Cassens Transport Co. v. Bohl

[Cite as Cassens Transport Co. v. Bohl, 2012-Ohio-2248.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
TONY B. BOHL,
PLAINTIFF-APPELLEE,
v. CASE NO. 13-11-36
CASSENS TRANSPORT CO.,
DEFENDANT-APPELLANT,
-and-
MARSHA P. RYAN, ADMR., OHIO OPINION
BUREAU OF WORKERS COMP.,
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court
Trial Court No. 10-CV-0631
Judgment Affirmed
Date of Decision: May 21. 2012
APPEARANCES:
Corey V. Crognale and Meghan M. Majernik for Appellant
Mark B. Weisser for Appellee, Tony B. Bohl
Michael DeWine for Appellee, Industrial Commission of Ohio
Case No. 13-11-36
PRESTON, J.
{¶1} Plaintiff-appellant, Cassens Transport Co. (hereinafter “Cassens”),
appeals the judgment of the Seneca County Court of Common Pleas finding that
defendant-appellee, Tony B. Bohl (hereinafter “Bohl”), was entitled to participate
in the workers’ compensation system for the condition of substantial aggravation
of preexisting degenerative arthritis of the cervical spine. For the reasons that
follow, we affirm.
{¶2} On January 7, 2010, Bohl sustained a neck injury while working for
Cassens when the chain he was using to secure a motor vehicle to his semi-trailer
slipped from the ratchet. (Oct. 11, 2011 Tr. at 78-80, 97-98); (Dr. Heis Depo. at
12, 21). Thereafter, Bohl filed a claim for workers’ compensation benefits for
cervical strain, which was allowed.
{¶3} On August 8, 2010, Bohl filed a motion to amend his workers’
compensation claim to include the condition of substantial aggravation of
preexisting degenerative arthritis of the cervical spine. (Doc. No. 1, Ex. A). On
November 8, 2010, a staff hearing officer granted the additional claim. (Id.).
{¶4} On November 12, 2010, Cassens filed an appeal, but, on December 1,
2010, the industrial commission refused the appeal pursuant to R.C. 4123.511(E).
(Id., Ex. B).
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{¶5} On December 17, 2010, Cassens filed a notice of appeal in the Seneca
County Court of Common Pleas pursuant to R.C. 4123.512. (Doc. No. 2).
{¶6} On January 3, 2011, Bohl filed a complaint seeking to participate in
the workers’ compensation system for the additionally allowed claim. (Doc. No.
7).
{¶7} On January 25, 2011, the administrator of the Ohio Bureau of Workers
Compensation (“BWC”) filed an answer admitting that Bohl was entitled to
participate for the additionally allowed claim. (Doc. No. 12). The administrator
also filed notice that the BWC would not participate further in the proceedings.
(Doc. No. 13). On January 27, 2011, the employer filed an answer denying Bohl’s
right to participate in the workers’ compensation system. (Doc. No. 15).
{¶8} On October 11-12, 2011, a jury trial was held. On the first day of trial,
Cassens filed a Civ.R. 50 motion for directed verdict, arguing that Bohl failed to
produce objective evidence documenting his alleged substantial aggravation claim
as required under R.C. 4123.01(C)(4). (Doc. No. 30). Also on the first day of trial,
Bohl filed a motion in limine to exclude evidence that Cassens’ Fostoria terminal
was scheduled to close shortly after Bohl’s injury. (Doc. No. 33). The trial court
held Cassens’ motion for directed verdict under advisement until after the close of
defendant’s case, but the trial court granted Bohl’s motion in limine at the
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beginning of the trial. (Oct. 11, 2011 Tr. at 3, 12). The trial court subsequently
overruled the motion for directed verdict. (Oct. 12, 2012 Tr. at 143, 206).
{¶9} The jury rendered a verdict concluding that Bohl was entitled to
participate in the workers’ compensation system for the condition of substantial
aggravation of preexisting degenerative arthritis of the cervical spine. (Doc. No.
34). On November 2, 2011, the trial court entered judgment accordingly. (Doc.
No. 35).
{¶10} On November 10, 2011, Cassens filed a Civ.R. 59(A) motion for
new trial. (Doc. No. 36). On December 1, 2011, the trial court overruled the
motion. (Doc. No. 39).
{¶11} On December 12, 2011, Cassens filed a notice of appeal. (Doc. No.
