), 136 Ohio St. 213.
{¶ 29} R.C. 4123.01(C) states:
{¶ 30} “‘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:
{¶ 31} “(1) Psychiatric conditions except where the claimant’s
psychiatric conditions have arisen from an injury or occupational
disease sustained by that claimant or where the claimant’s
psychiatric conditions have arisen from sexual conduct in which
the claimant was forced by threat of physical harm to engage or
participate.” (Emphasis supplied.)
{¶ 32} R.C. 4123.01(C) was amended by 2006 S 7. Prior to its
amendment, that section defined an injury to exclude: “(1)
Psychiatric conditions except where the conditions have arisen
from an injury or occupational disease.” The further limitation
that the injury or disease must have been “sustained by that
claimant” were added by 2006 S 7, apparently in response to the 9
holding in Bailey v. Republic Engineered Steels, Inc., 91 Ohio
St.3d 38, 2001-Ohio-236.
{¶ 33} In Bailey, an employee suffered debilitating depression
as a result of an accident in which he killed a coworker. The
Supreme Court held that a psychiatric condition arising from a
compensable injury suffered by a third party was not precluded
from the definition of an injury under the terms of R.C.
4123.01(C)(1). The General Assembly subsequently limited
compensable psychiatric conditions suffered by a claimant to those
which “have arisen from an injury or occupational disease sustained
by that claimant” by enacting 2006 S 7, which became effective
on June 30, 2006. The accident that occasioned Armstrong’s PTSD
occurred on August 27, 2009, and his claim is plainly controlled
by the 2006 amendment.
{¶ 34} Armstrong, relying on case law decided prior to the
enactment of 2006 S 7, argues that, to be compensable, a psychiatric
condition need only be contemporaneous with a compensable physical
injury. We do not agree.
{¶ 35} The required nexus between a compensable psychiatric
condition and an injury sustained by the claimant that R.C.
4123.01(C)(1) imposes is that the psychiatric condition must have
“arisen from” the injury. “From” is a preposition “used as a
function word to indicate a starting point.” Webster’s Third New
International Dictionary. To be compensable, a psychiatric 10
condition must have been started by and therefore result from a
physical injury or occupational disease the claimant suffered.
Conversely, “for purpose of R.C. Chapter 4123, psychiatric
conditions that do not result from a physical injury do not
constitute an ‘injury.’” Bunger v. Lawson Milk Company (1998),
82 Ohio St.3d 463, 464.
{¶ 36} In State ex rel. Clark v. Industrial Commission (2001),
92 Ohio St.3d 455, the Supreme Court held that “a corrections
officer who suffered a psychological injury as a result of being
held hostage, but without a contemporaneous physical injury, is
without a remedy, under the workers’ compensation system.” Id.,
at 459.
{¶ 37} In McCrone v. Bank One Corporation, 107 Ohio St.3d 272,
2005-Ohio-6505, in which the claimant likewise suffered no physical
injury at all, the Supreme Court held, at ¶29: “Psychological or
psychiatric conditions, without an accompanying physical injury
or occupational disease, are not compensable under R.C.
4123.01(C)(1).”
{¶ 38} The term “contemporaneous” connotes a temporal nexus,
not a causative nexus. Two things are contemporaneous when they
arise, exist, or occur at the same time. State ex rel. Clark used
the term contemporaneous to illustrate the lack of any causative
nexus, because in that case the claimant suffered no physical injury
at all. Neither State ex rel. Clark nor McCrone v. Banc One Corp., 11
hold that a psychiatric or psychological condition arises from
a physical injury because the two coincide in time. Both cases
hold that the condition must also be a product of a physical injury.
As amended by 2006 S 7, R.C. 4123.01(C)(1) requires that, in
addition, the physical injury must be one that the claimant suffered
in order for the claimant’s psychological injury to be compensable.
{¶ 39} The trial court correctly construed the exclusion from
coverage for psychiatric conditions in R.C. 4123.01(C)(1).
Further, there was competent, credible evidence from which the
court could find that Armstrong’s psychiatric condition did not
arise from the physical injuries he suffered, but was instead the
result of the horrific injuries that caused the death of the other
driver when their vehicles collided. Dr. Howard testified that
Armstrong’s PTSD was not caused by his physical injuries from the
accident but instead was “caused by being a visual witness of the”
accident. He reviewed the available medical evidence and provided
a sound basis for his conclusion. The court was free to reject
the testimony of Dr. Stoeckel, which tended to support Armstrong’s
“contemporaneous event” theory. Therefore, the trial court’s
judgment is not against the manifest weight of the evidence and
must be affirmed. C.E. Morris Co. v. Foley Construction Company.
{¶ 40} The assignment of error is overruled. The judgment of
the trial court will be affirmed. 12
HALL, J., concurs.
