Wilhelm v. Advanced Drainage Sys., Inc. ( 2024 )

[Cite as Wilhelm v. Advanced Drainage Sys., Inc., 2024-Ohio-390.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
KEVIN L. WILHELM,
CASE NO. 5-23-16
PLAINTIFF-APPELLANT,
v.
ADVANCED DRAINAGE
SYSTEMS, INC., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2022-CV-00204
Judgment Affirmed
Date of Decision: February 5, 2024
APPEARANCES:
Daniel J. Wodarczyk for Appellant
Mark S. Barnes for Appellee, Advanced Drainage Systems, Inc.
Case No. 5-23-16
WALDICK, J.
{¶1} Plaintiff-appellant, Kevin Wilhelm (“Wilhelm”), appeals the May 19,
2023 judgment of the Hancock County Court of Common Pleas dismissing his
complaint against defendant-appellee, Advanced Drainage Systems, Inc. (“ADS”),
after the trial court granted summary judgment in favor of ADS. On appeal,
Wilhelm argues the trial court erred in determining that no genuine issue of material
fact existed as to whether Wilhelm was entitled to workers’ compensation benefits
after allegedly contracting COVID-19 at work. For the reasons that follow, we
affirm.
Procedural and Factual Background
{¶2} On June 13, 2022, Wilhelm filed the instant action in the trial court
against ADS, who was his former employer, and Stephanie B. McCloud, the
CEO/Administrator of the Ohio Bureau of Workers’ Compensation, appealing from
a decision of the Ohio Industrial Commission denying Wilhelm’s appeal to that
board after Wilhelm’s workers’ compensation claim had been disallowed.
{¶3} Wilhelm seeks workers’ compensation benefits as a result of becoming
ill with COVID-19 in April of 2021. Wilhelm alleges he contracted COVID-19 at
ADS, his workplace at the time and where he had been employed for over four
decades. Specifically, Wilhelm asserts that he was exposed to a co-worker who
tested positive for COVID-19 shortly after their interaction at work, and then
Wilhelm became ill with COVID-19 a few days later. Wilhelm alleges that, during
-2-
Case No. 5-23-16
the timeframe in question, he had limited contact with other persons and places,
however he did interact with family members, visited gas stations and stores, and
had contact with multiple persons at work. At the start of the COVID-19 pandemic,
ADS had instituted certain protocols, which included masks, barriers, cleaning
procedures, and social distancing. ADS had published its COVID-19 policies for
its employees, and failure to follow the protocols could have resulted in discipline
at work. Wilhelm asserts that the colleague from whom he allegedly contracted
COVID-19 was not wearing a mask during their interaction, which took place in
Wilhelm’s office over a lunch break.
{¶4} On March 17, 2023, ADS filed a motion for summary judgment in the
trial court, arguing that Wilhelm cannot as a matter of law prove that he contracted
COVID-19 in the course of his employment, that Wilhelm lacks competent expert
testimony in support of his medical claim, and that Wilhelm fails to satisfy the
statutory three-pronged test under R.C. 4123.01 for establishing he had a
compensable occupational disease.
{¶5} On April 28, 2023, Wilhelm filed a brief in opposition to ADS’s motion
for summary judgment. Attached to that brief were an affidavit of Wilhelm’s
medical expert, along with the expert’s curriculum vitae, records relating to the
evaluation and assessment of Wilhelm done by the medical expert’s company, and
a report by the expert summarizing those records.
-3-
Case No. 5-23-16
{¶6} On May 5, 2023, ADS filed a reply memorandum in support of its
motion for summary judgment. In that memorandum, ADS reiterated its position
that the opinion of Wilhelm’s medical expert was unreliable. ADS further argued
that the affidavit submitted by Wilhelm with his brief in opposition to summary
judgment was a “sham affidavit” and should be disregarded, as it contradicted the
medical expert’s deposition testimony and the affidavit was prepared merely to
create an issue of fact.
{¶7} On May 15, 2023, the trial court filed a decision finding that ADS’s
motion for summary judgment was well taken and granting the same. On May 19,
2023, the trial court filed a judgment entry granting final judgment in favor of ADS
and dismissing the action filed by Wilhelm.
{¶8} On June 12, 2023, Wilhelm filed the instant appeal, in which he raises
four assignments of error for our review.