40). Cassens now appeals raising three assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN DENYING APPELLANT
CASSENS’ MOTION FOR A DIRECTED VERDICT
BECAUSE THE JUDGMENT IS NOT SUBSTANTIATED BY
THE WEIGHT OF THE EVIDENCE.
{¶12} In its first assignment of error, Cassens argues that the trial court
erred by denying its motion for a directed verdict since Bohl failed to present
objective diagnostic findings, objective clinical findings, or objective test results
evidencing his substantial aggravation claim as required by R.C. 4123.01(C)(4).
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{¶13} A trial court shall sustain a party’s motion for directed verdict if,
after construing the evidence most strongly in favor of the party against whom the
motion is directed, reasonable minds could come to but one conclusion upon the
evidence submitted, and that conclusion is adverse to the party against whom the
motion is directed. Civ.R. 50(A)(4).
{¶14} A motion for a directed verdict presents a question of law. Good
Year Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-
2842, ¶ 4, citing O’Day v. Webb, 29 Ohio St.2d 215 (1972), paragraph three of the
syllabus. As such, we review a trial court’s decision to grant or deny the motion
de novo. Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St.3d 521, 523
(1996).
{¶15} A claimant must establish an injury to participate in Ohio’s workers’
compensation system. Schell v. Globe Trucking, Inc., 48 Ohio St.3d 1, 2 (1990);
Pflanz v. Pilkington LOF, 1st Dist. No. C–100547, 2011-Ohio-2670, ¶ 11; R.C.
4123.54. “‘Injury’ includes any injury, whether caused by external accidental
means or accidental in character and result, received in the course of, and arising
out of, the injured employee’s employment.” R.C. 4123.01(C).
{¶16} As early as 1936, the Ohio Supreme Court concluded that the
aggravation of a preexisting condition was a compensable work-related injury.
Ackerman v. Indus. Comm., 131 Ohio St. 371 (1936), citing Weaver v. Indus.
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Comm., 125 Ohio St. 465 (1932). More recently, the Ohio Supreme Court held
that an aggravation of a preexisting condition did not have to be “substantial” in
order to be compensable. Schell, 48 Ohio St.3d 1, at syllabus. The Court in Schell
reasoned that:
R.C. 4123.01(C) does not require that an injury be of any particular
magnitude in order for a claimant to participate in the fund with
respect to any disability resulting from the injury. To require that an
injury, in the form of an aggravation of a pre-existing condition,
must be of a specified magnitude would work a change in the
statutory scheme that would best be left to the legislature. Id. at 3.
{¶17} In response to Schell, supra, the General Assembly enacted Am. Sub.
S.B. No. 7 (eff. 6-30-06), which added subdivision (C)(4) to R.C. 4123.01 and
division (G) to R.C. 4123.54. Smith v. Lucas Cty., 6th Dist. No. L-10-1200, 2011-
Ohio-1548, ¶ 17. Subdivision (C)(4) excludes from R.C. 4123.01’s definition of
injury:
[a] condition that pre-existed an injury unless that pre-existing
condition is substantially aggravated by the injury. Such a
substantial aggravation must be documented by objective diagnostic
findings, objective clinical findings, or objective test results.
Subjective complaints may be evidence of such a substantial
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aggravation. However, subjective complaints without objective
diagnostic findings, objective clinical findings, or objective test
results are insufficient to substantiate a substantial aggravation. R.C.
4123.01(C)(4). (Am. Sub. S.B. No. 7, eff. 6-30-06).
Division (G) of R.C. 4123.54 provides:
[i]f a condition that pre-existed an injury is substantially aggravated
by the injury, and that substantial aggravation is documented by
objective diagnostic findings, objective clinical findings, or objective
test results, no compensation or benefits are payable because of the
pre-existing condition once that condition has returned to a level that
would have existed without the injury. R.C. 4123.54(G).
{¶18} The Court of Appeals for the First District has recently concluded
that “* * * [an] aggravation of a preexisting condition must be substantial both in
the sense of being considerable and in the sense of being firmly established
through the presentation of objective evidence” to constitute an injury under R.C.
4123.01(C)(4). Pflanz, 2011-Ohio-2670, at ¶ 18.
{¶19} With these rules in mind, we now turn to the evidence presented at
trial. John Elliot testified that he has been the manager of the Cassens Fostoria
terminal since 2004. (Oct. 11, 2011 Tr. at 66). Elliot testified that Ford vehicles
were railed into the Fostoria terminal, where 40 truck drivers loaded them onto
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trucks and drove them to auto dealers. (Id. at 67, 75). Elliot testified that the
drivers were laid off in January 2010 when Cassens closed the Fostoria terminal,
but 18 of the 40 drivers were rehired in Lordstown, Ohio and a few drivers retired.
