Williams v. Chrysler First Fin. Servs. Co. , 97 N.E.3d 1123 ( 2017 )

[Cite as Williams v. Chrysler First Fin. Servs. Co., 2017-Ohio-7778.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Charmalita S. Williams Court of Appeals No. L-17-1009
Appellant Trial Court No. CI0201504325
v.
Chrysler First Financial Services Co.
and Sarah D. Morrison, Administrator,
Bureau of Workers’ Compensation DECISION AND JUDGMENT
Appellee Decided: September 22, 2017
*****
Theodore A. Bowman, for appellant.
Thomas J. Gibney and Melissa M. VanGessel, for appellee.
*****
MAYLE, J.
{¶ 1} In this administrative appeal, the plaintiff-appellant, Charmalita Williams,
appeals a judgment following a jury verdict that disallowed her workers’ compensation
claim for a right shoulder injury. For the reasons that follow, we affirm the judgment.
Facts and Procedural History
{¶ 2} In October 2014, Williams began work as a production operator for FCA US
LLC (hereinafter “Chrysler”) at the company’s Jeep assembly plant in Toledo, Ohio. Her
job duties required her to perform repetitive overhead work, specifically the repeated use
of a mallet to install vehicle door pads.
{¶ 3} Williams began experiencing right shoulder pain in December
2014—approximately five weeks into her job assignment. Williams sought medical
treatment in the plant medical dispensary and then she consulted her own physician, Dr.
David Sohn. Williams was diagnosed with a full thickness tear in her right rotator cuff,
which is a group of muscles that surround the right shoulder joint.
{¶ 4} On December 10, 2014, Williams filed a claim for workers’ compensation
benefits, requesting that it be allowed for “full thickness tear right rotator cuff.” Williams
alleged that she sustained this injury due to “constant use of shoulder going up and down
to put rubber on door edges.”
{¶ 5} Following two administrative hearings, the Industrial Commission of Ohio
ultimately disallowed the claim, finding that the muscle tear “primarily resulted from the
natural deterioration of the tissues in Ms. Williams [sic] right shoulder” rather than work
activity. Pursuant to R.C. 4123.512, Williams timely appealed that decision to the Lucas
County Court of Common Pleas, and a jury trial took place on November 14 and 15,
2016.
2.
{¶ 6} At trial, the parties each presented a medical expert witness on the issue of
causation: Williams presented the expert testimony of her treating physician, Dr. Sohn,
and Chrysler presented the expert testimony of Dr. Douglas Gula, an orthopedic surgeon
who had performed an independent medical examination of Williams during the course
of the proceedings. The experts agreed on several issues.
{¶ 7} Dr. Sohn and Dr. Gula agreed that, at the time of her injury, Williams had
three separate, non-work related conditions in her right shoulder. First, Williams was
born with a “Type II acromion.” The acromion is a bony structure attached to the
scapula, or shoulder blade. A “Type II acromion” does not lay flat but, rather, is curved
or hook shaped. Second, Williams has a bone spur, i.e. an outgrowth, on her acromion.
Third, Williams has “AC joint arthritis,” which is a degenerative condition of the AC
joint at the top of the shoulder. The experts agreed that these three conditions preexisted
Williams’ rotator cuff tear.
{¶ 8} Dr. Sohn and Dr. Gula also agreed that Williams did, in fact, suffer a full
thickness tear in her right rotator cuff. The experts disagreed as to the cause of that
injury.
{¶ 9} Williams’ expert, Dr. Sohn, testified that there are three potential causes of a
rotator cuff tear: (1) “acute trauma,” which he described as some violent episode where
the tendon is forcefully torn, like a car accident; (2) “attritional,” which he said is a
gradual occurrence over time as a person’s blood supply to the muscle naturally
decreases with age; or (3) “overuse mechanism,” which he described as overuse of a
3.
repetitive movement involving the ball and socket joint of the shoulder, such as repetitive
arm movement. When asked to give his opinion on the cause of Williams’ rotator cuff
tear, he testified:
I think she had an overuse mechanism. I think that she had some - - she
had the Type II acromion and she had some arthritis of the AC joint that
were risk factors that combined with the repetitive overhead activity that
she described, I think, is what caused her rotator cuff tear. So I do think
that that was a direct and proximate injury.
