Parker v. Honda of Am. Mfg., Inc. ( 2009 )

[Cite as Parker v. Honda of Am. Mfg., Inc., 2009-Ohio-6866.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
GAYLEEN PARKER, CASE NO. 14-09-27
PLAINTIFF-APPELLANT,
v.
HONDA OF AMERICA MFG., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Union County Common Pleas Court
Trial Court No. 2008-CV-0489
Judgment Affirmed
Date of Decision: December 28, 2009
APPEARANCES:
Adam H. Leonatti for Appellant
Gerald Waterman for Appellee
Case No. 14-09-27
ROGERS, J.
{¶1} Plaintiff-Appellant, Gayleen Parker, appeals the judgment of the
Court of Common Pleas of Union County granting summary judgment in favor of
Defendant-Appellees, Honda of America MFG., Inc. (hereinafter “Honda”), and
the Ohio Bureau of Workers’ Compensation (hereinafter “BWC”), barring her
from receiving compensation under the Workers’ Compensation Act in
conjunction with the death of her husband, John Parker (hereinafter “the
decedent”). On appeal, Parker argues that the trial court erred in basing its grant
of summary judgment upon its own factual conclusions about the issues instead of
her medical expert’s testimony about the issues, and that the trial court erred in
concluding that the decedent’s prescription OxyContin abuse disqualified her
death claim pursuant to R.C. 4123.54(A)(1), even though her medical expert
offered testimony that the decedent’s drug abuse was unwillful and nonvolitional.
Based upon the following, we affirm the judgment of the trial court.
{¶2} The following facts are undisputed. In 1988, John Parker, the
decedent, suffered a severe back injury while employed by Honda. Thereafter, his
workers’ compensation claim was allowed for the injury and he underwent several
surgical procedures in an unsuccessful attempt to alleviate his pain. In order to
manage his pain, the decedent was prescribed and began using OxyContin in
March 1999, to which he subsequently became addicted. In August 2004, the
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decedent sought treatment for his dependency on cocaine and OxyContin. In
March 2005, he again sought treatment for his addictions which had grown to
include cocaine, OxyContin, Percocet, and heroin. In March 2006, he was
discovered dead with a syringe in his arm, a lighter and spoon, and thirty-seven
OxyContin pills. Cocaine and OxyContin were found on both the syringe and
spoon. The coroner concluded that the immediate cause of the decedent’s death
was a lethal concentration of OxyContin, which he had melted down and injected
intravenously.
{¶3} In September 2007, Gayleen Parker, the decedent’s wife, filed a
complaint in the trial court against Honda and BWC, asserting that the decedent,
while employed by Honda, suffered an injury as a direct and proximate result of
his work activities in 1988; that, in 2006, the decedent died as a result of an
OxyContin overdose which was the direct and proximate result of his work injury;
that she had filed a claim for death benefits with BWC and Honda; that, in May
2007, the district hearing officer of the Industrial Commission of Ohio denied her
claim for death benefits; that she appealed the May 2007 denial of her claim for
death benefits, which the Industrial Commission again denied in August 2007;
and, that she appealed the August 2007 denial of her claim for death benefits,
which the Industrial Commission denied for a third time later in August 2007.
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{¶4} In September 2008, Honda filed an answer to Parker’s complaint,
denying the allegations, and contending that the complaint was barred by the
statute of limitations and by operation of R.C. 4123.54.
{¶5} In May 2009, Honda filed a motion for summary judgment, arguing
that it had filed deposition testimony of two medical experts finding that the
decedent’s death was the result of his abuse of prescription medication in concert
with illegal drugs and that it was not an accidental overdose, but a purposeful
ingestion of controlled and illegal substances; that the decedent’s acts of melting
OxyContin, injecting it into his blood stream, and using street drugs was an
intervening cause that broke the chain of causation between his work injury and
his death; and, that the facts surrounding the decedent’s death were distinguishable
from those set forth in Borbely v. Prestole Everlock, Inc. (1991), 57 Ohio St.3d 67,
which carved out a narrow exception to the workers’ compensation recovery
exclusion for self-inflicted injuries in certain cases of suicide.
{¶6} In June 2009, Parker filed a memorandum contra to Honda’s motion
for summary judgment, asserting that the decedent’s addiction to OxyContin was
caused by his work injury, and that his work-injury-induced addiction to
OxyContin caused him to be dominated by a severe disturbance of the mind that
overrode his normal, rational judgment, and lead to his death by overdose. In
support, Parker provided the expert testimony of Dr. Richard N. Whitney, who
was deposed and agreed that the decedent’s “work-injury-related addiction to
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OxyContin and/or oxycodone caused him to be so dominated by a disturbance of
the mind of such severity as to override his normal, rational judgment that it led to
his overdose and death” and stated that, consequently, he would not consider the
decedent’s addiction to be volitional or willful. (Whitney Dep., p. 59).