FAIN, J., dissenting:
{¶ 41} I would find that Armstrong’s post-traumatic stress
syndrome is a compensable psychiatric condition under the Workers’
Compensation Statutes, reverse the judgment of the trial court,
and remand for further proceedings.
{¶ 42} R. C. 4123.01(C)(1) defines “injury,” as used in
workers’ compensation laws. In relevant part, it reads:
{¶ 43} “ ‘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:
(1) Psychiatric conditions except where the claimant's
psychiatric conditions have arisen from an injury * * *
sustained by that claimant * * * .
{¶ 44} The primary goal in statutory interpretation is to
give effect to the legislature’s intent. Bailey v. Republic
Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 39,
2001-Ohio-236. In determining legislative intent, the court
first looks to the statute’s language. Id. The court must
give effect to the words used in the statute, and not delete
or insert words. Id. at 39-40. If the statute’s meaning 13
is unambiguous and definite, it must be applied as written.
Id. at 40.
{¶ 45} Neither party disputes that Armstrong suffered a
compensable physical injury, that he suffered PTSD, or that
his physical injuries at least contributed to his PTSD. The
parties disagree about how to construe the language “arisen
from an injury * * * sustained by that claimant * * * .
Armstrong argues that the wording should be interpreted as
requiring a claimant to show only that he suffered his
psychiatric condition contemporaneously with his compensable
physical injury. Jurgenson argues that the wording shows
the legislature’s intent to distinguish between those
psychiatric conditions that arise from physical injuries and
those that are reactions to the injurious event or to the
injuries of other persons. Jurgenson argues that only the
former would be compensable. Jurgenson asserts that, in line
with the expert testimony, Armstrong’s physical injuries only
“contributed” to the development of the PTSD, making the
relationship between Armstrong’s injuries and his PTSD
correlative, not causal.
{¶ 46} The statutory limitation restricts participation
to a psychiatric condition that has “arisen from an injury” 14
sustained by the claimant. The term “injury” refers both
to the hurt, damage, or loss sustained, and to the act that
damages, harms, or hurts. Webster’s Third New International
Dictionary (G. & C. Merriam Company, Springfield,
Massachusetts, 1969), 1164. “INJURY, HURT, DAMAGE, HARM,
and MISCHIEF mean in common the act or result of inflicting
on a person or thing something that causes loss, pain,
distress, or impairment.” Id.
{¶ 47} Read narrowly, the statutory restriction would
require that the psychiatric condition must result from the
harm caused by a physical injury. Read liberally, the
statutory restriction would require only that the psychiatric
condition must result from the act that causes a physical
injury.
{¶ 48} I find McCrone v. Bank One Corp., 107 Ohio St.3d
272, 2005-Ohio-6505, to be helpful. That case involved the
constitutionality of the contemporaneous physical injury
requirement for compensation for a psychological or
psychiatric injury. Justice Lanziger wrote the majority
opinion, holding that the requirement does not violate the
equal protection clauses of the federal or Ohio constitutions;
Justice Lundberg Stratton wrote a concurring opinion; and 15
Justice Resnick wrote the dissenting opinion, opining that
the contemporaneous physical injury requirement does violate
the equal protection clauses.
{¶ 49} Both the majority and dissenting opinions
characterized, and discussed, the nature of the
contemporaneous physical injury requirement. In the
majority opinion, the “arisen from an injury or occupational
disease” formulation in R.C. 4123.01(C) is used
interchangeably with the requirement of a contemporaneous
physical injury:
{¶ 50} “Psychological or psychiatric conditions, without
an accompanying physical injury or occupational disease, are
not compensable under R.C. 4123.01(C).” Id., ¶ 29.
{¶ 51} “ * * * , even if we were to apply Bailey [v. Republic
Engineered Steels, Inc. (2001), 91 Ohio St.3d 38], physical
injury is still required * * * before a claimant’s mental
condition becomes compensable. In McCrone’s case, there was
no physical injury whatsoever.” Id., ¶ 28.
{¶ 52} “The General Assembly has determined that those who
have mental conditions along with compensable physical injury
or occupational disease are covered within the workers’
compensation system, * * * .” Id., ¶ 30. 16
{¶ 53} “ * * * , the BWC argues that it is reasonable to
classify psychological and psychiatric conditions
differently from those accompanied by physical injury.” Id.,
¶ 33.
{¶ 54} “Although a physical injury may or may not cause
a psychological or psychiatric condition, it may furnish some
proof of a legitimate mental claim.” Id.
{¶ 55} “We accept the appellant Bureau of Workers’
Compensation’s position and hold that R.C. 4123.01(C) does
not violate the Equal Protection Clauses of the United States
and Ohio Constitutions by excluding from the definition of
‘injury’ psychological or psychiatric conditions that do not
arise from a compensable physical injury or occupational
disease.” Id., ¶ 36.