(Id.); (Id. at 78, 82-83). Elliot testified that Bohl worked as a truck driver at the
Fostoria terminal since 2006, and Bohl was a good, reliable, and honest employee.
(Id. at 67-68). Elliot testified that, on January 7, 2010, the dock supervisor
informed him that Bohl injured his neck, so Elliot told him that Bohl had to fill out
an injury report (P’s Ex. 1). (Id. at 68-69). Elliot further testified that Bohl told
him he injured his neck when he was tying down the last unit on the truck. (Id. at
69). Elliot testified that he did not have any reason to disbelieve Bohl. (Id.). Elliot
further testified that an employee, Bob Crawford, told him that he witnessed Bohl
get injured in the way Bohl described. (Id. at 71-72). Elliot testified that every
Cassens’ employee is part of the Teamsters Union. (Id. at 76). He testified that, in
December 2009, they first learned that the Fostoria terminal was going to close on
January 10, 2010, because Ford’s contract with the railroad company that passed
through the Fostoria terminal was ending. (Id. at 77).
{¶20} Bohl testified that, on January 7, 2010, he was ratcheting down a
Ford Escape on the back bottom of the truck trailer when the chain kicked off the
idler and re-caught causing him to feel a snap in his neck and to stand there
“paralyzed.” (Id. at 97-98). Bohl testified that Bobby Crawford, who was loading
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his truck next to him when he was injured, heard the chain slip and came over to
ask him if he was alright. (Id. at 99). Bohl testified that the yardman, Jim, took
him to the terminal office to meet with Elliot and fill out paperwork. (Id. at 99-
100). Bohl testified that, after he filled out the paperwork, Elliot called Columbus,
and told him that his claim was denied. (Id. at 101). According to Bohl, Elliot told
him that he was not going to the clinic, but he was free to go seek medical
attention on his own. (Id.). Bohl testified that he drove himself to the hospital
because he was feeling sharp pains in his neck, he had numbness in his left arm,
and he could not move his head. (Id. at 102). Bohl testified that the hospital took
x-rays, and gave him some muscle relaxers. (Id. at 103). He testified that he saw
his back surgeon, Dr. Kramer, the next day since he already had a regular follow-
up appointment from his previous lower back surgery. (Id. at 103). Bohl testified
that Dr. Kramer referred him to Dr. Heis, who has been his primary doctor for his
neck injury since March 2010. (Id. at 104). According to Bohl, Dr. Heis initially
prescribed physical therapy, but he was still experiencing problems with his range
of motion. (Id. at 104-105). Bohl testified that he did not recall reporting some
neck pain to his family doctor, Dr. Donohoo, when he previously slipped and fell
at work. (Id. at 107). Bohl testified that he did not miss any work due to his neck
pain; he was not referred to another doctor; nor was an x-ray taken; but, he was
given some medication. (Id.). Concerning his present neck injury, Bohl testified
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that he was given four trigger-point injections into the spine to block the nerve
roots. (Id. at 109). Bohl testified that the second root blocker did give him some
temporary relief from headaches but he still is experiencing neck pain and a
reduced range of motion. (Id. at 110). Bohl also testified that, since his neck
injury, he has been unable to golf, ride a motorcycle, or work on cars like he used
to do before the injury. (Id. at 93-94, 113-114).
{¶21} On cross-examination, Bohl testified that he had a previous back
injury while he was working for another trucking company, E & L, and missed
around three years of work. (Id. at 114). He testified that his medical bills were
paid through workers’ compensation, and he received temporary compensation
through workers’ compensation during those three years. (Id. at 114-115). Bohl
testified that he had 24½ years of seniority working for companies affiliated with
the Teamsters Union, which counted toward his retirement. (Id. at 115-116). Bohl
admitted telling Dr. Kramer during his February 29, 2000 check-up to keep him
healthy for a few more years so he could retire with 30 years and get the full
compliments of benefits through Teamsters. (Id. at 117-118). Bohl testified that he
drove himself to the hospital even though he had a difficult time driving the
vehicle with numbness in his left arm. (Id. at 120). Bohl testified that the
emergency room physician must have made an error in his report, because the
report indicated that the patient denied numbness in his extremities, i.e. arms and
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legs. (Id. at 122). Bohl also admitted that the emergency room physician noted
equal motor strength in the upper extremities and no weakness or loss of sensation.
