Cummings v. B.F. Goodrich Co.

• Decision Date: 02 February 1993
• Docket Number: No. 91,91
• Citation: 86 Ohio App.3d 176,620 N.E.2d 209
• Parties: CUMMINGS, Appellant and Cross-Appellee, v. B.F. GOODRICH COMPANY, Appellee and Cross-Appellant, et al. * CA 25.
• Court: Ohio Court of Appeals

Page 176

86 Ohio App.3d 176

620 N.E.2d 209

CUMMINGS, Appellant and Cross-Appellee, v. B.F. GOODRICH COMPANY, Appellee and Cross-Appellant, et al. ^*

No. 91 CA 25.

Court of Appeals of Ohio, Fourth District, Washington County.

Decided Feb. 2, 1993.

Larimar & Larimar and James C. Ayers, Columbus, for appellant and cross-appellee.

Elizabeth T. Smith, Columbus, for appellee B.F. Goodrich Co.

Lee Fisher, Atty. Gen., and Yolanda Barnes, Asst. Atty. Gen., for Industrial Com'n of Ohio, et al.

PETER B. ABELE, Judge.

This is an appeal from a judgment entered by the Washington County Common Pleas Court granting a motion for a directed verdict against Alfred Cummings, plaintiff below and appellant herein. The court found appellant failed to prove that his March 29, 1979 industrial accident proximately caused his present "sprain/strain right knee" condition.

Appellant assigns the following errors:

First Assignment of Error:

"The court erred as a matter of law when it sustained defendant's objections to the hypothetical questions posed to plaintiff's medical expert, Adolph V. Lombardi, Jr., M.D., and subsequently granted a directed verdict to defendant because plaintiff failed to produce expert evidence on proximate causation."

Second Assignment of Error:

"The court erred as a matter of law when it overruled plaintiff's motion for a mistrial or, in the alternative, for a continuance (recess) to permit plaintiff to clear up any confusion which the court perceived would be encountered by the jury."

Appellee assigns a conditional cross-assignment of error as follows:

"Should this court find that appellant's expert medical testimony was sufficient to show a causal connection between his 1979 industrial incident and a right knee problem, the court below erred when it refused to grant appellee a directed verdict on the alternative grounds that appellant's cause was barred by the applicable two-year statute of limitations of Ohio Rev.Code Section 4123.84."

Appellant sustained injury to his left knee on March 20, 1979 during the course and in the scope of his employment with B.F. Goodrich Company. The Industrial Commission of Ohio allowed appellant's claim for a strain/sprain to his left knee in 1979. Appellant did not file a claim within the two-year R.C. 4123.84 statute of limitations period for any 1979 injury to his right knee.

The instant case began with appellant's February 4, 1988, application for workers' compensation benefits for his right knee condition "due to physical compensation from his 1979 left knee injury." In a February 4, 1988 explanation accompanying the application, appellant stated he had continual pain and swelling in his right knee in 1979 after the left knee injury that year. Appellant also stated that during the rehabilitation period following surgery to the left knee on March 5, 1982, "the pain and swelling in the right knee came to a point where I couldn't endure it anymore." Appellant underwent surgery to the right knee on December 14, 1982, and again on April 7, 1983. Appellant further stated that during the next three years, both his knees "would become inflamed and swollen * * * [and] the only thing I could do was sit at home with ice packs on my knees."

On December 29, 1986, appellant fell at work again. ¹ This fall caused pain and swelling to both knees. On April 29, 1987, Dr. Adolph Lombardi replaced both of appellant's knees.

The record transmitted on appeal does not contain a copy of the record before the Industrial Commission of Ohio. We glean the following information from appellant's December 1, 1989 complaint filed in the Washington County Common Pleas Court. On October 18, 1988, the district hearing officer allowed appellant's February 4, 1988 application for the right knee claim. Appellee appealed. On April 28, 1989, the Columbus Regional Board affirmed. Appellee appealed again. On September 29, 1989, the Industrial Commission of Ohio refused the appeal. Appellee filed a notice of appeal with the Washington County Common Pleas Court on November 21, 1989. Appellant filed his complaint ten days later.

Appellee answered the complaint on December 7, 1989. On March 22, 1991, after obtaining leave of court, appellee filed an amended answer on March 22, 1991, alleging that appellant had failed to file his workers' compensation claim within the R.C. 4123.84 two-year statute of limitations.