First Assignment of Error
The trial court erred in determining that Advanced Drainage
Systems, Inc. has met its burden of demonstrating that there is no
genuine issue as to any material fact.
Second Assignment of Error
The trial court erred in finding that the Plaintiff-Appellant has
failed to establish an issue of material fact as to whether the
Plaintiff-Appellant’s Covid-19 conditions constituted an
occupational disease.
-4-
Case No. 5-23-16
Third Assignment of Error
The trial court erred in application of the findings in Yeager v.
Arconic to the present matter.
Fourth Assignment of Error
The trial court erred in determining that Advanced Drainage
Systems, Inc. is entitled to judgment as a matter of law pursuant
to Civ.R. 56(C).
{¶9} To avoid unnecessary repetition in our analysis of Wilhelm’s claims on
appeal, we opt to collectively address the four assignments of error, all of which
ultimately relate to whether the trial court erred in granting summary judgment in
favor of ADS, pursuant to Civ.R. 56(C).
Standard of Review
{¶10} Appellate courts conduct a de novo review of trial court decisions
granting a motion for summary judgment. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996). Thus, this Court must conduct an
independent review of the evidence and arguments that were before the trial court
without deference to the trial court’s decision. Tharp v. Whirlpool Corp., 3d Dist.
Marion No. 9-17-41, 2018-Ohio-1344, ¶ 23.
{¶11} Civ.R. 56(C) provides, in relevant part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law.
-5-
Case No. 5-23-16
{¶12} “Pursuant to Civ.R. 56(C), summary judgment is appropriate only
under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to but one conclusion, that conclusion being adverse to the
nonmoving party.” Tharp v. Whirlpool Corp., supra, at ¶ 24, citing Harless v. Willis
Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶13} “‘When seeking summary judgment on grounds that the non-moving
party cannot prove its case, the moving party bears the initial burden of informing
the trial court of the basis for the motion and identifying those portions of the record
that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party’s claims.’” Id., quoting Lundeen v. Graff, 10th
Dist. Franklin No. 15AP–32, 2015–Ohio–4462, ¶ 11, citing Dresher v. Burt, 75
Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). “Once the moving party meets its
initial burden, the nonmovant must set forth specific facts demonstrating a genuine
issue for trial.” Id., citing Dresher at 293.
{¶14} “Trial courts should award summary judgment with caution, being
careful to resolve doubts and construe evidence in favor of the nonmoving party.”
Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129(1993), citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (1992).
-6-
Case No. 5-23-16
“Nevertheless, summary judgment is appropriate where a plaintiff fails to produce
evidence supporting the essentials of its claim.” Id., citing Wing v. Anchor Media,
Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the
syllabus.
Legal Analysis
{¶15} “The purpose of Ohio’s workers’ compensation system is to provide
‘compensation to [workers] and their dependents, for death, injuries, or occupational
diseases, occasioned in the course of such [workers’] employment [.]’” Tucker v.
Michael’s Store Inc., 3d Dist. Allen No. 1-02-94, 2003-Ohio-1538, ¶ 7, quoting
Section 35, Article II, Ohio Constitution; see, also, Ruddy v. Indus. Comm., 153
Ohio St. 475, 92 N.E.2d 673 (1950), paragraph one of the syllabus. Pursuant to
R.C. 4123.54, “every employee, who is injured or who contracts an occupational
disease” in the course of employment, with some exceptions, has the right to
participate in the workers’ compensation system.
{¶16} “Occupational disease” is defined by R.C. 4123.01(F) as “a disease
contracted in the course of employment, which by its causes and the characteristics
of its manifestation or the condition of the employment results in a hazard which
distinguishes the employment in character from employment generally, and the
employment creates a risk of contracting the disease in greater degree and in a
different manner from the public in general.”
-7-
Case No. 5-23-16
{¶17} Similarly, in State ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St.2d
247, 327 N.E.2d 756 (1975), the Supreme Court of Ohio set forth the definition of
“occupational disease” as a three-part test:
(1) The disease is contracted in the course of employment;
(2) the disease is peculiar to the claimant’s employment by its causes
and the characteristics of its manifestation or the conditions of the
employment result in a hazard which distinguishes the employment in
character from employment generally; and
(3) the employment creates a risk of contracting the disease in a
greater degree and in a different manner than in the public generally.
Id., at syllabus.
