Shields v. Bur. of Workers' Comp.

[Cite as Shields v. Bur. of Workers' Comp., 2023-Ohio-1368.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MICHAEL R. SHIELDS, :
Plaintiff-Appellee, :
No. 111774
v. :
BUREAU OF WORKERS’ :
COMPENSATION, ET AL.,
:
Defendants-Appellants.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 27, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-931460
Appearances:
Grubb & Associates, LPA, Natalie F. Grubb, and Mark E.
Owens, for appellee.
Janet E. Burney, Anna Hlavacs, and Brian R. Gutkoski, for
appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant Greater Cleveland Regional Transit Authority
(“RTA”) appeals the jury verdict rendered in favor of plaintiff-appellee Michael R.
Shields (“Shields”). For the following reasons, we affirm.
Factual History
From 1989 through 2019, Shields was employed as a mechanic for
RTA where he worked on the paratransit buses:
On an average day, we would bring a bus in from the main facility
garage. We would set it up on a lift. We would inspect the bus, the
outside. We would lift it up, remove all the tires and then we would
jack it up six feet over our heads and do maintenance work over our
head, either changing oils or looking at certain suspension parts or
changing parts, changing transmissions, heavy leaf springs, rear ends,
front ends, shock absorbers or front end coil springs.
Tr. 199.
On May 21, 2015, Shields suffered a left shoulder injury during the
course and scope of his employment with RTA that was subsequently an allowed
claim under the workers’ compensation fund. The parties did not dispute the
allowance of Shields’s left shoulder injury. The issue presented in the instant case
was Shields’s claim of bicipital tendinitis to his right shoulder, a flow-through injury
that was allegedly caused by the allowed left shoulder claim. We will detail Shields’s
relevant medical care following the May 2015 left shoulder injury.
Following the May 2015 injury, Shields continued working full-time
at RTA. Shields also received chiropractic care for his left shoulder from August 12,
2015, through October 21, 2015. Shields “gingerly” used his left arm at work. Tr.
223. Further, Shields testified that he gradually and continuously used his right arm
more at work and in daily activities to compensate for his left shoulder injury.
Shields testified that despite chiropractic care, his left arm and shoulder pain
became progressively worse, and he was referred to Dr. Kase, a surgeon with the
Crystal Clinic in August 2016.
In August 2016 — approximately one year following Shields’s left
shoulder injury — Shields experienced an increase in left shoulder pain while
removing tires at work. On August 19, 2016, Dr. Kase diagnosed Shields with a
traumatic partial tear of the left bicep tendon, partial tear of the left subscapularis
tendon, and a lesion of the left shoulder, and he administered a cortisone injection
in the left shoulder. Dr. Kase’s physical examination encompassed both the left and
right shoulders, and Shields’s right shoulder tested positive on the Speed and
Yergason tests.1 Dr. Kase made no diagnosis regarding Shields’s right shoulder.
Shields denied that he experienced a work injury in August 2016.
On January 9, 2017, Dr. Kase examined Shields due to complaints of
right shoulder pain that had persisted for a few months. Shields testified at trial that
his work duties at that time incorporated continuous overhead work and overhead
lifting that aggravated both his shoulders. Shields further testified that he
experienced less pain if he did not perform overhead work throughout his entire
shift. During the January 2017 office visit, Shields received a cortisone injection in
his right shoulder, and an x-ray of the right shoulder was obtained. The right
shoulder x-ray found no fractures or dislocations and some degenerative changes.
1 The Speed and Yergason tests are completed during a physical exam, and positive
results for either test suggest the presence of bicipital tendinitis.
On March 21, 2017, nearly two years after Shields sustained his left
shoulder work-related injury, Dr. Kase performed surgery on Shields’s left shoulder.
Shields testified that following surgery he continuously wore a left arm sling and
used his right arm for all activities. On April 3, 2017, during a follow-up visit with
Dr. Kase, Shields complained of right shoulder pain greater than his left shoulder
pain. Dr. Kase’s office note stated Shields believed the right shoulder pain was
caused by his need to overuse his right arm for the two years between his May 2015
left shoulder injury and his March 2017 left shoulder surgery. Dr. Kase’s office note
stated he would seek approval from the Bureau of Workers’ Compensation for a
diagnosis of bicipital tendinitis in Shields’s right shoulder. Dr. Kase referred Shields
for post-operative physical therapy for his left shoulder.