{¶7} In July 2009, the trial court granted Honda’s motion for summary
judgment against Parker, finding that R.C. 4123.54 excluded workers’
compensation claims for dependents where the decedent’s injury was purposefully
self-inflicted or caused by the decedent being under the influence of a controlled
substance not prescribed by a physician, where the being under the influence of a
controlled substance not prescribed by a physician was the proximate cause of the
injury. The trial court concluded:
[T]his court finds that Parker’s claims for workers’
compensation benefits is precluded under the provisions of R.C.
4123.54 and R.C. 4123.46. This court cannot find that there is
any genuine issue as to whether [the decedent] acted voluntarily
when he crushed, heated, and injected OxyContin directly into
his veins. That misuse of the prescription drugs coupled with his
ingestion of other controlled substances was an intentional and
voluntary act. This Court must conclude that [the decedent’s]
tragic death was purposefully self-inflicted.
(July 2009 Decision and Judgment Entry, p. 8). In support, the trial court cited
Vance v. Trimble (1996), 116 Ohio App.3d 549; Shope v. Meijer, Inc., 3d Dist.
No. 5-2000-30, 2001-Ohio-2133. Further, the trial court determined that Parker’s
claims also did not fall within the exception to R.C. 4123.54 and R.C. 4123.46
created by the Supreme Court of Ohio in Borbely, supra. The trial court stated:
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Plaintiff urges this court to extend the Supreme Court’s holding
in Borbely to death claims arising from purposefully self-
inflicted drug overdoses. In so doing, Plaintiff invites the Court
to disregard the Revised Code and the Court’s holding in
Borbely. The court declines such an invitation[.] R.C. 4123.54
and R.C. 4123.46 clearly provide that workers’ compensation
benefits are not available when the injury is purposefully self-
inflicted. The Ohio Supreme Court appears to have created a
small exception to those statutes by finding that the “chain-of-
causation approach is more logical and enlightened in
determining cases involving a suicide that is alleged to be the
proximate result of a work-related injury.” However, by its
plain language, that holding applies only to cases involving a
suicide. In this case, neither party suggests, nor does the
evidence support, a finding that [the decedent] committed
suicide. It follows that Borbely has no bearing on the outcome in
this case.
(Emphasis sic.) (July 2009 Decision and Judgment Entry, p. 9).
{¶8} It is from this judgment that Parker appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED BY BASING SUMMARY
JUDGMENT UPON ITS OWN FACTUAL CONCLUSION
THAT THE DECEDENT’S ABUSE OF OXYCONTIN WAS
“WILLFUL AND VOLUNTARY” WHEN THE
APPELLANT’S MEDICAL EXPERT SPECIFICALLY
TESTIFIED THAT THE DECEDENT’S “VOLITIONAL AND
WILLFUL USE [OF OXYCONTIN] HAS GONE OUT THE
WINDOW” AND THAT DECEDENT’S VERY ABUSE OF
OXYCONTIN WAS CAUSED BY HIS WORK-INJURY-
INDUCED ADDICTION WHICH CAUSED HIM TO BE
“DOMINATED BY A DISTURBANCE OF THE MIND OF
SUCH SEVERITY AS TO OVERRIDE HIS NORMAL,
RATIONAL JUDGMENT.”
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Assignment of Error No. II
THE TRIAL COURT ERRED IN CONCLUDING THAT THE
DECEDENT’S PRESCRIPTION OXYCONTIN ABUSE
DISQUALIFIES APPELLANT’S DEATH CLAIM PURSUANT
TO R.C. 4123.54(A)(1), EVEN THOUGH APPELLANT CAN
PROVE BY MEDICAL EXPERT TESTIMONY THAT THE
DECEDENT’S DRUG ABUSE ITSELF WAS UNWILLFUL
AND NONVOLITIONAL AND CAUSED BY HIS WORK-
INJURY-INDUCED ADDICTION WHICH CAUSED HIM TO
BE DOMINATED BY A DISTURBANCE OF THE MIND OF
SUCH SEVERITY AS TO OVERRIDE HIS NORMAL,
RATIONAL JUDGMENT.
{¶9} Due to the nature of Parker’s assignments of error, we elect to
address them together and in reverse order.
