Fowler v. Indian River Juvenile Corr. Facility ( 2021 )

[Cite as Fowler v. Indian River Juvenile Corr. Facility, 2021-Ohio-4422.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CANDIACE L. FOWLER, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellant : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
-vs- :
:
INDIAN RIVER JUVENILE : Case No. 2021CA00021
CORRECTIONAL FACILITY, et al., :
:
Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case
No. 2020CV00584
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: December 16, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MITCHELL A. STERN DAVID YOST
SHANNON E. KREUER Ohio Attorney General
CHRISTOPHER D. CASPARY
Law Offices of Mitchell A. Stern By: SARAH E. THOMAS
27730 Euclid Avenue Assistant Attorney General
Cleveland, Ohio 44132 Workers’ Compensation Section
State Office Building – 11th Floor
For Defendant-Appellee Indian River 615 West Superior Avenue
Cleveland, Ohio 44113-1899
THOMAS M. SAXER
Amer Cunningham Co. L.P.A.
One Cascade Plaza
Suite 1510
Akron, Ohio 44308-1322
Stark County, Case No. 2021CA00021 2
Baldwin, P.J.
{¶1} Appellee, Candiace Fowler, appeals the decision of the Stark County Court
of Common Pleas granting Indian River Juvenile Correctional Facility’s motion for
summary judgment thus preventing Fowler from participating in the Workers’
Compensation Fund for a claim of substantial aggravation of pre-existing major
depressive disorder, single episode, moderate. Indian River and the Bureau of Workers’
Compensation are appellees.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant, Candiace Fowler, is an employee of appellee, Indian River
Correctional Facility, first hired in 2001 as a correctional officer. In April 2016, while
supervising facility residents, she intervened in a physical conflict. While attempting to
end the fight, she was taken to the floor, struck and injured her right knee. She filed a
workers’ compensation claim and was permitted to participate in the Workers’
Compensation Fund for a contusion and substantial aggravation of pre-existing
osteoarthritis in her right knee. After conservative treatment of the injury, Fowler
underwent a surgical repair in March 2018.
{¶3} On January 10, 2018 Fowler filed a motion with the Bureau of Workers’
Compensation (BWC) to amend her claim to include substantial aggravation of pre-
existing major depressive disorder, single episode, moderate, allegedly caused by the
injury to her knee in April 2016. Her request was ultimately rejected on June 7, 2018 and
she filed an appeal with the Stark County Court of Common Pleas including the BWC and
Indian River Correctional Institute as parties to the action. 1
11
Fowler dismissed this matter without prejudice in April 2019 and refiled a complaint in March 2020.
Stark County, Case No. 2021CA00021 3
{¶4} Indian River and the BWC responded, contending that Fowler's claim
should not be granted. In support of its position, Indian River offered the February 9, 2018
opinion of Nicole Leisgang, Psy.D. who concluded that "* * * her comments during this
evaluation suggest that her depressed symptomatology is a product of a stressful work
environment. For example, she noted ‘I've seen a lot of trauma there . . . my guard's up.’
Further, there is no objective evidence (e.g., medication change) which would be
indicative of a substantial aggravation." (Notice of Expert Disclosure, Apr. 16, 2020,
Exhibit A, p. 8-9) That same report contains the following question and response:
3. Does the medical evidence in the file, your evaluation, and the
subjective and/or objective findings support the diagnosis of the
requested condition(s) according to the DSM-IV criteria?
Examination findings are supportive of the requested condition. The injured
worker's clinical presentation was indicative of emotional difficulty. She
produced a valid MMPI-2 profile which was also indicative of significant
nervous and depressed symptomatology. There was no indication of
symptom magnification.
(Notice of Expert Disclosure, Apr. 16, 2020, Exhibit A, p. 8).
{¶5} Fowler submitted the August 23, 2017 opinion of Cheryl Benson-
Blankenship, Ph,D. who concluded that Fowler was suffering from a substantial
aggravation of pre-existing major depressive disorder, single episode, moderate based
upon her analysis of the information provided and her clinical examination of Fowler.
{¶6} Indian River conducted a deposition of Fowler and questioned her regarding
treatment provided by her physicians prior to and after the 2016 work-related injury.