RTA’s medical expert, Dr. Mease, examined Shields on May 9, 2017,
and concluded that Shields did not have bicipital tendinitis in his right shoulder as
a flow-through injury from his 2015 left shoulder injury. At the time of that review,
no MRI test of Shields’s right shoulder had been completed.2 In conjunction with
her examination, Dr. Mease reviewed records from Wadsworth Chiropractic, Dr.
Kase with Crystal Clinic, Crystal Clinic’s emergency room, and physical therapy
notes.
On May 15, 2017, Shields returned home from a physical therapy
appointment and began speaking with his wife who was working in the yard. Shields
2 In July 2017, Dr. Mease reviewed Shields’s right shoulder MRI.
remembered he had left a physical therapy pole in his car and went to retrieve it.
When Shields reached for the pole in the back seat of his car, he experienced right
arm pain. Shields testified that he immediately returned to the physical therapist
who referred him to the emergency department. Emergency room notes dated May
16, 2017, include a diagnosis of bicipital tendinitis of the right shoulder. Dr. Kase’s
May 19, 2017 office note stated Shields complained of right shoulder pain that began
when he lifted a heavy object in August 2016, and became worse as Shields used his
right arm more to compensate for his left shoulder injury. Dr. Kase’s office note also
stated that Shields thought his right shoulder was reinjured when he reached for a
therapy pole a few days earlier. The Speed and Yergason tests were positive on
Shields’s right arm. Dr. Kase diagnosed Shields with bicipital tendinitis of the right
shoulder and provided a cortisone injection.
A May 23, 2017 physical therapist’s note stated Shields “report[ed
that] he was working in the yard on 5/19/17 pulling with his right arm when he felt
a sharp, stabbing pain from his elbow to the middle of his chest.” At trial, Shields
denied that he provided those details to the physical therapist and stated the injury
occurred when he picked up the physical therapy pole.
On July 6, 2017, Shields’s chiropractor referred him for a right
shoulder MRI. The findings were consistent with a high-grade partial tear of the
right shoulder.
On July 17, 2017, Shields reported to Kase with right shoulder pain
greater than left shoulder pain and numbness in his hands. Dr. Kase’s office note
stated Shields did not feel fully recovered from the left shoulder surgery, but he
wanted to return to work. On that same date, Dr. Kase released Shields to return to
work full-time. While not reflected in Dr. Kase’s office note, Shields testified that he
felt RTA required him to return to work despite his ongoing right and left shoulder
pain.
Shields returned to work on July 25, 2017. Shields testified that he
experienced no problems with his left shoulder, but had a constant, dull, ache in his
right shoulder while working. On August 3, 2017, while lifting a wheelchair at work,
Shields heard a pop in his right shoulder. Shields sought medical treatment from
Dr. Kase that same day. According to Dr. Kase’s office notes, Shields had been
feeling better until the incident that day. Dr. Kase felt the MRI findings were
consistent with right bicep tendinosis and a partial tear. Dr. Kase also felt the August
3, 2017 incident likely exacerbated the bicep tendinosis and partial tear although it
was possible Shields experienced a rotator cuff tear.
On August 29, 2018, Shields’s medical expert, Dr. Kimberly Togliatti-
Trickett (“Dr. Togliatti-Trickett”), completed an independent medical examination
of Shields. Dr. Togliatti-Trickett performed a physical exam of Shields, obtained a
verbal medical history from him, and reviewed the following medical records:
Shields’s first report of injury dated May 22, 2015; Dr. Kase’s office notes dated May
23, 2017 and April 3, 2017; Dr. Mease’s independent medical report dated May 12,
2017; a May 23, 2017 physical therapy note; July 6, 2017 MRI results; the Industrial
Commission’s records of proceedings dated September 14, 2017 and November 9,
2017; and a Bureau of Workers’ Compensation letter requesting allowance of
Shields’s right shoulder bicipital tendinitis. Dr. Togliatti-Trickett related Shields’s
right bicipital tendinitis to his 2015 left shoulder injury.
In August 2019, Shields underwent right shoulder surgery and was no
longer able to work at RTA.
Procedural History
On February 9, 2018, Shields filed a complaint in Cuyahoga C.P. No.