{¶ 10} Dr. Gula, on the other hand, opined that Williams’ rotator cuff tear was a
“longstanding chronic condition that didn’t happen in December 2014.” He stated that
her rotator cuff tear took “years to develop” and occurred due to “activities of daily
living” rather than her work activities. Dr. Gula also recognized that neither a Type II
acromion nor AC joint arthritis are capable of causing a rotator cuff tear on their own but,
rather, these conditions are predisposing risk factors that can contribute to the
development of a tear. Specifically, he testified:
Q: Now you mentioned that Ms. Williams had a Type II acromion
which I think you said is – is something that she was born with. Does
everyone who has a Type II acromion develop a rotator cuff tear?
A: No.
Q: Well, what about AC joint arthritis – Can you have AC joint
arthritis and not develop a rotator cuff tear?
4.
A: That’s correct, yes.
Q: So those conditions in and of themselves do not necessarily
cause rotator cuff tears?
A: They contribute to the development, but they don’t specifically
cause, no.
Q: Okay. So it is the presence of one or both of those conditions
plus something else that culminates in a rotator cuff tear; is that correct?
A: Yes.
Q: So would it be fair to describe that as a – a predisposing factor or
a risk for – something that creates an increased risk of a rotator cuff tear?
A: I agree with that, yes.
{¶ 11} Based on the testimony of Dr. Sohn and Dr. Gula, Williams requested the
following jury instruction on dual causation:
“Proximate cause” is an event that, in the natural and continuous sequence,
directly produces the injury and without which the injury would not have
occurred. It is not necessary that the Plaintiff’s employment was the sole or
exclusive cause of the injury. An injury may have more than one proximate
cause. Where two conditions or events combine to produce an injury, each
of these conditions or events is a proximate cause of that injury. Murphy v.
Carrolton, 61 Ohio St. 3d 585, 575 N.E.2d 828 (1991).
5.
{¶ 12} Williams argued that this jury instruction was warranted by the experts’
testimony, primarily because Dr. Sohn had testified that the Type II acromion and AC
joint arthritis were “risk factors that combined with the repetitive overhead activity” to
cause Williams’ rotator cuff tear, and because Dr. Gula had stated that Williams’
predisposing factors “contributed to the development” of the rotator cuff tear.
{¶ 13} Chrysler objected to the proposed instruction, arguing that both experts
discussed the Type II acromion and AC joint arthritis as mere predisposing risk
factors—not separate, proximate causes. Chrysler argued that the experts presented
competing single-causation theories: Dr. Sohn opined that Williams’ injury was caused
by a work-related “overuse mechanism,” while Dr. Gula opined that the injury was
caused by natural deterioration. Chrysler argued that a dual-causation instruction was
therefore inappropriate because neither expert testified that there was more than one
proximate cause of Williams’ injury.
{¶ 14} Chrysler also argued that to the extent that Williams’ preexisting risk
factors were to be viewed by the court as “particular predispositions, susceptibilities, and
sensitivities” that made Williams more likely to be injured under circumstances that
would not injure an otherwise normal, healthy employee, a dual causation instruction was
unnecessary because the court intended to provide the following “eggshell plaintiff”
instruction to the jury:1
1
Chrysler objected to the “eggshell plaintiff” jury instruction, but that objection was
overruled by the court.
6.
Employers take their employees as they find them, and assume the risk that
an employee’s previous physical condition or state of health may cause him
or her to be injured as a result of events or activities that would not harm an
otherwise healthy person. An employee’s particular * * * predispositions,
susceptibilities, and sensitivities are irrelevant to the determination of
whether the employee is entitled to participate in the Workers’
Compensation Benefits.
{¶ 15} Ultimately, the trial court sustained Chrysler’s objection and found that the
proposed dual causation instruction was improper because neither expert had testified
that there was more than one proximate cause of Williams’ injury.
{¶ 16} The jury found that Williams was not entitled to participate in the workers’
compensation fund for “full thickness tear right rotator cuff” and disallowed her claim.