Stark County, Case No. 2021CA00021 4
During the deposition, Fowler stated that the first time she was aware of her diagnosis of
major depressive disorder was after the work-related injury. When questioned regarding
the list of doctors that treated her prior to the injury, she related that treatment to the
passing of her mother in 2008. Phoenix Rising, Dr. Samina Zaidi and Dr. Ish Rawal
provided treatment, but neither Phoenix Rising nor Dr. Zaidi prescribed medication or
provided a diagnosis. The nature of the treatment provided was not explored during the
deposition. Fowler admitted during the deposition that she did not have any medical
records from her prior treatment in her possession.
{¶7} Fowler also recalled receiving Lexapro when she was dealing with the
impact of losing her mother.
{¶8} Dr. Rawal, Fowler's family physician prescribed Xanax to control her anxiety
prior to the work injury. After the injury, Dr. Rawal substituted Cymbalta for the Xanax for
her anxiety and to take advantage of its pain relieving qualities. Fowler has not sought
additional psychological treatment due to cost, but she expressed a desire to obtain
treatment for depression. She claimed that her psychological symptoms have worsened
over the past three years as a result of the work-related injury.
{¶9} Indian River moved for summary judgment on September 14, 2020 arguing
that it was entitled to summary judgment because Fowler:
has produced no objective diagnostic findings, objective clinical findings,
objective test results, as required by O.R.C. §4123.01(C)(4), to establish
the extent of the Psychological Condition prior to the Incident. Without this
objective evidence, it cannot be determined that an aggravation, let alone a
Stark County, Case No. 2021CA00021 5
substantial aggravation, of the Psychological Condition occurred as a result
of the Incident."
(Indian River Motion for Summary Judgment, Sept. 14, 2020, p. 7).
{¶10} Fowler opposed the motion for summary judgment, relying on her own
affidavit and the affidavit of her expert. Dr. Blankenship. In her affidavit, Fowler addressed
her pre-existing psychological condition:
11) I have also received prior mental health treatment, including treatment
in 2008 regarding my mother's passing.
12) Specifically, I treated with Phoenix Rising Behavioral Healthcare and
Recovery, Inc. and with Dr. Samina Zaida, a psychiatrist prior to my 2016
work injury.
13) I met with a therapist for approximately one year following my mother's
death in 2008 because I had withdrawn from friends and family and felt
depressed, upset and irritable.
14) I have also received mental health treatment from Dr. Ish Rawal, my
primary care provider, for many years, who has prescribed Xanax, and more
recently, Cymbalta.
(Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, Exhibit 1, p.
2, paragraphs 11-14).
{¶11} Dr. Blankenship concluded in her affidavit that she "made a clinical finding
that Fowler already suffered from major depressive disorder, single episode based upon
her reported prior symptoms and mental health treatment, including in 2008, regarding
her mother's passing" and that:
Stark County, Case No. 2021CA00021 6
Based upon my examination of Ms. Fowler, review of her medical
records, and my years of experience as a practicing psychologist, it is my
opinion, to a reasonable degree of psychological certainty, that the physical
injuries that Ms. Fowler sustained in her April 15, 2016 work-related
accident are the direct and proximate cause of her substantial aggravation
of preexisting major depressive disorder, single episode.
(Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, Exhibit 2, p.
2, paragraphs 8,10).
{¶12} The trial court granted the motion denying Fowler "the right to participate in
the Ohio Workers' Compensation Fund for a substantial aggravation of pre-existing major
depressive disorder, single episode, moderate" stating that “[i]n the present case, Plaintiff
has not produced objective evidence of a pre-injury reference point. Plaintiff has only
produced subjective complaint(SIC) of her pre-existing condition, specifically disallowed
by R.C. 4123.01 (C)(4) which states that "subjective complaint without objective
diagnostic findings, objective clinical findings, or objective test results are insufficient to
substantiate a substantial aggravation.” (Judgment Entry, Feb. 19, 2021, p. 1, 2, 3).
{¶13} The trial court also found that Fowler's attempt to argue a theory of direct
causation was barred as she failed to make that allegation in her complaint and had
conceded that she has a history of major depressive order pre-dating the injury.
{¶14} Fowler filed a timely notice of appeal and submitted six assignments of
error:
Stark County, Case No. 2021CA00021 7
{¶15} “I. THE TRIAL COURT ERRED IN DETERMINING THAT INDIAN RIVER
HAS MET ITS BURDEN OF DEMONSTRATING THAT THERE IS NO GENUINE ISSUE
AS TO ANY MATERIAL FACT.”
