Brady v. Safety-Kleen Corp.

Holmes, J.,

dissenting. Judicial flummery surrounding the so-called employer “intentional tort” continues with this majority opinion — now striking down R.C. 4121.80, legislation enacted by Am.Sub.S.B. No. 307 to specifically define, and to compensate employees for, injuries caused by intentional torts as defined in this new section of law.

I feel certain that the General Assembly will be shocked to learn through this majority opinion that it has exceeded the authority specifically granted by *643Article II, Sections 34 and 35 of the Ohio Constitution. I also anticipate widespread puzzlement among the bench, bar, the business community, and the citizenry at large at the pronouncement of the majority that an intentional tort as committed by an employer against an employee, during the course of employment, “necessarily occurs outside the employment relationship.” With these pronouncements of the majority I am in total disagreement, some of which disagreement I have previously expressed by way of dissent in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 621-622, 23 O.O.3d 504, 513, 433 N.E.2d 572, 581-582, and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 103-107, 15 OBR 246, 257-261, 472 N.E.2d 1046, 1058-1060, which opinions espoused the “intentional tort” theory in Ohio law.

A historical review of the Ohio constitutional sections, legislation, and this court’s opinions in this area of workers’ compensation law readily shows the supremacy of the constitutionally granted powers of the Ohio General Assembly in this area of statewide concern. Today the majority of this court has gone far afield in its interpretation of both the legislative powers granted to the General Assembly and the statutes enacted thereunder relative to workers’ compensation.

I

History

Historically, a worker who had been injured in the course of his employment availed himself of an action at common law against his employer, and in order to recover his damages it was necessary to allege and prove fault upon the part of his employer. The employer in such an action had available the common-law defenses of contributory negligence, the fellow-servant rule and assumption of risk.

This system of litigation for obtaining compensation for work-related injuries became widely recognized as not meeting the needs of injured workers. In Ohio, a great number of such injuries were reportedly going uncompensated because of the legal defenses available to the employer. In response, the General Assembly, in 1911, enacted the first law pertaining to compensation for industrial injuries. See 102 Ohio Laws 524.

This original workers’ compensation law was enacted without specific constitutional authority. It was followed, however, by the adoption of the constitutional amendment, Section 35, Article II, in 1912, which became the fount for all subsequent workers’ compensation laws. This constitutional provision specifically empowered the General Assembly to provide for the compensation of injuries or occupational diseases “occasioned in the course of *644such workmen’s employment,” and to establish compulsory contribution by employers into a statewide fund in order to pay such compensation.

The original workers’ compensation law provided for an employee’s election of remedies between its benefits and a common-law action against his employer when the injury resulted from a “wilful act” committed by the employer, or by the failure of the employer to comply with lawful requirements as to the safety of the employees. Former G.C. 1465-61, S.B. No. 127, Section 21-2, 102 Ohio Laws 524, 529. The section contained no definition of the term “willful act.” It appears from the Ohio Reports that there was considerable case law activity against employers for recovery based upon their willful acts. In 1914, the General Assembly amended this statute, which had been recodified at G.C. 1465-76, by defining “wilful act” as an act “done knowingly and purposely with the direct object of injuring another.” 104 Ohio Laws 194.

This court had occasion to take notice of the fact that the willful-act exception to the workers’ compensation law had occasioned litigation that constituted an “insidious attack” on this Act, and that the expansion of this litigation had the effect of weakening the structure of the workers’ compensation law. Patten v. Aluminum Castings Co. (1922), 105 Ohio St. 1, 11, 136 N.E. 426, 429.

The most pertinent expression of public policy on this subject of exclusivity of the Act was the amendment to Section 35, Article II, adopted in 1923, effective January 1, 1924, which specifically granted immunity to complying employers from any common-law remedies for injuries suffered by employees. In pertinent part, the section was amended to read, as it still does today:

“ * * * Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law * * * shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.” (Emphasis added.)

Although G.C. 1465-76 was not repealed by the General Assembly until 1931 (114 Ohio Laws 26, 39), this court found that it had been “repealed by implication” by the constitutional amendment in 1924. Mobley & Carew Co. v. Lee (1934), 129 Ohio St. 69, 1 O.O. 366, 193 N.E. 745.

