Coffey v. Dolgencorp, Inc., 2007 Ohio 2274 (Ohio App. 5/14/2007)

Decision Date14 May 2007
Docket NumberNo. 4-06-25.,No. 4-06-36.,4-06-25.,4-06-36.
Citation2007 Ohio 2274
PartiesKristina Coffey, Plaintiff-Appellee, v. Dolgencorp, Inc., (Dollar General Corp.) Defendant-Appellant, and Ohio Bureau of Workers' Compensation, Defendant-Appellee.
CourtOhio Court of Appeals

Ronald A. Fresco, Attorney at Law, Reg. #0059283, 65 East State Street, Suite 400, Columbus, OH 43215, For Appellant.

Thomas L. Reitz, Attorney at Law, Reg. #0068381, 165 North High Street, Columbus, OH 43215, For Appellee, Kristina Coffey.

Joshua W. Lanzinger, Assistant Attorney General, Reg. #, One Government Center, Suite 1340, Toledo, OH 43604, For Appellee, Ohio Bureau of Workers' Compensation.

OPINION

ROGERS, P.J.

{¶1} Defendant-Appellant, Dolgencorp, Inc., d.b.a. Dollar General Corporation (hereinafter referred to as "Dollar General"), appeals the judgments of

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the Defiance County Court of Common Pleas, granting Plaintiff-Appellee, Kristina M. Coffey, the right to receive workers' compensation benefits and denying its motions for judgment notwithstanding the verdict and for a new trial. In this consolidated appeal, Dollar General asserts that the trial court allowed testimony about aggravation of degenerative disc disease (hereinafter referred to as "the aggravation condition") in violation of Ward v. Kroger Company, 106 Ohio St.3d 35, 2005-Ohio-3560; that the trial court violated jeopardy standards and inappropriately altered the orderly process in the case; that the evidence presented by Coffey's expert mandated a directed verdict and was not in conformity with the trial court's jury instructions; and, that the trial court erred in denying its motions for a judgment notwithstanding the verdict and for a new trial. Based on the following, we affirm.

{¶2} In July 2004, Coffey filed a claim with Appellee, Bureau of Workers' Compensation, alleging she sustained injuries to her back in June 2004, when she tripped and fell while unloading a truck for her employer, Dollar General.1

{¶3} In September 2004, a district hearing officer of the Industrial Commission (hereinafter referred to as "the Commission") denied Coffey's claim, which she appealed.

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{¶4} In November 2004, a staff hearing officer of the Commission modified the September 2004 order, accounting for a MRI conducted after Coffey's initial filing of her claim. The staff hearing officer acknowledged the "positive MRI findings," but again denied Coffey's claim, from which she appealed. (Coffey Complt., Ex.B, p. 1).

{¶5} In December 2004, the Commission refused to hear Coffey's appeal pursuant to R.C. 4123.511(E).

{¶6} In January 2005, Coffey appealed the Commission's decision to the Defiance County Court of Common Pleas pursuant to R.C. 4123.512.

{¶7} In May 2006, the case proceeded to trial, during which Dollar General filed a motion in limine to exclude testimony regarding the aggravation condition based on Ward, which the trial court denied. In doing so, the trial court explained:

The Court has reviewed the complaint in this matter on the appeal. No specific condition is referenced. It merely refers to injury. Review of the staff hearing officer and district [hearing] officer's decision also do not specifically discuss, uh, the, a discreet (sic) condition. They rather refer to injury generically. In Ward, I would note there were specific conditions addressed both in the decisions of the hearing officers and in the complaint and actually the Ward decision hinged upon the trial court's allowance of the motion for leave to amend the complaint to assert additional conditions.

In this case, there is nothing previously filed with the Court including the complaint and the decision of the hearing officers that limits consideration to a specific condition. They simply dealt with the concept of injury and by virtue of the statutory

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definition of injury, that could include an aggravation of a preexisting condition.

The veracity of a claim of aggravation is certainly something that you can discuss on cross examination with whom ever may raise the topic if, in fact, there are prior statements or prior reports or prior testimony that never addressed that but that concept of injury including an aggravation is certainly something that the agency could have addressed and I don't have any documentation that they did not consider that in terms of either the complaint or either of the staff hearing officer or district hearing officer reports so for that reason the motion in limine will be overruled.

(Trial Tr., Vol. I, pp. 125-26).

