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OHIO ALLOWS WORKER TO SUE

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COLUMBUS, Ohio -- The Ohio Supreme Court has ruled that a convenience store clerk may sue her employer for negligence for alleged psychological injuries she suffered after a gunman robbed the store where she worked.

The 4-3 decision breaches the doctrine of workers compensation as an exclusive remedy for workplace injuries by allowing the worker to seek a civil remedy outside the Ohio workers comp system.

Ohio's workers comp law, however, does not compensate claims for psychological injuries if they are not accompanied by physical injury arising out of and in the course of employment.

Ohio's approach to such claims is in the minority nationally.

"The majority of states allow compensation for some purely psychological injuries suffered in the workplace," according to a summary of workers comp law cited in the eight-page decision, which was written by Associate Justice Paul E. Pfeifer.

In the case, Bunger vs. Lawson Co., Rachel Bunger allegedly suffered a "post-traumatic stress reaction" after a robbery at the Dairy Mart convenience store where she worked alone. She was unable to continue to work at the store and obtained medical treatment for her psychological injury.

The denial of her claim for workers comp benefits was upheld by a state appeals court.

In its majority opinion, the Supreme Court denied workers comp benefits, noting that the state law did not permit such claims without a physical injury. But the majority ruled that Ms. Bunger could bring a tort claim against her employer.

"If a psychological injury is not an injury according to the statutory definition of 'injury,' then it is not among the class of injuries from which employers are immune from suit," the decision said.

In a dissenting opinion, Associate Justice Andrew Douglas suggested the court should have gone further. He wrote that legal provisions "that attempt to exclude purely psychological injuries from compensability under the Workers' Compensation Act violate principles of equal protection."

The Supreme Court's decision is one of several regarded as anti-business by Ohio business groups, which are hoping to unseat Justice Pfeifer in upcoming elections (see story, page 1).

The decision in Bunger is "an unfortunate decision by the Ohio Supreme Court that represents an expansion of liability for employers," said attorney Brett L. Miller of Buckingham, Doolittle & Burroughs in Columbus, Ohio. He represents Dairy Mart Convenience Stores, based in Cuyahoga Falls, Ohio, which was the employer in the case. "It opens up new avenues of claims for work-related incidents," he said.

Ms. Bunger's attorney also was critical of the ruling, but for different reasons.

"We were disappointed the (the majority decision) didn't go far enough. I really think the court should have decided that it was unconstitutional to exclude coverage for her claim," said Stewart Jaffy, who is also general counsel for the Ohio AFL-CIO.

Jim Woodward, managing director of public policy for the Ohio Manufacturer's Assn., said, "The Bunger decision is not really as bad as we thought it might be."

The OMA's concern had been that the court would expand the workers comp law to cover psychological injuries without a physical cause.

But leaving such claims outside the workers comp system can create problems, an insurer group says.

The Bunger decision "illustrates the strain on the exclusive remedy when categories of injuries are excluded from the act," said Bruce C. Wood, assistant general counsel with the American Insurance Assn. in Washington. Excluding specific categories of injuries has also led to litigation in Montana and Virginia in recent years.

"The likely result is uncertainty and expensive tort litigation," Mr. Wood added.

Ms. Bunger, who is currently working at a bank, has not yet filed the civil suit permitted by the court's decision in connection with the 1993 robbery in Fairfield, Ohio.

Bunger vs. Lawson Co., Ohio Supreme Court, No. 970341.