L.E.P. v. Cuyahoga Cty. , 2023 Ohio 467 ( 2023 )

[Cite as L.E.P. v. Cuyahoga Cty., 2023-Ohio-467.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
L.E.P.
Plaintiff-Appellant, :
No. 111848
v. :
CUYAHOGA COUNTY ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 16, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-955026
Appearances:
Nager, Romaine & Schneiberg Co., L.P.A., Jennifer L. Lawther, Corey J.
Kuzma, James D. Falvey, and Erin E. Sawyer, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Leslie J. Shafer, Assistant Prosecuting Attorney, for appellee.
EMANUELLA D. GROVES, J.:
This cause came to be heard on the accelerated calendar pursuant to
App.R. 1.1 and Loc.App.R. 11.1. Plaintiff-appellant L.E.P. (“Appellant”), appeals the
judgment of the Cuyahoga County Court of Common Pleas that denied her workers’
compensation benefits when the trial court granted summary judgment to Appellee,
Cuyahoga County (“Appellee”). For the following reasons, we affirm.
Facts and Procedural History
Appellant was employed by Cuyahoga County as a corrections officer.
On May 2, 2021, Appellant escorted a nurse to dispense medications to inmates from
the med cart. During this time, the entire pod was placed on lockdown. As the med
cart reached each cell, Appellant unlocked the cell door. Each inmate approached
the cart to receive medications. While Appellant was passing out medication with
the nurse, an inmate allegedly grabbed her vagina (hereinafter referred to as
“inmate’s actions”). Surveillance cameras captured an inmate bending over,
Appellant kicking the inmate, and his hand flinging up toward her body. Appellant
kicked the inmate again, he returned to his cell, and the nurse and Appellant
continued with their rounds.
Appellant went to University Hospitals emergency department on
May 5, 2021, for anxiety resulting from the incident. She did not sustain any
physical injuries. She was treated, attended counseling, and followed up with
physician assistant, Mark Rodney, at MetroHealth on May 13, 2021.
On May 14, 2021, Raymond D. Richetta, Ph.D., examined Appellant
and diagnosed her as having adjustment disorder with mixed anxiety and depressed
mood as directly and proximately related to the inmate’s behavior during the May
2, 2021, incident.
Appellant initiated her workers’ compensation claim on May 7, 2021,
alleging a psychiatric injury after the inmate’s actions. The workers’ compensation
administrator disallowed her claim on June 30, 2021. Appellant’s subsequent
administrative appeals were denied because her psychiatric condition was not a
compensable exception under R.C. 4123.01(C)(1). After Appellant exhausted all
administrative appeals, she appealed to the court of common pleas on October 28,
2021.
Appellee filed a motion for summary judgment on May 6, 2022,
arguing that Appellant’s injury is not compensable because the inmate’s actions, i.e.,
grabbing of Appellant’s vagina by an inmate that occurred on May 2, 2021, were not
sexual conduct as defined in R.C. 4123.01(K).
The parties fully briefed the issue, and the trial court issued a journal
entry on July 15, 2022, granting Appellee’s motion for summary judgment.
Appellant now appeals, assigning one assignment of error for review.
Assignment of Error
The trial court erred in granting Appellee Cuyahoga County’s motion
for summary judgment.
Law and Analysis
In her sole assignment of error, Appellant argues that the trial court
erred when it granted Appellee’s motion for summary judgment, despite genuine
issues of material fact existing as to whether the inmate’s actions were “sexual
conduct” that is compensable under Ohio workers’ compensation law. Appellant
urges that the psychiatric condition for which she seeks benefits falls under an
exception to the general rule that psychiatric conditions without a covered physical
injury or occupational disease are not compensable.
Standard of Review
We review an appeal from a summary judgment under a de novo
standard. Khalia Ra v. Swagelok Mfg. Co., L.L.C., 8th Dist. Cuyahoga No. 109789,
2021-Ohio-1657, ¶ 16, citing Montgomery v. Greater Cleveland Regional Transit
Auth., 8th Dist. Cuyahoga No. 109559, 2021-Ohio-1198, ¶ 18, citing Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (1996). “Our de novo review is
without any deference to the trial court’s decision. See Dean v. Liberty Mut. Ins.,
8th Dist. Cuyahoga No. 106046, 2018-Ohio-3042, ¶ 9, citing Powers v. Ferro Corp.,
8th Dist. Cuyahoga No. 79383, 2002-Ohio-2612 ¶ 30.