The legislature has, in various forms over the years, provided for the exclusivity of the Act. G.C. 1465-70 (1913), 103 Ohio Laws 72, 81, provided in pertinent part:

“Employers who comply with the provisions of * * * [G.C. 1465-69] shall not be liable to respond in damages at common law or by statute, save as *645hereinafter provided, for injury or death of any employee, wherever occurring * * * )}

In Triff v. Natl. Bronze & Aluminum Foundry Co. (1939), 135 Ohio St. 191, 14 O.O. 48, 20 N.E.2d 232, this court held that the right of action of an employee for the negligence of his employer directly resulting in a noncompensable occupational disease had not been taken away by Section 35, Article II of the Constitution of Ohio, or by G.C. 1465-70.

Shortly after the Triff opinion was announced, the General Assembly amended G.C. 1465-70 to further provide for the Act’s exclusivity, whether or not the injury, occupational disease, bodily condition, or death was compensable under the Act. See 118 Ohio Laws 422, 426-427. Similar provisions are now found in current R.C. 4123.74, which states, in pertinent part:

“ * * * [Ejmployers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, whether or not such injury, occupational disease, bodily condition, or death is compensable under sections 4123.01 to 4123.94 of the Revised Code.”

Even though Section 35, Article II of the Ohio Constitution and R.C. 4123.74 are crystal clear on their faces in light of the legislative and constitutional history, a majority of this court cast them aside in Blankenship without regard to their expressed public policy. There, in the context of a motion to dismiss under Civ.R. 12(B)(1) and (6), the court allowed a common-law tort action to be brought for what was termed an “intentional tort,” with the court offering absolutely no definition of the term. Subsequently, the court went considerably further afield in the cases consolidated under the name of Jones, supra. In that case, the court declared that common-law remedies are available to employees for a work-related injury where the injury was “committed with the belief that such injury is substantially certain to occur.” Id. at paragraph one of the syllabus. Further, the court determined that common-law remedies could be pursued even though the employee had applied for, and had received, benefits from the Workers’ Compensation Fund. Id. at paragraph two of the syllabus. This latter holding of course inherently recognized that the injury had indeed been occasioned within the employment relationship.

The result of Blankenship and Jones was a sharp increase in litigation in this field and substantial uncertainty as to what conduct would give rise to an intentional tort claim. Those opinions also created other questions, such as whether this conduct was insurable, and whether a person could doubly *646recover by way of both workers’ compensation benefits and damages for intentional tort, among other problems.

One of the major problems presented to those within the judicial process by Blankenship and Jones was applying their law to the broad spectrum of fact situations that was presented to trial courts under motions for summary judgment.

In response to increased intentional tort complaints being filed across the state, concern expressed by employer and business organizations, and legislative discussion and study, the General Assembly in 1986, with considerable bipartisan support,11 enacted Am.Sub.S.B. No. 307, effective August 22, 1986, including R.C. 4121.80, which provided a comprehensive means for the adjudication and compensation of intentional tort claims.

The General Assembly’s response by way of R.C. 4121.80 to this court’s opinions in Blankenship, Jones, and others, contained a statement that the Workers’ Compensation Act was intended to be the exclusive remedy for all deaths, injury and occupational disease occasioned in the course of employment.12 Having thus expressly reaffirmed employer immunity from common-law tort actions that was conferred by the Constitution and statute, the *647General Assembly created, in R.C. 4121.80, a supplemental remedy within the Workers’ Compensation Act for “intentional torts.”

This court had occasion to construe one part of R.C. 4121.80, that being subsection (H), which provided that R.C. 4121.80 would apply to any intentional tort action pending in any court on the effective date of the Act. The court held that subsection to be unconstitutionally retroactive contrary to Section 28, Article II of the Ohio Constitution. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. Having determined that R.C. 4121.80 could apply only prospectively, a majority of the court concluded that in the interim some stabilization of the standards for the determination of an intentional tort was needed. Accordingly, syllabus law was set forth in Van Fossen with the aim of assisting trial courts and counsel, particularly in resolving Civ.R. 56 motions for summary judgment. See, also, Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108.

