Burnett v. Ohio Dept. of Transp. , 2016 Ohio 5501 ( 2016 )

[Cite as Burnett v. Ohio Dept. of Transp., 2016-Ohio-5501.]
DAN BURNETT Case No. 2012-01937
Plaintiff Magistrate Robert Van Schoyck
v. DECISION OF THE MAGISTRATE
OHIO DEPARTMENT OF
TRANSPORTATION, et al.
Defendants
{¶1} Plaintiff brought this action for negligence alleging that on February 17,
2010, while he was operating a tractor-trailer on U.S. Route 30 in Allen County, a metal
skid shoe broke off of the bottom of a snowplow on a truck being operated by an
employee of defendant, Ohio Department of Transportation (ODOT), and, as a result,
plaintiff sustained injuries when the tractor-trailer ran over the object. The parties
stipulated on the issue of liability and the case proceeded to trial on the issue of
damages.
{¶2} Plaintiff testified at trial that he began operating heavy equipment while
serving in the Marine Corps in Vietnam, after which time he worked as a truck driver for
several years in the 1970s before taking a job as a heavy equipment operator at a
quarry in New Jersey. Plaintiff stated that he took an early retirement from that job
when he was about 55 years old and decided to get back into the truck driving
profession. Plaintiff stated that he soon relocated to Ohio and, after briefly working for a
couple of different trucking companies, he was hired on a seasonal basis by United
Parcel Service (UPS) in November 2008, and in May 2009 he began full-time
employment with UPS Freight.
{¶3} Plaintiff testified that the UPS Freight job involved hauling a 53-foot-long box
trailer behind a semi-truck with a sleeper cab on set routes to Owensboro, Kentucky
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and to Chicago, Illinois, stopping at four or five points along each route to make
deliveries at Advance Auto Parts stores. As plaintiff explained, he was responsible for
unloading deliveries at the stores and also loading any returned merchandise into the
trailer, using a pallet loader for some goods and carrying other goods by hand in plastic
totes. Plaintiff stated that he typically drove the Chicago route twice a week, and he
drove the Owensboro route once a week.
{¶4} Plaintiff testified that early in the morning on Wednesday, February 17,
2010, he left the freight yard out of which he operated in Delaware, Ohio and began a
trip to Chicago, which included a stop along the way at an Advance Auto Parts store in
Valparaiso, Indiana. Plaintiff related that he drove north to Upper Sandusky, Ohio and
then headed west on U.S. Route 30 toward Valparaiso. Plaintiff testified that there was
snow piled off to the side of the four-lane, divided highway, but the traveling lanes were
free of ice and snow and he was able to travel at the 55 mile per hour speed limit.
{¶5} As plaintiff recounted, when he came up behind a car following an ODOT
snowplow truck in the right lane, he moved into the left lane to pass both vehicles, but
when he got alongside the car, his front left tire struck something and caused the truck
to jerk toward the snow-covered median to the left. Plaintiff recalled that the truck then
veered back to the right as he wrestled with the steering wheel, and although he thought
for a moment he was going to collide with the car, he was able to gain control of the rig
and pull off onto the right shoulder of the highway. According to plaintiff, the truck had
shaken during this incident with such force that all the items in the overhead
compartments had fallen out all over the cab. Plaintiff testified that when he got out of
the cab, he saw that the left front tire of the truck was blown and the rim was damaged,
a tire on the right side of the truck’s drive axle was blown, and the fuel tank on the right
side was punctured and leaking. Plaintiff stated that he phoned his employer to report
what had happened, and he retrieved the spill kit from the truck and crawled underneath
the truck to try to plug the leaking tank.
Case No. 2012-01937 -3- DECISION
{¶6} According to plaintiff, an ODOT supervisor arrived at the scene and said the
driver of the snowplow truck, who had continued on down the highway without stopping,
called in to report an accident. Plaintiff stated that the ODOT supervisor asked if the
Ohio State Highway Patrol (OSHP) had been called, and when plaintiff said no, the
supervisor called OSHP. Plaintiff, who admitted that he did not feel any pain initially,
testified that when an OSHP trooper arrived shortly thereafter and he gave a statement
to the trooper, he told the trooper that he did not think he was hurt. Plaintiff stated that
crews of hazardous materials specialists, mechanics, and tire changers were quickly
dispatched to the scene by his employer, and he was back on the road about an hour
later.
{¶7} Plaintiff testified that since he had only one functioning fuel tank at that
point, he stopped up the road at the U.S. Route 30/Interstate Route 75 interchange, and
at that point he started to notice some lower back pain, which he rated at a 3 on a scale
of 1 to 10. Plaintiff stated that he took some ibuprofen and it dulled the pain after 20 to
30 minutes. Plaintiff related that after making stops in Valparaiso and in the Chicago
area, he took a mandatory 10-hour break in Plainfield, Illinois, by which time the pain in
his lower back had come back with more severity, at least an 8 on a scale of 1 to 10.
Plaintiff testified that he took more ibuprofen and was able to sleep in the cab that night
before returning to Delaware on Thursday, February 18, 2010.
{¶8} As plaintiff related, he rested at home while he was off duty for about 10 or
12 hours, but the lower back pain persisted. Plaintiff stated that when he prepared to
leave for the Owensboro route around 2:30 a.m. on Friday, February 19, 2010, he was
very sore and took more ibuprofen. Plaintiff stated that he took more ibuprofen later
that day when he got to Owensboro, but it only reduced his pain to a 6 or 7 on a scale of
1 to 10, and after making his last stop in Terra Haute, Indiana, he returned home.