Summary Judgment
On a motion for summary judgment, the moving party is initially
tasked with identifying specific facts in the record that demonstrate his or her
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d. 280, 662 N.E.2d
264 (1996). “If the moving party fails to meet this burden, summary judgment is
not appropriate; if the moving party meets this burden, the nonmoving party must
then point to evidence of specific facts in the record demonstrating the existence of
a genuine issue of material fact for trial.” Id.In satisfying its burden, “the nonmovant may not rest upon the mere
allegations or denials of his pleadings, but his response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial”. Id. at 293.
Workers’ Compensation
To overcome a motion for summary judgment, Appellant must
provide facts of her eligibility to participate in workers’ compensation. Under the
Ohio Workers’ Compensation Act, with a few exceptions, an injured employee is
entitled to compensation for the loss sustained because of a physical injury or
occupational disease. R.C. 4123.54(A). The Ohio Supreme Court recognized that
coverage for psychiatric injuries without a covered physical injury or occupational
disease is limited, holding that “[i]n the absence of a clearly expressed legislative
intent to recognize mental conditions caused solely by work-related stress as
occupational diseases within the purview of the Workers’ Compensation Act, such
mental conditions are not compensable as occupational diseases.” McCrone v. Bank
One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 18.
The Act defines “injury” to include ‘“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.’” Hoelscher v.
KBO, Inc., 2d Dist. Clark No. 2017-CA-25, 2017-Ohio-5756, ¶ 7, quoting R.C.
4123.01(C). Psychiatric conditions without contemporaneous physical or
occupational injury are generally not compensable. Jones v. Catholic Healthcare
Partners, Inc., 2012-Ohio-6269, 986 N.E.2d 486, ¶ 23 (7th Dist.). Claims for mental
conditions based solely on job-related stress were explicitly excluded from the
definition of “injury” R.C. 4123.01(C). Rambaldo v. Accurate Die Casting, 65 Ohio
St.3d 281, 287, 603 N.E.2d 975 (1992). In doing so, the General Assembly intended
that such claims are not compensable under the Workers’ Compensation Act,
whether denominated as an injury or an occupational disease claim. Id.The legislature expressed its intent to narrowly limit coverage for
solely psychiatric conditions when it amended R.C. 4123.01(C) in 2006. See
Armstrong v. John R. Jurgenson Co., 2d Dist. Clark No. 2011-CA-6, 2011-Ohio-
6708, ¶ 33. The amendment addressed the outcome in Connors v. Sterling Milk Co.,
98 Ohio App.3d 711, 649 N.E.2d 856 (3d Dist. 1993), where a claimant was denied
compensation for PTSD and depression resulting from an assault by a masked
assailant who forced the claimant at gunpoint to leave her place of work, enter an
alley, and then told her to perform a sex act or die. The claimant’s psychiatric injury
was not compensable because she did not sustain a physical injury during the
incident. Id. In response, the legislature allowed compensation for psychiatric
injury in the limited instance where the injury arose from “sexual conduct” for
purposes of workers’ compensation as defined in R.C. 4123.01(K).
Under R.C 4123.01(K), sexual conduct requires penetration of the
vaginal or anal cavity, however slight, by force or threat of physical harm. We must
apply the plain, unambiguous meaning to the words defining “sexual conduct.”
When a statute is unambiguous, the court applies it as written. State ex rel. Ohio
Presbyterian Retirement Servs. v. Indus. Comm. of Ohio, 151 Ohio St.3d 92, 2017-
Ohio-7577, 86 N.E.3d 294, ¶ 1.
Absent some evidence of ambiguity in the statute’s language, this
court is without authority to expand or narrow the meaning of the statute’s words.
State Bur. of Workers’ Comp. v. Mal-Sarkar, 8th Dist. Cuyahoga No. 101642, 2015-
Ohio-1025, ¶ 24. ‘‘‘When a statute’s meaning is unambiguous, courts apply the law
as written.’’’ State v. Brown, 2022-Ohio-3736, 199 N.E.3d 219, ¶ 1 (8th Dist.).
