{¶ 2} The record indicates that Davidson was injured on September 30, 2002, during the course of his employment with Appellee, Behr Dayton Thermal Products, LLC ("Behr"). A forklift struck a cart that Davidson was pushing, which caused the cart to throw Davidson to the ground and injure his head and right knee. As a result of the accident, Davidson filed a claim for benefits with Appellee, Ohio Bureau of Workers' Compensation ("BWC"). Davidson's claim was allowed for the conditions of right contusion of knee and contusion of scalp.
{¶ 3} On February 25, 2003, Davidson filed a motion to amend his claim with the BWC and include the condition of lumbar sprain. Pursuant to the procedures established in R.C.
{¶ 4} On May 28, 2004, Davidson filed another motion to amend his claim with the BWC, attempting benefits coverage for the additional conditions of lateral tibial plateau defect right knee and aggravation of pre-existing chondral defect of the middle patella facet *3 right knee. Again, this motion was denied by the BWC and the commission. Consequently, Davidson filed a notice of appeal and complaint in the common pleas court seeking coverage for these injuries.
{¶ 5} Both cases were consolidated in the common pleas court, and a jury trial before a magistrate was scheduled for February 6, 2006. Davidson submitted the following proposed jury instruction:
{¶ 6} "There is no question between the parties that Clifford Davidson did sustain an injury in the course of and arising out of his employment with Behr Dayton Thermal Products on September 30, 2002. He has already been found to be entitled to participate in the Workers' Compensation fund in claim no. 02-464993 for the conditions of `contusion of the right knee and contusion of scalp (head)' as a result of that injury. The issues for you to decide is [sic] whether the additional conditions of `aggravation of pre-existing lumbar sprain', and `right knee chondral defect of the lateral tibial plateau' and `aggravation of pre-existing right knee chondral defect of the middle patella facet' also occurred as a direct and proximate result of his injury in the course of and arising out of his employment with Behr Dayton Thermal Products on September 30, 2002."
{¶ 7} Davidson also submitted the following proposed verdict form:
{¶ 8} "We, the jury, find that the Plaintiff, Clifford Davidson, ___ (is or is not) entitled to additionally participate in workers' compensation fund for the condition of `aggravation of pre-existing lumbar sprain' in the claim # 02-464993."
{¶ 9} The magistrate refused to adopt Davidson's proposed jury instruction and verdict form. Upon completion of the trial, the jury returned a verdict finding that Davidson was entitled to participate in the Ohio Workers' Compensation Fund for the conditions of *4 lateral tibial plateau chondral defect right knee and aggravation of pre-existing chondral defect of middle patella facet right knee arising out of his injury on September 30, 2002. However, the jury also returned a verdict finding that Davidson was not entitled to benefits for the condition of lumbar sprain. A judgment entry was filed on July 13, 2006, ordering that Davidson be allowed to participate in the Ohio Workers' Compensation Fund for the conditions of lateral tibial plateau chondral defect right knee and aggravation of pre-existing chondral defect of middle patella facet right knee, but not for the condition of lumbar sprain.
{¶ 10} Davidson now appeals the trial court's judgment and presents one issue for review, which we shall consider as his single assignment of error: "[Whether] the trial court err[ed] to the prejudice of the appellant by failing to adopt his proposed jury instruction and verdict form for an aggravation of a pre-existing lumbar sprain."
{¶ 12} Upon review of the record, we find that the trial court did not abuse its discretion in refusing to adopt Davidson's proposed jury instruction and verdict form. Aggravation of a pre-existing condition of lumbar sprain is an additional condition that should have been addressed at the administrative level preceding Davidson's appeal to the court of common pleas. Accordingly, the judgment of the trial court will be affirmed.
{¶ 14} In support of his argument, Davidson cites to Robinson v. AT T Network Systems, Franklin App. No. 02AP-807,
{¶ 15} Approximately three months later, the employee filed another motion to amend his compensation claim, seeking to add aggravation of pre-existing DDD at L4-5 and L5-S1. Id. at ¶ 5. A district hearing officer of the commission allowed the amendment, and this decision was affirmed by a staff hearing officer. Id. The employer appealed the decision to the commission, who refused to take further action. Id. Consequently, the employer appealed the decision to the common pleas court pursuant to R.C.
{¶ 16} The employee responded by filing a complaint demanding summary judgment against the employer and requesting permission to participate in the Workers' Compensation Fund for the aggravation of pre-existing DDD. Id. The employer, also, moved for summary judgment, asserting that the employee's claim seeking coverage for pre-existing DDD was barred by res judicata because he failed to file an appeal with the common pleas court following the commission's denial of his motion to amend. Id. The trial court found that the commission's decision was a non-appealable order and dismissed the appeal for lack of subject matter jurisdiction. Id. at ¶ 7. The court of appeals disagreed and remanded the case for further consideration. Id.