CV-18-892797, seeking a right to participate in the Ohio workers’ compensation
fund for the additional condition of bicipital tendinitis of his right shoulder. On
March 28, 2019, Shields dismissed that case without prejudice, and refiled the
instant case on March 27, 2020.
Discovery progressed and the case was set for trial. The discovery
deposition and videotaped trial testimony of Shields’s medical expert, Dr. Togliatti-
Trickett were secured on June 11, 2021, and January 24, 2022, respectively. On
February 18, 2022, RTA filed a motion in limine seeking to exclude Dr. Togliatti-
Trickett’s videotaped expert medical testimony. On April 21, 2022, April 25, 2022,
April 26, 2022, and April 28, 2022, Shields filed motions in limine to exclude trial
testimony.
Trial commenced on May 6, 2022. The trial court did not rule on the
outstanding motions in limine but held the motions in abeyance. On May 7, 2022,
after the close of Shields’s case in chief, RTA moved for a directed verdict. The trial
court held the directed verdict motion in abeyance until the close of RTA’s case.
Following RTA’s case-in-chief, the trial court stated the ruling on its directed verdict
was postponed pending the jury’s verdict.3
The parties agreed upon and submitted to the jury a joint set of jury
instructions, verdict forms, and jury interrogatories. On May 10, 2022, the jury
returned a verdict in favor of Shields. On June 7, 2022, RTA filed a motion for
judgment notwithstanding the verdict (“JNOV”) or, alternatively, a motion for a new
trial. After the motions were fully briefed, the trial court denied them on June 27,
2022.
On July 25, 2022, RTA filed a timely notice of appeal, presenting
verbatim three assignments of error for our review:
Assignment of error one: The trial court erred in permitting Dr.
Trickett’s purported expert opinion, elicited through leading questions,
to reach the jury, despite the “internal and elusive” nature of the alleged
injury and Dr. Trickett’s admitted lack of an accurate and complete
medical history and lack of knowledge regarding Appellee’s use of his
upper extremities for his job duties.
Assignment of error two: The trial court erred by not directing a verdict
in GCRTA’s favor.
Assignment of error three: The trial court erred by not granting
GCRTA’s Motion for Judgment Notwithstanding the Verdict (JNOV)
or, alternately, motion for a new trial.
On September 16, 2022, the trial court granted RTA’s motion to stay proceedings
pending the outcome of the appeal.
3 The record does not indicate the trial court ruled on the outstanding directed
verdict.
Legal Analysis
Introduction of Expert Testimony
In his first assignment of error, RTA contends that the trial court
erred when it allowed the introduction of Dr. Togliatti-Trickett’s videotaped trial
testimony. Specifically, RTA argues that Dr. Togliatti-Trickett’s testimony was
unreliable and inadmissible because (1) Dr. Togliatti-Trickett performed an
inadequate review of Shields’s medical records, (2) Dr. Togliatti-Trickett obtained
an insufficient oral history from Shields, (3) Dr. Togliatti-Trickett did not review a
description of Shields’s job duties but relied on hypothetical questions posed by
Shields’s counsel, and (4) Shields’s counsel utilized leading questions.
A trial court has discretion to admit expert testimony. Evid.R. 104(A).
On appeal, a trial court’s decision to admit medical expert testimony is subject to an
abuse-of-discretion standard. Walker v. Ford Motor Co., 8th Dist. Cuyahoga No.
100759, 2014-Ohio-4208, ¶ 23, citing Valentine v. Conrad, 110 Ohio St.3d 42, 2006-
Ohio-3561, 850 N.E.2d 683, ¶ 9; Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616,
687 N.E.2d 735 (1998). The term abuse of discretion implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, 187 N.E.3d 463.
Pursuant to Evid.R. 702,
[a] witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports
the result of a procedure, test, or experiment, the testimony is reliable
only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based
is objectively verifiable or is validly derived from widely accepted
knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.
Evid.R. 702.
There is no argument that the opinions presented by Dr. Togliatti-
Trickett related to matters beyond the knowledge of laypersons and that the doctor’s
credentials and experience qualified her as an expert. Evid.R. 702(A) and (B). RTA
argues that Dr. Togliatti-Trickett’s testimony was not reliable under Evid.R. 702(C).
