Kennedy v. Toledo, L-89-326

• Decision Date: 19 July 1991
• Docket Number: No. L-89-326,L-89-326
• Citation: 75 Ohio App.3d 12,598 N.E.2d 839
• Parties: KENNEDY, Appellee, v. CITY OF TOLEDO; Mayfield, Admr., Appellant. *
• Court: Ohio Court of Appeals

Page 12

75 Ohio App.3d 12

598 N.E.2d 839

KENNEDY, Appellee, v. CITY OF TOLEDO; Mayfield, Admr., Appellant. ^*

No. L-89-326.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided July 19, 1991.

George N. Fell II and Steven E. Marcus, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Diane J. Karpinski and Fred J. Pompeani, for appellant.

ABOOD, Judge.

This is an appeal from a judgment of the Lucas County Court of Common Pleas which, following a jury verdict in favor of appellee, Richard Kennedy, denied appellant's ¹ motions for judgment notwithstanding the verdict and for new trial. Appellant sets forth two assignments of error:

"I. The trial court erred in overruling the defense motion for judgment notwithstanding the verdict.

"II. The trial court erred in overruling the defense motion for new trial."

The facts relevant to a determination of the issues raised by this appeal are as follows. In April 1968, appellee began his employment with the Police Department of the city of Toledo ("city") as a patrolman. In May 1983, appellee, while acting in the course of that employment, sustained a knee injury which required surgery. By July 1983, appellee was not yet able to return to his regular duties as a patrolman and, instead, was given a limited duty assignment. On November 15, 1983, while on vacation from his job, appellee drove to the Police Academy to purchase some materials for the Sergeant's examination for which he was studying and when he returned home had a heart attack. Appellee filed a claim with the Industrial Commission of Ohio ("commission") for workers' compensation benefits claiming that work-related stress caused his heart attack. The claim was disallowed at each administrative level. On August 25, 1988, pursuant to R.C. 4123.519, appellee filed a complaint in the Lucas County Court of Common Pleas, appealing the decision of the commission. On August 14, 1989, the case proceeded to trial by jury.

At the trial, appellee testified on direct examination that he had been working as a uniformed patrolman since 1968; that in May 1983 he injured his knee, missed one month of work and then returned to light duty work; that his light duty assignments included making badges at the Police Academy, clerical work and phone intake at the Human Relations Bureau and development of a fingerprint program; that he received no training for these assignments; that he had received an order issued from the chief's office on August 16, 1983, to be effective September 1, 1983, which indicated that persons on light duty would have to either return to full duty within ninety days from when they went on light duty or go on pension or workers' compensation; that he became "uptight" because "I couldn't continue the job I was doing, but I couldn't go back to the street at that particular time, because I would be unable to defend myself"; that the unfamiliarity of office work made him "tense" and "frustrated"; that it took him one hour to one and one-half hours to type a report that should take ten minutes; "[t]hat I was scared that I was going to lose my job * * * " and that he discussed this fear with Captain Armstrong, who said he could possibly keep him until the first of the year but that he did not know what would happen after that; that believing he had to do something to keep his job, he went to his doctor on October 11, 1983, and requested a return to full-duty work slip even though his knee was still problematic; that his doctor gave him such a slip to return to full duty work on October 12, 1983; that during the fingerprint program, he had numerous episodes of nervousness and profuse perspiring; that his hours of work were primarily 8:00 a.m. to 4:00 p.m., Monday through Friday with occasional evening and Saturday work; that on November 6, 1983, he took a vacation after being told he needed to start using his accumulated vacation time; that he was studying for the Sergeant's exam during this vacation, believing that passing it was necessary for him to remain on the police force; that he had taken the Sergeant's exam on three other occasions; that on November 15, 1983, while still on vacation, he drove to the Police Academy to pick up some materials needed for the exam, drove home and suffered a heart attack which ultimately resulted in bypass surgery; and that prior to November 15, 1983, he had had no such problems. Appellant also testified that his father had died of a heart attack; that he had smoked between one and two packs of cigarettes a day since he was a teenager; that on prior occasions, following injuries while on the force, he had been told at the hospital that he had high blood pressure; that his mother had diabetes; that he weighed one hundred ninety-five pounds in 1968 and two hundred ten to two hundred fifteen pounds on November 15, 1983, and that he drank heavily in 1978 and 1980. On cross-examination, appellee testified that Captain Armstrong did not watch over him to see that his work was getting done or tell him that he would have to leave the force in ninety days or recommend that he be released; that his light duty assignment was extended; that he was not required to take the Sergeant's exam; that during his four months of light duty work following his knee surgery, he did not take any of his over nine hundred accumulated hours of sick time; and that he never talked to the officer assigned to aid in stress-related problems or to his doctor concerning stress on the job.