{¶ 17} On remand, the trial court rendered summary judgment in favor of the *7 employee. Id. at ¶ 9. The court found that the issues pertaining to each of the employee's workers' compensation claims were "not sufficiently identical to invoke res judicata" because "the facts necessary to establish a direct causation injury differed from those necessary to establish an aggravation injury." Id.
{¶ 18} The Tenth District Court of Appeals reversed the trial court's decision, finding that the employee forfeited his opportunity to litigate the additional allowance of pre-existing DDD because he failed to appeal the commission's decision to the common pleas court. Id. at ¶ 19. Had he done so, the court stated that the employee would have been permitted to present an alternative theory of causation: "(1) the accident directly caused DDD at L4-5, L5-S1, or (2) the accident aggravated his pre-existing DDD at L4-5, L5-S1." Id. at ¶ 17.
{¶ 19} In reaching its decision, the court focused on what it termed the "unique nature of an R.C.
{¶ 20} The Ohio Supreme Court addressed a different employee's claim made pursuant to Robinson in Ward v. Kroger Co.,
{¶ 21} The jury found against the employee for the originally claimed condition, but found in his favor for the amended claims of aggravation of pre-existing degenerative joint disease and aggravation of pre-existing osteoarthritis. Id. at ¶ 3. The employer appealed.
{¶ 22} The court of appeals reversed the trial court's judgment, finding that the scope of a trial court in an appeal under R.C.
{¶ 23} Upon a discretionary appeal to the Ohio Supreme Court, the employee argued that, under the holding in Robinson, a claimant was required to "`litigate all issues relating to the same body part in one proceeding or trial.'" Id. at ¶ 13. Thus, the employee asserted that it was imperative under Robinson to include his claim for aggravation conditions in his appeal to the common pleas court. Id.
{¶ 24} The Supreme Court disagreed. The court distinguished the holding in Robinson by noting that the claimant there sought allowance to add an aggravation of the same condition as he had originally claimed was directly caused by his accident. Id. at ¶ 14. In other words, the claimant in Robinson sought "the administrative allowance of an *9 additional claim for the same injury to the same body part, but on a different theory." Id. In Ward, on the other hand, the employee sought to participate in the Workers' Compensation Fund under his original claim for a condition different from the one added on appeal. Id. at ¶ 15. According to the court, because Robinson was inapplicable, the employee would be permitted to amend his original workers' compensation claim at the administrative level to include the additional conditions. Id.
{¶ 25} The Supreme Court utilized its decision in Ward to address the nature of an appeal brought under R.C.
{¶ 26} "Allowing considerations of the right to participate for additional conditions to originate at the judicial level is inconsistent with this statutory scheme because it usurps the commission's authority as the initial adjudicator of claims and casts the common pleas court in the role of claims processor. * * * The grant or denial of the right to participate for *10 one injury or condition does not preclude a subsequent claim for participation in the fund based on another injury or condition arising out of the same industrial accident. But any such claim must be initiated before the Industrial Commission." Id. at ¶ 9-10.
{¶ 27} In the appeal before this court, the issue is whether Davidson's workers' compensation claim for lumbar sprain by way of direct causation must necessarily include a claim for aggravation of lumbar sprain for purposes of either R.C.
{¶ 28} Davidson urges this court to presume that his claim to participate in the Workers' Compensation Fund for lumbar sprain inherently includes a claim for aggravation of pre-existing lumbar sprain. Therefore, adjudication of the request for one condition would equate to an adjudication for the other condition. We disagree. Intrinsically, these are two separate conditions. To demonstrate that a direct injury is the result of the *11
accident raising the need to participate in the Workers' Compensation Fund, the evidence must show that a direct or proximate causal relationship existed between the claimant's accidental injury and his or her harm. Wasil et al., Ohio Workers' Compensation Law (2005) 445, Section 7:57. This is different from the evidence showing that a pre-existing condition has been aggravated. In such a case, "`the key is whether the aggravation had an impact on a person's bodily functions or affected an individual's ability to function or work.'" Gower v.Conrad (2001),
{¶ 29} The procedure for appeals under R.C.
{¶ 30} In conclusion, we find that the trial court did not abuse its discretion in refusing to adopt Davidson's proposed jury instruction and verdict form. The proposed jury *12 instruction was not a correct statement of the law, where the additional claim for aggravation of the pre-existing condition of lumbar sprain was improperly raised before the trial court. Such claim for an additional allowance must be considered at the administrative level. Having found that the trial court did not abuse its discretion, it is not necessary to determine whether Davidson was prejudiced by the trial court's refusal to submit the proposed instruction. Accordingly, Davidson's assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed.
FAIN and GRADY, JJ., concur.