Kimbеrly Ellis, Plaintiff-Appellant, v. Columbus Developmental Center and Stephen Buehrer, Administrator Bureau of Workers’ Compensation, Defendants-Appellees.
No. 17AP-384 (C.P.C. No. 15CV-9755)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 13, 2018
2018-Ohio-933
DORRIAN, J.
(REGULAR CALENDAR)
On brief: Michael DeWine, Attorney General, and Shaun P. Omen, for appellee Columbus Developmental Center. Argued: Michael J. Roche.
On brief: Michael DeWine, Attorney General, and Nathan P. Franzen, for appellee Administrator, Ohio Bureau of Workers’ Compensation. Argued: Nathan P. Franzen.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
Rendered on March 13, 2018
DORRIAN, J.
{¶ 1} Plaintiff-apрellant, Kimberly Ellis, appeals from a judgment of the Franklin County Court of Common Pleas denying her claims for workers’ compensation pursuant to the court‘s ruling on a motion for directed verdict filed by defendant-appellee Columbus Develоpmental Center (“Columbus Developmental“) as to one claim and pursuant to jury verdicts as to Ellis‘s two other claims. For the reasons that follow, we reverse in part and affirm in part.
{¶ 2} Ellis suffered an injury on October 29, 2014 in the course of her emрloyment as a licensed practical nurse at Columbus Developmental. She submitted a claim to defendant-appellee Ohio Bureau of Workers’ Compensation (“BWC“), which was allowed for sprain and strain injuries. Ellis subsequently requested rеcognition of additional claims for: (1) lumbar disc herniation L2-3, (2) lumbar disc herniation L5-S1, and (3) lumbar radiculitis L4-5. A BWC district hearing officer denied the additional claims. Ellis appealed and a BWC staff hearing officer modified the district hearing officer‘s order, but сontinued the denial of Ellis‘s additional claims. Ellis appealed to the Industrial Commission of Ohio (“commission“), which denied her appeal and issued a final order denying her additional claims.
{¶ 3} Pursuant to
II. Assignment of Error
{¶ 4} Ellis appeals and assigns the following single assignment of error for our review:
The trial court erred in granting Defendants’ Motion for Direсted Verdict finding that lumbar radiculitis at L4-L5 was a pain complaint and not a condition or injury for which Plaintiff could participate in the benefits of the Ohio Workers’ Compensation Fund.
III. Discussion
{¶ 5} In her sole assignment of error, Ellis claims the trial court erred by grаnting Columbus Developmental‘s motion for directed verdict on her claim for lumbar radiculitis at L4-5. Pursuant to
{¶ 6} Under the workers’ compensation system, subject to certain exceptions, an employee who is injured or contracts an oсcupational disease in the course of employment is entitled to compensation for loss sustained due to that injury or occupational disease.
Q. And what did the EMG demonstrate?
A. It demonstrated a motor neuron deficit at L4-L5, which would be associated with an L5 disc herniation.
* * *
Q. So based on that, did that lead you to any conclusions regarding whether or not she had a radiculopathy?
A. Yeah.
It seems pretty cut and dry to me at the time that it was nerve pain coming from that disc area.
(Zimpfer Depo. at 16-17.) Citing this testimony, along with this court‘s decision in Edney and the decision of the Fifth District Court of Appeals in Foor v. Rockwell Internatl., 5th Dist. No. 92 CA 109 (Aug. 10, 1993), the trial court held that lumbar radiculitis was not an allowable condition under the workers’ compensation system.
{¶ 7} On appeal, Ellis argues the trial court failed to properly apply the test for a motion for directed verdict and disregarded testimony from Dr. Zimpfer indicating that Ellis‘s lumbar radiculitis was a conditiоn and not merely a pain complaint or a symptom of some other injury. Specifically, Ellis cites the following testimony:
Q. Doctor, once you had this information and you had treated Miss Ellis, were you able to reach a diagnosis of her сondition resulting from the October 29th, 2014, injury?
A. Yeah.
In my medical opinion at the time it was, uhm, a noted diagnosis of a L2-L3 disc herniation, a substantial aggravation of her old L5-S1 disc herniation, and the new lumbar radiculitis.
* * * Q. Okay. And on January 12th, 2015, did you actually indicate your opinion you had at that time?
Can you look at the discussion area and tell us what you found.
A. Yeah.
And basically a discussion regarding the MRI and the NCV/EMG, stating, you know, that the injury resulted in an L2-L3 disc herniation, as well as an aggravation of the L5-S1 disc herniation, and the lumbar radiculitis at the L4-L5 nerve root.