(Id. at 122-123). Bohl admitted that he mistakenly denied having previous neck
pain during his deposition, though he testified that he forgot about the incident.
(Id. at 124). Bohl testified that he had surgery on his left shoulder for injuries he
sustained as a result of a gunshot wound. (Id. at 126). Bohl testified that two bullet
fragments are still lodged behind his left shoulder blade. (Id.). Bohl testified that
he did not recall his reports of neck pain to Dr. Donohoo on February 19, 2001,
May 19, 2003, June 6, 2003, May 26, 2007, and January 2, 2009. (Id. at 128-130).
Bohl did not recall that Dr. Donohoo diagnosed him with cervical strain in January
2009. (Id. at 130).
{¶22} On re-direct, Bohl testified that, regardless of the emergency room
reports, he reported to Dr. Kramer on January 8, 2010, the day after the injury, that
he felt pain down his arm. (Id. at 131-132). He further testified that Dr. Kramer
noted that his injury was “degenerative in nature and could’ve been aggravated by
his job when he was tightening the chain on the truck transporting automobiles.”
(Id. at 132). Bohl also testified that, when he had neck pains in the past, he was
never given an x-ray or MRI, referred to another doctor, given injections, or
placed on work restrictions. (Id. at 133).
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{¶23} Dr. Stephen Dale Heis (“Dr. Heis”) testified that he specializes in
physical medicine and rehabilitation, and he treats musculoskeletal injuries such as
neck pain. (Heis Depo. at 5-6). Dr. Heis testified that he first saw Bohl on March
15, 2010 after Dr. Kramer referred Bohl to his office. (Id. at 9). Dr. Heis testified
that, after viewing Bohl’s MRI, Dr. Kramer decided that Bohl did not need surgery
but more conservative treatment, including medication and physical therapy. (Id.
at 10). Dr. Heis testified that, when he initially saw Bohl, Bohl complained of pain
in the back of his neck going toward his left shoulder, which was worse when he
moved his neck to the right or left and when he lifted his left arm above his
shoulder. (Id. at 10-11). Bohl indicated that he was injured on January 7, 2010,
and that his neck felt better when he lied down and took pressure off it. (Id. at 11).
Dr. Heis testified that he did a physical examination of Bohl, which revealed
“some decreased rotation of his neck, ability to move his neck back and forth was
decreased.” (Id.). Dr. Heis further testified that Bohl had pain when he put
pressure on the muscles on the left side and the back side of Bohl’s neck. (Id.). Dr.
Heis testified that he determined that the pain was caused from a muscle strain, so
he ordered Bohl medication and physical therapy. (Id.). Dr. Heis testified that he
performed “trigger point injections,” which are small doses of cortisone injected
into the muscle at the point where the patient feels pain upon pressure, to reduce
inflammation of the muscles. (Id. at 14). Dr. Heis testified that, in June 2010, he
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referred Bohl to Dr. Atluri for cervical nerve root blocks. (Id. at 15). Dr. Heis
explained that cervical epidural injections contain cortisone for inflammation, like
trigger point injections, but epidural injections are made deep into the spine, near
the spinal cord. (Id.). Dr. Heis testified that these injections sometimes help
patients with spinal changes due to arthritis. (Id.).
{¶24} Dr. Heis testified that, in August 2010, he requested that Bohl’s
workers’ compensation claim be amended to include substantial aggravation of
cervical degenerative disc disease. (Id. at 16). Dr. Heis explained that degenerative
disc disease is caused by normal aging of the spine due to body movement over
the years. (Id.); (Id. at 25-26). He testified that discs become thinner, begin to
bulge out posteriorly in the back of the disc, and bone spurs start developing in
patients with the disease. (Id. at 17). Dr. Heis concluded that Bohl had the disease
after viewing his MRI and x-rays. (Id. at 17-18). Dr. Heis testified that, during his
August 8, 2010 visit, he asked Bohl if he was able to do his work without any neck
pain prior to the work injury, and Bohl indicated “yes”. (Id. at 18-19). Dr. Heis
testified that, based upon his physical examination of Bohl, Bohl’s MRI and
medical records, and his own clinical observations, it was his opinion that Bohl
sustained a substantial aggravation of cervical disc disease as a result of his
workplace injury. (Id. at 19). Dr. Heis explained that he reached this opinion
because Bohl did not heal after several months of treatment. (Id. at 19-20). Dr.