“In determining whether the opinion of an expert is reliable under
Evid.R. 702(C), a trial court examines whether the expert’s conclusion is based on
scientifically valid principles and methods.” Valentine, 110 Ohio St.3d 42, 2006-
Ohio-3561, 850 N.E.2d 683, at ¶ 16, citing Miller, 80 Ohio St.3d 607, 687 N.E.2d
735 (1998); Walker, 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208, at ¶ 29.
Here, RTA does not question the principles and methodology
underlying Dr. Togliatti-Trickett’s testimony, but the reliability and correctness of
the facts she relied upon to reach her medical opinion. RTA’s arguments ignore the
premise of Evid.R. 702(C), which looks at novel scientific theories, and therefore the
arguments lack merit. See State v. Jordan, 7th Dist. Harrison No. 06 HA 586, 2007-
Ohio-3333, ¶ 20 (Defendant’s argument that an expert witness’s trial testimony was
erroneously admitted in contravention to Evid.R. 702(C) was baseless because
defendant’s challenges to the expert testimony related to the reliability and
correctness of the facts the expert relied upon rather than the expert’s
methodology.); see also Goddard v. Children’s Hosp. Med. Ctr., 1st Dist. Hamilton
Nos. C-95-0278 and C-950295, 1996 Ohio App. LEXIS 2388, 3 (June 12, 1996)
(“Evid.R. 702 appears to be limited to cases in which there are novel scientific
theories.”).
RTA’s contention that some of Dr. Togliatti-Trickett’s opinions based
upon hypothetical questions were inadmissible is also unpersuasive. Pursuant to
Evid.R. 705, experts may provide an opinion in response to a hypothetical question.
However, “[a]n expert cannot base his opinion upon facts assumed in a hypothetical
question unless evidence tending to establish them is admitted into evidence, either
through other witnesses or through the expert testifying upon his own personal
knowledge.” Evid.R. 703.
The purpose of the rules governing the assumed facts which underlie
the hypothetical question and the opinion-answer is to insure that the
trier of the facts is aware of the facts upon which the opinion rests, so
that in the event the trier of the facts rejects these facts as not having
been established by the evidence, it will then be warranted in rejecting
the opinion also.
Calvey v. Fairview Gen. Hosp., 8th Dist. Cuyahoga No. 67417, 1995 Ohio App.
LEXIS 2612, 3 (June 22, 1995), quoting Mayhorn v. Pavey, 8 Ohio App.3d 189, 191,
456 N.E.2d 1222 (10th Dist.1982).
RTA contends that Dr. Togliatti-Trickett’s expert testimony was
inadmissible when the doctor answered two hypothetical questions for which the
assumed, underlying facts were not introduced as evidence during the trial.
Specifically, Shields’s counsel asked Dr. Togliatti-Trickett to assume Shields worked
overhead on buses for fifty to ninety percent of his work day. Shields’s description
of his average work day indicated the majority of an average work day was spent
working overhead and, thus, we find the record presented sufficient evidence
supporting the hypothetical questions at issue. However, even assuming no trial
evidence was introduced to demonstrate that Shields worked fifty to ninety percent
of his work day on overhead activities, any concerns about Dr. Togliatti-Trickett’s
related opinion go to the weight of the evidence, rather than its admissibility, and
the trier of fact would determine the weight to be attributed to the opinion. Williams
v. Parker Hannifin Corp., 188 Ohio App.3d 715, 2010-Ohio-1719, 936 N.E.2d 972,
¶ 26 (12th Dist.); Mayhorn at paragraph one of the syllabus (“consideration of the
sufficiency of the factual content of the hypothetical question to be addressed as a
factor in determining the weight to be given the opinion-answer.”).
RTA further argues that the use of leading questions during Dr.
Togliatti-Trickett’s trial testimony rendered the testimony inadmissible. Pursuant
to Evid.R. 611(C), “leading questions are not the appropriate mode of eliciting
testimony on direct examination,” but the admissibility of such testimony is within
the trial court’s broad discretion. Lambert v. Shearer, 84 Ohio App.3d 266, 275-
276, 616 N.E.2d 965 (10th Dist.1992). We do not find the trial court’s introduction
of Dr. Togliatti-Trickett’s testimony obtained through leading questions was
prejudicial or amounted to an abuse of discretion.