{¶18} In the instant case, both in the trial court and on appeal, the parties
have argued extensively as to whether adequate evidentiary support exists for
Wilhelm’s claim that COVID-19 is a compensable occupational disease. While
much of those legal arguments focus on the issue of causation and whether Wilhelm
sufficiently demonstrated that he contracted COVID-19 in the course of his
employment, we find – as the trial court did – that a different legal issue is
dispositive in this case.
{¶19} Specifically, we focus our attention on the third prong of the definition
of “occupational disease”, which is whether “the employment creates a risk of
contracting the disease in a greater degree and in a different manner than in the
public generally.”
-8-
Case No. 5-23-16
{¶20} Wilhelm’s medical expert, Dr. Dominic Haynesworth, provided the
following deposition testimony, and nothing further in his deposition, with regard
to the third prong of the definition of “occupational disease”:
Q. * * * SARS is the virus that causes the disease known as COVID?
A. Sure.
Q. COVID. It’s a disease, right?
A. This is correct. Yes.
Q. Okay. Is it your understanding that in April of 2021, which is
when he tested positive, that we were still under one of the stay-at-
home orders from the Department of Health that required masking,
social distancing, hand hygiene in all public places and essential
businesses? Do you recall?
A. April ’21? Probably, yeah. That’s probably correct.
Q. Okay. Do you have any information that would lead you to believe
that the work environment at Advanced Drainage was any different
than the environment in the public?
[WILHELM’S COUNSEL]: Object to that. But go ahead.
A. Yeah. I wouldn’t have any knowledge of that, Mr. Barnes, one
way or the other.
Q. Okay. And are you aware that in April of 2021, Hancock County
was at a level 3 on the Department of Health’s COVID risk pyramid,
meaning that the risk of transmission in the county was very high?
Do you recall that?
A. No. I would not have known that.
Q. Okay. And if, in fact, that was the case, you wouldn’t have any
reason to dispute what their risk assessment was, would you?
-9-
Case No. 5-23-16
A. I would not.
Q. Okay. So if you assume that Advanced Drainage followed the
same prevention protocols as the general public in terms of – essential
business in terms of preventing COVID by masking, social distancing,
hand hygiene and all of that, ventilation improvement, Mr. Wilhelm’s
risk of contraction of the SARS virus was no greater at Advanced
Drainage than it would have been in the public setting. Isn’t that true?
[WILHELM’S COUNSEL]: Objection. Go ahead.
A. Yeah. I don’t know if I can draw that conclusion. I mean, I have
no idea what this place is, what their history is, what the scenario is
like where he has been in the room with this person, what the masking
tendencies tend to be. I mean, I just couldn’t draw that conclusion.
(Haynesworth Deposition, p. 61-63).
{¶21} Thus, the sum total of the evidence stemming from the deposition with
respect to the third prong of the occupational disease standard was, first of all, Dr.
Haynesworth’s testimony that he had no knowledge, one way or another, as to
whether the work environment at ADS was any different than the environment in
the public generally when it came to Wilhelm’s risk of contracting COVID-19.
Second, when Dr. Haynesworth was asked if ADS having followed the same
prevention protocols as the general public would mean Wilhelm’s risk of
contracting the virus was no greater at work than in the public setting, Haynesworth
replied that he could not draw that conclusion but, notably, offered no opinion to
the contrary. Therefore, Wilhelm failed to present any facts via his medical expert’s
deposition testimony that demonstrate a genuine issue for trial as to whether
COVID-19 is an occupational disease in this case, specifically as to whether the
-10-
Case No. 5-23-16
employment created a risk of contracting the disease in a greater degree and in a
different manner than in the public generally.
{¶22} However, as noted above, Wilhelm’s brief in opposition to ADS’s
motion for summary judgment included an affidavit from Dr. Haynesworth which
supplemented his deposition testimony. That affidavit concluded with the following
statement:
Based upon my examinations of Mr. Wilhelm, it is my opinion, to a
reasonable degree of medical probability, that Mr. Wilhelm’s work
activities at Advanced put him at a greater risk of developing Covid-
19 than the public in general and in a different manner than the public
in general, including but not limited to his sharing of an office that
had no airflow and ventilation, with an unmask [sic] individual whom
[sic] had contract [sic] with, and shortly thereafter tested positive for
Covid-19.
