CHANGE THE LAW, COURT WILL FOLLOW

Businesses in many states are, no doubt, throwing their weight in the upcoming elections behind candidates who support pro-business agendas.

Just as important may be putting their weight behind efforts to throw out elected officials who consistently put business interests last and thereby make it more difficult for companies to grow and profit.

One state where the latter effort is under way is Ohio, where the Ohio Chamber of Commerce is pushing to unseat an elected state Supreme Court judge who consistently rules against business interests, in particular on workers compensation matters.

Business organizations frequently focus on candidates for legislative and executive positions at the state or federal level who are most aligned with their interests. More rare is campaigning for or against elected members of the judiciary, who can have just as great an impact on businesses.

For several years now, the Ohio Chamber has tracked the stance of elected judges on business issues before the courts. It currently is targeting one Republican judge, Paul E. Pfeifer, who, despite his membership in what is traditionally seen as the pro-business party, has what it sees as a record of aligning with Democrats on the bench to form an anti-business majority.

One recent case in particular has drawn the Chamber's attention and further demonstrates the Chamber's desire to unseat Associate Justice Pfeifer. In the case, a majority of the Ohio Supreme Court, including Justice Pfeifer, ruled that an employee who alleges work-related mental injury not caused by a physical injury can bring a tort suit against her employer. The ruling sets a precedent in Ohio, because the workers compensation law does not consider so-called "mental-mental" claims a compensable injury.

Ohio businesses are up in arms that the court has opened up a new avenue for tort lawsuits against employers.

While we can appreciate that this may seem like one more reason to unseat the judge, we believe that the limitations of the state's workers compensation law left the court with few alternatives in this case.

If businesses wish to avoid costly lawsuits brought by employees alleging mental injuries caused by their jobs, then the next lobbying effort should be directed at amending the state's workers compensation statutes.

Currently, only a minority of states still deny compensation for purely mental injuries not predicated by physical injuries. That limitation on compensability only serves to remove such claims from the protection that workers compensation's exclusive remedy affords employers.

While businesses' knee-jerk reaction may be to bemoan yet another ailment added to the list of compensable claims, we believe it would be far more manageable and less costly to deal with such claims under the workers comp system than in civil trials before unpredictable juries -- or judges.

In this day and age, it's hard to deny that the work environment can lead to disabling mental illnesses or injuries. The case before the court provides an apt illustration of such claims. The claimant, Rachel Bunger, allegedly suffered a "post-traumatic stress reaction" after witnessing a robbery at the Dairy Mart convenience store where she worked. She was unable to continue to work at the store and obtained medical treatment for her psychological injury. When Ms. Bunger sought workers comp benefits for her condition, they were denied since she had suffered no physical injury. Had she been shot during the holdup, the claim would have been covered.

The trial and appeals courts issued rulings reminiscent of Catch-22: Ms. Bunger's comp claim was denied because her condition did not result from a physical injury, yet a tort action was denied because her condition arose during the course and scope of her employment.

The Supreme Court essentially ruled that if a claim is not covered by workers comp, then the claimant cannot be barred from pursuing common law remedies.

Now that the court has created this path to the courthouse for plaintiffs with purely mental injuries, we think businesses in Ohio might want to rethink the scope of their comp statutes and lobby for inclusion of mental-mental claims.

Getting rid of the judges who interpret laws unfavorably for business is one way for businesses to protect themselves. But for more lasting and predictable protection from lawsuits, businesses need to throw their weight behind meaningful legislative reforms.