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Heis testified that his diagnosis was consistent with other types of neck injuries
where the neck of the patient with degenerative arthritis is snapped back and forth.
(Id. at 21). Dr. Heis testified that he last saw Bohl on August 18, 2011, and Bohl
was still complaining of neck pain in spite of the months of treatment, so he
referred him back to Dr. Kramer for possible surgery. (Id. at 23-24).
{¶25} On cross-examination, Dr. Heis testified that cervical spondylosis is
a general term for age-related wear and tear, which can contribute to the
development of osteoarthritis or degenerative disc disease. (Id. at 26). Dr. Heis
testified that a patient suffering from cervical spondylosis can experience a stiff or
painful neck, as well as pain in the shoulders, arms, and chest. (Id. at 27). He
testified that Bohl’s bone spurs on C4, C5, C6, and C7 took years to develop and
were there before the January 2010 injury. (Id. at 29-30). Dr. Heis testified that
MRI findings and clinical examinations are objective findings, but, with respect to
range of motion and pain, Dr. Heis testified “* * * it depends on how far they can
turn their neck and how hard they are pushing themselves, and how much pain
they’re having * * *.” (Id. at 32-33). Dr. Heis testified that Bohl had normal
strength in his upper extremities and no focal weakness was detected upon
examination. (Id. at 33). Dr. Heis classified these findings as objective. (Id. at 33-
34). Dr. Heis testified that he initially diagnosed Bohl with muscle strain, and he
noted that Bohl’s sensation was good. (Id. at 35). Dr. Heis testified that, when he
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examined Bohl, he was not aware of Bohl’s prior neck complaints in 2001, 2002,
and 2009. (Id. at 37-40). On re-direct, Dr. Heis testified that his opinion that Bohl
suffered a substantial aggravation of cervical disc disease is based upon Bohl’s
clinical presentation, medical history, the course of treatment, and his findings.
(Id. at 43-44).
{¶26} Thereafter, defendant’s exhibits one through seven were admitted
without objection. (Oct. 12, 2011 Tr. at 141-142). Cassens made a motion for a
directed verdict, arguing that Dr. Heis made no reference to objective findings
supporting his opinion that Bohl suffered a substantial aggravation of degenerative
arthritis of the cervical spine. (Id. at 142-143). The trial court overruled the
motion. (Id. at 143). The defense, then, presented the depositional testimony of its
expert witness, Dr. Michael Rozen. (Id. at 145).
{¶27} Dr. Michael Rozen testified that degenerative arthritis and cervical
spondylosis are synonymous terms, which refer to a condition that occurs over a
prolonged period of time from wear and tear and aging of the cervical spine.
(Rozen Depo. at 8-9). Some patients are asymptomatic, while other experience
pain, decreased range of motion, or numbness and tingling, according to Dr.
Rozen. (Id. at 9, 13). Dr. Rozen testified that pain and tenderness are subjective,
not objective, findings. (Id. at 15). He further testified that reflexes can be
objective findings for purposes of establishing a substantial aggravation if, and
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only if, there are measurements before and after the injury. (Id. at 15-16). Dr.
Rozen testified that he examined Bohl on March 16, 2010, and Bohl complained
of sharp neck pain on the left side of his neck, with pain that went down to his left
forearm. (Id. at 18). Bohl indicated that his neck pain increased when he moved
his head to the left and when he sat down to read papers, and he complained of
pain on the left side of his head and his left arm going numb, according to Dr.
Rozen. (Id. at 19). Dr. Rozen testified that Bohl indicated that Dr. Kramer
performed lower back surgeries on him in 1995, 1996, and 1999, but Bohl denied
prior neck problems. (Id.). Dr. Rozen testified that he performed a physical
examination of Bohl, which revealed normal reflexes in both of his arms and
normal sensation. (Id. at 21). He testified that he performed a Spurling test to
determine whether any nerves were being compressed by spinal bones or disc, and
the test results were normal. (Id. at 21-22). Dr. Rozen testified that, after
conducting his physical examination of Bohl, he was unable to find any objective
finding indicative of a substantial aggravation of Bohl’s degenerative condition.