Assignments of Error Nos. I & II
{¶10} In her second assignment of error, Parker contends that the trial
court erred in concluding that the decedent’s OxyContin abuse disqualified her
death claim pursuant to R.C. 4123.54(A)(1), because she produced medical expert
testimony that the decedent’s drug abuse was unwillful and nonvolitional because
it was caused by his work-injury-induced addiction.
{¶11} R.C. 4123.54 governs workers’ compensation in cases of death and
provides, in pertinent part:
(A) Except as otherwise provided in division (I) of this section,
* * * the dependents of each employee who is killed, or dies as
the result of an occupational disease contracted in the course of
employment, wherever such injury has occurred or occupational
disease has been contracted, provided the same were not:
(1) Purposely self-inflicted; or
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(2) Caused by the employee being intoxicated or under the
influence of a controlled substance not prescribed by a physician
where the intoxication or being under the influence of the
controlled substance not prescribed by a physician was the
proximate cause of the injury, is entitled to receive, either
directly from the employee's self-insuring employer as provided
in section 4123.35 of the Revised Code, or from the state
insurance fund, the compensation for loss sustained on account
of the injury, occupational disease, or death, and the medical,
nurse, and hospital services and medicines, and the amount of
funeral expenses in case of death, as are provided by this
chapter.
{¶12} Despite the exclusions set forth in R.C. 4123.54(A)(1) and (2), the
Supreme Court of Ohio has found that certain situations involving suicide are not
“purposefully self-inflicted.” In Borbely, 57 Ohio St.3d at 71, a decedent was
physically injured during the course of his employment at a plant. Although he
eventually returned to work two years later, he suffered a second work-related
injury shortly thereafter. Several years later, the decedent overdosed on
prescription pain medication, and, two days after leaving the hospital, committed
suicide by shooting himself in the head.
{¶13} The Supreme Court reasoned that, given the General Assembly’s
statutory directive to liberally construe the workers’ compensation provisions in
R.C. 4123.95, and, in order to be consistent with the purpose of workers’
compensation law under Section 35, Article II, Ohio Constitution, an exception
should be carved out in certain instances involving suicide. Accordingly, the
Court adopted a “chain-of-causation” approach to determine whether a suicide was
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a proximate result of a work-related injury, holding that, “[i]n order for dependents
to recover workers’ compensation benefits for a death by suicide, they must
establish by a preponderance of the evidence that (1) there was initially an injury
received in the course of, and arising out of, the employee’s employment as
defined by R.C. 4123.01(C); (2) the work-related injury caused the employee to
become dominated by a disturbance of the mind of such severity as to override
normal rational judgment; and (3) the disturbance resulted in the employee’s
suicide.” (Emphasis added.) Borbely, 57 Ohio St.3d 67, at syllabus.
{¶14} The Sixth Appellate District considered the issue of whether the
exception for certain suicides meeting the criteria in Borbely may properly be
applied to incidents involving accidental death resulting from drug and alcohol
abuse in Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio
App.3d 360. In Conley-Slowinski, a decedent was injured arising out of his
employment and was allowed workers’ compensation claims for his bodily
injuries, as well as aggravation of his pre-existing conditions of depression and
alcoholism. Thereafter, the decedent died in a car/train collision and was
discovered to have a blood alcohol level of .34. Subsequently, the decedent’s
wife, Conley-Slowinski, filed a claim for workers’ compensation benefits on the
basis that the decedent’s death was caused by his alcohol abuse, which was caused
by his depression, which was aggravated due to his work-related injury. Conley-
Slowinski’s claim was denied by the Industrial Commission, and the denial was
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affirmed by the trial court. On appeal, the Sixth Appellate District determined
that, although courts had allowed benefits to be extended for medical conditions
that had a proximate link to the original work-related injury, including a secondary
drug or alcohol abuse problem, courts had not permitted the further linking of any
injuries caused by that secondary drug or alcohol abuse. See Conley-Slowinski,
128 Ohio App.3d at 364, citing Karavolos v. Brown Derby, Inc. (1994), 99 Ohio
App.3d 548. Accordingly, the Sixth Appellate District declined to expand R.C.
4123.54, and affirmed the trial court’s denial of Conley-Slowinski’s claim. See
Id.; see, also, Embry v. Bur. of Workers’ Comp., 10th Dist. No. 04AP-1374, 2005-
Ohio-7021, ¶26; Vance, supra.
{¶15} We find the facts in the case sub judice analogous to Conley-
Slowinski, supra, and distinguished from Borbely, supra. Borbely set forth a three-
part test for determining whether a dependent may recover “workers’
compensation benefits for a death by suicide,” and the third step of the test
requires that the dependent establish by a preponderance of the evidence that “the
[mental] disturbance resulted in the employee’s suicide.” (Emphasis added.)
