BENNETT, APPELLANT, v. ADMR., OHIO BUREAU OF WORKERS’ COMPENSATION ET AL., APPELLEES.
No. 2011-0902
Supreme Court of Ohio
Submitted April 4, 2012—Decided December 5, 2012.
134 Ohio St.3d 329, 2012-Ohio-5639
CUPP, J.
{11} The judgment of the court of appeals is affirmed on the authority of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Thompson Hine, L.L.P., Scott A. King, and Terry W. Posey Jr., for appellant.
Zashin & Rich Co., L.P.A., and Lawrence J. Rich, for appellees, Dorothy Perry and Worley Perry.
Legal Aid Society of Cleveland, Howard Strain, and Harold L. Williams; and Southeastern Ohio Legal Services and Peggy P. Lee, urging affirmance for amici curiae Legal Aid Society of Cleveland and Southeastern Ohio Legal Services.
[Cite as Bennett v. Admr., Ohio Bur. of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639.]
(No. 2011-0902—Submitted April 4, 2012—Decided December 5, 2012.)
CUPP, J.
{¶ 2} For the reasons that follow, we hold that the de novo nature of an
I. Facts and Procedural History
{¶ 3} On February 28, 2006, appellant, Mark A. Bennett, was involved in an automobile accident while en route to the central office of his employer, Goodremont‘s, Inc., in Toledo. About a month later, Bennett filed a claim with the Bureau of Workers’ Compensation (“BWC“) for injuries to his head, neck, and back that he claimed to have suffered in the accident, along with his statement that he had been treated for a concussion and multiple disk herniation.1 Bennett claimed that his main office was in his home and that therefore, he was on company business when he was injured en route to his employer‘s office. Goodremont‘s denied certification of the claim, asserting that the accident occurred while Bennett was commuting to work, and therefore, “his workday had not yet begun.”
{¶ 4} The BWC issued an initial order disallowing the claim, stating, “The employee did not sustain an injury in the course of and arising out of employment. The employee was going to or coming from work.” Upon Bennett‘s administrative aрpeal of that order, a district hearing officer for the Industrial Commission held a hearing and affirmed the order of the BWC disallowing the claim. Bennett appealed that order also, but a staff hearing officer for the Industrial Commission upheld the disallowance of the claim. Under
{¶ 5} Bennett then filed an
{¶ 6} Bennett appealed that ruling to the Sixth District Court of Appeals. The appellate court concluded that summary judgment was inappropriate, because viewed in a light most favorable to Bennett, the facts could support Bennett‘s claim that he had no fixed place of work and therefore had not been commuting on the day of the accident. The court reversed and remanded to the trial court for further proceedings. Bennett v. Goodremont‘s, Inc., 6th Dist. No. L-08-1193, 2009-Ohio-2920, 2009 WL 1719355, ¶ 20.
{¶ 7} Upon remand, the trial court held a bench trial, at which the BWC administrator asserted in his opening statement that Bennett had to show both an injury proximately caused by the accident and that he had been on company business at the time of the injury. But Bennett presented his case only on his contention that his workers’ compensation claim was not barred by the coming-and-going rule. The BWC administrator then immediately moved for a directed verdict, arguing that because Bennett had failed to provide any evidence of a compensable medical condition or injury and failed to establish through expert medical evidence a causal connection between the accident and the injury, Bennett had not sustained his burden to establish every element of his workers’ cоmpensation claim.
{¶ 8} Bennett opposed the motion by arguing that the nature of the injuries was not ripe for litigation and that the sole question before the court was whether the injury occurred in the course of Bennett‘s employment. The trial court took the directed-verdict motion under advisement. The administrator then presented evidence that Bennett had been commuting to work when the accident occurred and therefore could not participate in the workers’ compensation fund. At the close of trial, the court ordered briefing on the issue of the scope of its review in the
{¶ 10} The Sixth District Court of Appeals affirmed. Bennett v. Goodremont‘s, Inc., 6th Dist. No. L-10–1185, 2011-Ohio-1264, 2011 WL 941322, ¶ 1. That court first reviewed precedent establishing that (1) a trial court in an
{¶ 11} The appellate court then applied that precedent to reject Bennett‘s claim that the trial court erred in placing the burden on him to establish any injury-relatedness or causation in his
{¶ 12} Bennett‘s alternative argument, that he did present and/or the court could infer sufficient evidence of injury and its causation to create a question of fact on the issues was also rejected by the appellate court. Id. at ¶ 20. It held that Bennett had “failed to claim a specific injury for which he was seeking a right to participate in the fund, or provide any expert medical testimony showing a proximate сausal relationship between any alleged injuries and his automobile accident.” Id. at ¶ 21.