{¶16} “II. THE TRIAL COURT ERRED IN DETERMINING THAT FOWLER HAS
NOT MET HER BURDEN OF PRODUCTION UNDER CIV. R. 56(E) THAT SHE
SUFFERED A WORK-RELATED SUBSTANTIAL AGGRAVATION OF A PRE-EXISTING
PSYCHOLOGICAL CONDITION.”
{¶17} “III. THE TRIAL COURT ERRED IN DETERMINING THAT A PRE-INJURY
REFERENCE POINT IS REQUIRED TO ESTABLISH SUBSTANTIAL AGGRAVATION
OF A PRE-EXISTING CONDITION UNDER R.C. 4123.512.”
{¶18} “IV. THE TRIAL COURT ERRED IN DETERMINING THAT INDIAN RIVER
IS ENTITLED TO JUDGMENT AS A MATTER OF LAW PURSUANT TO CIV. R. 56(C).”
{¶19} “V. THE TRIAL COURT ERRED AS MATTER OF LAW IN NOT
PERMITTING FOWLER TO PURSUE AN ALTERNATIVE THEORY OF DIRECT
CAUSATION.”
{¶20} “VI. THE TRIAL COURT ERRED IN DETERMINING AS A MATTER OF
LAW THAT THE FEBRUARY 19, 2021 ORDER IS A FINAL, APPEALABLE ORDER.”
STANDARD OF REVIEW
{¶21} We review cases involving a grant of summary judgment using a de novo
standard of review. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-
Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is appropriately granted when “
‘(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party
is entitled to judgment as a matter of law; and (3) it appears from the evidence that
Stark County, Case No. 2021CA00021 8
reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is made,
that conclusion is adverse to that party.’ ” Esber Beverage Co. v. Labatt USA Operating
Co., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9, citing M.H. v. Cuyahoga
Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, internal citation
omitted; Civ.R. 56(C).
{¶22} “ ‘* * * We look at the record on summary judgment in the light most
favorable to * * * the party opposing the motion.’ Poller v. Columbia Broadcasting System
(1962), 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458. Further, ‘* * *on summary
judgment the inferences to be drawn from the underlying facts contained in such materials
(depositions, affidavits and exhibits) must be viewed in the light most favorable to the
party opposing the motion.”” United States v. Diebold (1962), 369 U.S. 654, 655, 82 S.Ct.
993, 994, 8 L.Ed.2d 176. Williams v. First United Church of Christ, 37 Ohio St.2d 150,
151–52, 309 N.E.2d 924, 925 (1974).
{¶23} “[W]e afford no deference to the trial court's decision and independently
review the record to determine whether summary judgment is appropriate.” Tornado
Techs., Inc. v. Quality Control Inspection, Inc., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13
(8th Dist.). A * * * court should not enter a summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 433, 424 N.E. 2d 311 (1981).
A fact is material if it affects the outcome of the case under the applicable substantive
law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th
Stark County, Case No. 2021CA00021 9
Dist. 1999). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 323, 474
N.E.2d 271 (1984).
ANALYSIS
VI.
{¶24} We will begin our analysis with Fowler's sixth assignment of error, that the
trial court erred in determining as a matter of law that the February 19, 2021 order is a
final, appealable order, as that assignment concerns our jurisdiction to consider this
matter and must be resolved before we proceed.
{¶25} Fowler argues that the judgment she has appealed is not a final appealable
order because her claim against BWC remains pending, and the trial court did not issue
a determination that there was no just reason for delay. She claims that the order is not
final as it does not terminate the action as to all parties, but she does not provide a
description of the claim that she alleges remains to be decided.
{¶26} A final, appealable order is defined by R.C. 2505.02(B)(2) as “[a]n order * *
* that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is
* * * [a]n order that affects a substantial right made in a special proceeding or upon a
summary application in an action after judgment* * * ."
{¶27} "A special proceeding is defined as “an action or proceeding that is specially
created by statute and that prior to 1853 was not denoted as an action at law or a suit in
equity.” R.C. 2505.02(A)(2).
Workers' compensation did not exist at common law or in equity, but
was established by special legislation. See S.B. No. 127, 102 Ohio Laws
Stark County, Case No. 2021CA00021 10
524; Am.S.B. No. 48, 103 Ohio Laws 72. See, generally, Fulton, Ohio
Workers' Compensation Law (2d Ed.1998) 20–21, Sections 2.10–2.11.
