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|A compensable workers’ compensation injury from sexual conduct. How? Under what parameters?|
By Lonce Lamonte, journalist and editor - February 27, 2023
An employee’s ability to pursue benefits due to a perceived sexual assault has been narrowly defined in the state of Ohio. An employee’s ability to pursue benefits due to an injury which is purely psychiatric has been narrowly defined.
Excluded from the definition of “injury” are claims for mental conditions based exclusively on job related stress. Many years ago, these claims were taken in until the law closed them down.
Now a worker who seeks benefits for a psychiatric injury when it comes to workers’ compensation cannot prevail but for a few exceptions.
Two exceptions are (1) if 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 physically threated if he-she did not engage.
The second exception is narrowed by the way the statute defines “sexual conduct”. Under the act such conduct means:
1. vaginal intercourse between a male and a female;
2. anal intercourse, cunnilingus, and fellatio between persons regardless of gender;
3. or without permission, the insertion of any part of the body or any instrument or object into the vaginal or anal cavity of another.
A court applied these rules recently to an officer’s claim that she suffered anxiety and mental anguish after an inmate sexually assaulted her.
In L.E.P v. Cuyahaga County, No. 111848 (Ohio Ct. App. 02/16/23) the officer claimed an inmate grabbed her vagina. But surveillance video showed her kicking the inmate’s hand away.
The appellate court states the officer failed to show she suffered a compensable injury within the statute’s meaning. It wasn’t clear to the court the inmate touched her. But even so, touching wouldn’t have been sufficient.
There had to be some degree of penetration for the act to constitute sexual misconduct according to the state’s workers’ compensation act.
The court wrote that any unwanted sexual actions in the workplace may cause psychiatric injury, but the legislature defines sexual conduct to ones that are invasive and involve penetration.
The court thus granted the employer summary judgment because within the statute there was no compensable injury.
Information for this article was found on workerscompensation.com where there is a more ample, substantial, and detailed writing.
firstname.lastname@example.org, Lonce Lamonte, journalist, adjustercom, www.adjustercom.com