DocketNumber: Nos. 14-95-33, 14-96-01.
Citation Numbers: 682 N.E.2d 657, 113 Ohio App. 3d 798
Judges: EVANS, Judge.
Filed Date: 8/19/1996
Status: Precedential
Modified Date: 1/13/2023
This is a consolidated appeal brought by Ramona Booher, appellant, from two related judgment entries issued by the Court of Common Pleas of Union County. First, appellant appeals a judgment rendered after a jury found her entitled to participate in Ohio's Workers' Compensation Fund for a lower back sprain, but denied her claim for benefits related to a herniated disc. Second, appellant challenges the trial court's denial of her claim against Honda of America *Page 800 Manufacturing, Inc. ("Honda"), for witness fees and stenographic and reproduction costs for medical depositions.
This case began when appellant applied for workers' compensation due to injuries she allegedly sustained while working at Honda on April 18, 1990. Appellant initially complained of pain and injury to her neck, back, shoulders, hip sockets and left leg as a result of lifting during her daily work at Honda. In her application to the Dayton Regional Board of Review and in her appeal to the Industrial Commission, appellant was denied participation in the Workers' Compensation Fund. Pursuant to R.C.
Appellant now appeals both the decision of the trial court journalizing the jury verdict and the trial court's entry relating to costs, averring three assignments of error.
Appellant contends that the injury of a herniated disc was not considered by the Industrial Commission, and, therefore, a claim to receive benefits for this injury was not properly brought under the jurisdiction of the common pleas court. Since filing this appeal, appellant has reportedly brought another claim to the Industrial Commission specifically relating to the herniated disc injury. Apparently, appellant seeks a new trial on the herniated-disc claim (assuming the commission refuses her latest claim) after receiving an unfavorable verdict in the trial court in the present case.
Initially, we note that the trial to the Court of Common Pleas of Union County, on appeal from the Industrial Commission, is a trial de novo, which carries with it a right to a trial on wholly new evidence. Smith v. Young (1963),
"In a trial de novo the issues `arise on the pleadings.' R.C.
The record in this case shows that appellant failed to submit a copy of the Industrial Commission's decision to the common pleas court. However, based on the facts presented in appellant's complaint, the trial court assumed jurisdiction of the case. In her complaint, appellant stated that the issue of her back injuries was litigated before the Industrial Commission and that the commission found that appellant had not sustained a work-related injury. The complaint further alleged that appellant had in fact sustained back injuries, including, specifically, "a herniated nuculus pulposa [sic] at the L4/5 disc level," as a result of an industrial accident on April 18, 1990 at Honda. Based on this complaint and under a de novo standard of review, the trial court proceeded to a jury trial to determine, in part, appellant's right to participate in the Workers' Compensation Fund for a herniated disc. Appellant elicited testimony during trial from her own witnesses attesting to the herniated disc and its origin. The record shows the disc injury was an integral part of appellant's cause of action. Furthermore, at no time did appellant lodge any objections to the substance of the jury instructions and verdict forms that specifically referred to the herniated-disc claim. Only now does appellant complain that the claim she raised should not have been heard by the trial court.
Appellant's attempt to rectify any pleading error now is both untimely and, because it is unsubstantiated, deficient in satisfying her burden on appeal of demonstrating error on the record. During the hearing on costs, appellant admitted, and her complaint and trial performance bear witness, that she did not review the commission record until after trial. Upon this untimely review, it occurred to appellant that the Industrial Commission had never been presented with a claim for a herniated disc. However, this allegation is unsubstantiated by the record, which contains no evidence relating the details of the commission's decision. In fact, the only evidence available demonstrates that the commission denied appellant's claim in its entirety, finding no work-related injury in appellant's case. For these reasons, we find no abuse of discretion at the trial court level in allowing a claim for workers' compensation based on appellant's herniated disc injury. The first assignment of error is overruled.
Appellant misapprehends the nature of the medical evidence in relation to her burden of proof at the trial. During the trial, appellant presented extensive evidence of her medical history, including treatment she sought three years after the accident at Honda. Honda did not dispute the medical diagnosis or the necessity of the treatment surrounding appellant's back problems, including her herniated disc. The only issue Honda contested, and the only issue properly before the jury, was whether the medical problems were the result of an industrial accident at Honda on April 18, 1990. It was the existence of this casual connection, not the degree of appellant's disability, that was before the jury.
Our review of the record reveals that the evidence contained in the medical records that appellant now complains were wrongfully excluded by the trial court was duplicative. The information contained in the medical records had been sufficiently brought to the jury's attention through other witnesses, and any additional detail would have been superfluous. Furthermore, evidence of treatment obtained years after the accident for an uncontested medical condition was at best only marginally related to the issue of causation being decided. Therefore, we find that the trial court acted within its discretion in excluding the records. Appellant's second assignment of error is overruled.
For this portion of appellant's appeal, the Industrial Commission of Ohio has intervened as a second appellee, specifically contesting appellant's right to collect costs from the Industrial Commission under R.C.
R.C.
"* * * Any party may file with the clerk prior to the trial of the action a deposition of any physician taken in accordance with the provisions of the Revised Code, which deposition may be read in the trial of the action even though the physician is a resident of or subject to service in the county in which the trial is had. The bureau of workers' compensation shall pay the cost of the deposition *Page 803 filed in court and of copies of the deposition for each party from the surplus fund and charge the costs thereof against the unsuccessful party if the claimant's right to participate or continue to participate is finally sustained or established in appeal."
The Supreme Court of Ohio in Akers v. Serv-A-Portion (1987),
Reimbursement for additional costs of litigation are provided for in R.C.
"The cost of any legal proceedings authorized by this section including an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the effort expended, in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer contested the rights of the claimant to participate in the fund. The attorney's fee shall not exceed twenty-five hundred dollars."
Under this subsection, additional costs such as expert witness fees and attorney fees are recoverable. Moore v. Gen.Motors Corp. (1985),
Appellant in this case was successful in asserting her right to participate in the fund with regard to a lumbar sprain, but she was unsuccessful in regard to a herniated-disc claim. In its journal entry issued after trial, the trial court ordered that the costs of medical depositions be paid in accordance with R.C.
The trial court's entry assigning costs was not in error under R.C.
Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments affirmed.
HADLEY, P.J., and THOMAS F. BRYANT, J., concur. *Page 805