Foreseeability of Ohio Worker's Depression is Not a Factor in Judging Compensability of Mental Condition

An Ohio appellate court reversed a trial court’s determination that an injured worker had not sustained a compensable mental injury–Depressive Disorder, not otherwise specified–stemming from her original 2007 knee injury, since the trial court incorporated an impermissible tort standard of foreseeability in its examination of proximate causation [Dubose v. McCloud, 2020 Ohio App. LEXIS 3858 (Oct. 21, 2020)]. The court held the proper question was not whether the worker’s depression was foreseeable from her original injury, but whether her depression stemmed from her knee injury or from another “independent cause” that broke the “natural and continuous” causal chain from knee injury to depression.

Background

In May 2007, as Ms. Dubose cleaned a hospital room for her employer, an expanding chair threw her against the wall, injuring her right knee. Diagnosed at the emergency room with a sprain and meniscus tear, Dubose was eventually certified for a worker’s compensation claim allowing for three conditions: a right knee sprain/strain, a tear of the medial meniscus of the right knee, and substantial aggravation of preexisting degenerative joint disease of the right knee. Continuing to struggle with the ramifications of this incident, in October 2009, Dubose underwent a total knee replacement.

For nearly six years after her surgery, Dubose’s knee replacement alleviated her pain and allowed her to return to work. In 2015, however, Dubose began to experience pain and loss of function in her right knee. She developed a limp and encountered problems with falling. Dubose eventually underwent a second knee replacement, which she hoped would repair serious problems with the original procedure. Several months of post-surgical rehabilitation and physical therapy failed to improve her condition, however, and her surgeon indicated nothing more could be done. The surgeon indicated she would be unable to return to work and advised her to apply for Social Security Disability payments. He also referred her to a pain management specialist, who prescribed oxycodone to alleviate some of her symptoms.

Dubose subsequently began to show symptoms of depression. A psychologist diagnosed her with Depressive Disorder, not otherwise specified (NOS). At the employer’s request, Dubose attended a second psychological evaluation wherein the psychologist’s diagnosis was confirmed. Thereafter, Dubose requested an additional allowance of Depressive Disorder NOS for her workers’ compensation claim—which the Industrial Commission denied. The trial court subsequently rejected Dubose’s request to participate in the Workers’ Compensation program for Depressive Disorder (NOS), and Dubose appealed.

Appellate Court Decision

The appellate court summarized the legal issues, noting that in the case of a “flow through” injury like Ms. Dubose’s, a claimant must establish that the previously allowed injury was the proximate cause of the new injury. In addition, for a mental condition to be compensable, a claimant must demonstrate that the mental condition arose from the claimant’s allowed, physical injury [see Ohio Rev. Code 4123.01(C)(1)]. Consequently, to succeed in her claim before the trial court, Ms. Dubose needed to establish that her depression arose from, and was proximately caused by, her knee injury.

Dual Causation

The court noted that it was a well-established principle of tort law that an injury might have more than one proximate cause. Moreover, in Ohio, when two factors combined to produce damage or illness, each was a proximate cause for purposes of workers’ compensation. The court indicated that while the trial court correctly noted that R.C. 4123.01(C)(1) excluded psychiatric conditions like Ms. Dubose’s unless the condition arises from a compensable physical injury, the trial court went astray, however, by invoking the “remote cause” doctrine from a 1927 case, Armour & Co. v. Ott, 117 Ohio St. 252, 158 N.E. 189 (1927), which dealt with issues of causation and foreseeability in the context of a negligence claim. The appellate court stressed that the trial court had erred in conflating the standard for proximate causation in a workers’ compensation claim with the standard for liability in a negligence claim.

Forseeability Not an Issue

The appellate court continued:

The proper question in this case was not whether Ms. Dubose’s long-term disability and depression were foreseeable from her original injury, nor whether other, non-injury factors contributed to Ms. Dubose’s depression (a perfectly acceptable form of dual causation under Carrollton). Instead, the court should have assessed whether Ms. Dubose’s depression stemmed from her knee injury (which both experts agreed was at least a causal factor) or from another “independent cause” that broke the “natural and continuous” causal chain from knee injury to depression [citation omitted].

Inability to Work Was Not Supervening Cause

The appellate court also indicated the trial court had incorrectly characterized Dubose’s inability to work as a “supervening cause” that destroyed the requisite nexus between her mental condition and her physical injury [see Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237, 990 N.E.2d 568]. The court stressed that no party contested that Ms. Dubose stopped working only after pain and loss of function in her knee rendered work impossible. Nor had any party suggested that she should have disobeyed her surgeon’s instructions in this regard, or that she had any ulterior motive in leaving her job. The court added that, much to the contrary, the testimony indicated that she enjoyed work and found it fulfilling. Ms. Dubose’s inability to work was thus a link, rather than a break, in the causal chain to her depression, said the court. So far as her knee injury caused her inability to work, and her inability to work caused her depression, Ms. Dubose’s claim for Depressive Disorder NOS met the Armstrong nexus requirement and should be allowed.

In as much as the record supported no other independent cause that could justify denial of Ms. Dubose’s claim, the court said there was none. The appellate court accordingly reversed the trial court’s judgment, and remanded the cause with instructions that Ms. Dubose be allowed to participate in the Workers’ Compensation program for the condition of Depressive Disorder NOS.