Plaintiff testified that around midnight on Saturday, February 20, 2010, he drove to
Chicago again. According to plaintiff, a couple of days later he noticed pain radiating
Case No. 2012-01937 -4- DECISION
into his left hip, and on the afternoon of Tuesday, February 23, 2010, he was in such
pain that he could not work, so he called in to notify his employer and he made an
appointment with Bradley L. Kunz, M.D., a family doctor whom he had started seeing
about a year earlier.
{¶9} Plaintiff acknowledged that he suffered intermittent back pain long before
this incident, but he testified that the pain he was experiencing at this point was worse.
According to plaintiff, at times in his career he carried ibuprofen in his lunchbox for relief
of back pain, and occasionally his back pain had been severe enough that he visited
walk-in pain clinics to get prescription-strength ibuprofen. Plaintiff testified, however,
that he had never been diagnosed with a back injury or chronic back condition. Plaintiff
explained that in the type of work that he performed, it was inevitable that one would
experience back pain at times.
{¶10} Plaintiff testified that at his appointment with Dr. Kunz, he complained of
pain in his lower back and left leg, but he did not mention the accident. Plaintiff stated
that Dr. Kunz prescribed pain medication, which was effective but made him lethargic,
and Dr. Kunz wrote a note to excuse him from work for a period of time. Plaintiff further
stated that he continued to see Dr. Kunz through March and April 2010 and continued
taking the prescription pain medication, but he still did not mention the accident to
Dr. Kunz. According to plaintiff, Dr. Kunz ordered x-rays and then physical therapy, but
the pain persisted and Dr. Kunz eventually ordered an MRI and referred him to
Michael J. Meagher, M.D., a neurologist. As an aside, regarding the costs of his
medical care and treatment, plaintiff testified that he and his counsel prepared a
summary of his medical expenses and noted therein which bills he incurred out of
pocket. (Plaintiff’s Exhibit H.)
{¶11} Plaintiff stated that he remained off of work during this time. Plaintiff
explained that on or about March 5, 2010, his girlfriend Cassandra Wiltz assisted him in
applying to Aetna via telephone for short-term disability benefits that were available
Case No. 2012-01937 -5- DECISION
through his employer. According to Aetna records, the reason for the application was
recorded simply as illness, and it was specifically noted by a claim representative that
the accident was not reported to be work-related or the result of an accident.
(Defendants’ Exhibit 2.)
{¶12} Similarly, plaintiff acknowledged that when he went to see Dr. Meagher and
filled out a patient questionnaire on April 26, 2010, he indicated that the cause of his
pain was unknown and not work-related. (Defendants’ Exhibit 2, p. 1.) Plaintiff also
acknowledged that he did not disclose his prior history of back pain to Dr. Meagher.
Plaintiff testified that after Dr. Meagher reviewed the results of the MRI, he diagnosed
plaintiff with a herniated disc impinging on the sciatic nerve. According to plaintiff,
Dr. Meagher advised that one treatment option was to get a shot which apparently
would offer some temporary relief, but Dr. Meagher recommended surgery and he
referred plaintiff to Ward P. Buster, D.O. for surgical consultation. Plaintiff testified that
it was during his appointment with Dr. Meagher, when he understood the severity of his
injury, that he finally came to wonder if it might be related to the accident, and he
mentioned this to Dr. Meagher, marking the first documented instance of plaintiff
associating the two.
{¶13} Plaintiff stated that after a couple of visits with Dr. Buster, he elected to
undergo a microdiscectomy operation which Dr. Buster performed on July 6, 2010.
Plaintiff recalled that he had to stay overnight in the hospital due to a complication
involving his blood pressure, but he stated that he felt good after the surgery. As
plaintiff recounted, Dr. Buster prescribed muscle relaxers for him and he completed a
course of physical therapy. Plaintiff testified that he eventually got to a point where all
the lower back and left leg pain basically subsided, and Dr. Buster cleared him to return
to work. Plaintiff also testified that on the advice of Dr. Buster, he filed a claim with the
Ohio Bureau of Workers Compensation (BWC) in September 2010. (Defendants’
Exhibit 3.) According to plaintiff, he initially asked Dr. Kunz to sign the paperwork for
Case No. 2012-01937 -6- DECISION
the BWC claim, but Dr. Kunz referred him to another doctor in the same practice,
Thomas Hubbell, M.D., who agreed to sign and later became plaintiff’s primary care
provider.
{¶14} Plaintiff recalled that he returned to work for UPS Freight on or about
October 17, 2010, still delivering to Advance Auto Parts stores, albeit on a less
favorable route schedule. Plaintiff stated that things went well at first and his lower back
and left leg seemed fine. But, plaintiff went on to state that later on he began having
some difficulty concentrating, he had a “cottony” feeling in his head and just did not feel
like himself, and he noticed some lapses in his memory. Plaintiff stated that he also
grew more and more concerned about his safety while driving, fearing that he would
cause an accident. Plaintiff stated that on July 8, 2011, he felt lightheaded to the point
that he went to the emergency room at Riverside Methodist Hospital in Columbus.
(Defendants’ Exhibit 2, p. 105.) Plaintiff testified that he had no real history of any
psychological issues before, and he decided to see Dr. Kunz. Plaintiff related that Dr.
Kunz diagnosed him with depressive disorder and prescribed an antidepressant.
