Collins v. Admr., Bur. of Workers' Comp., 2007 Ohio 5634 (Ohio App. 10/22/2007)
| Decision Date | 22 October 2007 |
| Docket Number | No. CA2006-12-054.,CA2006-12-054. |
| Citation | 2007 Ohio 5634 |
| Parties | John W. Collins, Plaintiff-Appellee, v. Administrator, Bureau of, Workers' Compensation, et al., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Honerlaw & Honerlaw Co., L.P.A., Michael J. Honerlaw, 9227 Winton Road, Cincinnati, OH 45231, for plaintiff-appellee, John W. Collins
Marc Dann, Attorney General of Ohio, William Creedon, Workers Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, OH 43215-3130, for defendant-appellant, Admin. Bureau of Workers' Comp.
Scott, Scriven & Wahoff, William J. Wahoff, Richard Goldberg, 50 West Broad Street, Suite 2500, Columbus, OH 43215-3301, for defendant-appellant, Allied Holdings, Inc.
{¶1} Appellant, Allied Holdings, Inc., Allied Systems, Ltd., Subsidiary ("Allied"), appeals the judgment of the Madison County Court of Common Pleas allowing appellee, John W. Collins, to participate in the workers' compensation fund, and denying Allied's motions for directed verdict and judgment notwithstanding the verdict.
{¶2} Collins is a car hauler/truck driver for Allied. On February 7, 2005, he suffered sharp low back pain with radiation into his left leg while tightening a chain to a vehicle on a car carrier with a tie-down bar. The following day, as the pain worsened, Collins went to the emergency room in the early morning hours. There, he was diagnosed with "acute low back pain, lumbosacral strain." Collins filed a workers' compensation claim. The claim was denied on May 19, 2005 on the ground there was insufficient evidence Collins had sustained a new and distinct injury on February 7, 2005. The denial of the claim was based on a report from Paul T. Hogya, M.D, an independent medical examiner. After exhausting all appeals to the Industrial Commission, Collins filed a petition and appeal in the trial court pursuant to R.C. 4123.512. In his petition, Collins alleged he suffered lumbosacral strain and lumbar IVD with myelopathy as a result of the February 7, 2005 work accident.
{¶3} On September 18, 2006, Allied filed a motion in limine to prevent Collins from pursuing claims for injuries other than lumbar strain. The deposition of Penny S. Hogan, M.D., Collins' expert and treating physician, was conducted the following day. During her deposition, Dr. Hogan was asked to state her opinion with regard to both a herniated disc and lumbosacral strain/lumbar sprain.1 Dr. Hogan's testimony will be fully discussed later.
{¶4} On October 3, 2006, the matter was tried to a jury. Only a claim for lumbosacral strain/lumbar sprain was pursued. Collins testified on his behalf and presented, inter alia, the videotaped deposition of Dr. Hogan. At the close of Collins' case, Allied moved for a directed verdict, which was overruled. Allied subsequently presented the videotaped deposition of Dr. Hogya.
{¶5} Dr. Hogya examined Collins on April 28, 2005, and reviewed his medical history and records. Dr. Hogya testified that when he examined Collins, there was no evidence of lumbosacral sprain/strain because "it appeared at that point it had healed." Dr. Hogya further testified that the low back pain Collins suffered during the February 7, 2005 work accident was not a new injury but rather, was a flare-up or exacerbation of a lumbar sprain/strain Collins suffered in a car accident in December 2004. The record shows that on December 21, 2004, Collins was involved in a front end collision as a front seat passenger. He was transported to the hospital where he was diagnosed with acute lumbar strain, contusion, and hematoma to the right leg. Dr. Hogya agreed with both lumbosacral sprain/strain diagnoses made after the car accident and the February 7, 2005 work accident. However, Dr. Hogya testified that the low back pain suffered by Collins during the February 7, 2005 work accident was not directly or proximately caused by the accident that day, but was simply "a continuation or flareup of the low back strain that still had not fully resolved from the motor vehicle accident." Dr. Hogya also testified that the February 7, 2005 work accident did not aggravate Collins' previous lumbar strain.
{¶6} At the close of the case, Allied again moved for directed verdict, which was overruled. On October 5, 2006, the jury returned a verdict in favor of Collins, allowing him to participate in the workers' compensation fund for "lumbosacral strain or lumbar sprain." Allied subsequently moved for judgment notwithstanding the verdict on the ground that Dr. Hogan's testimony failed to establish that the February 7, 2005 work accident directly or proximately caused Collins to have a lumbar strain/sprain that day. The trial court denied the motion and on November 29, 2006, entered a judgment in favor of Collins allowing him to participate in the workers' compensation fund for "lumbosacral strain or lumbar sprain." Allied appeals, raising three assignments of error.
