When Does Sexual Conduct Cause a Compensable Injury in Ohio?

                               

Columbus, OH (WorkersCompensation.com) -- In Ohio, 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).

Ohio has narrowly limited an employee’s ability to pursue benefits due to an injury which is purely psychiatric. For example, Ohio law excludes from the definition of "injury” claims for mental conditions based solely on job-related stress. 

With a few exceptions, a worker who seeks benefits for a psychiatric injury, such as PTSD, anxiety, or depression, is out of luck—at least when it comes to worker’s compensation benefits. Under the act’s exceptions, a worker is entitled to benefits for a psychiatric injury, if:

  1. The psychiatric injury arose from an injury or occupational disease sustained by that claimant or; 
  2. The claimant's psychiatric conditions arose from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate.

The second exception is even further narrowed by the way the statute defines “sexual conduct.” Such conduct, under the act, means: 

  1. Vaginal intercourse between a male and female;
  2. Anal intercourse, fellatio, and cunnilingus between persons regardless of gender; or
  3. 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. 

A court recently applied these rules to a correction officer’s claim that she suffered anxiety and other mental conditions after an inmate sexually assaulted her.

In L.E.P. v. Cuyahoga County, No. 111848 (Ohio Ct. App. 02/16/23), the officer claimed the injury occurred when she was helping a nurse distribute medications to inmates. At one point, an inmate grabbed her vagina, she said. But video surveillance showed the officer twice kicking the inmate’s hand away from her.

The appellate court stated that the officer failed to show that she suffered a compensable injury within the meaning of the statute. 

It was unclear, the court observed, that the inmate touched her. But even if he had done so, touching was not enough. There had to be penetration, however slight, for the act to constitute sexual misconduct for purposes of the state’s worker’s compensation act.

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“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,” the court wrote.

Because no compensable injury occurred, the court granted the employer summary judgment. 

 

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