Jacovetty v. Browning Ferris Indus. of Ohio
| Decision Date | 22 April 2021 |
| Docket Number | No. 109475,109475 |
| Citation | 2021 Ohio 1400 |
| Parties | ROBERT JACOVETTY, Plaintiff-Appellant, v. BROWNING FERRIS INDUSTRIES OF OHIO, ET AL., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Seaman & Associates, David L. Meyerson, and Shaun H. Kedir, for appellant.
Taft Stettinius & Hollister, L.L.P., Timothy L. Zix, Christopher B. Ermisch, and Cary M. Snyder, for appellees Browning Ferris Industries of Ohio.
{¶ 1} Plaintiff-appellant, Robert Jacovetty ("Jacovetty"), appeals from the trial court's order granting defendant-appellee Browning Ferris Industries of Ohio's ("BFI") motion for a new trial. For the reasons set forth below, we reverse.
{¶ 2} Jacovetty began working for BFI in February 1991 a few months after being honorably discharged from the army. He worked as a roll-off driver doing residential trash pickup and then moved to commercial trash pickup after a few years. In 2014, having worked for BFI for 23 years, Jacovetty developed bilateral carpal tunnel syndrome. Jacovetty subsequently applied for workers' compensation benefits. The Industrial Commission of Ohio allowed the claim determining that Jacovetty's bilateral carpal tunnel syndrome was a workplace injury, and he qualified for workers' compensation benefits. Jacovetty continued to work for BFI during this time and after surgery returned to his former duties.
{¶ 3} In May 2016, Jacovetty filed for an additional allowance of benefits for osteoarthritis of the first carpometacarpal joint of the right thumb ("osteoarthritis"). The industrial commission denied that claim. After exhausting all administrative remedies, Jacovetty appealed the denial to the Cuyahoga County Common Pleas Court ("the trial court").
{¶ 4} Before the trial court, Jacovetty argued that he was entitled to benefits for osteoarthritis under two theories: 1) the osteoarthritis was caused by his employment, and 2) his osteoarthritis was aggravated by his employment. The case proceeded to a jury trial.
{¶ 5} The trial court provided two jury forms, one that asked whether Jacovetty was entitled to participate in the workers' compensation fund due to substantial aggravation of his osteoarthritis; the other, asking whether Jacovetty was entitled to participate in the workers' compensation fund due to his osteoarthritis. The second form did not mention direct causation. The jury ultimately found in favor of Jacovetty on both verdict forms. The jury was subsequently discharged.
{¶ 6} After the jury was discharged, BFI objected and requested judgment notwithstanding the verdict arguing that the verdict forms were in the alternative. The parties briefed the issues. In its brief, BFI requested a new trial, or in the alternative, judgment notwithstanding the verdict. The trial court denied BFI's request for judgment notwithstanding the verdict but granted BFI a new trial. The trial court found that the verdicts were contrary to law and inconsistent under Civ.R. 59(A)(7). Jacovetty appealed this decision.
{¶ 7} The role of this court, when reviewing the grant or denial of a motion for new trial based upon Civ.R. 59(A)(7), is to decide whether the judge erred as a matter of law. Riedel v. Akron Gen. Health Sys., 2018-Ohio-840, 97 N.E.3d 508, ¶ 13 (8th Dist.), citing Baeppler v. McMahon, 8th Dist. Cuyahoga Nos. 74938, 75131, and 76042, 2000 Ohio App. LEXIS 1653, 16-17 (Apr. 13, 2000); Pangle v. Joyce, 76 Ohio St.3d 389, 391, 667 N.E.2d 1202 (1996); O'Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972), paragraph one of the syllabus.
{¶ 8} Civ.R. 59(A)(7) allows a new trial where the judgment is contrary to law and requires a de novo review. Riedel at id. When a court designates that a judgment is contrary to law, the question presented is one of law that requires a review of facts and evidence; it does not involve a consideration of the weight of the evidence or credibility of the witnesses. Baeppler at ¶ 16.