{¶15} Plaintiff testified that he continued trying to work, but one day in late August
2011 when he went to the yard to pick up a load of freight at 2:00 a.m., his heart stated
racing and he became overwhelmingly dizzy, lightheaded, nauseous, and fearful that he
would have an accident if he drove the tractor-trailer that day. Plaintiff stated that he
told the dispatcher he could not work that day, and indeed he never worked another day
after that for UPS Freight. Plaintiff recalled that he telephoned Dr. Kunz’s office that
same day and made an appointment, and when he saw Kunz some time later for the
appointment he was referred to a psychologist, Terry Imar.
{¶16} Plaintiff stated that he began attending psychotherapy sessions with Imar,
and while he felt that his condition was better for a few days after the sessions, he
would return to feeling depressed. Plaintiff stated that he also continued to suffer
confusion and an inability to concentrate. In addition to his psychological issues,
Case No. 2012-01937 -7- DECISION
plaintiff stated that by the latter part of 2011 he was experiencing some lower back pain.
Plaintiff stated that it was significant enough that he went back to see Dr. Buster, and
although Buster advised him to consider another surgery, he ultimately decided against
it.
{¶17} Plaintiff testified that with the assistance of Imar, in the spring of 2012 he
prepared an application to Met Life for long-term disability benefits available through his
employer, based upon his psychological issues, and he was approved for the same and
began receiving benefits. (Plaintiff’s Exhibit L.) As plaintiff explained, as a condition of
remaining on long-term disability, Met Life required that he apply for Social Security
Disability Insurance (SSDI) benefits, which he did successfully. According to plaintiff,
the long-term disability benefits are set to expire on March 2, 2017.
{¶18} As for the BWC claim that plaintiff initiated in September 2010 for the
issues with his lower back, plaintiff testified that UPS Freight denied the claim, as did
both a hearing officer and the Industrial Commission, but during the pendency of an
appeal before the Allen County Common Pleas Court a settlement was reached in July
2013. (Defendants’ Exhibit 3.) Plaintiff also testified that in 2014, he started receiving
Medicare benefits.
{¶19} It was plaintiff’s testimony that he has been unable to drive a truck since
August 2011 due to both his lack of concentration and his lower back issues. But, it
was acknowledged that at a deposition in February 2012 plaintiff attributed his inability
to drive a truck only to his lack of concentration. Plaintiff allowed that he has essentially
been able to manage whatever back pain he has experienced since the
microdiscectomy with medication such as ibuprofen, like he had done for many years
before, and although he has a prescription from Dr. Hubble for hydrocodone, it is a
stronger medication than he needs. According to plaintiff, though, his back is weak and
gets sore after sitting for about 45 minutes, and consequently he cannot sit in a truck for
hours at a time, nor can he hook a truck up to a trailer.
Case No. 2012-01937 -8- DECISION
{¶20} As plaintiff described, he continues to have difficulty concentrating, and
although he has good days and bad days, it is mostly the latter. Plaintiff stated that he
would like to return to driving trucks for a living, but he feels it would be unsafe to do so
because of his concentration problems, and beyond that he stated that his
concentration problems make him of no value to any kind of employer. Plaintiff
acknowledged, though, that he purchased a recreational vehicle (RV) in April 2013, and
was able to drive it without a problem, and he was able to perform some maintenance
on it as well, although he eventually sold it. Plaintiff also acknowledged that he is able
to drive his personal car without any problem, and he can drive his personal full-size
van without any problem, and indeed until shortly before trial he owned and operated
both a full-size conversion van and a full-size panel van, one of which was recently
totaled in a collision. Plaintiff also testified about carrying on business ventures of his
own during some of the relevant time period. Plaintiff acknowledged operating a part-
time direct marketing business known as “EMerchantDan.com” after his separation from
UPS Freight, and reporting income from the business on his tax returns. Plaintiff
testified that he also used to go to yard sales and purchase items that he would peddle
for resale at flea markets, which required him to load and unload merchandise from his
panel van, and while he continued doing this for a while after his separation from UPS
Freight, it was unprofitable and he has not done this for a couple of years now.
{¶21} According to plaintiff, he is unable to engage in the hobbies that he used to
enjoy, such as walking, swimming, lifting weights, yard work, shopping for antiques, and
automotive work and other tinkering around the house. Plaintiff stated that he also
cannot keep up with housekeeping and yard work the way he used to, although he
stated that he maintains his half-acre lot on his own for the most part, and he admitted
that he recently moved around some large paving stores in his yard by himself. Still,
plaintiff testified that his ego suffered a blow and he basically feels incapable of doing
anything, and not working makes it feel like a part of himself has been lost. From
Case No. 2012-01937 -9- DECISION
plaintiff’s account, all facets of his life have been affected, and he has become irritable
and confused to the point that it is difficult for him now to communicate with others and
maintain interpersonal relationships. It was established that plaintiff suffered a stroke in
June 2015, and while he testified that he does not feel it significantly changed him, he
was unsure whether it had affected his communication abilities.
{¶22} Plaintiff, whose date of birth is May 18, 1954, testified that he had planned
on working for UPS Freight until at least age 65, and perhaps age 70. Plaintiff stated
that he did not have a retirement plan with UPS, but maintained his own retirement
account, although he stated that he has nearly exhausted his personal savings.
Regarding his desire to work, plaintiff acknowledged that he once wrote in a Facebook
post about the pleasure of not having to crawl out of bed and go to a job anymore.
Plaintiff’s explanation for this was that he was involved in some kind of online
educational program when he made that post and it was essentially a sales tactic that
he was supposed to use as part of the program in order to recruit others to participate.
