Houlihan v. Morrison

[Cite as Houlihan v. Morrison, 2021-Ohio-3087.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JOSEPH P. HOULIHAN, : APPEAL NOS. C-200379
C-200382
Plaintiff-Appellant, : TRIAL NO. A-1805439
vs. :
O P I N I O N.
SARAH MORRISON, :
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION, :
and :
HAMILTON COUNTY, :
Defendants-Appellees. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in C-200379; Appeal Dismissed in C-200382
Date of Judgment Entry on Appeal: September 8, 2021
Kneflin and Associates, LLC, M. Christopher Kneflin and Brent P. Martini, for
Plaintiff-Appellant Joseph Houlihan,
Dave Yost, Ohio Attorney General, and David J. Fierst, Assistant Ohio Attorney
General, for Defendant-Appellee Sarah Morrison, Administrator, Ohio Bureau of
Workers’ Compensation,
Joseph T. Deters, Hamilton County Prosecuting Attorney, James S. Ginocchio, Jr.,
Assistant Prosecuting Attorney, and Christopher Sawyer, Assistant Prosecuting
Attorney, for Defendant-Appellee Hamilton County.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Plaintiff-appellant Joseph Houlihan appeals the judgment of the
Hamilton County Court of Common Pleas denying his request to participate in the
workers’ compensation fund for the substantial aggravation of preexisting medical
conditions. For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedure
{¶2} Houlihan first began experiencing back pain in 2013. At the time,
Houlihan was employed as a maintenance repair worker and part-time landscaper
with defendant-appellee Hamilton County. The county had recently ended its
contract with Blue Sky Lawn and Landscape, and assigned all landscaping work to its
maintenance workers. The landscaping assignment spanned over 30 consecutive
Saturdays and entailed various activities, including grass cutting and mulching.
{¶3} On July 15, 2013, Houlihan filed a First Report of Injury (“FROI”). He
listed “[u]nknown damage to both shoulders.” Houlihan subsequently sought
treatment with Dr. Arthur Lee, an orthopedic surgeon. In October 2013, Lee filed a
second FROI on behalf of Houlihan. Lee listed injuries to “both shoulders and lower
back to a lesser degree.” Houlihan never received formal treatment on his back.
Houlihan was permitted to participate in the workers’ compensation fund for right
shoulder rotator cuff sprain, right shoulder labral tear, right shoulder rotator cuff
tendonitis, left shoulder sprain, left shoulder labral tear, left shoulder rotator cuff
tendinopathy, and lumbar sprain.
{¶4} Houlihan did not receive further treatment until October 2016, when
he injured his back while unloading the dishwasher. Houlihan explained that he had
not sought treatment in the interim because he had a high pain tolerance and wanted
to continue working.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} One month later, in November 2016, Houlihan again injured his back
while lifting a box of mattresses at work. At the time, Houlihan was employed as a
facility maintenance worker for the county. Houlihan filed an FROI for lower back
pain and sought treatment at TriHealth. Houlihan was unable to return to work for
five to six weeks. During that time, Houlihan participated in the workers’
compensation fund for a lumbar sprain/strain injury.
{¶6} In early 2017, Houlihan sought chiropractic shoulder treatment from
Dr. John Ruch. During his treatments, Houlihan complained of persistent lower
back pain. In April 2017, Ruch ordered a magnetic resonance imaging scan (“MRI”).
Houlihan reported to the imaging tech that he suffered “[l]eft-sided, lower back pain
with stiffness since lifting, twisting mattress and inventory while at work.” The MRI
showed that Houlihan had one disc herniation and two disc protrusions.
{¶7} In March 2018, Ruch referred Houlihan to Dr. Johnathan Paley for an
orthopedic consult. In Paley’s opinion, Houlihan’s back abnormalities predated his
landscaping duties with the county, and the landscaping duties had substantially
aggravated the preexisting conditions.
{¶8} Houlihan subsequently requested an amendment of his 2013 workers’
compensation claim to include the additional conditions of disc herniation L2-L3,
disc displacement L3-L4, and disc displacement L4-L5. The Industrial Commission
denied Houlihan’s request, and he appealed to the Hamilton County Court of
Common Pleas. Following a bench trial, the court denied participation for all of the
additional conditions. The court found there was insufficient evidence to show a
causal relationship between Houlihan’s back conditions and his employment with
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OHIO FIRST DISTRICT COURT OF APPEALS
the county in 2013. Houlihan appealed, raising two assignments of error for our
review.1
II. Standard of Causation
{¶9} In his first assignment of error, Houlihan contends that the trial court
applied the wrong causation standard to his claim.