Therefore, it falls within the definition of a special proceeding under R.C.
2505.02(A)(2).
Having determined that a workers' compensation proceeding is a
special proceeding as defined in R.C. 2505.02(A)(2), we now must
determine whether the order [granting Indian River's motion for summary
judgment] affected a substantial right.
Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶¶ 14-16. See
Also Anderson v. Sonoco Products Co., 112 Ohio App.3d 305, 308, 678 N.E.2d 631, 633
(2nd Dist. 1996) (Workers' compensation appeals were not known to the common law or
in equity. Therefore, a workers' compensation appeal is a special proceeding.)
{¶28} A substantial right is defined in R.C. 2505.02(A)(1) as “a right that the United
States Constitution, the Ohio Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1). Myers, supra at
¶ 17. Fowler's right to participate in the Workers’ Compensation Fund and to appeal
adverse decisions is created by R.C. 4123.51, R.C. 4123.511 and R.C. 4123.512. The
trial court granted summary judgment which prevented Fowler from participating in the
Fund, thus it affects a substantial right and was a final appealable order.
{¶29} We also find that the trial court's decision qualifies as a final appealable
order as it is "[a]n order that affects a substantial right in an action that in effect determines
the action and prevents a judgment." R.C. 2505.02(B)(1). While Indian River and BWC
are parties to this matter, the only "claim" "is the basic or underlying request by an
Stark County, Case No. 2021CA00021 11
employee to participate in the compensation system because of a specific work-related
injury or disease. A decision by the commission determines the employee's right to
participate if it finalizes the allowance or disallowance of an employee's ‘claim.’”
(Emphasis sic.) Petry v. Kilbarger Constr., Inc., 5th Dist. Muskingum No. 2012-CA-13,
2012-Ohio-4355 *3.
{¶30} Fowler's complaint does not present a claim against Indian River or BWC in
the traditional sense, as it is an appeal of the decision of the BWC denying her petition to
participate in the Fund. " * * * [A]n appeal to the common pleas court is limited to one
decision: whether an employee is or is not entitled to be compensated for a particular
claim." Felty v. AT & T Techs., Inc., 65 Ohio St.3d 234, 239, 602 N.E.2d 1141 (1992).
When the trial court granted Indian River's motion for summary judgment, that decision
determined the action. Nothing remains for the trial court to adjudicate as there were no
separate claims against either BWC or Indian River. Fowler's claim "to participate in the
compensation system because of a specific work-related injury or disease" has been
determined and a judgment in her favor is prevented. Felty, supra at 239.
{¶31} We find that the trial court’s decision is a final appealable order and,
therefore, Fowler's sixth assignment of error is denied.
I,II,III,IV.
{¶32} Fowler attacks the trial court's grant of summary judgment in her first,
second, third and fourth assignments of error alleging different defects in the trial court’s
analysis in each error. Because the trial court focused upon the issue of a pre-injury
reference point in its judgment entry and because we have determined that our resolution
of that issue will render the other assignments of error moot, we will focus on the third
Stark County, Case No. 2021CA00021 12
assignment of error regarding the trial court’s finding that objective evidence of a pre-
injury reference point is necessary.
{¶33} The crux of the trial court's decision to grant summary judgment is its
conclusion that R.C. 4123.01 required Fowler to provide objective evidence of a pre-injury
reference point and that she failed to supply that evidence. The relevant statutory
language applicable to the facts of this case is contained in the definition of the term
"injury" in R.C. 4123.01(C)(4):
(C) “Injury” includes any injury, whether caused by external accidental
means or accidental in character and result, received in the course of, and
arising out of, the injured employee's employment. “Injury” does not include:
***
(4) A condition that pre-existed an injury unless that pre-existing condition
is substantially aggravated by the injury. Such a substantial aggravation
must be documented by objective diagnostic findings, objective clinical
findings, or objective test results. Subjective complaints may be evidence
of such a substantial aggravation. However, subjective complaints without
objective diagnostic findings, objective clinical findings, or objective test
results are insufficient to substantiate a substantial aggravation.