{¶ 13} We accepted Bennett‘s appeal under our discretionary jurisdiction for review of a single proposition of law. Bennett v. Goodremont‘s, Inc., 129 Ohio
II. Analysis
{¶ 14} Under
{¶ 15} Bennett‘s essential argument is that the trial and appellate courts erred in their view of the scope of his
{¶ 16} Bennett‘s arguments in this regard, however, fail to take into account the uniquе features of an
{¶ 17} The starting points for our analysis are the long-established principles that an
{¶ 18} Furthermore, to establish the right to participate in the fund, a claimant has always had to show by a preponderance of the evidence both that the injury arose out of and in the course of employment and that a proximate causal relationship existed between the injury and the harm or disability. White Motor Corp. v. Moore, 48 Ohio St.2d 156, 357 N.E.2d 1069 (1976), paragraph one of the syllabus; Oswald v. Connor, 16 Ohio St.3d 38, 41-42, 476 N.E.2d 658 (1985). See Fox v. Indus. Comm., 162 Ohio St. 569, 125 N.E.2d 1 (1955), paragraph one of the syllabus.
{¶ 19} In Robinson v. B.O.C. Group, Gen. Motors Corp., 81 Ohio St.3d 361, 368, 691 N.E.2d 667 (1998),3 this court explained that an
{¶ 20} As especially significant to our inquiry, Robinson fully endorsed the following reasoning from Marcum v. Barry, 76 Ohio App.3d 536, 539-540, 602 N.E.2d 419 (10th Dist.1991), calling that analysis “particularly poignant“:
“Although labeled an appeal and commenced initially by the filing of a notice of appeal, the action in the common pleas court under
R.C. 4123.519 [now4123.512 ] seeking a redetermination of a decision of the Industrial Commission is not a traditional error proceeding[] * * *.R.C. 4123.519 [now4123.512 ] contemplates not only a full and complete de novo determination of both facts and law but also contemplates that such determination shall be predicated not upon the evidence adduced before the Industrial Commission but, instead, upon evidence adduced before the common pleas court as in any civil action, which may involve a jury trial if demanded. The proceedings are de novo both in the sense of receipt of evidence and determination. The common pleas court, or the jury if it be the factual determiner, makes the determination de novo without consideration of, and without deference to, the decision of the Industrial Commission.R.C. 4123.519 [now4123.512 ] contemplates a full de novo hearing and determination.* * *
“* * * With respect to an
R.C. 4123.519 [now4123.512 ] appeal, there are no words such as ‘review, affirm, modify, or reverse’ as are contained inR.C. 2505.02 , nor even the word ‘affirm’ or the words ‘reverse, vacate, or modify’ as set forth inR.C. 119.12 with respect to administrative appeals generally. Rather, the express language ofR.C. 4123.519 is that contained in division (C) [now section (D) ofR.C. 4123.512 ] that the court or jury shall ‘determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of the action.’ (Emphasis added.)” (Citations omitted.)
Robinson, 81 Ohio St.3d at 368, 691 N.E.2d 667.