{¶ 17} Williams appealed and asserts a single assignment of error for our review:
The trial court erred, to Appellant’s prejudice, in failing to instruct
the jury that an injury may have more than one proximate cause, and where
two events or conditions combine to produce an injury, each of those
conditions or events is a proximate cause of that injury.
7.
{¶ 18} As explained further below, we find that the trial court did not err in failing
to instruct the jury on dual causation because neither expert witness opined that there was
more than one proximate cause of Williams’ rotator cuff tear.2
Law and Analysis
{¶ 19} An appellate court will not overturn a trial court’s jury instruction on
appeal absent a finding of abuse of discretion, when evaluated under the particular facts
and circumstances of each case. Kmotorka v. Wylie, 6th Dist. Wood Nos. WD-11-018,
WD-11-026, 2013-Ohio-321, ¶ 32-33; see also State v. Wolons, 44 Ohio St. 3d 64, 68,
541 N.E.2d 443 (1989). An “abuse of discretion” implies that the trial court’s decision
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983). “When applying the abuse of discretion standard, a
reviewing court may not simply substitute its judgment for that of the trial court.”
Motorists Mut. Ins. Co. v. Hohman, 3d Dist. Shelby No. 17-06-08, 2007-Ohio-108, ¶ 26.
2
Chrysler argues that we cannot consider the merits of Williams’ appeal because she
omitted “critical” portions of the record, and that without them, this court must “presume
the validity of the lower court’s proceedings and affirm.” Knapp v. Edwards
Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384 (1980). Specifically, Chrysler
argues that Williams’ failure to include her own trial testimony, opening statements and
closing arguments precludes her from supporting her assignment of error. We disagree.
The issue on appeal is whether the record supports a jury instruction on dual causation,
which requires a review of the medical expert testimony. Aiken v. Industrial Comm., 143
Ohio St. 113, 117, 53 N.E.2d 1018 (1944) (“[T]he issue of causal connection between an
accidental injury and subsequent death from disease, involves a scientific inquiry and
must be determined by the testimony of competent medical witnesses.”). Because the
trial transcripts from both expert witnesses are part of the appellate record, the absence of
other parts is not fatal to her appeal.
8.
Instead, we are to view jury instructions in their entirety to determine whether or not they
constitute prejudicial error. Id., citing State v. Porter, 14 Ohio St. 2d 10, 235 N.E.2d 520
(1968).
{¶ 20} Jury instructions must be based on the evidence presented in a case. “It is
well established that the trial court will not instruct the jury where there is no evidence to
support an issue.” Murphy v. Carrollton Mfg. Co., 61 Ohio St. 3d 585, 591, 575 N.E.2d
828 (1991). “In reviewing a record to ascertain the presence of sufficient evidence to
support the giving of a[n] * * * instruction, an appellate court should determine whether
the record contains evidence from which reasonable minds might reach the conclusion
sought by the instruction.” Feterle v. Huettner, 28 Ohio St. 2d 54, 275 N.E.2d 340
(1971), syllabus.
{¶ 21} To establish a right to participate in the workers’ compensation fund, a
claimant must show by a preponderance of the evidence that the injury arose out of and in
the course of employment and that a direct and proximate causal relationship existed
between the injury and the harm or disability. Haynes v. Kielmeyer, 6th Dist. Ottawa No.
OT-06-037, 2007-Ohio-4089, ¶ 10-11. See also Cook v. Mayfield, 45 Ohio St. 3d 200,
204, 543 N.E.2d 787 (1989). “In addition, when considering the issue of proximate cause
in the workers’ compensation context, the definition of and principles governing the
determination of proximate cause in the field of torts are applicable.” (Citations omitted.)
Haynes at ¶ 11, citing Murphy at 587. “The proximate cause of an event is that which in
a natural and continuous sequence, unbroken by any new, independent cause, produces
9.
that event and without which that event would not have occurred.” Aiken, 143 Ohio St. at
117, 53 N.E.2d 1018.
{¶ 22} Moreover, “[i]t is a well-established principle of tort law that an injury may
have more than one proximate cause.” Murphy at 587. A dual causation instruction is
warranted where there is evidence of two or more proximate causes of an injury. Id. at
syllabus. (“Where a dependent person claiming death benefits under the workers’
compensation laws produces sufficient evidence to allow reasonable minds to conclude
that there was more than one proximate cause of death, a jury instruction on dual
causation should be given.”)