{¶8} Thereafter, Dr. Jane Nowotny, Coffey's treating chiropractor and expert, testified and concluded that, as a result of the June 2004 incident, Coffey sustained an injury to her sciatic nerve, an L4-5 disc protrusion, "an injury to her L4-5 disc causing a protrusion impinging upon the neuron foramina," and a lumbar strain. (Trial Tr., Vol. I, pp. 158-60).

{¶9} Specifically, Dr. Nowotny testified that, regarding sciatica, the L5 lumbar vertebra correlates to the sciatic nerve; that a problem with the L5 lumbar vertebra can pinch the sciatic nerve, which can cause pain down an individual's legs or numbness in an individual's toes; that Coffey first presented with pain in her left buttock indicative of the beginning stages of sciatica; that the results of objective tests performed on Coffey indicated "sciatic compression" and "positive, sciatic irritation"; and, that Coffey also experienced pain radiating down her legs, which was indicative of sciatica. (Trial Tr., Vol. I, p. 150).

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{¶10} Regarding the L5-S1 and L4-5 disc protrusions, Dr. Nowotny testified that objective tests indicated that Coffey had differentiation between the S1 and L5 vertebrae; that Coffey's symptoms of sciatica indicated something more serious, such as a disc protrusion, may have occurred; that a MRI is needed to determine whether someone has a disc protrusion; that the MRI results indicated Coffey had a disc protrusion at the L4-5 level; and, that Coffey's MRI results revealed that Coffey had degenerative disc changes and a disc protrusion at the L5-S1 level and that "the left lateral disc bulge abuts the intraforaminal nerve root and moderately narrows the left foramen."2 (Trial Tr., Vol. I, p. 155).

{¶11} Dr. Nowotny further testified that people who do not experience traumatic injuries still develop degenerative problems in their spine due to the normal wear and tear of the aging process; that such degeneration typically occurs first in the L5 disc, located on top of the tailbone, in a person's thirties or forties;3 that she would not be surprised to see a forty-year old patient have a degenerative condition in the L5-S1 disc; that a traumatic event such as a fall or an abrupt, blunt trauma could irritate a degenerative condition; and, that Coffey had degenerative disc disease at L5-S1.

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{¶12} Dr. Nowotny also concluded that Coffey's fall and twisting of her back in June 2004 aggravated her degenerative condition and made it symptomatic.4

{¶13} On cross-examination, Dr. Nowotny admitted that she did not mention the aggravation condition in her treatment notes; that protrusions can result from degenerative changes; that degenerative changes are primarily caused by natural deterioration; that there is no way to determine the age of degenerative changes; and, that it is possible for an individual to have a disc bulge, disc protrusion, or degenerative changes without exhibiting symptoms. Also, Dr. Nowotny testified that the June 2004 accident directly and proximately caused Coffey's disc protrusions and bulges.

{¶14} On redirect examination, Dr. Nowotny clarified that, while it is possible for an individual to have a disc bulge or protrusion without being symptomatic, an individual with results like those seen in Coffey's MRI would be symptomatic and unable to walk around without problems.

{¶15} At the close of the trial, Dollar General moved for a directed verdict regarding the aggravation condition and the L4-5 disc protrusion, alleging that they were not raised administratively. Alternatively, Dollar General moved for a

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directed verdict regarding the L4-5 and L5-S1 disc protrusions, alleging they resulted from natural deterioration.5 The trial court ruled as follows:

As we discussed the other day, the record in this matter is problematic because of the lack of findings by the, or the lack of specificity by the staff and district hearing officers in denying the claim. They didn't deny it as to, for example, as disc protrusion at L5-S1 or, uh, didn't deny it as to sciatica. They just simply said denied so that is problematic.

Uh, the Court based on Ward versus Kroger will, uh, not instruct the jury as to aggravation of a preexisting condition and will not give the jury the opportunity to return a verdict on that condition. It's the Court intention, however, to instruct the jury on the, on four separate conditions, being sciatica, L4-5 disc protrusion, L5-S1 disc [protrusion], lumbosacral strain, and those will go to the jury. The aggravation [condition] will not. Uh, the jury will be given separate interrogatories addressing primary, primarily due to natural deterioration or degeneration as to those conditions susceptible of that cause. In the Court's opinion those would include the sciatica, the protrusion at L4-5 and L5-S1. Obviously, natural deterioration would, could not logically be the cause of lumbosacral strain so the interrogatories will address primarily due to natural deterioration as to the other three conditions and not the lumbosacral strain and then they'll also have, uh, depending upon those findings, the opportunity to make the decision regarding proximate causation of each of the four conditions as it relates to the incident of June 13th of 2004.

(Trial Tr., Vol. II, pp. 268-70).

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{¶16} S...

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