{¶23} Terry Imar, a psychologist, testified that plaintiff began seeing him for
psychotherapy sessions on October 3, 2011, based on a referral from Dr. Kunz. Imar,
who cannot prescribe medication, testified that Dr. Kunz had started plaintiff on an
antidepressant shortly before he began seeing plaintiff. Imar explained that his goal in
psychotherapy sessions like those he had with plaintiff is to assess the patient and
identify if there is a disorder, and then to talk with the patient in a therapeutic way that
helps the patient solve his problems and think about his experiences in different ways.
{¶24} Imar testified that from the initial session on October 3, 2011, his
provisional or working diagnosis was depressive disorder, and throughout the course of
their therapy sessions, this was the only diagnosis he made of plaintiff. As set forth in
his psychotherapy notes (Defendants’ Exhibit 2, p. 110), Imar testified that at the first
session plaintiff chiefly complained of depressive symptoms, including poor
concentration and inattentiveness. Imar testified that plaintiff told him about the
Case No. 2012-01937 -10- DECISION
February 17, 2010 accident when they met initially, as well as his back problems and
his BWC claim. Imar testified that plaintiff had several stressors that were identified
over the course of their therapy sessions, which lasted more than two years, ending on
November 26, 2013. Imar testified that plaintiff’s physical problems were one stressor,
but that frustration over the BWC claim was another, as was plaintiff’s relationship with
his girlfriend, at times at least, and also a feeling of being abandoned by his employer.
{¶25} Imar recounted that early on he recommended to Dr. Kunz that plaintiff’s
antidepressant dosage be increased and he filled out paperwork in support of another
short-term disability claim that plaintiff made with Aetna. Imar stated that he also
recommended to plaintiff that he try and get more physical activity, as it is often helpful
for individuals with depression, and while he stated that plaintiff’s physical problems
posed a challenge to engaging in physical activity, his notes from plaintiff’s sessions
document that plaintiff talked on numerous occasions about having engaged in physical
activities, including regularly taking long walks and engaging in other outdoor pursuits,
lifting weights, and swimming. Imar’s records also reflect that on October 17, 2011,
around the time that plaintiff testified that he experienced an increase in back pain,
plaintiff told Imar that he was not having any more back pain and would not go in for an
MRI that had been ordered for him. (Defendants’ Exhibit 2, p. 119.)
{¶26} Imar went through his notes from the therapy sessions and offered
corresponding testimony about the chronology of plaintiff’s therapy. From Imar’s
testimony and notes, it was established that plaintiff talked several times about how he
had been out driving, apparently on recreational trips. In general, Imar stated, plaintiff’s
treatment was longer than most folks require, and his progress was more up and down
than most, but he believed that plaintiff wanted to get better and was not malingering.
Imar testified that in May 2012 he provided documentation to Met Life in support of
plaintiff’s long-term disability claim, and he represented to Met Life that plaintiff could
Case No. 2012-01937 -11- DECISION
not perform his job given his mental state at that time, largely due to impaired
concentration and memory. (Plaintiff’s Exhibit N.)
{¶27} Imar related that there were some occasions when plaintiff complained of
intermittent back pain to him, but that poor concentration seemed to be the most
consistent of plaintiff’s complaints. Imar testified that even though poor concentration is
symptomatic of depression, it can result from several things other than depression.
Imar stated that he was aware plaintiff suffered from sleep apnea, and as he noted in
September 2012, plaintiff reported some improvement in his concentration when he
wore a mouth guard device to alleviate his sleep apnea symptoms.
{¶28} Imar testified that plaintiff complained repeatedly in 2013 about the course
of the BWC claim, and that after the claim settled plaintiff was in much better spirits in
September 2013, but Imar stated that his diagnosis remained the same. Imar stated
that his last session with plaintiff was November 26, 2013. Imar explained that he does
not accept Medicare, so when plaintiff became enrolled in Medicare he referred plaintiff
to a colleague who accepted such clients, John McCue, and he received an
acknowledgement from McCue indicating that plaintiff made at least one visit. Imar
testified that in total he had 35 sessions with plaintiff, and while an employee assistance
program apparently paid for the first five sessions, plaintiff paid out of pocket for the
rest.
{¶29} Thomas Hubbell, M.D. testified by way of deposition.1 As set forth in the
order issued December 3, 2015, the trial record was held open, in part, to allow for
Dr. Hubbell to be deposed. On December 8, 2015, plaintiff filed a transcript of the
deposition, with attachments, all of which is hereby ADMITTED as Plaintiff’s Exhibit U.
1The objections raised in the deposition transcript at page 40/line 10; page 48/line 4; page 55/
line 2; page 58/line 10; page 62/line 2 (moot); page 73/line 23; page 74/lines 8, 14, and 23; page 77/
line 20; page 78/line 10; page 134/line 13; and, page 138/line 2 (moot) are OVERRULED; the objections
raised at page 30/line 9; page 38/line 22; page 40/line 3; page 45/line 22; page 58/line 1; page 68/line 11;
page 72/line 23; page 75/line 11; page 77/line 23; and, page 138/line 12 are SUSTAINED.
Case No. 2012-01937 -12- DECISION
{¶30} On January 15, 2016, contemporaneously with the filing of their post-trial
brief, defendants filed a motion to strike portions of Dr. Hubbell’s testimony. Plaintiff
filed a response on January 29, 2016. On February 5, 2016, defendants filed a motion
for leave to file a reply, which is GRANTED instanter.