{¶ 23} Williams does not dispute this general proposition of law regarding dual
causation. She also concedes that neither physician expressly stated that there was more
than one proximate cause of her injury. Instead, Williams focuses on the following
language from the Murphy opinion: “In Ohio, when two factors combine to produce
damage or illness, each is a proximate cause.” Id. at 588, quoting Norris v. Babcock &
Wilcox Co., 48 Ohio App. 3d 66, 67, 548 N.E.2d 304 (9th Dist.1988). Williams interprets
this sentence to mean that where a claimant has one or more risk factors that are
incapable of independently causing an injury on their own, such risk factors should
nonetheless be viewed as separate, legally-significant “proximate causes” if they
somehow combined with another event that caused the claimant’s injury. Williams
argues that a dual causation instruction was therefore appropriate because both medical
experts recognized that her predisposing risk factors somehow combined with another
10.
event that caused her rotator cuff tear. That is, Dr. Sohn opined that her risk factors
“combined with” her repetitive work activity to cause her injury, and Dr. Gula opined
that, in general, such risk factors can “contribute to the development” of a rotator cuff
tear if “something else” occurs.
{¶ 24} Williams also maintains that the experts’ failure to explicitly state that her
Type II acromion, bone spur, or AC joint arthritis were separate “proximate causes” of
her injury is immaterial because such “magic words of causation” are not necessary.
Williams argues that the experts’ testimony, when viewed in their totality, can reasonably
be understood as stating that Williams’ predisposing conditions did, in fact, proximately
cause her injury.
1. Dual Causation Requires More than One Proximate Cause
{¶ 25} First, regarding the legal standard for dual causation, Williams
misinterprets Murphy. In Murphy, the decedent suffered a work-related lumbosacral
strain on October 23, 1964 and then died from a massive pulmonary embolism almost 18
years later. At trial, his widow requested a dual causation jury instruction, which was
denied by the trial court and that ruling was affirmed by the appellate court. The
Supreme Court of Ohio then reversed, finding that a dual causation jury instruction was
warranted because the record contained “sufficient evidence to allow reasonable minds to
conclude that there was more than one proximate cause of death.” Murphy at 591. That
is, appellant’s medical expert opined that while the decedent died “from a massive
pulmonary embolism,” he also testified that “he believed that the decedent’s death was
11.
directly and proximately caused by the October, 1964 injury.” Id. at 590. Thus, a dual
causation instruction was appropriate because the evidence supported two separate and
direct proximate causes of the decedent’s death: (1) a massive pulmonary embolism and
(2) the October 1964 injury.
{¶ 26} When the Supreme Court of Ohio stated the following in Murphy: “In
Ohio, when two factors combine to produce damage or illness, each is a proximate
cause,” this language must be read in conjunction with the underlying facts (which, as
explained, supported two separate, direct proximate causes of death) and the controlling
point of law stated in the syllabus.3 The Murphy syllabus provides that a jury instruction
on dual causation should be given only where “there was more than one proximate cause”
of the injury, which in that case was death. Murphy at syllabus.
{¶ 27} Accordingly, we interpret the Murphy language that Williams relies upon
(and that she included in her requested dual causation instruction) to mean that when an
injury has more than one proximate cause, then “each is a proximate cause,” even when
they combine to produce damage or illness. Or, in other words, separate proximate
causes do not become one, single cause simply because they somehow combined before
the injury occurred. It does not mean, as Williams argues, that mere “risk factors” or
3
When the Supreme Court of Ohio decided Murphy in 1991, former Rule 1(B) for the
Reporting of Opinions stated that “The syllabus of a Supreme Court opinion states the
controlling point or points of law decided in and necessarily arising from the facts of the
specific case before the Court for adjudication.” The current rule, adopted in July 2012,
provides that “[t]he law stated in an opinion of the Supreme Court shall be contained in
its text, including its syllabus, if one is provided, and footnotes.” Rep.Op.R. 2.2.
12.
“predisposing conditions” —i.e., factors or conditions that cannot cause injury or damage
on their own—should nonetheless be viewed as separate and distinct “proximate causes”
for purposes of dual causation simply because they somehow combined with another
event that did cause the injury. Rather, dual causation is only applicable where the
evidence establishes two or more separate and independent proximate causes of injury.