As part of her review of Shields’s case, Dr. Togliatti-Trickett reviewed
medical records, examined Shields, and obtained a medical history from Shields.
Dr. Togliatti-Trickett was not provided with copies of all of Shields’s medical records
related to his left and right shoulder injuries. The trial record also demonstrated
that Shields’s oral medical history to Dr. Togliatti-Trickett did not encompass all of
Shields’s complaints, diagnostic tests, and treatment he experienced related to his
right shoulder. However, RTA’s counsel cross-examined Dr. Togliatti-Trickett to
address the defense’s concerns about these potential deficits. It was then within the
jury’s province to discount the doctor’s opinion if they found the expert testimony
was lacking. See Roscoe-Herbert v. Fabian, 8th Dist. Cuyahoga No. 88558, 2007-
Ohio-3263, ¶ 26 (“[B]ecause [the medical experts] based their causation opinions
on an incomplete medical history, the jury could reasonably discount their
opinions.”) Compare Jolett v. ATLM, Inc., 8th Dist. Cuyahoga No. 99173, 2013-
Ohio-3143 (The trial court in a bench trial excluded medical expert testimony that
did not consider whether claimant’s current medical condition was caused by an
intervening cause where the expert medical testimony was submitted in the form of
a report and opposing counsel was unable to cross-examine the expert witness.).
Further, “a physician who examines a patient is competent to testify concerning the
probable cause of an injury, even if he has no knowledge of other injuries suffered
by the patient.” Johnson v. Talley, 8th Dist. Cuyahoga Nos. 73581 and 73622, 1999
Ohio App. LEXIS 289, 11 (Feb. 4, 1999), citing Baird v. Cincinnati Transit Co., 110
Ohio App. 94, 168 N.E.2d 413 (1st Dist.1959).
All of RTA’s arguments about Dr. Togliatti-Trickett’s expert
testimony go towards the credibility of her opinion rather than the admissibility of
the evidence, and “[q]uestions of credibility and the weight to be given to each expert
is a question for the jury to decide.” Warner v. DMAX Ltd., LLC, 2015-Ohio-4406,
46 N.E.3d 202, ¶ 18 (2d Dist.); Dejaiffe v. KeyBank USA Natl. Assn., 6th Dist. Lucas
No. L-05-1191, 2006-Ohio-2919, ¶ 19 (Insufficiency of an expert witness’s
underlying facts relates to the weight of evidence rather than admissibility.). For the
foregoing reasons, RTA’s first assignment of error is overruled.
Directed Verdict and Judgment Notwithstanding the Verdict
In its second assignment of error, RTA argues that the trial court
erred when it denied RTA’s motion for directed verdict. RTA argues in its third
assignment of error that the trial court erred when it denied RTA’s motion for
judgment notwithstanding the motion (“JNOV”).4 For ease of discussion, we will
address RTA’s arguments about a directed verdict and JNOV collectively.
A motion for directed verdict under Civ.R. 50(A) tests the sufficiency
of the evidence, not the weight of the evidence nor the credibility of witnesses.
Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 119, 671 N.E.2d 252 (1996).
Under Civ.R. 50(A)(4), a court may properly grant a motion for directed verdict
when, after construing the evidence most strongly in favor of the party against whom
the motion is directed, it finds that reasonable minds could come to but one
conclusion on a determinative issue, and the conclusion is adverse to the nonmoving
party.
In evaluating the denial of a Civ.R. 50(B) motion for JNOV, a
reviewing court applies the same test as that applied in reviewing a motion for a
directed verdict. Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 2002-
Ohio-6803, 783 N.E.2d 920, ¶ 14 (8th Dist.), citing Grau v. Kleinschmidt, 31 Ohio
St.3d 84, 90, 509 N.E.2d 399 (1987). In reviewing a judgment on a motion for
JNOV,
[t]he evidence adduced at trial and the facts established by admissions
in the pleadings and in the record must be construed most strongly in
favor of the party against whom the motion is made, and, where there
is substantial evidence to support his side of the case, upon which
reasonable minds may reach different conclusions, the motion must be
denied.
4RTA’s third assignment of error also argues that the trial court erred when it
denied RTA’s motion for a new trial. RTA’s arguments pertaining to a motion for a new
trial raised in RTA’s third assignment of error will be discussed separately.