{¶ 21} The specific issue before the Tenth District in Marcum was whether the entire case in an
{¶ 22} After setting forth the analysis quoted above in Robinson, the court in Marcum further concluded that the full and complete de novo nature of the appeal precludes a remand to the Industrial Commission in this situation:
[A] court of common pleas in an appeal from a decision of the Industrial Commission has no power to remand the cause to the Industrial Commission for further proceedings—the equivalent of a new trial before the
Industrial Commission. Nor is such power somehow conferred because the Industrial Commission applied the wrong rule of law in determining the matter upon its facts. There is a mandatory duty upon a court of common pleas to proceed to a final determination of the appealed issues, especially the right to participate in the Workers’ Compensation Fund upon the law and the evidence adduced before that court. Such duty cannot be avoided by remand to the Industrial Commission.
{¶ 23} Other appellate courts have consistently held that a remand to the Industrial Commission is not an option gеnerally available to the trial court in an
{¶ 24} Several treatises on Ohio law have recognized the force of these precedents. See 1 Philip Fulton, Ohio Workers’ Compensation Law, Section 12.6 (Rev.Ed.2012) (extensively quoting the decision in Marcum and describing it as “an informative and extensive discussion concerning the status of [a] de novo trial” to explain Marcum‘s holding “that the court of common pleas had no power to remand for a claim to produce the equivalent of a new trial before the Industrial Commission despite the Industrial Commission‘s application of the wrong rule of law in determining the matter upon its facts“); Jo Ann F. Wasil
{¶ 25} Bennett bases much of his argument on Ward, 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155. In Ward, we considered whether “the scope of an
{¶ 26} Ward involved a discrete situation in which a specific medical condition was administratively considered and the claimant then attempted to add new conditions in his
{¶ 27} Ward, which specifically recognized that “an
{¶ 28} If Bennett had prevailed at some level in the administrative proceedings on the question of his accident‘s occurring in the course of his employment, in order to establish his right to participate in the fund, he would have been required to administratively prove the injury-related and causation aspects of his claim at whatever stage in the administrative proceedings he received a ruling in his favor on the course-of-employment question. See Starkey v. Builders First-Source Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267, ¶ 15 (claimants “must submit a medical diagnosis of an injury at the administrative level to prevail” and must “establish a causal connection between the documented physical harm and the industrial injury for it to be compensable“).
{¶ 29} Bennett‘s arguments are based to a considerable degree on the contention that an
{¶ 30} An
III. Conclusion
{¶ 31} For all the above reasons, we determine that the trial court and court of appeals were correct in their analysis of the specifics of a claimant‘s burden in an
Judgment affirmed.
O‘CONNOR, C.J., and O‘DONNELL, FISCHER, and MCGEE BROWN, JJ., concur.
LANZINGER, J., not participating.
PFEIFER and LUNDBERG STRATTON, JJ., dissent.
PATRICK F. FISCHER, J., of the First Appellate District, sitting for LANZINGER, J.
PFEIFER, J., dissenting.
{¶ 32} This case had been fought for years through every level of the worker‘s compensation system, through the trial court on appeal, to the court of appeals,
{¶ 33} Finally, more than four years after Bennett‘s accident, the factual issue of whether the accident occurred when Bennett was working—or was merely on his way to work—was to be settled by the trial judge. But then came a “Gotcha” moment: after Bennett presented his evidence, counsel for appellee administrator, Bureau of Workers’ Compensation (“BWC“) moved for a directed verdict. He argued that Bennett had not proven an injury or that the accident was a direct and proximate cause of his injury. What had never been an issue suddenly became the deciding issue in the сase. The trial court did not rule on the motion immediately, but after posttrial briefing, ruled in the favor of the administrator.
{¶ 34} I would hold that the issue of Bennett‘s injury was conceded by his employer and the administrator, and based upon the trial court‘s holding that Bennett was indeed injured in the course of his employment, I would order this case back to the BWC for a determination of the extent of Bennett‘s injury.
{¶ 35} From the beginning and throughout this entire case, Bennett‘s injury has been conceded. In its answer to Bennett‘s petition/complaint, Goodremont‘s admitted that Bennett had been injured in the accident at issue. Paragraph four of Bennett‘s complaint reads: “As a result of the collision, Mr. Bennett suffered bodily injuries, required and requires medical treatment, has had a loss of income and has been disabled.”