{¶10} “Whether the trial court applied the proper legal standard poses a
question of law, which we review de novo.” Dubose v. McCloud, 1st Dist. Hamilton
No. C-190690, 2020-Ohio-4972, ¶ 12.
{¶11} “A claimant seeking to participate in the workers’ compensation fund
must show a causal relationship between a workplace accident and the injury.”
Salyers v. Buehrer, 1st Dist. Hamilton No. C-140756, 2015-Ohio-4507, ¶ 4, citing Fox
v. Indus. Comm. of Ohio, 162 Ohio St. 569, 576, 125 N.E.2d 1 (1955). Ohio law
recognizes four theories of causation: direct causation, aggravation of a preexisting
condition, repetitive trauma (or “Village injuries”),2 and flow-through. Starkey v.
Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956
N.E.2d 267, ¶ 15. Each is a separate and distinct theory of causation that may be
used to satisfy the employee’s burden of showing entitlement to participate in the
workers’ compensation fund. See Salyers at ¶ 6.
{¶12} At trial, Houlihan claimed that the 2013 landscaping duties caused
repetitive trauma that substantially aggravated his preexisting back conditions.
Houlihan argues that the trial court failed to consider and discuss the appropriate
standard for Village injuries. However, Houlihan does not cite, and we cannot find,
any cases that recognize a combined repetitive trauma/substantial-aggravation
1 We note that Houlihan appealed twice from the trial court’s judgment. Because both appeals
raise the same issues, we dismiss the appeal numbered C-200382 as duplicative.
2 In Village v. General Motors Corp., G.M.A.D., 15 Ohio St.3d 129, 472 N.E.2d 1079 (1984), the
Ohio Supreme Court recognized that an injury which gradually develops over time as a result of
the injured worker’s job-related duties is compensable under the workers’ compensation fund.
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OHIO FIRST DISTRICT COURT OF APPEALS
theory of causation. Thus, the trial court did not err in requiring Houlihan to satisfy
the usual substantial-aggravation standard.
{¶13} R.C. 4123.01(C)(4) provides the following directives for substantial-
aggravation cases:
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.
Thus, the aggravation of a preexisting condition must be firmly established by
objective evidence. Pflanz v. Pilkington LOF, 1st Dist. Hamilton No. C-100574, 2011-
Ohio-2670, ¶ 18.
{¶14} However, R.C. 4123.01(C)(4) does not require the preexisting
condition itself to be established by objective evidence. Salyers at ¶ 7. See Gardi v.
Lakewood City School Dist., 8th Dist. Cuyahoga No. 99414, 2013-Ohio-3436, ¶ 12;
Lake v. Anne Grady Corp., 2013-Ohio-4740, 999 N.E.2d 1203, ¶ 20 (6th Dist.);
Fabro v. OhioHealth Corp., 2014-Ohio-5161, 24 N.E.3d 614, ¶ 21 (10th Dist.).
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.” Lake at ¶ 20-21, citing R.C. 4123.01(C)(4). “[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.” Gardi at ¶ 12.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Nonetheless, there must be a “pre-injury reference point from which to
compare the post-injury condition.” Schaefer v. Lake Hosp. Sys., Inc., 2018-Ohio-
3970, 120 N.E.3d 366, ¶ 19 (11th Dist.), citing Lake at ¶ 21-29. Without any evidence
to suggest that the condition predated the injury, the claimant would be unable to
show that the condition was substantially aggravated by the workplace incident.
Briggs v. Franklin Pre-Release Ctr., 12th Dist. Madison No. CA2013-10-035, 2014-
Ohio-2477, ¶ 21.
{¶16} In this case, Houlihan argues that the trial court improperly required
objective evidence of his preexisting conditions. According to Houlihan, the trial
court relied solely on the lack of preinjury diagnostic testing in denying his
substantial-aggravation claim under R.C. 4123.01(C)(4).
{¶17} Houlihan points to the following sentences in the trial court’s decision
to support his argument: “However, this Court finds that the record is devoid of
objective medical evidence necessary to show these conditions existed beginning in
2013.” And “It is undisputed there are no imaging tests from before Plaintiff’s 2013
injury.”
{¶18} But this court recently criticized “seiz[ing] upon a pair of sentences in
the trial court’s decision,” instead of examining the decision as a whole. Roos v.