Posin v. ABC Motor Court Hotel, 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). As
with motions for directed verdict, the trial court does not consider either the weight
of the evidence or the credibility of the witnesses when ruling on a motion for JNOV.
Id.Because both motions for directed verdict and JNOV test the legal
sufficiency of the evidence, we review them de novo, with no deference to the court’s
decision. Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986); Goodyear
Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842,
769 N.E.2d 835, ¶ 4.
The Ohio workers’ compensation system provides an exclusive
statutory remedy for workplace injuries. Clendenin v. Girl Scouts of W. Ohio, 150
Ohio St.3d 300, 2017-Ohio-2830, 81 N.E.3d 438, ¶ 9; R.C. 4123.74. The statutory
requirements of Chapter 4123 must be liberally construed in favor of the employee.
R.C. 4123.95.
To prevail on a workers’ compensation claim, the employee must
prove, by a preponderance of the evidence, that his or her injury occurred “in the
course of, and arising out of, the injured employee’s employment.” R.C. 4123.01(C).
There must exist a direct and proximate cause between the work-related accident
and the claimed injury. Munday v. S. Ohio Coal Co., 4th Dist. Meigs No. 03CA12,
2004-Ohio-2872, ¶ 11. The issue of proximate causation must be established
through expert medical testimony. Leasure v. UVMC, 2d Dist. Miami No. 2016-CA-
21, 2017-Ohio-7196, ¶ 15, quoting Randall v. Mihm, 84 Ohio App.3d 402, 406, 616
N.E.2d 1171 (2d Dist.1992).
An employee’s workers’ compensation claim may consist of a flow-
through injury. A flow-through injury “is a condition developing in a body part not
originally alleged to have been injured, but having been injured as a result of
conditions previously allowed” in a workers’ compensation claim. Wilson v.
Conrad, 1st Dist. Hamilton No. C-980582, 1999 Ohio App. LEXIS 1661, 5 (Apr. 16,
1999), citing R.C. 4123.84(C). In other words, a flow-through injury subsequently
develops in a body part not originally alleged to have been injured and arises out of
a compensable physical injury. Lewis v. Trimble, 79 Ohio St.3d 231, 238, 680
N.E.2d 1207 (1997), citing Dent v. AT&T Technologies, Inc., 38 Ohio St. 3d 187, 189,
527 N.E.2d 821 (1988); Munday at ¶ 11. To receive benefits for a flow-through
injury, a claimant must demonstrate through expert medical testimony that a
previously allowed injury was the proximate cause of the new, alleged flow-through
injury. Jones v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 82924, 2004-Ohio-746,
¶ 9; Munday at ¶ 11; Leasure at ¶ 15, citing Kenyon v. Scott Fetzer Co., 113 Ohio
App.3d 264, 266, 680 N.E.2d 1034 (8th Dist.1996); Walker, 8th Dist. Cuyahoga No.
100759, 2014-Ohio-4208, at ¶ 21.
RTA argues that the trial court should have granted RTA’s directed
verdict or JNOV because construing the evidence most strongly in favor of Shields
on the issue of proximate cause, reasonable minds could come to but one conclusion
based on the submitted evidence and that conclusion was adverse to Shields.
Specifically, RTA contends that Dr. Togliatti-Trickett failed to present reliable
medical testimony that established Shields’s right shoulder injury was directly and
proximately caused by his previously allowed left shoulder injury. Shields contends
that he presented sufficient evidence to support his right to participate in the
workers’ compensation fund for the flow-through condition of right shoulder
bicipital tendinitis.
Expert medical testimony was provided by a board-certified medical
doctor, Dr. Togliatti-Trickett, on Shields’s behalf. Dr. Togliatti-Trickett testified that
she completed a physical examination of Shields, obtained a medical history from
him, and reviewed several of Shields’s medical records as well as Dr. Mease’s report
that provided detailed information regarding Shields’s treatment and diagnosis by
his chiropractor, physical therapist, and surgeon. Shields’s medical records
indicated that Shields had reported intermittent right shoulder pain since August
2016, with the pain becoming more continuous in nature starting in March 2017.