(Id. at 22, 27). Dr. Rozen testified that he reviewed Bohl’s x-ray and MRI, which
indicated that Bohl has degenerative changes throughout his thoracic and cervical
spine. (Id. at 23). Dr. Rozen testified that there was no evidence of any acute
injury to Bohl’s cervical spine, only evidence of longstanding bone spurs. (Id. at
26). Dr. Rozen testified that he concluded that Bohl suffered from a cervical strain,
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which is a soft-tissue injury that generally resolves in a relatively short period of
time. (Id. at 27).
{¶28} When questioned about locating any objective findings in Dr. Heis’
March 15, 2010 report, Dr. Rozen testified that “[t]he only objective finding
would be that Mr. Bohl did not have a normal range of motion of his cervical
spine; that would be consistent with a diagnosis of degenerative arthritis.” (Id. at
28-29). Dr. Rozen testified Dr. Heis’ findings that Bohl has normal strength, no
focal weaknesses, and intact sensation, are normal objective findings. (Id. at 29).
He further testified that Dr. Heis’ original diagnosis was that Bohl suffered a
muscle strain. (Id.). Dr. Rozen testified that Bohl is likely still having pain from
his arthritis, but Bohl has arthritis throughout his entire spine and there is no way
to determine the precise location of the pain. (Id. at 31-32).
{¶29} On cross-examination, Dr. Rozen testified that he owns a company
called Independent Medical Specialist Evaluations, which started in 2006, and he
last practiced medicine in 1996. (Id. at 33). He testified that his company did
around 760 examinations last year for various entities like municipalities, the Ohio
Attorney General’s Office, hospitals, and insurance companies. (Id. at 34-35). Dr.
Rozen estimated that two-thirds of the examinations were on behalf of employers
or their insurers in workers’ compensation cases. (Id. at 35). Dr. Rozen agreed that
Bohl suffered an injury to his neck in January 2010. (Id. at 38). Dr. Rozen also
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agreed that the x-rays and MRIs indicate that Bohl has cervical arthritis. (Id. at
41). Dr. Rozen testified that “there is no evidence of any acute injury to [Bohl’s]
cervical spine * * * [t]here’s no soft tissue swelling. There’s no bone marrow
edema. There’s no bleeding in the area.” (Id. at 43). Because of that, there is no
way to state that the neck injury produced a substantial aggravation to a reasonable
degree of medical certainty, according to Dr. Rozen. (Id.). Dr. Rozen further
testified that if Bohl had a significant injury to his cervical spine, an MRI would
show lingering effects of that injury even if the MRI was taken about a month
after the injury, like the MRI in this case. (Id.). Dr. Rozen testified that he has
testified in other cases that the claimant suffered a substantial aggravation of an
existing condition, and he would not hesitate to testify that Bohl had a substantial
aggravation claim if he had found objective evidence supporting that position. (Id.
at 44, 46). Dr. Rozen further testified that, given Bohl’s history of back issues and
well-documented history of degenerative arthritis throughout his spine, he would
be surprised if Bohl’s range of motion prior to the incident was normal. (Id. at 50-
51). Dr. Rozen explained that he did not have proof that Bohl’s range of motion
was abnormal prior to the accident since he did not have medical records from
other physicians that Bohl might have seen for treatment. (Id. at 51-52).
{¶30} Thereafter, the trial court admitted defense exhibits A, B, C, E, F,
and G without objection. (Oct. 12, 2011 Tr. at 146). Cassens renewed its motion
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for directed verdict, which was overruled. (Id. at 206). The matter was submitted
to the jury, which rendered a verdict in favor of Bohl. (Doc. No. 34).
{¶31} After reviewing the evidence in a light most favorable to Bohl as the
non-movant, we cannot conclude that the trial court erred by denying the motion
for directed verdict. While we do not agree with the trial court’s conclusion that
Dr. Heis’ expert opinion that Bohl suffered from a substantial aggravation, alone,
was sufficient to overcome the motion for directed verdict, the evidence taken as a
whole and viewed in a light most favorable to Bohl was sufficient to overcome the
motion. (Oct. 12, 2011 Tr. at 143) (THE COURT: “I have to rule on it. He said -- I
don’t know about ‘magic words,’ but [Dr. Heis’] opinion was that it was
substantial. So in any event, [the motion] is overruled.”). When Dr. Heis was
specifically asked what formed the basis of his opinion that Bohl suffered a
substantial aggravation of cervical degenerative disc disease, he testified:
Well, normally with the type of jerking injury to the neck you
would expect the muscle to be pulled or strained and that normally
would heal up on its own anywhere from six to 12 weeks.