{¶31} In their motion, defendants request that the court “strike portions of Dr.
Hubbell’s testimony that attempted to offer expert opinion on proximate cause.”
Defendants identify two grounds for their motion: (1) “Dr. Hubbell was never disclosed
as an expert as required by L.C.C.R. 7(E)” and, (2) “the expert opinion he attempted to
provide did not satisfy the standard set out by the Ohio Supreme Court in Stinson v.
England, 69 Ohio St. 3d 451, 633 N.E.2d 532 (1994), paragraph one of the syllabus.”
{¶32} Upon review, it is apparent that Dr. Hubbell was not disclosed as an expert
as required by L.C.C.R. 7(E), nor was an expert report produced in accordance with
L.C.C.R. 7(E). Moreover, in July 2015 plaintiff responded to an interrogatory that asked
for the name of each person whom plaintiff expected to call as an expert witness, and
the response was that “[p]laintiff has not retained an expert witness at this time.”
Plaintiff never supplemented that interrogatory response, in contravention of
Civ.R. 26(E)(1)(b). Although Dr. Hubbell was identified as a potential witness in
plaintiff’s pretrial statement, he was identified only as a treating physician and it was not
indicated that he would provide expert testimony. Defendants argue that if Dr. Hubbell
had been properly identified as an expert witness, defendants may have deposed
Dr. Hubbell in discovery and retained an expert of their own.
{¶33} As plaintiff points out, medical records from Dr. Hubbell were produced
during discovery and the court has the discretion under L.C.C.R. 7(E) to allow the
medical records to serve as a substitute for a written report. Affidavits from plaintiff’s
counsel and attached email correspondence indicate that Hubbell’s records were held
out to defendants’ original counsel as dispositive evidence on causation issues in this
matter, but this was before plaintiff provided the interrogatory response stating that
Case No. 2012-01937 -13- DECISION
plaintiff did not have an expert witness. From the records relating to plaintiff’s BWC
claim, Dr. Hubbell’s opinion on the probability of there being a causal relationship
between the accident and plaintiff’s L4/L5 disc injury was apparent all along. The same
cannot be said, however, regarding any causal relationship between the accident and
plaintiff’s psychological issues, and defendants’ reply brief singles out Dr. Hubbell’s
opinion on this issue as being especially problematic.
{¶34} This is a case involving alleged injuries that are “internal and elusive” rather
than the type of observable, external injuries that are within the scope of common
knowledge, and, as a result, expert testimony is required to establish a causal
connection. Argie v. Three Little Pigs, Ltd., 10th Dist. Franklin No. 11AP-437, 2012-
Ohio-667, ¶ 15; Wright v. Columbus, 10th Dist. Franklin No. 05AP-432, 2006-Ohio-759,
¶ 19. Therefore, striking Dr. Hubbell’s expert opinions for the failure to disclose him as
an expert witness would have a prejudicial effect on plaintiff. Nevertheless, plaintiff
breached the disclosure provisions of Civ.R. 26(E)(1)(b) and L.C.C.R. 7(E), which had
the effect of producing some surprise and prejudicial effect upon defendants, most
particularly in relation to Dr. Hubbell’s opinions on any causal relationship between the
accident and plaintiff’s psychological issues and chronic back pain, and the court has a
responsibility to ensure that plaintiff does not gain an unfair advantage. Vaught v.
Cleveland Clinic Found., 98 Ohio St. 3d 485, 2003-Ohio-2181, ¶ 27. Ultimately, though,
there is little advantage for plaintiff to gain, for some of the testimony defendants seek to
strike does not amount to admissible expert opinion on causation under the standard
set out in Stinson, and the magistrate does not find Dr. Hubbell to be persuasive on the
causation issues relative to plaintiff’s psychological issues or his chronic back pain.
Although it was intertwined with his testimony about the BWC claim, Dr. Hubbell did
give an admissible opinion on the causation issue relative to the L4/L5 disc injury at
page 45 of the deposition transcript.
Case No. 2012-01937 -14- DECISION
{¶35} Upon review, defendants’ motion to strike is GRANTED as to the testimony
identified in the motion commencing on pages 30, 38, 57, 68, 72, 75, and 138; the
motion is DENIED as to the testimony commencing on pages 39, 45, 62, and 74.
{¶36} Notwithstanding the stricken portions of his testimony, in summary Dr.
Hubbell testified that he is board-certified in family medicine and has been in practice for
37 years. Dr. Hubbell explained that he and Dr. Kunz practiced out of the same office in
Delaware from 2008 to 2012, when Dr. Kunz relocated. Dr. Hubbell stated that medical
records show plaintiff was seen by Dr. Kunz on February 24, 2010, one week after the
accident, at which time plaintiff complained of back pain. Regarding the fact that
plaintiff did not immediately feel pain in his back at the time of the accident, Dr. Hubbell
related that it commonly takes a couple of days for pain to develop in individuals
involved in motor vehicle accidents because the pain results from swelling and
inflammation processes that take some time to occur. Dr. Hubbell stated that plaintiff
visited with Dr. Kunz again on March 1, 2010, at which time plaintiff rated his pain at
6 on a scale of 1 to 10, and Dr. Kunz ordered an x-ray of the lumbar spine. Plaintiff saw
Dr. Kunz again on March 29, 2010, Dr. Hubbell stated, and it was noted that plaintiff
described pain radiating down into the left leg. As a result of that visit, Dr. Hubbell
stated, Dr. Kunz ordered an MRI with a referral to a neurosurgeon.