As can be readily gleaned from the above historical analysis of workers’ compensation law in Ohio, there has been much legislative activity, both before and after the constitutional amendment’s specifically authorizing the General Assembly to set forth the public policy of this state in workers’ compensation matters. In support of the legislative authority in this field, in an early case, prior to the adoption of Section 35, Article II of the Ohio Constitution, this court upheld the original workers’ compensation law as a valid exercise of the police power in State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602, holding that it is the right and duty of the state, acting through the legislature, to provide for the common welfare of the governed. In like manner, the enactment of R.C. 4121.80, even in the absence of specific authority in Section 35, Article II, was a proper exercise of the general legislative power given to the General Assembly by Section 1, Article II of the Ohio Constitution.

II

Section 34, Article II

The majority here adopts the position of the petitioners and their supporting amici that R.C. 4121.80 violates Sections 34 and 35, Article II of the Ohio Constitution. The majority holds that R.C. 4121.80 is “totally repugnant” to Section 34, Article II, based upon the conclusion that “[a] legislative enactment that attempts to remove a right to a remedy under common law that would otherwise benefit the employee cannot be held to be a law that furthers the ‘ * * * comfort, health, safety and general welfare of all employes * * * 1 )f

*648The citizens of Ohio have given the General Assembly the power to enact laws concerning the compensation for injuries received within the workplace. The legislature, disturbed by the opinions of this court concerning what constituted, and the compensation for, intentional torts, enacted R.C. 4121.80, which again created a statutory recognition of workplace intentional torts, and established a procedure for the efficient adjudication of an employee’s claim that he or she was the victim of a workplace intentional tort and for funding the recovery. Such legislation certainly serves the goal of “providing for the comfort, health, safety and general welfare of all employes.”

As noted previously, employer immunity from common-law actions for intentional tort was part of the original trade-off in the workers’ compensation plan. In like manner, the enactment of R.C. 4121.80 provided additional tradeoff benefits for the claimant. One of the most important of these benefits was that the claimant was assured of a solvent fund from which to recover an award.13 The establishment of a stable source of payment is a considerable added benefit to claimants who allege an employer intentional tort.

Also, another benefit to employees within Am.Sub.S.B. No. 307 is R.C. 4121.47, which pertains to violations of specific safety rules. This section authorizes civil penalties up to $50,000 for violations of safety rules, the funds being deposited in the occupational safety loan program fund established per R.C. 4121.48. This safety provision clearly should be regarded as a benefit to Ohio workers, and a quid pro quo for some adverse effects of R.C. 4121.80 on employees.

In like manner, R.C. 4121.80(G)14 provides another quid pro quo to employees by providing a presumption of intent to injure where there is a deliberate *649removal by the employer of an equipment safety guard or misrepresentation of a toxic or hazardous substance.

While petitioners and amici may disagree with whether the goal of protecting workers is achieved, or whether R.C. 4121.80 is the most appropriate or best calculated means of achieving the goal, disagreement, no matter how earnest, is not a ground for a constitutional challenge to R.C. 4121.80. In State, ex rel. Yaple, v. Creamer, supra, the creation of a state insurance fund for the benefit of injured employees and the dependents of killed employees was held to be a constitutional exercise of legislative power. This court wrote:

“ * * * Whether the plan adopted [the creation of a state insurance fund to compensate injured employees and the dependents of killed employees] is the most appropriate or best calculated to accomplish those objects [serving the public good] are matters with which the court is not concerned and the law should not be held to be invalid unless clearly in violation of some provision of the constitution.” Id., 85 Ohio St. at 391-392, 97 N.E. at 604.