{¶ 36} The answer of Goodremont‘s reads at paragraph four: “Goodremont‘s states that Mr. Bennett was injured on February 28, 2006, but otherwise denies the allegations in paragraph 4 of the Complaint for want of knowledge sufficient to form a belief as to the truth thereof.” (Emphasis added.)
{¶ 37} In a motion for summary judgment filed on July 20, 2007, the appellees admitted that Bennett had been injured. Whether Bennett was injured played no part at all in their motion for summary judgment. And they made a statement that would be repeated over and over again throughout the life of the case, acknowledging Bennett‘s injury:
{¶ 38} “At approximately 7:42 a.m. on February 28, 2006, Bennett was injured when his vehicle was rear-ended by another driver while Bennett was stopped at an on-ramp yield sign off of Central Ave. waiting to enter the on-ramp to Northbound I-475.”
{¶ 40} The appellees framed the issue as solely about the “coming and going” rule. “[T]he extent of Bennett‘s injuries is not at issue in this case * * *. Therefore, [those witnessеs] cannot possibly have any relevant information concerning the purely legal issue in this case—whether the motor vehicle accident at issue * * * occurred in the course of and arose from Bennett‘s employment at Goodremont‘s.”
{¶ 41} The appellees also made a familiar admission in that motion: “On February 28, 2006, Bennett was involved in a motor vehicle accident while driving his personal vehicle on his way from his home to Goodremont‘s Toledo office for a customer demonstration scheduled to take place that morning. (Mark Bennett Deposition Transcript, filed in this case on July 18, 2007, pp. 20-21.) Bennett was injured at 7:42 a.m. on February 28, 2006, when his vehicle was rear-ended by another driver while Bennett was stopped at an on-ramp yield sign off of Central Ave. waiting to enter the on-ramp to Northbound I-475. (id. pp. 19-20).”
{¶ 42} The appellees wrote that Bennett had already provided evidence of his injuries: “Bennett‘s responses to discovery requests served by undersigned counsel for Goodremont‘s, Inc. and by undersigned counsel for the Administrator of the BWC included detailed information and medical records concerning the extent of Bennett‘s injuries and the cost of related medical services allegedly resulting from those injuries.”
{¶ 43} The appellees asked for other documents and witnesses to be excluded: “Therefore, because medical records, medical expenses incurred, and the testimony of Bennett‘s relatives and former co-workers at a previous job are not relevant to the sole issue before this Court, all such testimony and documents should be excluded from trial under Ohio Rule of Evidence 402 [relevant evidence is generally admissible].” Does not requesting a ban on evidence of the extent of the injury constitute an admission that there is, in fact, an injury?
{¶ 44} The trial court never ruled on the motion in limine, and it was never withdrawn. But the trial court did grant appellees’ motion for summary judgment, deciding the issue entirely on the “coming and going” rule. Yet the court
{¶ 45} Bennett sought reversal of that summary judgment at the court of appeals and won. The court held:
On the basis of these facts, a reasonable factfinder might well conclude that Bennett‘s employment situs was non-fixed, in which case the coming-and-going rule would not apply to preclude recovery for Bennett. Because there remains a genuine issue of fact with respect to this issue, the trial court‘s granting of summary judgment on the basis of the coming-and-going rule was clearly inappropriate.
Bennett v. Goodremont‘s, Inc., 6th Dist. No. L-08-1193, 2009-Ohio-2920, 2009 WL 1719355, ¶ 20. The case was remanded to the trial court.
{¶ 46} In interrogatories filed with the court on February 18, 2010, appellees asked Bennett: “State with specificity the injury(ies) and/or medical conditions that are alleged as being compensable and are the subject of this appeal.” Bennett responded, “I received back and neck injuries resulting in surgery. I am presently totally disabled.”
{¶ 47} Finally, during the trial on April 16, 2010, the shocked counsel for the administrator realized that Bennett was never injured at all and moved for a directed verdict. Four good years of litigation wasted over a fellow who was never even hurt!
{¶ 48} What followed was a second trip to the appellate court and a trip to this court to battle over an elemental fact that everyone involved in this case actually agrees on: Bennett was hurt. The appellees should be irretrievably bound to the admissions they consistently made throughout this case, and this case should be over.