Morrison, 1st Dist. Hamilton No. C-170646, 2019-Ohio-1514, ¶ 9-10 (“The Bureau,
however, seizes upon a pair of sentences in the trial court’s decision for the
proposition that the court rejected the views of Officer Roos’s expert. * * * We do
not believe, however, that the court below went so far.”).
{¶19} If we read these sentences in the context of the entire decision, it
becomes clear that the court did not impose an additional requirement of objective
evidence of a preexisting condition. The crux of the decision was that the record
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OHIO FIRST DISTRICT COURT OF APPEALS
lacked any evidence to show that Houlihan’s back conditions predated the 2013
landscaping duties. According to the court:
Dr. Paley failed to demonstrate that Plaintiff had his conditions of back
displacement and disc herniation at the time of Plaintiff’s 2013
workplace injury. It is undisputed there are no imaging tests from
before Plaintiff’s 2013 injury. This Court does not find Plaintiff’s MRI
from 2017, four years following Plaintiff’s 2013 Workers’
Compensation Claim, to support the finding of a substantial
aggravation of a preexisting condition. As Dr. Paley explained,
Plaintiff did have findings of a disc displacement and disc herniation,
but they were not recognized until later.
Read as a whole, the trial court’s decision required Houlihan to present evidence of a
“pre-injury reference point from which to compare the post-injury condition[s].” See
Schaefer, 2018-Ohio-3970, 120 N.E.3d 366, at ¶ 19. And it found that he did not do
so.
{¶20} Houlihan has failed to demonstrate that the trial court applied the
wrong substantial-aggravation standard under R.C. 4123.01(C)(4).
{¶21} Houlihan’s first assignment of error is overruled.
III. Manifest Weight of the Evidence
{¶22} In his second assignment of error, Houlihan argues that the trial
court’s judgment is against the manifest weight of the evidence. Houlihan claims
that the evidence sufficiently established that the 2013 landscaping duties
substantially aggravated his preexisting back conditions. In contrast, appellees
contend that the record supports the trial court’s finding that there was no credible
evidence of a preexisting condition.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} “Weight of the evidence concerns the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other.” (Internal quotations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 12. In determining whether a judgment is against the
manifest weight of the evidence, we construe the evidence in favor of the trial court’s
judgment and findings of fact. Id. at ¶ 21; Bell v. Bur. of Workers’ Comp., 1st Dist.
Hamilton No. C-110166, 2012-Ohio-1364, ¶ 31. We will not reverse a judgment
supported by competent, credible evidence as being against the manifest weight of
the evidence. Pflanz v. Pilkington LOF, 1st Dist. Hamilton No. C-100574, 2011-Ohio-
2670, ¶ 10.
{¶24} In this case, the parties disputed the preexisting nature of Houlihan’s
back conditions. Both sides agreed that the 2016 MRI showed a disc herniation and
two disc protrusions. However, Houlihan had not experienced back pain prior to
2013, and no medical professional had diagnosed Houlihan with a preexisting
degenerative-disc 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.” Lake, 2013-Ohio-4740,
999 N.E.2d 1203, at ¶ 21. Because there was no preinjury medical evidence, how the
discs became herniated and protruding was the central issue at trial.
{¶25} Houlihan presented expert testimony that the discs herniated and
protruded because the 2013 landscaping duties substantially aggravated his
preexisting disc degeneration. The MRI film, which Paley reviewed, showed both
disc herniation at the L2-3 level and disc protrusions at the L3-4 and L4-5 levels.
According to Paley, a disc herniation occurs where the disc ruptures into the canal
and pushes into existing nerve roots. Paley explained that a disc herniation is caused
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OHIO FIRST DISTRICT COURT OF APPEALS
by either direct trauma injury, like sudden heavy lifting, or natural degeneration
overtime. A disc protrusion, which Paley stated was the same as a disc bulge or
displacement, occurs where the disc dislodges from its normal position and
protrudes into the canal. According to Paley, a disc protrusion is essentially a
contained herniation that has not completely ruptured into the canal.
{¶26} Paley opined that Houlihan had preexisting, asymptomatic disc
degeneration, which occurs naturally in 40 to 50 percent of middle-aged patients.
Paley described Houlihan’s disc herniation as mild and the protrusions as
“longstanding.” Paley testified that there were no acute findings in the MRI film.
Yet, Paley’s opinion was not scientifically reliable. Paley relied on orthopedic studies
merely suggestive of a link between Houlihan’s age and natural degenerative change.