Also, in Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208 (1988), 37 Ohio St.3d 56, 524 N.E.2d 151, it was argued that R.C. 4117.16(A) made an unconstitutional delegation of authority to the State Employment Relations Board. In rejecting that argument and finding R.C. 4117.16(A) to be constitutional, the court commented:

“The Ohio Constitution contains a broad grant of authority to the legislature to provide for the ‘comfort, health, safety and general welfare of all employes,’ and further declares that no other constitutional provision shall impair or limit that authority. Section 34, Article II, Ohio Constitution. By refusing to interfere in the legislature’s exercise of its prerogative in this area, this court upholds the doctrine of separation of powers by preserving the integrity of the legislative function. It is also for this reason that courts are required to presume the constitutionality of legislative enactments. * * * This presumption, which can be overcome only in the most extreme cases, works to protect the domain of the legislature from encroachment by the judiciary. * * * ” Id., 37 Ohio St.3d at 62, 524 N.E.2d at 156.

Disagreement by petitioners and amici with the wisdom of the policy embodied by the General Assembly’s enactment of R.C. 4121.80 has no legal bearing upon the statute’s constitutionality. What petitioners must show here is that R.C. 4121.80 is clearly incompatible with Section 34, Article II of the Ohio Constitution. While petitioners and amici may make many challenges to the policy implications of R.C. 4121.80, they do not effectively challenge the authority of the General Assembly to have enacted it. The legislative policy was clearly set forth within such enactment, and Am.Sub.S.B. No. 307, *650containing this contested section of law, was passed by a significant bipartisan majority of the Assembly membership and signed by the Governor. Thus, the petitioners’ challenge to the constitutionality of R.C. 4121.80 under Section 34, Article II should fail.

Ill

Section 35, Article II

The majority also adopts the position of petitioners and their supporting amici that R.C. 4121.80 violates Section 35, Article II of the Ohio Constitution. With this contention I also disagree. The pertinent provision of Section 35, Article II, provides:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. * * * ”

By the terms of this constitutional amendment the General Assembly has been authorized by the electorate to compensate all injuries and diseases which are “occasioned in the course of such workmen’s employment.” In the case before the court here the complaint alleged that Brady’s injuries were occasioned while he was in the course of his employment with the respondent as a truck driver. This allegation clearly falls within the language of the Ohio Constitution authorizing legislation concerning compensation for injured workers.

Prior to Blankenship, the Ohio Workers’ Compensation Act was the exclusive remedy for all injuries occasioned in the course of employment, and there was no provision in the Act for common-law actions for an intentionally inflicted injury. However, the Blankenship majority fashioned the common-law action for intentional torts committed within the workplace and based its holding upon the theory that the employers’ immunity under R.C. 4123.74 was not intended by the legislature to cover intentional torts, but only negligent acts of the employer, and that the legislature undoubtedly did not intend to remove all remedies from the employee whose injuries were not compensable under the Act. As noted previously, this latter point was completely scuttled by one of the holdings in Jones, which concluded, as a legal fiction, that an injury can have the statutorily required causal relationship to employment for compensation under the Act, and at the same time arise outside the employment relationship so as to support a common-law action for intentional tort. This conclusion puzzled even Justice William B. Brown, author of Blanken*651ship. See Jones, supra, 15 Ohio St.3d at 102-103, 15 OBR at 256-257, 472 N.E.2d at 1056-1057 (W. Brown, J., dissenting).

It is important to note, for purposes of this argument of petitioners and amici, that the court, in fashioning the common-law action for intentional tort in Blankenship, construed the Constitution and the Workers’ Compensation Act, particularly R.C. 4123.74 and 4123.741, in order to determine whether they prohibited such an intentional tort action. However, as pointed out by counsel for the Ohio Farm Bureau and the Ohio Self-Insurers’ Association, if the General Assembly had no power to include intentional torts within the Act, then the court obviously would not have needed to construe the statutes to determine whether they prohibited the common-law action.