{¶37} Dr. Hubbell testified that after the MRI was performed on April 5, 2010, the
radiologist reported a disc protruding leftward at the L4/L5 level, and Dr. Hubbell stated
that he feels this disc protrusion was the cause of the lower back and radicular left leg
pain. Dr. Hubbell testified that plaintiff visited with Dr. Kunz again on April 9, 2010, and
complained of pain radiating nearly to the left ankle. Dr. Hubbell also testified that
plaintiff saw Dr. Kunz on April 23, 2010, and reported that a course of physical therapy
he went through on Kunz’s advice did not help.
{¶38} According to Dr. Hubbell, following plaintiff’s referral to Dr. Meagher for a
neurological consultation on April 26, 2010, Dr. Meagher wrote a letter to Dr. Kunz
Case No. 2012-01937 -15- DECISION
which contains the first documented instance of plaintiff mentioning the February 17,
2010 accident to a medical provider, and Dr. Meagher related that he felt the disc
herniation was the cause of plaintiff’s symptoms and he recommended surgery.
(Plaintiff’s Exhibit R.) Dr. Hubbell testified that plaintiff was thereafter referred to
Dr. Buster for surgical consultation and plaintiff underwent the microdiscectomy
procedure on July 6, 2010.
{¶39} Dr. Hubbell stated that the records from plaintiff’s visit with Dr. Kunz on July
26, 2010, show that he was much improved at that time. Dr. Hubbell testified that once
plaintiff decided to file a BWC claim, plaintiff was referred to him because he sees
patients for those purposes and Dr. Kunz does not. As Dr. Hubbell related, he saw
plaintiff for his BWC claim on September 8, 2010, and he documented plaintiff’s injury
as lumbar radiculopathy, meaning back pain with pain radiating down the nerve through
the left leg, and plaintiff reported to him that his symptoms were much better since
having the surgery. In Dr. Hubbell’s opinion, the L4/L5 disc injury and resulting pain in
the lower back and left leg were caused by the February 17, 2010 accident.
Dr. Hubbell, who continued seeing plaintiff and eventually became his family doctor,
stated in general that the condition of plaintiff’s lower back was substantially better in
the months after the surgery and the radicular pain in his left leg was basically gone, but
plaintiff has continued to experience some intermittent back pain from that time onward.
{¶40} Dr. Hubbell testified that on September 17, 2010, Dr. Kunz saw plaintiff for
a “DOT physical,” as necessary for plaintiff to return to work, and plaintiff returned to
see Kunz and finish the corresponding paperwork on October 14, 2010, at which time
the only diagnosis noted was monoarthritis. While Dr. Hubbell testified that he knew
plaintiff returned to work in October 2010, it was his understanding that plaintiff was only
back on the job “very briefly” and he was not aware plaintiff actually remained on the job
until August 2011. Dr. Hubbell stated that he saw plaintiff on January 12, 2011, and
plaintiff complained of left knee and upper leg pain, but no back pain. Dr. Hubbell
Case No. 2012-01937 -16- DECISION
related that after a hearing officer denied plaintiff’s BWC claim, he saw plaintiff again on
February 16, 2011, to further review the matter, and he did not note any back pain or
emotional problems at that time; Dr. Hubbell also related that he noted plaintiff had
initially attributed his back pain after the accident “to his prior back troubles,” specifically
noting “about 2 weeks of impairment in 2005,” and for that reason did not mention the
accident to Dr. Kunz when he initially sought treatment.
{¶41} Dr. Hubbell stated that on February 18, 2011, plaintiff saw Dr. Kunz for
complaints of high blood pressure and headaches, but plaintiff did not complain of back
or leg pain, and when plaintiff saw Dr. Hubbell again on June 6, 2011, there was no
back or leg pain noted. After the episode when plaintiff felt lightheaded and visited the
emergency room on July 8, 2011, plaintiff visited the office later that day, Dr. Hubbell
stated, and again there were no complaints of back or leg pain noted. Dr. Hubbell
testified that from the records of a follow-up visit with Dr. Kunz on July 15, 2011,
plaintiff’s complaints were still associated with lightheadedness and a foggy feeling, and
Dr. Kunz diagnosed plaintiff with depressive disorder. Dr. Hubbell testified that the
record of a subsequent visit with Dr. Kunz on September 12, 2011, shows that plaintiff’s
depression had improved somewhat.
{¶42} Dr. Hubbell recounted that he saw plaintiff for an appointment on October
4, 2011, and plaintiff complained of low back pain and weakness, with pain radiating to
the left leg. According to Dr. Hubbell, he suspected that plaintiff may have suffered a
re-injury of the L4/L5 disc herniation, so he ordered an MRI, but he has no knowledge of
plaintiff ever following through and undergoing the MRI.
{¶43} Dr. Hubbell stated that he saw plaintiff on December 22, 2011, and March
22, 2012, regarding complaints of depression, and at the latter visit he diagnosed
plaintiff with “adjustment reaction with prolonged depressive reaction.” From Dr.
Hubbell’s explanation, he concurred with Dr. Kunz’s original diagnosis of depression,
but he made this more refined diagnosis which he described as depression resulting
Case No. 2012-01937 -17- DECISION
from a longstanding stressful experience. Although Dr. Hubbell testified that the
underlying stressful experience here was plaintiff’s back injury, he admitted that there is
no indication plaintiff complained of back pain at the time he made this diagnosis.