{¶34} The trial court found that “Plaintiff and her clinician acknowledge that she
suffered from the underlying psychological condition prior to her workplace incident” but
concludes that "Plaintiff has not produced objective evidence of a pre-injury reference
point. Plaintiff has only produced subjective complaint of her pre-existing condition,
specifically disallowed by R.C.4123.0l(C)(4) which states that “subjective complaint
Stark County, Case No. 2021CA00021 13
without objective diagnostic findings, objective clinical findings, or objective test results
are insufficient to substantiate a substantial aggravation’” relying on Lake v. Anne Grady
Corp., 2013-Ohio-4740, 999 N.E.2d 1203 at ¶ 21 (6th Dist.). (Judgment Entry, Feb. 19,
2021, p.2). We respectfully disagree with the trial court as the Lake court recognized that
objective evidence is not only unnecessary, but also noted that a claim could be presented
even if the pre-existing injury had not been diagnosed prior to the work-related injury.
We agree with Lake and the Eighth District that Smith does not hold
that an injured worker is required to produce pre-injury objective medical
evidence documenting a pre-existing condition to support a substantial
aggravation claim. We also clarify that while pre-injury evidence of a pre-
existing condition—whether objective or subjective—is helpful, it is not
necessary so long as the worker can demonstrate through “objective
diagnostic findings, objective clinical findings, or objective test results” that
the preexisting condition was substantially aggravated by the injury. R.C.
4123.01(C)(4).
However, as recognized by Lake, to determine that a condition has
been substantially aggravated, there must be a pre-injury reference point
from which to compare the post-injury condition. In cases where the pre-
injury condition is asymptomatic, providing an initial reference point
becomes difficult, especially where the pre-existing condition has never * *
* been diagnosed. This does not mean, however, that proving substantial
aggravation of a pre-existing condition is impossible in these situations. In
fact, Ohio courts have found that sufficient evidence existed to support a
Stark County, Case No. 2021CA00021 14
substantial aggravation claim under R.C. 4123.01(C)(4) where the condition
had not been diagnosed pre-injury. (Emphasis sic.)
Lake v. Anne Grady Corp., 6th Dist. No. L-12-1330, 2013-Ohio-4740, 999 N.E.2d
1203, ¶¶ 20-21.
{¶35} We agree with “those courts that have held that the language of the statute
does not require a plaintiff to produce pre-injury documentation of a pre-existing condition
in order to prove a substantial aggravation claim. See, e.g., Gardi, Haynik, and Strickler.
Fabro v. OhioHealth Corp., 10th Dist. No. 13AP-755, 2014-Ohio-5161, 24 N.E.3d 614,
¶ 21. There must be, however, a ‘pre-injury reference point from which to compare the
post-injury condition,’ which can be demonstrated through the testimony of an expert or
post-injury medical records.” (Citations omitted.) Schaefer v. Lake Hosp. Sys., Inc., 11th
Dist. No. 2017-L-102, 2018-Ohio-3970, 120 N.E.3d 366, ¶ 19.
{¶36} As recently noted by the First District Court of Appeals “* * * R.C.
4123.01(C)(4) does not require the preexisting condition itself to be established by
objective evidence. * * * Although objective preinjury evidence is helpful, ‘it is not
necessary so long as the worker can demonstrate through ‘objective diagnostic findings,
objective clinical findings, or objective test results’ that the preexisting condition was
substantially aggravated by the injury.’ * * * ‘[A]ny requirement that a claimant must
present pre-injury documentation of the pre-existing condition * * * adds a requirement
that is not in the statute.’ ” Houlihan v. Morrison, 1st Dist. Hamilton No. C-200379, 2021-
Ohio-3087, ¶ 14.
{¶37} In this case Fowler presented the testimony of an expert who completed a
review of the available records and conducted a clinical exam of Fowler and concluded
Stark County, Case No. 2021CA00021 15
that she suffered a pre-injury diagnosis of major depressive disorder, single episode,
moderate and offered an opinion regarding the change post-injury. Further, Indian River
does not dispute the existence of a pre-injury condition, but concedes that it existed and
argues that Fowler lacks objective evidence of that pre-existing injury. (“To the contrary,
Plaintiff's own testimony, and that of her expert, clearly establish that her MDD pre-existed
the Incident.” Indian River Reply Brief, Nov. 2, 2020, p. 6).
{¶38} Because the Revised Code does not require objective evidence of a pre-
injury reference point, we find that the trial court erred when it concluded that Fowler’s
failure to provide objective evidence of a pre-injury reference point was a fatal flaw and
that without it summary judgment should be granted.