{¶ 9} Ohio's workers' compensation framework provides the exclusive statutory remedy for workplace injury. R.C. 4123.74; Clendenin v. Girl Scouts of W. Ohio, 150 Ohio St.3d 300, 2017-Ohio-2830, 81 N.E.3d 438, ¶ 9. R.C. 4123.95 requires the statutory requirements of Chapter 4123 to be liberally construed in favor of the employee. Under this statutory framework, claimants and employers can appeal the decision of the industrial commission to the common pleas court only when the order grants or denies the claimant's right to participate in the workers' compensation fund. State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 278-279, 737 N.E.2d 519 (2000), citing Felty v. AT&T Technologies, Inc., 65 Ohio St.3d 234, 237, 602 N.E.2d 1141 (1992); Zavatsy v. Stringer, 56 Ohio St.2d 386, 384 N.E.2d 693 (1976), paragraph one of the syllabus. "The ultimate question in a workers' compensation appeal is the claimant's right to participate in the fund for an injury received in the course of, and arising out of, the claimant's employment." Starkey v. Builders Firstsource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267, ¶ 17; Benton v. Hamilton Cty. Educational Serv. Ctr., 123 Ohio St.3d 347, 2009-Ohio-4969, 916 N.E.2d 778, ¶ 8; Ochs v. Admr., Bur. of Workers' Comp., 8th Dist. Cuyahoga No. 93824, 2010-Ohio-2103, ¶ 9. If the injury has a causal connection to the claimant's employment, the claimant is entitled to benefits. Id. at ¶ 17; Woods v. Bur. of Workers' Comp., 2016-Ohio-237, 57 N.E.3d 468, ¶ 25 (2d Dist.).
{¶ 10} Jacovetty has assigned one error for our review:
The Trial Court erred in granting Defendant-Appellee Browning Ferris Industries of Ohio's Motion for New Trial.
{¶ 11} Jacovetty divided the error into five issues, which we will address in order of relevance. We find merit in Jacovetty's first issue that he stated as follows:
Issue One: While Verdict Form One mentioned substantial aggravation, Verdict Form Two did not mention a specific causation theory. Verdict Form Two only addressed the ultimate issue on appeal, which is the right to participate in the workers' compensation fund. Did the Trial Court err in finding that the two verdict forms were contrary to law?
{¶ 12} Jacovetty's argument is in two parts. First, he argues that the sole issue in a worker's compensation case is the employee's right to participate in the workers' compensation fund. Second, he argues that verdict form two only asked whether Jacovetty had a right to participate, not whether his work was the direct cause of his osteoarthritis; and therefore, the jury's verdicts were not contradictory.
{¶ 13} The jury was given two verdict forms that they completed. They read as follows:
(Emphasis added.) Tr. 144.
{¶ 14} Prior to giving the case to the jury, the judge read the following instructions:
{¶ 15} The parties agreed to the jury instructions. Neither party objected to the instructions, the verdict forms, nor the verdicts while the jury was still empaneled.
{¶ 16} Clearly it was the intent of the jury to find that Jacovetty had a right to participate in the workers' compensation fund. This was the sole issue before the common pleas court. In an attempt to void the favorable verdicts, BFI untimely raised the issue of conflicting verdicts. The common pleas court decides whether the claimant has a right to participate in the workers' compensation fund for a specific injury, not for a specific type of causation. Starkey, 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267, at ¶ 19. "Any issue other than whether the injury, disease, or death resulted from employment does not constitute a right-to-participate issue." Raymond v. Shaker Produce, Inc., 8th Dist. Cuyahoga Nos. 84885 and 85391, 2005-Ohio-1670, ¶ 9; citing Liposchak, 90 Ohio St.3d at 280, 737 N.E.2d 519. Both verdicts addressed Jacovetty's right to participate. Therefore, the verdicts were not contrary to law. We find the trial court erred in granting BFI's motion for new trial.
{¶ 17} Jacovetty's third and fourth issues are combined and will be addressed together:
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