|
 Richard
Brian
North Canton
Born: Oct. 5, 1955, Germany
Education: University of Akron School Of Law, 1982; Western
State College in Colorado, 1979
Ohio bar admission: 1982
Legal experience: Private practice (1983-present)
Legal team: Steve Brian, Brian Mertes, Ryan Steir
Fresh out of law school in 1982, Richard Brian hit the ground
running with a private practice focused on workers' compensation
cases.Given his singular devotion to this area of law, it
comes as no surprise that he should be the attorney to break
new ground in the area of compensation for psychiatric conditions
arising from employment.
This past year, Brian argued the case
of Bailey v. Republic Engineered Steels, Inc., Lawyers Weekly
No. 100-042-01 before the Ohio Supreme Court claiming that
Leonard Bailey was entitled to workers' compensation benefits
for the depression he suffered after accidentally killing
a fellow employee, when he ran over him with a tow motor.
Bailey's claim had been denied at all
administrative levels on the basis that he had not sustained
an injury as defined in R.C. 4123.01(C). On appeal to the
Common Pleas Court, the defendant filed a motion to dismiss
the action, which was granted. Brian then appealed the decision
to the 5th District Court of Appeals where the trial court's
decision was reversed on the basis that the statute was a
violation of equal protection. At the same time, the appellate
court certified a conflict to the Supreme Court.
The Ohio Supreme Court chose to decide
the case based on the statutory interpretation, rather than
the constitutional issue of equal protection. In the majority
opinion, Justice Sweeney stated, "To deny coverage to
a claimant who has suffered a psychiatric injury as a result
of a physical injury to a coworker would frustrate the very
purpose of the act, which is to compensate workers who are
injured as a result of the requirements of their employment."
Brian is by no means finished with his quest. He is hopeful
still that he can bring a case before the Ohio Supreme Court
that specifically addresses the question of the constitutionality
of the statute.
Q. When you first took Leonard Bailey's
case, did you believe that he should receive compensation
under worker's comp, or did you know that this was an unusual
application of the statute?
A. He came in and told us his story about this event at work
and we advised him that, under existing law, he could not
file a claim because, at that time, obviously no psychological
injuries were allowed unless there was contemporaneous physical
injury. Initially we advised him that we couldn't file it.
But that was after Bunger v. Lawson Company.
Q. Why did you find the Bunger case significant
to Bailey's situation?
A. Historically, if you had an injury that was purely psychological,
you couldn't file workers' comp but you couldn't do anything
with the employer either because the employer was still hiding
behind the immunity provided by the workers' comp statute.
What the Bunger court said was, "You can't have it both
ways, employer." If it's not workers' comp, then there
is no immunity and you can sue for negligence.
So, we investigated whether or not there
might be a negligence action against Republic and we determined
that there wasn't. We went ahead and filed Mr. Bailey's claim,
even though it was clear that it was not a compensable injury.
I felt ‹ and I got into disagreement with a lot of my
colleagues ‹ that the language in the Bunger case opened
the door a little bit for the idea that the court was willing
maybe to look again at psychological injuries and look at
them closer.
Q. The case was denied administratively,
and you were dismissed out by the Court of Common Pleas so
you appealed it to the 5th District. On what grounds did the
5th District declare the statute unconstitutional?
A. They hold in the body of the decision that R.C. 4123.01
is unconstitutional because it denies equal protection under
both the Ohio and the U.S. Constitutions. But then they go
on to say ‹ and this is where things got funny on appeal
‹ but we also find that because 4123.01 says there must
be an injury that in this case there was an injury, albeit
to a third party, and, because there was an injury, Bailey's
case was compensable, even though the injury wasn't to him.
That wasn't really what we were arguing, but we were happy
with that decision. We still wanted the court to find that
it was unconstitutional.
Q. The case was then appealed to the Supreme
Court. They upheld the Court of Appeals, finding that there
was an injury under a strict interpretation of the statute.
Were you happy with the tack the justices took?
A. Obviously, I wish they had gone farther. But I understand
the process and, if the process is that if there is a way
to avoid the constitutional issue and resolve the case, than
that's the way it's to be done. I am hoping that we have the
next case to take to them, that when faced with the constitutional
issue and no other means to address the facts of the case,
that they will find it unconstitutional.