See Leasure v. UVMC, 2d Dist. Miami No. 2016-CA-21, 2017-Ohio-7196, ¶ 22 (“Dual
causation would only be applicable in the instant case if [the plaintiff] established that her
non-work related health problems associated with her obesity and advanced age as well
as her 1982 work injury were both separate and independent causes of her lumbar
spondylosis.”). (Emphasis added.)
2. The Record Does Not Support a Jury Instruction on Dual Causation
{¶ 28} Williams concedes that neither Dr. Sohn nor Dr. Gula expressly opined that
there was more than one proximate cause of Williams’ rotator cuff tear. Indeed, at the
charge conference before the trial court, the court stated: “[I]t’s clear that you are unable
to point to anything in the record where there’s an expert opinion to a reasonable degree
of medical certainty that there’s more than one proximate cause here?” And Williams’
counsel responded: “That’s correct. That is true.”
{¶ 29} Williams argues, however, that while neither expert expressly stated, to a
reasonable degree of medical certainty, that Williams’ predisposing conditions were
separate “proximate causes” of her rotator cuff tear, such “magic words of direct
causation” are not required. Williams maintains that the expert testimony, when viewed
13.
it its totality, contains sufficient evidence to allow a reasonable mind to conclude that
there was more than one proximate cause of Williams’ injury. Murphy at 591 (“In
reviewing a record to ascertain the presence of sufficient evidence to support the giving
of a[n] * * * instruction, an appellate court should determine whether the record contains
evidence from which reasonable minds might reach the conclusion sought by the
instruction.”).
{¶ 30} Williams is correct that medical evidence of causation need not be couched
in “legally precise language.” Swanton v. Stringer, 42 Ohio St. 2d 356, 360, 328 N.E.2d
794 (1975); see also Oswald v. Connor, 16 Ohio St. 3d 38, 476 N.E.2d 658 (1985)
(recognizing that a medical expert witness does not need to recite “magic words of direct
causation” to establish a causal relationship but, rather, the expert testimony should be
viewed “in its totality” to determine if there is sufficient evidence to support a finding of
causation.). We find, however, that the expert testimony in this case, when viewed in its
totality, does not contain sufficient evidence from which a reasonable mind could
conclude that Williams’ rotator cuff tear had more than one proximate cause.
{¶ 31} Dr. Sohn testified that there are three potential causes of a rotator cuff tear:
(1) “acute trauma,” (2) “attritional,” and (3) “overuse mechanism.” He was then asked to
give his opinion on the direct and proximate cause of Williams’ rotator cuff tear, and Dr.
Sohn selected one of the three potential causes: a work-related “overuse mechanism.”
{¶ 32} Although Dr. Sohn then stated that the Type II acromion and AC joint
arthritis were “risk factors that combined with the repetitive overhead activity,” this is not
14.
sufficient evidence from which a reasonable mind could conclude that these “risk factors”
were additional proximate causes of Williams’ rotator cuff tear. Indeed, if Dr. Sohn
believed that Williams’ Type II acromion, bone spur, or AC joint arthritis could have
proximately caused this injury, he would have included these conditions in his list of
potential causes of rotator cuff tears. He did not. We therefore assume that Dr. Sohn
meant precisely what he said: Williams’ injury was directly and proximately caused by
her repetitive work activity, and her non-work related health conditions were
predisposing “risk factors.”
{¶ 33} Moreover, although Dr. Sohn also testified that “both the bone spur and the
repetitive reaching up are contributory causes to the development of the rotator cuff
tear,” we note that he later corrected himself and stated that the presence of a bone spur
“is not a cause” but can “make an individual more susceptible to rotator cuff injury.”
{¶ 34} In sum, viewed in its totality, Dr. Sohn’s testimony supports a finding that
Williams’ rotator cuff tear had one proximate cause: work-related “overuse mechanism.”
His trial deposition does not contain sufficient testimony from which a reasonable mind
could conclude that Williams’ injury had more than one proximate cause.
{¶ 35} Dr. Gula’s testimony does not support a dual causation theory either.