The majority opinion as it relates to Section 35, Article II of the Ohio Constitution leans upon a weak reed in relying upon the dissenting commentary of Justice Douglas in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 155-163, 522 N.E.2d 464, 470-477. The pertinent part of that dissent erratically philosophized that intentional torts were not intended to fall within the purview of Section 35, Article II of the Ohio Constitution in that “\s\uch injuries are totally unrelated to the fact of employment. * * * The Industrial Commission can have no jurisdiction over such an action. The lawsuit has no bearing upon any question relating to employment. The jurisdiction of the commission is limited to the matters delineated in Section 35, Article II. The General Assembly has no power to confer jurisdiction on the commission except as authorized by that constitutional provision. * * * Section 35 concerns itself solely with compensation for injuries arising from employment. R.C. 4121.80 concerns itself solely with injuries which by their nature have no connection whatsoever with the fact of employment.” (Emphasis sic.) Id., 36 Ohio St.3d at 162, 522 N.E.2d at 476. What absurdities the majority has embraced by relying on the Taylor dissent, and adopting the theory espoused in Blankenship that an intentional tort does not arise out of employment but “necessarily occurs outside the employment relationship.” Are the injuries sustained by the petitioner here “totally unrelated to the fact of employment,” does this lawsuit have “no bearing upon any question relating to employment,” and does this petitioner’s injury “have no connection whatsoever with the fact of employment”? I think that a review of the facts clearly provides the answer to these queries, which is resoundingly that the petitioner’s injuries were indeed “occasioned in the course of such workmen’s employment.”

The facts stated in the certification order and the majority opinion show that the petitioner Brady was employed by respondent Safety-Kleen Corporation as a truck driver. Petitioner’s duties included hauling used perchloroe*652thylene (a dry-cleaning agent) and other similar hazardous materials, to and from respondent’s recycling facility in Hebron, Ohio. Shortly after midnight on July 24, 1987, petitioner and several coworkers were in two trucks transporting used perchloroethylene through Pennsylvania, en route to the Hebron facility, when the truck traveling in front of petitioner’s truck spilled perchloroethylene, which splashed on the windshield of petitioner’s truck. Petitioner and his coworkers then attempted to right the containers that had spilled. Thereafter, petitioner experienced dizziness, shortness of breath and other symptoms.

As the facts clearly show, the petitioner’s injuries as alleged were occasioned while he was driving a truck and employed by respondent to do precisely what he was doing when exposed to the hazardous liquids. On the merits, in proving the proximate cause of the alleged injuries, will not the petitioner need to prove all these related facts of driving this truck for his employer, the routes required by the respondent employer, the spill from another truck driven by a fellow employee of the petitioner, and the petitioner’s efforts to clean up the spill? Are all these matters “totally unrelated to the fact of employment”? Does a hazardous waste spill in the course of a company-required trip occur “outside the employment relationship”? The questions answer themselves.

The term “in the course of * * * employment” as utilized in Section 35, Article II of the Ohio Constitution is a very broad term, which has been defined by this court as follows:

“Under Section 35, Article II of our Constitution, and the law enacted pursuant thereto, the phrase, ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer.” Indus. Comm. v. Ahern (1928), 119 Ohio St. 41, 162 N.E. 272, at paragraph two of the syllabus.

The phrase “occasioned in the course of * * * employment” in Section 35, Article II grants to the legislature an even greater authority to enact workers’ compensation legislation than it has utilized in the more restrictive language of R.C. 4123.01, which defines a compensable injury as one which is “received in the course of, and arising out of,” the employment. There is no limitation in the constitutional language with respect to any element of fault or intent of any party involved with an injury. Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1, 130 N.E. 38.

An injury sustained by reason of an “intentional tort” as discussed in Van Fossen v. Babcock & Wilcox, supra, is an injury received in the course of employment and sustained in the performance of some duty required by the employer. As noted in Van Fossen, this type of “intentional tort” was *653adopted in Blankenship, supra, as an exception to the rule of exclusivity of the workers’ compensation law. Another type of injury to an employee which could qualify as an exception to the exclusivity rule is an injury occasioned by the assault and/or battery by the employer. As I stated for the majority in Van Fossen: “Additionally, in interpreting the exclusivity provisions of the Workers’ Compensation Acts, the courts have generally permitted the common-law remedies for injuries caused by an employer’s assault and/or battery upon an employee, whether or not there was any specific statutory exception. This exception constituted one of the earlier judicially recognized and limited exceptions to the exclusivity-of-remedy rule under workers’ compensation law. It was reasoned that in so acting toward its employee, the employer should not then be heard to say that his intentional act was an ‘accidental’ injury deriving from employment duties within the workplace.” Id., 36 Ohio St.3d at 112-113, 522 N.E.2d at 501.