{¶7} Assignment of Error No. 1:
{¶8} "PLAINTIFF-APPELLEE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO
ESTABLISH THAT THE ALLEGED FEBRUARY 7, 2005 WORK INJURY DIRECTLY OR PROXIMATELY CAUSED HIM TO HAVE A LUMBOSACRAL STRAIN OR LUMBAR SPRAIN."
{¶9} Assignment of Error No. 2:
{¶10} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN OVERRULING ITS MOTION FOR DIRECTED VERDICT MADE AT THE CLOSE OF PLAINTIFF-APPELLEE'S CASE."
{¶11} In its first assignment of error, Allied argues that Collins failed to show by a preponderance of the evidence that the February 7, 2005 work accident directly or proximately caused him to have lumbosacral strain/lumbar sprain. Specifically, Allied argues that Dr. Hogan's testimony failed to clearly and unequivocally establish that the work accident directly or proximately caused the lumbosacral strain/lumbar sprain. Allied contends that "Dr. Hogan only opined that the alleged February 7, 2005 work incident either caused or worsened a herniated disc at L2-3." In its second assignment of error, Allied argues that the trial court erred by overruling its motion for directed verdict at the close of Collins' case. Again, Allied contends that Dr. Hogan's testimony did not sufficiently establish that the February 7, 2005 work accident proximately or directly caused lumbosacral strain/lumbar sprain.
{¶12} To be entitled to workers' compensation benefits, an employee must prove by a preponderance of the evidence not only that his injury arose out of and in the course of his employment, but that a direct or proximate causal relationship existed between his injury and his harm or disability. Fox v. Indus. Comm. of Ohio (1955), 162 Ohio St. 569, 576; Smith v. Conrad, Clinton App. No. CA2002-09-036, 2004-Ohio-2075. In cases where injury is outside the realm of common knowledge, expert medical testimony is required. Hollar v. Pleasant Twp., Franklin App. No. 03AP-250, 2003-Ohio-6827, ¶3, citing Darnell v. Eastman (1970), 23 Ohio St.2d 13. Where medical evidence is necessary, that evidence must show that the accidental injury was or probably was a direct or proximate cause of the harm or disability. Fox at 576.
{¶13} An appellate court reviews a judgment on a motion for directed verdict de novo. See Enderle v. Zettler, Butler App. No. CA2005-11-484, 2006-Ohio-4326; Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84. A motion for directed verdict under Civ.R. 50 is to be granted when, after construing the evidence most strongly in favor of the party against whom the motion is directed, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 50(A)(4); Crawford v. Halkovics (1982), 1 Ohio St.3d 184. Conversely, the motion must be denied when there is substantial competent evidence to support the nonmoving party's case and reasonable minds may reach different conclusions. Hollar, 2003-Ohio-6827, ¶14, citing Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271.
{¶14} The trial court need not consider either the weight of the evidence or the credibility of the witnesses in disposing of a motion for a directed verdict. Choate v. Tranet, Inc., Warren App. No. CA2005-09-105, 2006-Ohio-4565, ¶49. Further, the court must not only construe all direct and positive evidence in a light most favorable to the nonmoving party, it must also give the nonmoving party the benefit of all "reasonable inferences" that may be drawn from the evidence. See Broz v. Winland, 68 Ohio St.3d 521, 1994-Ohio-529.
{¶15} The question before us is whether Collins presented sufficient evidence at trial, via Dr. Hogan's testimony, to establish a causal connection between the February 7, 2005 work accident and the condition of lumbosacral strain/lumbar sprain. We note at the outset that at the time Dr. Hogan's deposition was taken, Collins still intended to pursue a claim for both lumbosacral strain/lumbar sprain and a herniated disc. As a result, during her deposition, Dr. Hogan was asked to state her opinion with regard to both lumbosacral strain/lumbar sprain and a herniated disc. The record shows that medical tests performed after the February 7, 2005 work accident revealed that Collins suffered from a herniated disc (as well as a longstanding degenerative disc disease) which required surgery (surgery was performed in December 2005).
{¶16} Collins has been a patient of Dr. Hogan since 2001. During her deposition, Dr. Hogan testified that when she saw him a week after his car accident, Collins' primary complaint was the hematoma on his right leg, even though he was diagnosed at the hospital with lumbar strain. Dr. Hogan stated that following the car accident, she did not treat Collins for back pain at all. This was confirmed by Collins who testified at trial that between his car accident and the February 7, 2005 work accident, he neither took medication nor sought medical...
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