Dr. Hubbell also acknowledged that the Diagnostic and Statistical Manual of Mental
Disorders, 4th Edition, provides that symptoms of this disorder develop “in response to
an identifiable stressor occurring within three months of the onset of the stressors,” and
even though plaintiff was diagnosed far more than three months after the accident,
Dr. Hubbell explained that the diagnosis is appropriate in that plaintiff’s symptoms
developed within three months after plaintiff experienced a “failed recovery” or “stopped
improving.”
{¶44} Dr. Hubbell testified that plaintiff was later referred for a follow up with Dr.
Buster for complaints of back pain, although after seeing plaintiff on April 18, 2012, Dr.
Buster sent a letter to Drs. Kunz and Hubbell in which he stated that plaintiff was feeling
better after experiencing a few days of severe pain, plaintiff denied any leg pain, and
Dr. Buster felt that plaintiff’s back pain “should not be attributed directly” to the
February 17, 2010 accident. (Defendants’ Exhibit 2, p. 16.)
{¶45} Dr. Hubbell testified about several forms that he filled out at different times
for plaintiff’s long-term disability claim with Met Life, in which the primary diagnosis he
reported to Met Life was back pain, with a secondary diagnosis of adjustment reaction
with prolonged depression. Dr. Hubbell acknowledged that in an April 2012 Met Life
application, he indicated that he had advised plaintiff to return to work in October 2010,
but he later explained that he was confused and actually did not think plaintiff was
capable in April 2012 of returning to work. Dr. Hubbell stated that in subsequent Met
Life paperwork he indicated that plaintiff was capable of working up to 4 hours a day,
and that he had suggested to plaintiff that he look into vocational rehabilitation and
psychological counseling. Dr. Hubbell also stated that Met Life contacted him in
June 2013 and asked him to comment on the “apparent incongruence” between
Case No. 2012-01937 -18- DECISION
plaintiff’s driving his RV and his fear of driving a truck, to which he responded simply
that “there is a big difference” between driving a tractor-trailer and an RV. (Defendants’
Exhibit 2, p. 51.)
{¶46} Dr. Hubbell stated that when he saw plaintiff for a visit on May 9, 2013,
plaintiff complained of back pain, but plaintiff also told him that the reason his back hurt
was he had been working, specifically lifting and carrying merchandise between his
garage and van a few days earlier. (Defendants’ Exhibit 2, p. 44.) Dr. Hubbell stated
that when he saw plaintiff for a visit on December 9, 2014, plaintiff did complain about
back pain, among other things, but no such complaints were noted during the last visit
for which medical records were available, on May 12, 2015.
{¶47} “[I]n order to establish actionable negligence, one seeking recovery must
show the existence of a duty, the breach of the duty, and injury resulting proximately
therefrom.” Strother v. Hutchinson, 67 Ohio St. 2d 282, 285 (1981). As previously
stated, the parties stipulated to liability in this matter. Therefore, the trial pertained to
establishing the damages associated with any injury proximately caused by defendants’
negligence. “As a general rule, the appropriate measure of damages in a tort action is
the amount which will compensate and make the plaintiff whole.” N. Coast Premier
Soccer, LLC v. Ohio Dept. of Transp., 10th Dist. Franklin No. 12AP-589, 2013-Ohio-
1677, ¶ 17.
{¶48} Upon review of the evidence presented by the parties, the magistrate finds
as follows. In the early morning of February 17, 2010, plaintiff was driving a tractor-
trailer westbound on U.S. 30 in Allen County in the course of his employment with UPS
Freight, headed toward Chicago on a route that he regularly traveled to make deliveries
to Advance Auto Parts stores. Plaintiff proceeded into the passing lane to pass an
ODOT snowplow truck and an automobile following the snowplow truck. As a result of
negligence on the part of ODOT, a metal skid shoe broke free from the snowplow and
suddenly entered plaintiff’s lane of travel. The truck jerked abruptly from side to side as
Case No. 2012-01937 -19- DECISION
multiple tires blew apart upon running over the skid shoe. Plaintiff had to wrestle with
the steering wheel to maintain control of the truck and pull off the highway. In the
immediate aftermath of the accident, when plaintiff was busy crawling under the truck to
plug a hole in a fuel tank punctured by the skid shoe, call his employer, and talk to the
ODOT supervisor and OSHP trooper who came to the scene, plaintiff did not notice any
pain, but once repairs were made and he proceeded on to a nearby truck stop, he
started to notice some back pain. By the time plaintiff reached the end of his route in
Illinois later that day, the back pain was much worse. Severe back pain persisted over
the next few days, alleviating only slightly when plaintiff took ibuprofen. By February 23,
2010, the pain was radiating into the left leg, plaintiff made an appointment to see his
doctor the next day, and, in contrast to his extensive work history and record of never
missing a day at UPS Freight due to illness, plaintiff was unable to work. Plaintiff went
on short-term disability on or about March 5, 2010, and although the claims
representative who processed the claim did not note the disability to be work-related,
the application was made over the phone by plaintiff’s girlfriend, rather than plaintiff
himself.
{¶49} Plaintiff had a history of intermittent lower back pain, but the persistent
severity and radiating nature of the pain he experienced at this time was different from
his prior symptoms. Although plaintiff did not mention the accident to Dr. Kunz initially,
once plaintiff realized this injury was not going away and was different than the back
problems he had dealt with over the years, he informed Dr. Meagher about the accident
on April 26, 2010. After prescription pain medication and physical therapy proved
ineffective, plaintiff underwent a microdiscectomy operation on July 6, 2010, followed by
more physical therapy. By October 2010, the lower back pain and left leg pain had
basically subsided and plaintiff returned to work.