Also, as indicative of the type of activity that could be considered as constituting an “intentional tort,” Van Fossen set forth in syllabus law that for the purposes of establishing the intent of the employer it must be demonstrated that there was “(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality, or condition within its business operation * * *.” Id. at paragraph five of the syllabus. Within this context of the employer’s nexus to the judicially created “intentional tort” and the resulting injury, is the dangerous process, procedure, instrumentality, or condition of the business operation. Conversely, there is no assault and/or battery type of tort of the employer that is referred to in, or contemplated by, this syllabus law phraseology.

Concluding, for the exclusivity of the Workers’ Compensation Act to be effective the injury must be occasioned by the employment, and not by some dispute or motivation not inherent in the employment. If the assault and battery type of tortious act arose from some personal ill will conceived for reasons not connected with employment, then the injury, regardless of where it occurred, would not have been occasioned in the course of employment, or could be considered outside the employment relationship, would not be compensable under the Act, and the employer would not be protected by the immunity conferred by the Ohio Constitution and the Act.

Completely in lawful conformity with the authority granted by Sections 34 and 35, Article II, the General Assembly in enacting R.C. 4121.80 reaffirmed the exclusivity of the remedies provided by the Workers’ Compensation Act for death, injury and occupational disease occasioned in the course of employment, and additionally provided a supplemental remedy for “intentional torts” *654suffered by employees in the course of employment and while carrying out their employment duties.

The previous absence of an intentional tort statute for such situations is no more indicative of lack of constitutional authority than was the lack of coverage for certain occupational diseases in the legislative amendment prompted by this court’s opinion in Triff v. Natl. Bronze & Aluminum Foundry Co., supra. It is my view that R.C. 4121.80 is authorized by Section 35, Article II by the same language which authorized the replacement of negligence and other actions in common law which preceded the Workers’ Compensation Act.

IV

Other Constitutional Challenges

The majority opinion based its determination upon the absence of constitutional authority within Sections 34 and 35, Article II for the General Assembly to have enacted R.C. 4121.80. However, additional propositions of the petitioner and amici claiming certain United States and Ohio constitutional provisions have been violated by R.C. 4121.80 were addressed by the concurrence filed in this matter.

As in any challenge to the constitutionality of a statute, petitioners must overcome a strong presumption that the statute is constitutional. Beatty v. Akron City Hosp. (1981), 67 Ohio St.2d 483, 21 O.O.3d 302, 424 N.E.2d 586; State, ex rel. Jackman, v. Court of Common Pleas of Cuyahoga Cty. (1967), 9 Ohio St.2d 159, 38 O.O.2d 404, 224 N.E.2d 906.

A

Equal Protection

It is claimed that R.C. 4121.80 violates constitutional provisions for equal protection. However, a reasonable review of this legislation, in light of the constitutional authority granted to the Ohio Legislature in matters of workers’ compensation and the benefits granted to workers, requires the conclusion that R.C. 4121.80 does not violate the equal protection rights of workers.

The establishment of classifications is one of the General Assembly’s inherent powers. It is presumed that a legislative classification is reasonable, fair, and is based upon a legitimate distinction. State, ex rel. Lourin, v. Indus. Comm. (1941), 138 Ohio St. 618, 21 O.O. 490, 37 N.E.2d 595.

Petitioners argue that they have been denied equal protection because R.C. 4121.80 creates two classes of intentional tort victims and discriminates against one of those classes. However, it has long been the case in Ohio that *655distinctions drawn by the legislature in the workers’ compensation arena between employer-employee situations and others are reasonable and legitimate. In State, ex rel. Yaple, v. Creamer, supra, 85 Ohio St.3d at 404-405, 97 N.E. at 608, it was held that the limitation of the applicability of the Workers’ Compensation Act to workers and operatives and to certain employers was not an improper classification.

Drawing a distinction between victims of intentional torts in an employer-employee context and victims of intentional torts outside this context no more violates equal protection rights than the same distinction drawn by the legislature between victims of negligent torts.