With conservative treatment and medication, and a lot of times
these muscle injuries will heal up without any special treatment,
studies have shown, and it doesn’t matter whether you go to a
chiropractor or go to a doctor like myself or don’t get any treatment,
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a lot of times these muscle strains will heal up eventually. His did
not heal up, and became initially worse. He stated the therapy made
his pain worse, and the fact that it had been so long, he was still
having neck pain complaints in August when his injury occurred in
January, it was my opinion that he had aggravation of his arthritis
that was underlying the muscles in the neck from the jerking injury,
and that’s what caused his pain to continue at that time. (Heis Depo.
at 19-20).
{¶32} As Cassens points out, Dr. Heis’ testimony fails to reference
“objective diagnostic findings, objective clinical findings, or objective test results”
as required under R.C. 4123.01(C)(4). Nevertheless, Dr. Heis’ testimony must be
read in light of his medical reports, which were admitted into evidence. On March
15, 2010, Bohl’s initial visit about two months after the injury, Dr. Heis made the
following notation: “[r]ange of motion of the cervical spine reveals rotation
possible to 75° to the right, and only 40° to the left, with full flexion and 30° of
cervical extension.” (P’s Ex. 4); (D’s Ex. G). On August 9, 2010, after several
months of treatment with medication, physical therapy, and cervical nerve root
blocks, Dr. Heis made the following notation concerning Bohl’s range of motion:
“exam today reveals rotation of the neck to the right and left at 45°, with 20° of
extension and only 30° of flexion noted today.” (Id.); (Id.). Consequently, the
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record contained objective clinical findings demonstrating that Bohl’s range of
motion decreased months after the initial injury despite medical treatment.
Viewing this evidence, along with Dr. Heis’ testimony and Bohl’s testimony, a
rational trier of fact could have concluded that Bohl suffered a substantial
aggravation of preexisting degenerative arthritis of the cervical spine. As such, the
trial court did not err by denying Cassens’ motion for a directed verdict.
{¶33} Cassens’ first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ABUSED ITS DISCRETION AND,
THEREBY COMMITTED REVERSIBLE ERROR, WHEN IT
PROHIBITED CASSENS FROM INTRODUCING
PERMISSIBLE IMPEACHMENT EVIDENCE OF BOHL’S
POTENTIAL BIAS, PREJUDICE, OR MOTIVE.
{¶34} In its second assignment of error, Cassens argues that the trial court
abused its discretion by excluding evidence of Bohl’s motive to misrepresent his
injury, which was admissible under Evid.R. 616(A). Specifically, Cassens argues
that Bohl had a motive to misrepresent his injury since he knew he would be laid
off when Cassens closed the Fostoria terminal on January 10, 2010. Cassens points
out that Bohl had 24½ years of service, and Bohl could accrue years of service
while collecting workers’ compensation but he could not accrue years of service
while laid off. Cassens argues that Bohl, therefore, had a motive to misrepresent
his injury so he could accrue time and retire with 25 years of service.
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{¶35} “The admission of evidence is generally within the sound discretion
of the trial court, and a reviewing court may reverse only upon the showing of an
abuse of that discretion.” Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296,
299 (1992). An abuse of discretion constitutes more than an error of judgment;
rather, it implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When
applying the abuse of discretion standard, a reviewing court may not simply
substitute its judgment for that of the trial court. Id.{¶36} Evid.R. 616(A) provides that “[b]ias, prejudice, interest, or any
motive to misrepresent may be shown to impeach the witness either by
examination of the witness or by extrinsic evidence.”
{¶37} The trial court did not abuse its discretion by excluding evidence of
Bohl’s motive to misrepresent under the circumstances of this case. Dr. Rozen,
Cassens’ medical expert, agreed with Dr. Heis, Bohl’s physician, that Bohl
suffered a neck injury on January 7, 2010. (Rozen Depo. at 38). Bohl testified that
he wanted to retire with 30 years of service to receive full benefits. (Oct. 11, 2011
Tr. at 117). In light of this evidence, it was reasonable for the trial court to
conclude that evidence of Bohl’s possible motive to misrepresent, while relevant
and admissible under Evid.R. 616(A), was, nevertheless, unfairly prejudicial and
misleading and excluded from evidence under Evid.R. 403(A).