(Docket No. 48, Exhibit 1).
{¶23} While that paragraph in Dr. Haynesworth’s affidavit parrots the
language of the third prong of the definition of “occupational disease” set forth in
R.C. 4123.01(F) and in State ex rel. Ohio Bell Tel. Co. v. Krise, supra, “magic
words” alone are not sufficient to withstand summary judgment. Kain v. Conrad,
139 Ohio App.3d 460, 463, 744 N.E.2d 245 (2000). See, also, Oswald v. Connor,
16 Ohio St.3d 38, 41, 476 N.E.2d 658 (1985).
{¶24} Additionally, while Dr. Haynesworth’s affidavit makes reference to
“an office that had no airflow and ventilation” in asserting that Wilhelm’s work
environment at ADS put him at a greater risk of developing COVID-19 than in the
-11-
Case No. 5-23-16
public in general, there are no factual allegations in the record tending to establish
that the airflow and ventilation in Wilhelm’s office at ADS were any different from
that in any other indoor setting generally.
{¶25} More importantly, in Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-
3455, the Supreme Court of Ohio specifically held that “[a]n affidavit of a party
opposing summary judgment that contradicts former deposition testimony of that
party may not, without sufficient explanation, create a genuine issue of material fact
to defeat a motion for summary judgment.” Id., at paragraph three of the syllabus.
Thus, pursuant to Byrd, we find that the affidavit of Dr. Haynesworth submitted by
Wilhelm with his brief in opposition to summary judgment must be disregarded, as
it contradicted the medical expert’s deposition testimony with no explanation
whatsoever as to the material discrepancies between the doctor’s assertions in the
affidavit and his prior deposition testimony.
{¶26} Finally, we note – as did the trial court – that Ohio case law supports
the proposition that common illnesses of the general public are typically not
compensable as occupational diseases.
{¶27} In Ingram v. Conrad, 4th Dist. Athens No. 01CA36, 2001-Ohio-2641,
the Fourth District Court of Appeals affirmed summary judgment granted against
an employee seeking workers’ compensation for pneumonia allegedly contracted in
the workplace. In so doing, the court of appeals noted that pneumonia is a common
-12-
Case No. 5-23-16
illness to which the general public is exposed. Id., at *12. The Court went on to
state:
“It is not contemplated by the [workers’ compensation] law makers
that the law should cover health insurance. It is a matter of rather
common knowledge that ‘colds,’ influenza and pneumonia are the
result of bacteria – in common parlance, germs – attacking the body.
These germs appear and cause epidemics in cities, towns, and
counties. It is also a matter of rather common knowledge that many
such germs appear to be in the very atmosphere surrounding us, at all
times. Any and every person is ‘exposed’ to them without being
conscious of the fact. Medical science teaches that we fall victims of
these germs because at the time of the attack we are not physically
able to withstand their assaults.”
Id., quoting Bewley v. Texas Employers Ins. Assoc., 568 S.W.2d 208, 210-11
(Tex.Civ.App.1978).
{¶28} More recently, in Yeager v. Arconic Inc., 11th Dist. Trumbull No.
2021-T-0052, 2022-Ohio-1997, the Eleventh District Court of Appeals determined
that COVID-19 is also a common illness and that the workers’ compensation
claimant in that case had no greater degree of risk of contracting the disease at work
or in a different manner than from the public in general. Id., at ¶ 14. The Fourth
District Court of Appeals concluded that to hold otherwise “would extend the
workers’ compensation laws beyond their intended purpose.” Id., at ¶ 12, citing
Ingram, supra, at *12.
{¶29} Given that a global pandemic resulted from the spread of COVID-19,
and because of the insufficient assertions of fact put forth by Wilhelm in this case
in support of his claim that COVID-19 is an occupational disease under these
-13-
Case No. 5-23-16
specific circumstances, the trial court did not err in finding that there was no genuine
issue of material fact with regard to Wilhelm’s entitlement to workers’
compensation benefits in this case.
{¶30} As summary judgment was appropriately granted to ADS, Wilhelm’s
four assignments of error are overruled.
Conclusion
{¶31} Having found no error prejudicial to the plaintiff-appellant, Kevin
Wilhelm, in the particulars assigned and argued, the judgment of the Hancock
County Court of Common Pleas is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. AND MILLER, J., concur.
/hls
-14-