R.C. 4121.80 does not create classes of workers’ compensation claimants. All such claimants to whom the statute applies are treated equally. There is no constitutional requirement that all workers’ compensation claimants who are victims of intentional torts be treated identically to all other victims of intentional torts. The General Assembly had a legitimate interest in regulating this area of the law in such a way as to balance the interests of employers against those of employees, much the same as it did when the original worker’s compensation legislation was passed in 1911.

B

Section 16, Article I (Open Courts)

R.C. 4121.80 does not, as claimed by petitioners, violate the constitutional guarantee of open courts and the right to a remedy provided by Section 16, Article I. Although the original enactment of a Workers’ Compensation Act did extinguish workers’ remedies at common law, a substitute remedy was provided by these same statutes. In Yaple v. Creamer, supra, this court, considering an attack on the Act on the basis of Section 16, Article I, held that the statutes provided numerous additional protections and privileges in assuring the workers a remedy from the State Insurance Fund. The court stated that the workers in essence had consented to give up their previously costly and uncertain causes of action in exchange for those statutory protections and privileges. Id., 85 Ohio St. at 399-400, 97 N.E. at 607.

Section 16, Article I prohibits the denial or delay of a remedy. R.C. 4121.80 does not deny or delay a remedy to a worker with an intentional tort claim against his employer. In fact, R.C. 4121.80 helps to improve the chances of obtaining some remedy over the chances of obtaining those remedies previously available at common law. In addition to the compensation for medical expenses and lost wages under R.C. Chapter 4123, this statute allows recovery of supplemental damages for non-economic injury. This statute does not therefore violate Section 16, Article I.

*656c

Limitation of Damages

Petitioners and their supporting amici argue that the limitation of damages provided by R.C. 4121.80(D) (caps on damages) violates workers’ equal protection rights. I disagree. Courts throughout the country have held that reasonable damage caps having a rational relationship to a legitimate objective are constitutional. Application of the rational basis test to the damage cap in R.C. 4121.80 reasonably leads to the conclusion that it is fully consistent with principles of equal protection.

First, we must recognize that the limitation on damages does not limit compensation under R.C. Chapter 4123. Damages for medical costs are compensated through the workers’ compensation benefits on an unlimited basis. The damage cap is the lesser of $1,000,000 and three times the compensation receivable pursuant to R.C. Chapter 4123, a sum reasonably high enough that it is not unfair to employees. Nor is this amount an undue burden on employers. The statutory intentional tort scheme was tailored, after much legislative consideration and study, to promote the legitimate objectives of limiting liability without imposing an undue burden on employee-plaintiffs. While R.C. 4121.80 places a limit on the amount of damages available to employees, it was part of an overall statutory scheme which allows employees to recover workers’ compensation benefits on a no-fault basis.

D

Right to Jury Trial and Separation of Powers

Petitioners and their supporting amici argue that R.C. 4121.80(D) violates the right to a jury trial by conferring on the Industrial Commission the power to assess damages. This is an erroneous argument for two reasons. First, there is no federal constitutional guarantee for a jury trial in the remedy stage of a civil proceeding. Tull v. United States (1987), 481 U.S. 412, 425-426, 107 S.Ct. 1831, 1839-1840, 95 L.Ed.2d 365, 378-379. Second, the right to a jury trial is not applicable in an administrative proceeding. It is a well-known fact that the Industrial Commission has been determining damages in what were formerly negligence actions since the inception of the Workers’ Compensation Act.

As to the arguments on separation of powers, neither the petitioners nor amici show us how the administrative determination of damages in intentional tort actions is distinguishable from the long-standing exercise of this power in all other claims. The Workers’ Compensation Act currently provides for the *657determination by the Industrial Commission of a variety of damages, from medical, lost wages and other compensatory awards, to the civil penalty for violations of a specific safety requirement by an employer under R.C. 4121.47. These duties of the Industrial Commission do not violate Article IV of the Ohio Constitution. It is my position that R.C. 4121.80(D), in like manner, does not violate Article IY of the Ohio Constitution.