Beverly Ann Kennedy testified that she has been married to appellee since January 24, 1983; that she assisted appellee with the fingerprint program; that while assisting her husband she observed her husband to be " * * * wringing wet clear down to the waist * * * " and that when she asked him what was wrong, he said he was very nervous; that when she would do his laundry during the time that he was on light duty assignment she noticed " * * * that his clothes were wet constantly"; and that after returning to light duty work in July 1983, appellee was "very stressed out. He paced the floor. He didn't sleep at night. I mean it was really bad, really bad. He was worried about losing his job. He didn't want to lose his job as a police officer. That was his whole life, you know." On cross-examination, she testified that appellee never told her that Captain Armstrong threatened him with dismissal or that he was being made to take the Sergeant's exam, " * * * but he felt as though he had to take the Sergeant's test in order to stay in the police line of work."

David K. Scheer, M.D., appellee's medical expert, testified, in response to a lengthy hypothetical question in which he was asked to assume a multitude of facts including that " * * * the thought of being unable to return as a police officer in the position that he previously held was extremely stressful and upsetting to him" and that " * * * Mr. Kennedy has testified that he us [sic] extremely nervous and upset in handling his light duty position and duties because of his unfamiliarity with the job duties and that he had received no training * * *," that in his opinion, based upon a reasonable degree of medical probability, " * * * there is a definite relationship between the changes of duty and the duties that he had and his habits with the heart attack." Scheer stated further that the basis for this opinion is that "I feel these are all very stressful conditions for him, plus he had these other coronary risk factors," and that "I feel that these events precipitated his attack. He probably would have it eventually, but I think that was what brought it on immediately." On cross-examination, Scheer testified that appellee had a paranoid personality, meaning that he thinks "[s]omebody's always picking on me"; that appellant smoked, had hypertension, diabetes, obesity and a family history of heart attack and high blood pressure and that these are all risk factors of heart attack; and that appellee had pre-existing coronary arteriosclerosis. Scheer stated that he was unaware that appellee had been on vacation at the time of his heart attack and testified further as follows:

"Q. Now, Dr. Scheer, I want to ask you and I want to make sure I understand your testimony. You cannot say, can you Dr. Scheer, that the change in duties and this alleged stress that Mr. Kennedy experienced in this light duty position was the proximate cause of his myocardial infarction?

"A. He had numerous things. I can't tell you which one, I know that was one of the last ones.

" * * *

"Q. And I just want to make sure I understood your testimony and make sure it hasn't varied from the last deposition that you gave, and you were asked a question. So, Doctor, your honest testimony is, you can't really say for sure the stress in and of itself was cause of coronary artery disease or his heart attack, and you said no, and that's still your opinion?

"A. I can't say which one, which thing."

On redirect examination, Scheer testified that nothing pointed out during cross-examination changed his opinion.

Theodore D. Fraker, Jr., M.D., testified, as an expert medical witness for appellant, that appellee had pre-existing heart disease and that appellee's heart attack was not caused by any stressful situation as allegedly experienced in the change of his normal job duties.

Appellant contends in his assignment of error that the trial court erred in overruling its motions for judgment notwithstanding the verdict and for new trial. In support, appellant argues (1) that for stress related injuries, Ryan v. Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379, provides a two-part test: first, that the injury must have resulted from greater emotional strain or tension than that to which all workers are occasionally subjected and, second, that the stress was the medical cause of the injury; (2) that the first part of the test is an objective test; (3) that the second part of the test...