Shields attributed the right shoulder pain to his left shoulder workers’ compensation
injury that caused him pain and limited the use of his left arm from May 2015
through March 2017. Shields specifically testified that to compensate for his left arm
and shoulder work-place injury, he had to increase the use of his right arm and
shoulder. Dr. Togliatti-Trickett testified that she found no records or reports that
demonstrated a preexisting, non-work-related medical condition caused Shields’s
right shoulder injury. Dr. Togliatti-Trickett testified that Shields’s July 6, 2017 MRI
did not diagnosis Shields with right bicipital tendinitis, but the findings supported
such a diagnosis. Based upon her review of the MRI; Dr. Mease’s clinical notes and
report; and the physical examination of Shields including his medical history, Dr.
Togliatti-Trickett found that Shields’s constant use of his right arm and/or increased
overuse of this right shoulder resulted in right shoulder bicipital tendinitis that was
a flow-through injury caused by his original May 21, 2015 workplace injury.
On cross-examination of Dr. Togliatti-Trickett, RTA’s counsel
established that Dr. Togliatti-Trickett was not Shields’s treating physician and she
was hired to provide Shields with a written medical opinion. Dr. Togliatti-Trickett
testified on cross-examination that she was not provided with all of Shields’s
medical records and those additional records would have provided more
information. While such testimony served as an attempt to discredit Dr. Togliatti-
Trickett, it did not demonstrate the introduction of insufficient medical testimony
that would support the trial court’s granting of a directed verdict or JNOV.
In contrast to Dr. Togliatti-Trickett’s expert medical testimony, RTA
introduced the expert testimony of Dr. Mease. Dr. Mease opined that the MRI did
not demonstrate bicipital tendinitis and Shields did not have bicipital tendinitis in
his right shoulder. The jury was to evaluate the competing opinions of Drs. Togliatti-
Trickett and Mease and determine which expert witness was the most credible.
Warner, 2015-Ohio-4406, 46 N.E.3d 202, at ¶ 18 (2d Dist.) (“[T]he difference in the
two experts’ underlying factual assumptions may affect credibility, but do not affect
admissibility. Questions of credibility and the weight to be given to each expert is a
question for the jury to decide.”)
The trial court’s denials of RTA’s motion for directed verdict and
motion for JNOV were supported by the evidence. Thus, we overrule RTA’s second
assignment of error and that portion of its third assignment of error that addresses
a motion for JNOV.
Motion for New Trial
Additionally in its third assignment of error, RTA argues that the trial
court erred when it failed to grant RTA a new trial. RTA does not present new
arguments in support of its motion for new trial, but reiterates the arguments
previously presented in the first and second assignments of error.
A motion for new trial is governed by Civ.R. 59 that reads, in pertinent
part:
(A) Grounds for new trial. A new trial may be granted to all or any of
the parties and on all or part of the issues upon any of the following
grounds:
***
(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;
***
(9) Error of law occurring at the trial and brought to the attention of
the trial court by the party making the application.
In addition to the above grounds, a new trial may also be granted in the
sound discretion of the court for good cause shown.
The standard of review we apply to a trial court’s ruling on a Civ.R. 59
motion for new trial depends upon the grounds for the motion. Robinson v. Turoczy
Bonding Co., 8th Dist. Cuyahoga No. 103787, 2016-Ohio-7397, ¶ 23.
A motion for new trial brought under Civ.R. 59(A)(1), (2), (3), (4), (5),
(6), or (8) is reviewed for an abuse of discretion. Gateway Consultants
Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No.
104014, 2017-Ohio-1443, ¶ 12, 13; Johnson v. Johnson, 5th Dist. Stark
No. 2015CA00076, 2015-Ohio-4748, ¶ 16-17; GMS Mgt. Co. v. Coulter,
11th Dist. Lake No. 2005-L-071, 2006-Ohio-1263, ¶ 20-21. A motion
for new trial brought under Civ.R. 59(A)(7) or (9), is reviewed de novo.
Gateway Consultants Group at ¶ 12, 22.
Moore v. Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545, ¶ 14.
Upon a review of the record, we find that the trial court did not abuse
its discretion when it denied RTA’s motion for new trial pursuant to Civ.R. 59(A)(6),
and the court did not err when it denied RTA’s motion for new trial under Civ.R.
59(A)(7) and (9). RTA’s third assignment of error regarding a motion for new trial
is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
LISA B. FORBES, J., and
SEAN C. GALLAGHER, J., CONCUR