V

Epilogue

What now, now that the majority of this court has stricken down a major legislative effort in this field of workers’ compensation? The fragments of this shattered measure must somehow be restored to reason. Either legislatively, or by administrative rule, employers who have already been assessed numerous sums of dollars to the intentional tort fund, to be held in trust, must have the money refunded to them with interest. Pending cases must be appropriately processed or settled. Employers clearly have a property interest in the insurance coverage the fund was supposed to provide. State, ex rel. Louisiana-Pacific Corp., v. Indus. Comm. (1978), 54 Ohio St.2d 39, 8 O.O.3d 35, 374 N.E.2d 422. These assessments the state may not reallocate to the general fund, but must use them for the purposes for which this special trust fund was established, or return to the employers.

Another consideration is the status of the workplace “intentional tort” action in Ohio after this startling legislative override by the majority of this court. Like it or not, it is a fact of life that the “intentional tort” in workers’ compensation law shall survive. This action still exists now by the common law, as previously pronounced by this court in Blankenship. However, as partial solace for those who have tended to despair over the direction in which the law of the “intentional tort” has been traveling, and the breadth of fact pattern to which it might be applied, let us recall and review the basic limitations set forth in my opinions in Van Fossen and Fyffe v. Jeno’s, Inc. and to that extent be calmed, if not satisfied, with the status of the law of this judicially espoused inferred tort.

Also a concern is that the pronouncement by the majority here again raises the maelstrom of Jones. R.C. 4121.80 provided that an employee may receive workers’ compensation benefits pursuant to R.C. Chapter 4123 as well as have a cause of action for intentional tort. However, the amounts received under R.C. Chapter 4123 were to be set off from any amounts recovered in the intentional tort action. Jones, of course, provided for no setoff, so where are *658we today? Unfortunately, further litigation, or legislation, in this area will be needed to tell.

Moyer, C.J., concurs in the foregoing dissenting opinion.

. Bills were introduced in both houses of the Ohio General Assembly and after much study and debate in committee the final bill, Am.Sub.S.B. No. 307, was passed in the House by a vote of 74 to 22, and in the Senate by a vote of 21 to 12. Indicating the bipartisan nature of this bill, statements were made by its major sponsors, Republican Senator Richard H. Finan and Democratic Representative Cliff Skeen, in forewords to Harris, Ohio Workers’ Compensation Act (1986). A portion of the “Foreword by Representative Skeen,” dated June 30, 1986, is as follows: “How close Senator Finan and I come to achieving our goals will be decided through the processing of future claims and in the courts. My personal opinion is that both management and labor have overreacted to the final bill. It is neither as good for employers nor as bad for employees as the two sides are stating in public.”

. R.C. 4121.80(B) provides as follows:

“It is declared that enactment of Chapter 4123. of the Revised Code and the establishment of the workers’ compensation system is [sic] intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided, and to establish a system which compensates even though the injury or death of an employee may be caused by his own fault or the fault of a co-employee; that the immunity established in Section 35 of Article II, Ohio Constitution, and sections 4123.74 and 4123.741 of the Revised Code is an essential aspect of Ohio’s workers’ compensation system; that the intent of the legislature in providing immunity from common law suit is to protect those so immunized from litigation outside the workers’ compensation system except as herein expressly provided; and that it is the legislative intent to promote prompt judicial resolution of the question of whether a suit based upon a claim of an intentional tort prosecuted under the asserted authority of this section is or is not an intentional tort and therefore is or is not prohibited by the immunity granted under Section 35 of Article II, Ohio Constitution, and Chapter 4123. of the Revised Code.”

. This court has recently reviewed a matter where the claimant, having obtained a $425,000 judgment against his employer in a common-law action, attempted to obtain payment from the intentional tort fund established by R.C. 4121.80 rather than pursue the presumably more difficult collection from the employer. State, ex rel. Carpenter, v. Indus. Comm. (1990), 50 Ohio St.3d 85, 522 N.E.2d 645.

. R.C. 4121.80(G) provides as follows:

“As used in this section:

“(1) ‘Intentional tort’ is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.

“Deliberate removal by the employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may be rebutted, of an act committed with the intent to injure another if injury or an occupational disease or condition occurs as a direct result.

“ ‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.

“(2) ‘Employer,’ ‘employee,’ and ‘injury’ have the same meanings given those terms in section 4123.01 of the Revised Code.”