During the June 20, 1991 jury trial, appellant testified about the 1979 injury. Appellant also testified that one day in 1982, when he was getting out of his van at home, his right knee "just folded up" underneath him and caused him to fall. Appellant admitted on cross-examination that he did not mention the 1982 fall in the February 4, 1988 explanation accompanying his application for benefits.

At the conclusion of his testimony, appellant attempted to present the deposition testimony of his doctor, Dr. Adolph Lombardi, to prove that the 1979 injury to the left knee had proximately caused the present condition of the right knee. Dr. Lombardi testified in the deposition in pertinent part as follows:

"Q. * * *

"Now, Doctor, I ask you to a reasonable degree of medical probability and assuming that as you stated there was a preexisting condition when he came to see you in--that existed prior to 1986 in the right knee.

"Assuming all these facts to be true do you have an opinion once again to a reasonable degree of medical probability as to whether the injury in 1979 when he slipped on the oil proximately caused an aggravation to that condition that preexisted 1986 when he fell in 1986?

"MR. TAIT: Objection.

"Q. First do you have an opinion? You may answer.

"A. Can you rephrase that for me one more time.

"Q. Yes. I'm asking whether the injury in 1979--

"A. Uh-huh.

"Q. --at work proximately caused an aggravation to that preexisting condition that preexisted his fall in 1986--

"MR. TAIT: Objection again.

"Q. --which existed--the condition that existed when you saw him in 1987.

"Now, let me--I might have to explain.

"What I'm saying here is that he--you said he had a condition that preexisted 1986.

"A. Correct.

"Q. And he had a fall in 1986.

"A. Correct as well.

"Q. So what I'm asking is but for the condition in 1979 would the fall in 1986 or did the fall in 1986 make his condition worse because he had the injury in 1979 as a proximate result?

"A. Okay.

"MR. TAIT: Objection.

"A. I think if we go back to the facts and see that we have a young patient who unfortunately fell and sustained an injury in '79.

"Obviously from all the history given by the patient most of the injury involved the left knee. However, there was an injury to the right knee evidenced by the reports of swelling, persistent pain, and a requirement for later surgery. And one other thing that probably is not borne out at least in what you presented is the fact that when an individual does, I feel, sustain an injury to one of the extremities he has to then depend on the opposite extremity and that in itself places significant stresses upon that other extremity.

"So he started--he therefore had a compromised right lower extremity right knee as well as a left lower extremity left knee and I would have to say that an injury then sustained in 1986 would be on a compromised extremity and certainly would aggravate and perhaps even intensify the injury.

"MR. TAIT: Move to strike." (Emphasis added.)

The court sustained appellee's objection to the hypothetical questions appellant posed to Dr. Lombardi.

Before making its ruling, the court heard arguments from the parties concerning whether the workers' compensation law permits recovery for the aggravation that a previous injury might cause to a newly evolved condition. The court, however, did not answer that question. The court instead focused on whether the hypothetical questions posed to Dr. Lombardi would elicit testimony that the 1979 injury to appellant's left knee aggravated the present condition of his right knee. The court commented:

"[A]t this particular point * * * I don't believe that's what has been asked.

"We're tied into a 1986 condition and an aggravation whether you meant to use those words or not, they're there and as it goes to the jury I think we have an issue that quite frankly the Court's going to have a * * * really terrible time defining."

After the court's ruling, appellant moved for a mistrial and, alternatively, moved for a continuance to enable him to obtain additional testimony from Dr. Lombardi. The court overruled both motions.

Next, appellee moved for a directed verdict based upon two grounds. First, appellee argued the R.C. 4123.84 statute of limitations bars the present action for the reason that appellant failed to file his claim for the right knee within two years after he discovered the condition of the right knee. Second, appellee argued that due to the fact the court sustained the objections to the hypothetical questions appellant posed to Dr. Lombardi, appellant had failed to prove that the 1979 injury to the left knee had proximately caused the present condition of the right knee.

The trial court agreed that appellant had failed to prove proximate cause. The trial court's July 9, 1991 judgment entry provides in pertinent part as follows:

"[I]t is hereby ordered that a directed verdict be entered in favor of Defendant B.F. Goodrich Company on the grounds that Plaintiff has failed to prove a proximate cause between the industrial incident of March 20, 1979 and an injury of 'sprain/strain right knee' and that Plaintiff is therefore not permitted to participate in the workers' compensation system for an injury described as 'sprain/strain right knee' in Claim No. 673157-22."

Appellant filed a timely notice of appeal. Appellee filed a timely notice of a conditional cross-appeal.

I

In his first assignment of error, appellant acknowledges that the R.C. 4123.84 statute of limitations prevents him from recovering for the ...