{¶ 49} In arriving at its conclusion that the judgment of the Sixth District Court of Appeals should be affirmed, the majority engages in a discussion of this court‘s decision in Robinson v. B.O.C. Group, Gen. Motors Corp., 81 Ohio St.3d 361, 368, 691 N.E.2d 667 (1998), and instruction it finds in the Tenth District Court of Appeals case of Marcum v. Barry, 76 Ohio App.3d 536, 539-540, 602 N.E.2d 419 (10th Dist.1991). Informative, but not useful in this matter. Neither party disputes that if Bennett had prevailed, this matter would necessarily be returned to the Industrial Commission and ultimately to the BWC for an administrative determination of the level of benefits and compensation appropri-
{¶ 50} The supposed de novo nature of the trial—“de novo” does not appear in
{¶ 51} This matter has been twice to a trial court and twice to the Sixth District Court of Appeals and now to this court, without any BWC administrative determination on the injuries—which still remains a prerequisite to any compensation award to Bennett. That was the exact argument advanced by the defendants to preclude injury and medical testimony on the
{¶ 52} The cases discussed in the majority opinion bear no relationship to the facts and procedural posture of Bennett‘s claim for compensation. The majority opinion allows the defendants here to set a “bear trap” for Bennett by ignoring the admissions contained throughout the litigation and in their motion in limine. Perhaps one should not be surprised that there arе employers and attorneys in this state that are comfortable with the legal subterfuge present in this case. It is quite a surprise that the attorney general and the BWC/Industrial Commission would not just go along for the ride, but actively participate. This is not just a case of justice delayed; it is most certainly a case of justice denied. I dissent.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Kennedy, Purdy, Hoeffel & Gernert, L.L.C., and Paul E. Hoeffel, for appellant.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, Elisabeth A. Long and Matthew P. Hampton, Deputy Solicitors, and Joshua W. Lanzinger, Assistant Attorney General, for appellee Administrator, Ohio Bureau of Workers’ Compensation.
THE APPENDIX TO JUSTICE PFEIFER‘S DISSENTING OPINION APPEARS ON THE FOLLOWING PAGES.
IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO
Mark A. Bennett, ) Case No. CI06-5864
Plaintiff-Appellant, ) Judge Charles J. Doneghy
v. )
) DEFENDANTS’ JOINT MOTION IN LIMINE
The Administrator of the Bureau of ) TO EXCLUDE IRRELEVANT MATTERS AT
Workers’ Compensation, et al., ) TRIAL
)
Defendants-Appellees. ) Roman Arce (0059887)
) James H. Irmen (0033697)
) Attorneys for Goodremont‘s, Inc.
) MARSHALL & MELHORN, LLC
) 420 Madison Ave., Suite 1100
) Toledo, OH 43604
) arce@marshall-melhorn.com
) (419) 254-4300
) (419) 254-4310 (Fax)
Defendants, Goodremont‘s, Inc, and the Administrator of the Bureau of Workers’ Compensation, by and through their respective counsel of record, hereby submit this Motion in Limine to exclude the admission and presentаtion of any evidence, including witness testimony and any and all documents, at trial (scheduled for September 19, 2007) concerning the extent of Plaintiff‘s injuries and the cost of related medical services resulting from the motor vehicle accident in which Plaintiff, Mark Bennett (hereafter, “Bennett“), was involved on February 28,
FACTS
On February 28, 2006, Bennett was involved in a motor vehicle accident while driving his personal vehicle on his way from his home to Goodremont‘s Toledo office for a customer demonstration scheduled to take place that morning. (Mark Bennett Deposition Transсript, filed in this case on July 18, 2007, pp. 20-21.) Bennett was injured at 7:42 a.m. on February 28, 2006, when his vehicle was rear-ended by another driver while Bennett was stopped at an on-ramp yield sign off of Central Ave. waiting to enter the on-ramp to Northbound I-475. (Id. pp. 19-20). The route Bennett took that morning was the normal route he took from his home in Swanton to Goodremont‘s Toledo office, and the 9:00 am. customer demonstration scheduled that morning was Bennett‘s first appointment of the day. (Id. pp. 20-21, 23).