{¶50} In August 2011, the onset of psychological issues which were diagnosed
as depression led plaintiff to stop working for UPS Freight, although plaintiff later
Case No. 2012-01937 -20- DECISION
worked part-time on some business ventures of his own. After the onset of the
psychological issues, plaintiff went on short-term disability followed by long-term
disability, and he also receives SSDI income. Up to the present time, plaintiff has
continued to experience psychological issues, and he has experienced some
intermittent lower back pain, but the back pain is substantially equivalent to what he
experienced prior to the accident.
{¶51} Plaintiff has established that, as a result of negligence on the part of
ODOT, it is more probable than not that he was proximately caused to suffer an injury at
the L4/L5 level of his spine. As a result of that injury, plaintiff suffered significant pain in
his lower back that radiated into his left leg, he had to undergo surgery and other
medical treatment for which he incurred some expenses out of pocket, and he incurred
lost wages while off of work from approximately February 23, 2010, to October 16,
2010, or about 34 weeks. Between the pain and discomfort that plaintiff suffered and
his recovery from surgery, he was limited in the physical activities that he could engage
in until around the time that he returned to work, but he was able to resume such
activities thereafter.
{¶52} Plaintiff did not establish that a causal relationship exists between ODOT’s
negligence and any ailments he has experienced, whether physical or psychological,
after October 2010. Although plaintiff has continued to experience some intermittent
lower back pain, it is different than the more severe and persistent lower back and
radiating left leg pain he experienced in the time between the accident and his surgery,
and it is comparable to the preexisting intermittent back pain he developed over many
years of driving trucks and operating heavy equipment. Furthermore, some doubt is
cast on the seriousness of plaintiff’s intermittent complaints of back pain after the
surgery considering that he chose not to follow through and get an MRI when one was
ordered for him. The surgery that plaintiff underwent essentially repaired the injury that
he suffered as a result of the accident, and while it had the goal of at least alleviating
Case No. 2012-01937 -21- DECISION
the radicular pain, it was understood when plaintiff had the surgery that it would not
render him completely free of back pain. Moreover, as detailed above, Dr. Hubbell’s
opinion regarding causation as it relates to plaintiff’s chronic back pain is not admitted
and, in any event, it was not persuasive.
{¶53} Concerning plaintiff’s psychological issues, again, Dr. Hubbell’s opinion on
causation was not admitted, and even if it were, it is not at all persuasive. Dr. Hubbell’s
testimony that a “failed recovery” brought about plaintiff’s depression is not consistent
with the fact that plaintiff’s physical condition after the surgery substantially returned to
what it had been before the accident, and that theory is also dubious in light of
Dr. Hubbell’s erroneous belief that plaintiff only returned to work for UPS Freight “very
briefly” after the surgery. It is also worth noting that Dr. Kunz did not refer plaintiff to
Dr. Hubbell, his BWC physician at the time, when the psychological issues manifested,
and plaintiff did not base his BWC claim upon those issues. Plaintiff clearly had other
stressors in his life that may have played a role in his depression, according to Imar,
who is not a doctor and cannot causally relate the psychological issues to the accident.
And, in recent years plaintiff has undergone minimal treatment for any psychological
issues. The evidence simply does not support the conclusion that the accident caused
plaintiff any psychological issues, let alone issues that would render him permanently
unable to work.
{¶54} Based upon the totality of the evidence, the magistrate finds that the
amount of plaintiff’s damages is as follows: (1) lost wages in the amount of $35,345.04,
representing 34 weeks of lost work at the stipulated average weekly rate of pay of
$1,039.56; (2) out of pocket medical expenses in the amount of $2,489.97, representing
the relevant medical expenses incurred by plaintiff through October 2010; (3) past pain
and suffering in the amount of $35,000; and, (4) the $25 filing fee plaintiff paid to
commence this action.
Case No. 2012-01937 -22- DECISION
{¶55} It is undisputed that plaintiff’s recovery must be offset by certain collateral
sources pursuant to R.C. 2743.02(D), which states, in relevant part: “Recoveries against
the state shall be reduced by the aggregate of insurance proceeds, disability award, or
other collateral recovery received by the claimant.” The parties filed a joint stipulation
concerning collateral sources on January 8, 2016, which is hereby APPROVED. See
also Joint Exhibit A. Using the stipulated figures, and based upon the findings above
concerning the nature of plaintiff’s damages, including their temporal duration, plaintiff’s
recovery against the state shall be reduced by the amount of the settlement in his BWC
claim ($40,000) and by the amount of the short-term disability income he received in
2010 ($10,939.20), for a total reduction of $50,939.20. Reducing plaintiff’s $72,860.01
in total damages by the $50,939.20 in collateral sources results in an aggregate
recovery for plaintiff in the amount of $21,920.81.
{¶56} Based upon the foregoing, the magistrate finds that plaintiff is entitled to
recover damages in the amount of $21,920.81. Accordingly, it is recommended that
judgment be entered for plaintiff in that amount.
{¶57} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).
ROBERT VAN SCHOYCK
Magistrate
Case No. 2012-01937 -23- DECISION
cc:
Gregory R. Mansell James P. Dinsmore
1457 South High Street Jeanna V. Jacobus
Columbus, Ohio 43207 Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
Filed July 27, 2016
Sent to S.C. Reporter 8/24/16