{¶39} We hold that Fowler's third assignment of error is well taken and grant the
same. Our grant of this assignment of error leads to the reversal of the trial court’s
decision and renders assignments of error one, two and four moot and, therefore, they
will not be addressed.
V.
{¶40} In her fifth assignment of error, Fowler argues that the trial court erred as
matter of law in not permitting Fowler to pursue an alternative theory of direct causation.
Our ruling regarding the grant of summary judgment resolves this appeal, but we are
inclined to address the fifth assignment of error as this matter will be returned to the trial
court and the issue of whether Fowler can pursue direct causation may arise.
{¶41} The trial court found that Fowler did not include allegations of direct
causation in her complaint and that the record is replete with evidence of a pre-existing
condition, undermining any allegation that the work-related injury directly caused the
Stark County, Case No. 2021CA00021 16
major depressive disorder, single episode, moderate. Fowler relies upon Starkey v.
Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956
N.E.2d 267, contending that decision permits her to pursue a new theory of causation for
an injury that has been addressed administratively and that the focus of the trial court in
this context is the right to participate in the Fund for a specific injury, regardless of
causation.
{¶42} The Supreme Court of Ohio held that "We therefore agree with the courts
that have held that a claimant is not required to advance a specific theory of causation at
the administrative level if he or she wishes to use that theory in the trial court, because
R.C. 4123.512 allows for introduction of new evidence, provided that it relates to the same
medical condition or injury.” Id. at ¶ 18. So, it is evident that a different theory may be
pursued at the trial court level to prove the subject injury was work-related.
{¶43} Indian River conceded that the Starkey decision permits pursuit of a direct
causation theory but argued that Fowler failed to alleged that theory in her new complaint
and therefore cannot now argue a direct causation theory. Indian River further contended
that Fowler offered no evidence of direct causation and therefor she cannot claim the
court erred in denying her request to pursue a direct causation theory.
{¶44} Revised Code 4123.512(D) required Fowler to "file a petition containing a
statement of facts in ordinary and concise language showing a cause of action to
participate or to continue to participate in the fund and setting forth the basis for the
jurisdiction of the court over the action." As noted by the trial court and Indian River,
Fowler did not include allegations supporting a theory of direct causation in its complaint,
and focused only upon the theory that she suffered a substantial aggravation of a pre-
Stark County, Case No. 2021CA00021 17
existing injury. Fowler argued in her memorandum opposing summary judgment that
granting the motion required the trial court to find that she did not have a pre-existing
psychological condition and that, therefore, she must be permitted to pursue a direct
causation theory if the trial court planned to grant summary judgment. The trial court did
not so find and was not obligated to reach that conclusion to grant summary judgment.
Instead, the trial court relied upon its finding that Fowler had not provided objective
evidence of a pre-injury reference point. The trial court did not address whether a pre-
existing condition existed, as it is evident in the record that all parties accepted the
conclusion that Fowler suffered a pre-existing psychological condition. That issue was
not disputed. Fowler's attempt to manufacture a dispute by ignoring the evidence in the
record without any attempt to amend her complaint or offer any evidence of direct
causation was correctly ignored by the trial court.
{¶45} Fowler's Fifth Assignment of error is denied.
Stark County, Case No. 2021CA00021 18
{¶46} We reverse the decision of the Stark County Trial Court granting summary
judgment and remand this matter for further proceedings consistent with this opinion.
By: Baldwin, P.J.
Wise, Earle, J. concur,
Hoffman, J. concurs in part;
Dissents in part.
Stark County, Case No. 2021CA00021 19
Hoffman, P.J., concurring in part, and dissenting in part
{¶47} I concur in the majority’s analysis and disposition of Appellant’s
assignments of error with the singular exception of its decision regarding Appellant’s fifth
assignment of error.
{¶48} Because the majority chose to specifically overrule Appellant’s fifth
assignment of error, it may later be argued such would preclude Appellant from
attempting to raise it upon remand based on the theory of res judicata. Upon this Court’s
remand, I believe Appellant has the opportunity to raise the issue by seeking amendment
of her complaint to allege her direct causation theory as an alternative theory of her right
to participate in the Workers’ Compensation Fund. Rather than overruling the assignment
of error outright, I would find it premature.