Viewed in its totality, Dr. Gula provided only one proximate cause of Williams’ rotator
cuff tear: natural deterioration. That is, he described the injury as “a longstanding
chronic condition that didn’t happen in December 2014,” and stated that the tear took
“years to develop” through “activities of daily living.” Moreover, Dr. Gula testified that
15.
a Type II acromion and AC joint arthritis “contribute to the development, but don’t
specifically cause” rotator cuff tears, and further stated that these conditions are
appropriately described as “predisposing factor[s] * * * that create an increased risk of a
rotator cuff tear.”
{¶ 36} Thus, rather than supporting a dual causation theory, the two medical
experts presented competing single-causation theories: Dr. Sohn asserted that the rotator
cuff tear was caused by work-related overuse, and Dr. Gula opined that the injury was
caused by natural deterioration. Dual causation was not at issue in this case.
{¶ 37} A similar situation was recently addressed in Leasure v. UVMC, 2d Dist.
Miami No. 2016-CA-21, 2017-Ohio-7196. There, the court interpreted dual causation to
apply in the following situations:
Dual causation would only be applicable in the instant case if [the
plaintiff] established that her non-work related health problems associated
with her obesity and advanced age as well as her 1982 work injury were
both separate and independent causes of her lumbar spondylosis. At trial,
evidence was adduced which supported only two alternative theories of
causation for [plaintiff’s] lumbar spondylosis, to wit: flow-through or
natural deterioration. The theory of dual causation is simply not supported
by the record. Id. at ¶ 22.
{¶ 38} Similarly here, two alternative theories of causation were presented:
work-related overuse or natural deterioration. The record lacked sufficient
16.
evidence to suggest that Williams’ non-work related health problems were
separate and independent causes of her injury. Here, as in Leasure, the theory of
dual causation is not supported by the record.
{¶ 39} Finally, we note that the experts’ trial depositions, when viewed in their
totality, are sufficient to support a reasonable conclusion that Williams’ Type II
acromion, bone spur, and AC joint arthritis made her more susceptible to a rotator cuff
tear. As we recognized in Luettke v. Autoneum N. Am., Inc., 6th Dist. Lucas No.
L-14-1236, 2015-Ohio-3210, the “eggshell plaintiff” rule in Ohio recognizes that,
[t]he employer takes an employee as he finds him and assumes the
risk of having a weakened condition aggravated by some injury which
might not hurt or bother a perfectly normal, healthy person. If that injury is
the proximate cause of the death or disability for which compensation is
sought, the previous physical condition is unimportant and recovery may be
had independently of the pre-existing weakness or disease. Id. at *18,
quoting Hamilton v. Keller, 11 Ohio App. 2d 121, 127-128, 229 N.E.2d 63
(3rd Dist.1976).
{¶ 40} Here, the trial court provided an “egg shell plaintiff” instruction, over
Chrysler’s objection, instructing the jury that “an employee’s particular predispositions,
susceptibilities, and sensitivities are irrelevant to the determination of whether the
employee is entitled to participate in the Workers’ Compensation Benefits.” Although
the propriety of the “eggshell plaintiff” instruction in this particular case is not before us,
17.
we note that, assuming that the evidence supported that instruction, it would have been
inconsistent for the court to instruct on both dual causation and the eggshell plaintiff rule.
The same evidence cannot support both of these jury instructions: if the evidence
established that Williams’ non-work related health conditions were “particular
predispositions, susceptibilities or sensitivities” that made a rotator cuff tear more likely
to occur (eggshell plaintiff), then the evidence also established that these conditions were
not separate proximate causes of her rotator cuff tear (dual causation).
Conclusion
{¶ 41} A strong presumption exists in favor of the propriety of jury instructions.
Helfrich v. Mellon, 5th Dist. Licking No. 06-CA69, 2007-Ohio-3358, ¶ 162. We find that
the trial court did not act unreasonably, arbitrarily, or unconscionably when it denied
Williams’ request to instruct the jury on the issue of dual causation. Therefore, Williams’
sole assignment of error is not well-taken, and the judgment of the trial court is affirmed.
Costs are assessed to plaintiff-appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
18.
Williams v. Chrysler First
Fin. Servs. Co.
C.A. No. L-17-1009
Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
19.