{¶ 56} “Requiring that a mental disorder be incident to
a physical injury * * * is rationally related to legitimate
governmental interests.” Id., ¶ 37.
{¶ 57} The dissenting opinion is even more instructive when
it points out the minimal differences in circumstances that
could result in one worker’s mental condition being
compensated, while another worker’s mental condition is not: 17
{¶ 58} “And yet this same injury – posttraumatic stress
disorder – would be fully covered under the statute if only
the bank robber had been considerate enough of appellee’s
compensation position to have shoved her during the robbery
so that she could stub her toe and acquire the physical element
that is deemed so essential to her right of recovery.” Id.
¶ 43.
{¶ 59} “Or consider the situation in which the bank robber
fires a gun at the teller but narrowly misses. Can it really
be concluded with any measure of rationality that there are
reasonable grounds for making compensability of the teller’s
posttraumatic stress disorder turn on whether she had the
‘good fortune’ from a coverage standpoint to have twisted
her back or sprained a finger upon recoiling at the prospect
of being shot to death? Does the injured back or finger under
these circumstances, or the stubbed toe in the previous
scenario, really provide such independent verification of
the posttraumatic stress disorder as to be rationally
determinative of its compensability?” Id., ¶ 44.
{¶ 60} Nowhere in the majority opinion in McCrone is there
a disclaimer of the compensation hypothesized for the
hypothetical situations set forth in the dissenting opinion. 18
Both the majority and dissenting opinions in McCrone treat
the physical injury requirement as merely requiring that a
physical injury must accompany the psychological or
psychiatric injury for which workers’ compensation is sought
– that is, that the psychological or psychiatric injury must
result from the act (the “injury”) that caused physical harm.
{¶ 61} I do not conclude that Bunger v. Lawson Milk Company
(1998), 82 Ohio St.3d 463, requires more than that a physical
injury must accompany the psychological or psychiatric injury
for which workers’ compensation is sought. To begin with,
the facts in that case did not involve any physical injury
at all. Furthermore, Justice Lundberg-Stratton, whose
concurring opinion was necessary to the majority (only two
other justices concurred in Justice Pfeifer’s opinion for
the court), clearly deemed the requirement to be merely that
a physical injury must accompany the psychological or
psychiatric injury:
{¶ 62} “ * * * , psychological injuries without
accompanying physical injury are specifically excluded from
compensable injuries under the workers’ compensation
statutes.” 19
{¶ 63} “ * * * , when the employee sustains a psychological
injury in the workplace without a physical injury, the
employee is prevented from seeking recovery for the injury
because it is not covered under the workers' compensation
{¶ 64} “A psychological injury may exist without a
concurrent physical injury. It is time that such a
psychological injury be recognized as compensable in the
workers' compensation system. [Recognizing, however, that
the law was presently otherwise.]” Bunger v. Lawson Co.
(1998), 82 Ohio St.3d 463, 467.
{¶ 65} The workers' compensation statutes “shall be
liberally construed in favor of employees.” R. C. 4123.95.
{¶ 66} Liberal construction means giving "generously all
that the statute authorizes," and "adopting the most
comprehensive meaning of the statutory terms * * * to
accomplish the aims of the Act and to advance its purpose,
with all reasonable doubts resolved in favor of the
applicability of the statute to the particular case.
Interpretation and construction should not result in a
decision so technical or narrow as to defeat the compensatory
objective of the Act." Bailey v. Republic Engineered Steels, 20
Inc., 91 Ohio St.3d at 40, quoting Fulton, Ohio Workers'
Compensation Law (2 Ed.1998) 9, Section 1.7.
{¶ 67} I conclude that a liberal construction of R.C.
4123.01(C) would require us to hold that a psychological
or psychiatric condition is compensable if it otherwise meets
the requirements for participation in the workers’
compensation system and is contemporaneous with a compensable
physical injury. This construction of the statute is at least
suggested by, if not commanded by, both the majority and
dissenting opinions in McCrone v. Bank One Corporation, 107
Ohio St.3d 272, 2005-Ohio-6505. But see Dunn v. Mayfield
(1990), 66 Ohio App.3d 336, a decision pre-dating McCrone,
which suggests otherwise.1
Copies mailed to:
Jeffrey W. Harris, Esq. Corey V. Crognale, Esq. Colleen Erdman, Esq. Hon. Douglas M. Rastatter
1 “While appellant faces the unenviable task of establishing that his post-traumatic stress disorder was proximately caused by his cut fingers, burning eyes and lungs and not the emotional stress he describes as being the causative factor in his psychiatric examination by Dr. Brown, he has stated a cause of action.” 66 Ohio App.3d 342.