On March 29, 2006, Bennett filed a workers’ compensation claim based on the motor vehicle accident injuries he sustained on February 28, 2006 while on his way to work, and by subsequent decisions of a District Hearing Officer, a Staff Hearing Officer, and the Industrial Commission of Ohio, Bennett‘s workers’ compensation claim was denied in its entirety. (See Bennett‘s Petition and Defendants’ Answers, per
In this appeal, pursuant to
Bennett‘s witness list, filed in this case on July 27, 2007, lists the following witnesses, among others, who Bennett intends to call to testify at the trial scheduled for September 19, 2007:
- Rick Haitian (Ricoh Sales Manager)
- Dave Nemer (Ricoh General Manager)
- Antoinette (Toni) Bennett (Bennett‘s wife)
- Kathy Bennett (Bennett‘s stepmother)
- Keith Bennett (Bennett‘s father)
- Connie Emahiser (Bennett‘s mother);
- Victoria Incorvaia (Bennett‘s sister-in-law)
- Joseph Iozzo (Bennett‘s brother-in-law)
- Michael Jozzo (Bennett‘s father-in-law)
- Priscilla Iozza (Bennett‘s mother-in-law)
- Adam Potts (Bennett‘s brother-in-law)
- Kim Potts (Bennett‘s stepsister)
Bennett‘s responses to discovery requests served by undersigned counsel for Goodremont‘s, Inc. and by undersigned counsel for the Administrator of the BWC included detailed information and medical records concerning the extent of Bennett‘s injuries and the cost of related medical services allegedly resulting from those injuries.
ARGUMENT
Defendants believe that Bennett‘s family members, listed above, intend to testify as to the extent of Bennett‘s injuries. However, the extent of Bennett‘s injuries is not at issue in
In addition, two of the witnesses listed above are apparently employees of one of Bennett‘s former employers, Ricoh copier company, and they too cannot possibly have any relevant information concerning the legal issue in this case.
Courts have broad discretion in ruling on the admissibility of evidence, and the granting of a motion in limine rests within the sound discretion of the trial court. “As related to trial, a motion in limine is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury.” Riverside Methodist Hosp. Ass‘n of Ohio v. Guthrie (1982), 3 Ohio App. 3d 308, 310. Motions in limine serve the interest of judicial economy, the interest of counsel, and the interest of the parties by helping to reduce the possibility of injecting error or prejudice into the proceedings. State v. Grubb (1986), 28 Ohio St. 3d 199, 201.
Therefore, in this appeal pursuant to
Therefore, because medical records, medical expenses incurred, and the testimony of Bennett‘s relatives and former co-workers at a previous job are not relevant to the sole issue before this Court, all such testimony and documents should be excluded from trial under
In addition,
Therefore, under both Evidence Rules 402 and 403, this Court should exclude all proffered testimony and documents concerning the extent of Bеnnett‘s injuries and alleged disability from the trial in this case.
Respectfully Submitted,
Roman Arce
Roman Arce
Attorney for Defendant, Goodremont‘s, Inc.
Joshua W. Lanzinger by Roman Arce
Joshua W. Lanzinger
Attorney for Defendant, Administrator of the Bureau of Workers’ Compensation
CERTIFICATE OF SERVICE
A copy of the foregoing Joint Motion in Limine was sent by First Class U.S. mail postage prepaid this 12 day of September, 2007 to counsel for Plaintiff-Appellant, Paul E. Hoeffel, Esq., KENNEDY, PURDY, HOEFFEL & GERNERT, LLC, 111 West Rensselaer Street, P.O. Box 191, Bucyrus, Ohio 44820, and was also sent to counsel for Defendant-Appellee, Joshua W. Lanzinger, Assistant Attorney General, One Government Center, Suite 1340, Toledo, Ohio 43604-2261.
Roman Arce
Attorney for Defendant Goodremont‘s, Inc.