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Congratulations to 2001 Lawyers Of The Year
Each day, many of the nearly 40,000 practicing lawyers in Ohio contribute to the profession in one way or another, largely without recognition.
In this special section, Lawyers Weekly has selected 10 Ohio attorneys who stood out from the crowd in 2001 by winning important decisions, leading the way in complex corporate endeavors, taking on groundbreaking issues within the legal community and otherwise contributing to the development of the law.
The Lawyers of the Year for 2001 are:
W. Craig Bashein/Paul W. Flowers (Cleveland) • Richard Brian (North Canton) • Richard M. Cieri (Cleveland) • W. Charles Curley (Columbus) • James E. Davidson (Columbus) • Jack G. Fynes (Toledo) • James H. McCauley (Belpre) • Margaret McCollum (Middletown) • Lester S. Potash (Cleveland) • Carl Smallwood (Columbus)
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.
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