Q. The defense attorney, Mary Randall,
accused the justices of legislating from the bench. Do you
agree with that characterization of their decision?
A. I can see somebody saying that they are legislating from
the bench, but I think they are also fulfilling their duty
to uphold the constitution of the state. If legislation that
is passed is unconstitutional, then it's the court's duty
to declare that. If the Legislature doesn't pass unconstitutional
laws, then there is no problem. That's what we have a Supreme
Court for.
Q. So would you say that it is within
the province of the Supreme Court to make that decision?
A. Most people will argue that it is legislative and that's
always the argument and that's the argument that Republic
made. Even though it wasn't our appeal, we were will still
urging the court to find the whole thing unconstitutional
not just this third party issue. And that's always been the
argument that this is a legislative function. My response
to that is ‹ and it's exactly what I told the court
‹how long do you wait for the Legislature to act? You
have people out there who are suffering and the Legislature
hasn't acted and I think it's the function of the court to
do something about it. They have in the past.
Q. Are we behind the times in Ohio, as
compared to other states, in terms of taking care of people
with psychological injuries incurred at work, through the
workers' compensation system?
A. Absolutely. I don't know what the breakdown is ‹
it was in our initial briefs to the Court of Appeals ‹
but we looked at every state and, clearly, we are in the minority.
Q. Is there any effort afoot to change
that?
A. There was some discussion right after Bailey came out that
they were going to try to close that loophole and say that
the injury must be to the person claiming the psychological
injury.
I can tell you that there is a strong effort afoot now that,
if the Legislature won't do it [broaden the statue], to change
it through case law. I don't know what the status of any of
the other cases are, but we have a case that we are taking
up through the process ‹ same as Bailey ‹ that
is one step removed from Bailey because there is no injury
to a coworker. It is purely a psychological injury. Everybody
agrees that this person's injury arose out of his employment.
And we are hoping that the Supreme Court, when faced with
this case, will have to address the constitutional issue.
Q. What is the rationale behind excluding
psychological injuries from the workers' compensation program?
A. There is no rational basis to exclude those people. If
you look at the court's prior decisions in the area of tort
law, that's what they said. It's recognized in Tort law. That's
been the thrust of our argument all along is that if you analogize
this to Tort law, the court has already said that there is
no rational basis to exclude psychological injuries from negligence
actions. For the life of me, I can't figure out what the distinction
is here. Justice Douglas wrote, I think in Bunger, that there's
no difference between an injury to the body and an injury
to the mind.
Q. Are these types of cases rare in the
area of workers' compensation?
A. We get inquiries, but not a lot. I think what's important
when we argued this case before the Supreme Court, we weren't
suggesting that all psychological impairment claims be compensable
‹ "I'm stressed out at work and I should be able
to file a claim." We are talking about those cases that
involve a more serious level of injury, when you have a situation
where a coworker is killed or you witness some sort of extremely
violent act. I have had some inquiries from people who have
been robbed at gunpoint. They don't have any physical injury.
But now they can't work. They can't go back into the bank
or that convenient store.
Q. How do you get around business concerns
that opening up workers' compensation to psychological injury
will open a floodgate of claims?
A. I don't think it's justified, I suggested to the Supreme
Court, during my argument ‹ and I've suggested it to
anyone who will listen‹ that the court or the Legislature
can build into the definition of psychological injury enough
of a restriction as to prevent that flood of claims. You and
I both have days where we are so stressed out we could file
a claim. That's true with all jobs. That's not what we are
talking about. I don't think this is rocket science. We need
to get on with it. We need to fashion a test just like you
have a test for occupational disease. There are certain criteria
that you must meet to file a claim. I think it's a false sense
that there's going to be this flood of claims if these are
allowed. The system can handle it. That's what the Bureau
is there for.
Q. What was the toughest challenge for
you personally in the Bailey case?
A. Having been in practice for 20 years, and doing pretty
much just administrative work, from a personal challenge,
it was just preparing for oral argument before the Supreme
Court. From a personal standpoint that's a heady thing. You
don't do that every day. It was a wonderful experience.
| 