Paley failed to demonstrate that Houlihan “more likely than not” had disc
degeneration that preexisted his 2013 work duties. See Salyers, 1st Dist. Hamilton
No. C-140756, 2015-Ohio-4507, at ¶ 4, quoting Rubenbauer v. C.W. Zumbiel Co., 1st
Dist. Hamilton No. C-120486, 2013-Ohio-929, ¶ 6 (“Where medical expert testimony
is necessary to demonstrate causation, the expert must testify that ‘the injury was
“more likely than not” caused by or substantially aggravated by the accident.’ ”). In
the absence of such an explanation, Paley’s opinion carried little, if any, weight.
{¶27} Appellees presented competing expert testimony that it was impossible
to determine, based on the information in the record, when Houlihan’s conditions
developed. Dr. Bernard Bacevich testified that an MRI shows only “anatomical
changes. It does not tell you when they occurred or how long they’ve been there.”
However, Bacevich noted that the MRI film showed a right L1 transverse fraction.
According to Bacevich, the transverse is a piece of bone that extends to the side from
the vertebra and acts as an anchor for several different muscles. Bacevich explained
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OHIO FIRST DISTRICT COURT OF APPEALS
that transverse fractures are caused by two common mechanisms: “One is, you can
fall and stretch your back in a certain direction where the muscles pull on the bone
and break it, or you can do something very strenuous where you’re using the muscles
very forcefully and the pull of the muscles on the bone can cause the fracture.”
{¶28} Bacevich opined that that the discs more than likely ruptured as a
direct and proximate cause of some type of trauma. According to Bacevich, “Acute
disc herniations are quite painful episodes.”
[I]f you herniate a disc, you have to tear the annulus portion of the
disc, which is a quite sensitive area with nerves – nerve fibers in it.
And once you tear the annulus of one disc, it’s very painful. You have
immediate severe pain. And it’s not just an ache in your back; it would
be severe. And if you do it at three different discs, it would be
extremely painful and you would go to the doctor complaining about
your back[.]
***
[M]uscle pain generally resolves on its own in a few days. And that
would not be typical of three levels of disc herniation, to resolve
without any treatment.
{¶29} In his medical records, which Bacevich reviewed, Houlihan reported
several back injuries. Prior to 2016, Houlihan reported intermittent lower back pain.
On October 29, 2016, Houlihan reported, “He was standing on a storage shelf, lifting
boxes, and twisted to move the boxes and felt a sharp pain in his lower back.” On
November 17, 2016, Houlihan reported, “He was bent over to pick up boxes and felt a
pop in his back.” Bacevich testified that bending, lifting, and twisting are common
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OHIO FIRST DISTRICT COURT OF APPEALS
causes for disc herniations. Thus, Bacevich concluded that the disc abnormalities
“more likely related to the two incidents in 2016.”
{¶30} The trier of fact is free to accept or reject any or all of a witness’s
testimony, including testimony of an expert witness. Weidner v. Blazic, 98 Ohio
App.3d 321, 648 N.E.2d 565 (12th Dist.1994). The opinion of an expert is not
conclusive upon a trier of fact and is “but an item of evidence intended to assist the
trier of fact in consideration with the other evidence of the case.” Croft v. State
Farm Mut. Auto. Ins. Co., 3d Dist. Allen No. 1–01–72, 2002 WL 18665, *3 (Jan. 8,
2002); Bell v. Bur. of Workers’ Comp., 1st Dist. Hamilton No. C-110166, 2012-Ohio-
1364, ¶ 26. While a trial court may not “arbitrarily ignore” expert testimony, it may
reject such testimony if there is “some objective reasoning.” Bell at ¶ 27.
{¶31} After hearing all of the competing evidence, the trial court concluded
that Paley’s testimony was insufficient to establish that Houlihan suffered from a
preexisting condition. Without any evidence to suggest that the conditions predated
the injury, Houlihan could not show that the conditions were substantially
aggravated by the 2013 landscaping duties. Therefore, the trial court did not err in
finding that Houlihan failed to meet his burden of proving substantial aggravation
under R.C. 4123.01(C)(4).
{¶32} Because the trial court’s decision was not against the manifest weight
of the evidence, Houlihan’s second assignment of error is overruled.
IV. Conclusion
{¶33} For the foregoing reasons, we overrule Houlihan’s assignments of
error and affirm the judgment of the trial court in the appeal numbered C-200379.
The appeal numbered C-200382 is dismissed as duplicative.
Judgment accordingly.
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OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, P.J., and HENDON, J., concur.
SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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