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{¶38} Even if the trial court erred by excluding the evidence as Cassens
argues, we find any error harmless in this case since the jury heard evidence from
which they could have drawn an inference of Bohl’s alleged motive to
misrepresent. Civ.R. 61. Elliot, the terminal manager, testified that, in December
2009, the workers learned that they would be laid off since the Fostoria terminal
was closing on January 10, 2010—just a few days after Bohl’s injury. (Oct. 11,
2011 Tr. at 67, 77-78). Bohl even acknowledged at trial during his direct
testimony that, prior to his injury, he knew the terminal was going to close. (Id. at
96). Bohl was also cross-examined about his statements to his doctors to keep him
healthy for a few more years so he could retire with full benefits. (Id. at 115-119).
In light of this evidence being presented to the jury, we are not persuaded that
Cassens’ substantial rights were affected by the trial court’s evidentiary ruling.
{¶39} Cassens’ second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING CASSENS’ MOTION FOR A NEW TRIAL.
{¶40} In its third assignment of error, Cassens argues that the trial court
erred by denying its Civ.R. 59(A) motion for a new trial. Specifically, Cassens
argues that: (1) the judgment rendered was not sustained by the weight of the
evidence and is contrary to law; and (2) the trial court abused its discretion by
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prohibiting it from introducing impeachment evidence, thereby preventing it from
having a fair trial.
{¶41} Civ.R. 59(A) provides several grounds for which a trial court may
grant a new trial, including the following grounds applicable to this appeal:
(1) Irregularity in the proceedings of the court * * * or any order of
the court * * * or abuse of discretion, by which an aggrieved party
was prevented from having a fair trial;
***
(6) The judgment is not sustained by the weight of the evidence;
however, only one new trial may be granted on the weight of the
evidence in the same case;
***
(7) The judgment is contrary to law;
{¶42} A trial court’s decision of whether to grant a motion for a new trial
premised upon Civ.R. 59(A)(1) or (6) is reviewed for an abuse of discretion.
Brown v. Senor Gringo’s, Inc., 3d Dist. No. 4-09-18, 2010-Ohio-985, ¶ 41, citing
Lewis v. Nease, 4th Dist. No. 05CA3025, 2006-Ohio-4362, ¶ 73; Ward v. Geiger,
3d Dist. No. 14-05-14, 2006-Ohio-6853, ¶ 56; Mannion v. Sandel, 91 Ohio St.3d
318, 321 (2001). A trial court’s ruling on a motion for a new trial premised upon
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Civ.R. 59(A)(7), however, presents a question of law reviewed de novo. Brown,
2010-Ohio-985, at ¶ 42, citing Lewis, 2006-Ohio-4362, at ¶ 76.
{¶43} We have already concluded in the second assignment of error that the
trial court did not err by excluding the impeachment evidence and, regardless, any
potential error was rendered harmless in light of the evidence presented in this
case. Therefore, we cannot conclude that the trial court abused its discretion by
denying Cassens’ motion for a new trial under Civ.R. 59(A)(1) based upon this
same alleged evidentiary error. Neither can we conclude that the trial court’s
judgment was erroneous as a matter of law for purposes of Civ.R. 59(A)(7) when
the record contained objective clinical findings in support of Bohl’s substantial
aggravation claim as required by R.C. 4123.01(C)(4). Finally, we cannot conclude
that the trial court abused its discretion by denying Cassens’ motion for a new trial
under Civ.R. 59(A)(6), because the record contained competent, credible evidence
supporting the jury’s verdict. Striff v. Luke Md. Practitioners, Inc., 3d Dist. No. 1-
10-15, 2010-Ohio-6261, ¶ 72, citing Verbon v. Pennese, 7 Ohio App.3d 182, 183
(6th Dist.1982); Ball v. M.R. Philpot Masonry Co., Inc., 3d Dist. No. 17-90-4, at
*2 (Apr. 10, 1991).
{¶44} Cassens’ third assignment of error is, therefore, overruled.
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{¶45} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J., concurs.
/jlr
ROGERS, J., DISSENTS.
{¶45} I respectfully dissent from the opinion of the majority as to the first
assignment of error. I would find that the evidence submitted by the Appellee did
not fulfill the statutory requirement that there be objective evidence of a
substantial aggravation of a pre-existing condition. The most that can be said is
that Appellee had a limited range of motion which is itself subject to distortion by
the person being tested and requires a subjective interpretation by the person
performing the test. I would, therefore, sustain the first assignment of error and
find the second and third assignments of error to be moot.
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