The amendment carved out an exception for psychiatric injuries
without a physical injury only when the worker is forced to engage or participate in
sexual conduct by force or threat of physical harm. Under R.C. 4123.01(C)(1),
“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:
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. Id.It is undisputed that Appellant suffered no physical or occupational
injury. Nonetheless, Appellant claims that her psychiatric condition, which resulted
from the inmate’s actions during the incident, is a compensable injury under the
exception outlined in R.C. 4123.01(C)(1). We cannot accept Appellant’s argument.
Psychiatric Injury Without Physical Injury Exception
Psychiatric injuries without physical injury or occupational disease
are only eligible for compensation under the Workers’ Compensation Act when 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.
R.C. 4123.01(C)(1). Here, the basis for Appellee’s motion for summary judgment
was that Appellant’s psychiatric condition did not arise from “sexual conduct” and
that Appellant was not forced or threatened with physical harm.
Our review requires a two-prong analysis. First, a determination
must be made whether the inmate’s actions were “sexual conduct” under
R.C. 4123.01(K). Second, the inmate’s actions must have been by force or threat of
physical harm.
Under the workers’ compensation statute “sexual conduct” in
R.C. 4123.01(K)
means vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons regardless of
gender; and, without privilege to do so, the insertion, however slight, of
any part of the body or any instrument, apparatus, or other object into
the vaginal or anal cavity of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
Here, the allegation is the inmate grabbed the Appellant’s vagina.
Appellee points to Appellant’s deposition testimony, an incident report, and
surveillance video capturing the incident to establish that the inmate’s actions fail to
meet the definition of sexual conduct under the statute.1 During her deposition,
Appellant testified that she did not engage or participate in sexual conduct during
the incident. (R. 13, Ex. B, L.E.P. Depo. at 12:3-17).
1Exhibit D “Privileges and Rights of Inmates in Disciplinary Isolation” found the
inmate not guilty of the allegations stemming from the incident and noted, “Unable to
corroborate statement after reviewing video.”
Appellee contends that the inmate’s actions failed to meet the
definition of “sexual conduct” under the worker’s compensation statute. A video
review supports Appellant’s deposition testimony. The video shows Appellant
kicking the inmate before he made any contact with her. After the first kick, the
inmate’s hand flung up briefly, and Appellant kicked him a second time. The inmate
returned to his cell, and Appellant proceeded to finish her rounds. The entire
interaction between the inmate and Appellant was a few seconds. It is unclear from
the video if the inmate’s hand made any contact with Appellant. But contact, even
in a sexual manner, is not sufficient to satisfy the worker’s compensation definition
of sexual conduct as defined in R.C. 4123.01(K).
Appellant must point to some evidence in the record that there is a
genuine issue of material fact as to whether the inmate’s behavior towards Appellant
is sexual conduct. We recognize that any unwanted sexual actions by individuals in
the workplace may cause psychiatric injury. However, the legislature intentionally
defined sexual conduct in a way that excludes most sexual actions, except for the
most invasive when penetration occurs. Therefore, less invasive actions are
insufficient for compensable psychological injury under the Workers’ Compensation
Act. We are constrained to follow the law as it applies here. When construing
evidence in the record in Appellant’s favor, Appellant’s deposition testimony and the
video fail to establish a genuine issue of material fact as to whether sexual conduct,
as defined in R.C. 4123.01(K), occurred. Consequently, the first-prong of sexual
conduct was not established.
Force or Threat of Physical Harm
As to the second prong, Appellee argues that Appellant was not
threatened by physical harm to engage or participate in sexual conduct. Appellee
offers Appellant’s deposition testimony that the inmate did not threaten her (R. 13,
Ex. B, L.E.P. Depo. at 11:18-19). Appellant counterargues that the second-prong is
met because the inmate’s proximity to Appellant allowed him to forcibly grab her.
Nonetheless, we do not need to address the second-prong here.
Appellee’s uncontradicted evidence that Appellant did not engage or participate in
sexual conduct as defined by the Workers’ Compensation Act was sufficient to
support the trial court’s conclusion that there was no genuine issue of material fact
to be litigated.
Conclusion
Appellant fails to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue for trial regarding whether the
inmate’s actions were sexual conduct. Appellee is therefore entitled to judgment as
a matter of law. Appellant’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable ground for this appeal.
It is order that a special mandate be sent to said court to carry out this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
EILEEN T. GALLAGHER, P.J., and
MICHAEL JOHN RYAN, J., CONCUR