Borbely, 57 Ohio St.3d 67, at syllabus. The language of Borbely clearly indicates
that it concerns suicide, and we are not persuaded by Parker’s argument that the
exception should be expanded to include accidental death caused by drug abuse.
Additionally, we note that it is undisputed that the decedent’s death was not
suicide, but was an accidental death due to a drug overdose.
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{¶16} We next turn to Parker’s first assignment of error. In her first
assignment of error, Parker contends that the trial court erred by basing its
summary judgment decision on its own factual conclusion that the decedent’s use
of OxyContin was willful and voluntary, when she presented medical expert
testimony that the decedent’s use of OxyContin was not willful and voluntary, but
was caused by his work-injury-induced addiction.
{¶17} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels
v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the
motion for summary judgment is made; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
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{¶18} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E). Additionally, in determining the
existence of a genuine triable issue, the trial court may not resolve issues of
credibility of witness testimony, including expert witness testimony, as this is
outside the province of summary judgment. Morton Internatl., Inc. v. Continental
Ins. Co. (1995), 104 Ohio App.3d 315, 323; Carpenter v. Scherer-Mountain Ins.
Co. (1999), 135 Ohio App.3d 316, 324.
{¶19} Here, Parker contends that she offered Dr. Whitney’s medical expert
testimony that the decedent’s abuse of OxyContin was neither volitional nor
willful, but the product of a work-injury-induced addiction to his prescription pain
medication, and that the trial court either ignored or rejected Dr. Whitney’s
opinion, which was not mentioned in the judgment entry granting summary
judgment. Further, Parker claims that the trial court’s statement that the
decedent’s “unfortunate death was the result of his willful and voluntary abuse of
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powerful controlled substances” demonstrated that it favored its own medical
opinion over the expert witness.
{¶20} Initially, we note that Parker’s offer of expert testimony that the
decedent’s OxyContin addiction caused him “to be dominated by a disturbance of
the mind of such severity as to override his normal rational judgment”1 makes this
case unique from the others cited in our consideration of the second assignment of
error, as no such evidence was presented by the plaintiffs in those cases.
However, we find this distinction to be without meaning. Parker is correct that
Borbely carved out an exception to the workers’ compensation exclusion in cases
of self-inflicted injury where “the work-related injury caused the employee to
become dominated by a disturbance of the mind of such severity as to override
normal rational judgment”; however, as we found in our consideration of her
second assignment of error, the Borbely exception expressly refers to cases of
suicide, and has not been applied to cases of accidental death. Borbely, 57 Ohio
St.3d 67, at syllabus; see, also, Conley-Slowinski, supra. As we have declined to
extend the Supreme Court’s holding in Borbely to cases of accidental death, Dr.
Whitney’s medical expert testimony concerning the Borbely factors was irrelevant,
and the trial court did not err in finding that there were no genuine issues of
material fact and that Honda and BWC were entitled to judgment as a matter of
1
We note that, interestingly, the phraseology of the expert’s testimony about the decedent’s addiction was
virtually identical to the standard set forth by the Supreme Court of Ohio in Borbely.
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law.
{¶21} Finally, we agree with Honda’s averment at oral argument that the
facts in the case sub judice differ from those present in Osborn v. Bur. of Workers’
Comp. (1999), 134 Ohio App.3d 645, in which the Second Appellate District
reversed a trial court’s grant of summary judgment to BWC, determining that
genuine issues of material fact were present. In Osborn, the plaintiff seeking to
obtain workers’ compensation widow benefits presented expert testimony that the
decedent had taken a fatal dose of prescription pain medication following a work-
related injury, and that it was not uncommon for individuals to unintentionally
exceed the recommended dosage because the medication affected cognitive
abilities and could cause confusion over how many pills had been taken. In
reversing the trial court’s grant of summary judgment to BWC, the Second District
found that, in light of the expert testimony, a genuine issue existed as to whether
the decedent intentionally or accidentally took an overdose of the medication. In
contrast, here, Parker did not argue and offered no evidence that the decedent
accidently took more than the recommended dosage of OxyContin, which, we
note, he ingested along with cocaine. Instead, Parker’s argument focused on the
volition of the decedent’s intentional overdose of OxyContin due to his addiction
to the drug, which, as discussed above, is irrelevant because Borbely applies only
to suicides and not to accidental deaths.
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{¶22} Accordingly, we overrule Parker’s first and second assignments of
error.
{¶23} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J., and WILLMOWSKI, J., concurs.
/jnc
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