Q. Can you tell us what you mean when you say in your report that her left leg radicular complaint is L2-3 disc herniation were absent prior to the work injury that occurred on 10/29/14, in regards to the L5-S1 herniation it is my medical opinion that thе work injury substantially aggravated any pre-existing condition?
A. Yeah.
Q. Can you tell us what you mean by that?
A. What I mean by that is her lower back pain was worsened by the injury – or her radicular lower back pain was worsened, there was a new condition at the L2-L3 disc herniation, and then a new condition of the lumbar radiculitis that she did not have previous to injury.
* * *
Q. I‘d like to ask you, sir, do you have an opinion based upon a reasonable degree of chiropractic medical certainty and probability as to whether therе is a direct and causal relationship between Plaintiffs’ work injury of 10/29/14, and there is three different conditions, so I‘ll – and the condition one, herniated disc of L2-3, two, substantial aggravation L5-S1 herniated disc, three, lumbar radiculitis at L4-5, do you have an oрinion as to the relationship?
* * *
A. Yeah.
With a reasonable degree of chiropractice [sic] certainty, medical certainty, I believe that the L2-L3 disc herniation was caused directly and causally related to the injury, as well as the substаntial aggravation of L5-S1 and the L lumbar radiculitis.
(Zimpfer Depo. at 26, 30-32, 41-42.)
{¶ 8} In Edney, this court affirmed a grant of summary judgment in favor of an employer on a claim for compensation for unspecified chest pain. The court found the claimant “made no showing that his chest pain was an injury, rather than a symptom of some other injury or condition.” (Emphasis added.) Edney at ¶ 16. Thus, there was no indication that the chest pain constituted a compensable injury. Id. Similarly, in Foor, the Fifth District Court of Appeals affirmed a grant of summary judgment in favor of an employer on a claim for compensation for bilateral radiculopathy. Foor. The court concluded only one of the claimant‘s two medical experts substantiated his claim of bilateral radiculopathy and that expert stated the term referred to pain was a symptom rather than a condition. Thus, the court found that reasonable minds could only conclude that the claimant‘s bilateral radiculopathy was a symptom of a previously allowed cоndition, not a separate injury or condition in and of itself.
{¶ 9} Unlike the evidence in Edney and Foor, in the present case Dr. Zimpfer‘s testimony was equivocal with respect to whether Ellis‘s lumbar radiculitis constituted a symptom of some other underlying condition or a stand-alone cоndition itself. The portions of Dr. Zimpfer‘s testimony cited by the trial court in granting the motion for directed verdict indicated that Ellis‘s lumbar radiculitis was a pain symptom associated with a disc herniation. By contrast, other portions of Dr. Zimpfer‘s testimony, сited by Ellis on appeal and quoted above, indicated his opinion that the lumbar radiculitis was a unique condition, distinct from the other herniated disc conditions. In granting a directed verdict in favor of Columbus Developmental, it appears the trial court weighed the credibility of these divergent portions of Dr. Zimpfer‘s testimony. However, when considering a motion for directed verdict, “if the evidence is conflicting on a particular issue or a ‘combination of circumstances exists requiring a determination as to the credibility of witnesses in order to deduce the true facts’ relative to a particular issue, the ultimate resolution of the issue is solely within the province of the jury and the motion must be denied.” Russi v. Brentlinger Ents., 10th Dist. No. 10AP-1143, 2011-Ohio-4764, ¶ 12, quoting Posin v. A.B.C. Motor CourtHotel, Inc., 45 Ohio St.2d 271, 276 (1976). As explаined above, the reasonable minds test “requires the court to discern only whether there exists any evidence of substantive probative value that favors the position of the nonmoving party.” (Emphasis added.) Goodyear Tire & Rubber Co. at ¶ 3. In order to grant a directed vеrdict in favor of Columbus Developmental, it would be necessary to find that reasonable minds could come to only one conclusion, which was adverse to Ellis. Mindful of this standard, based on our de novo review of the evidence presented in the triаl court, we conclude the trial court erred by concluding Columbus Developmental was entitled to a directed verdict. Although Dr. Zimpfer‘s testimony was mixed, portions of that testimony were sufficient to constitute some evidence of substantive probative value supporting Ellis‘s lumbar radiculitis claim.
{¶ 10} Accordingly, we sustain Ellis‘s sole assignment of error.
IV. Conclusion
{¶ 11} For the foregoing reasons, we sustain Ellis‘s sole assignment of error and reverse the portion of the judgment of the Franklin County Court of Common Pleas granting a directed verdict in favor of Columbus Developmental on Ellis‘s claim for lumbar radiculitis. Because Ellis has not challenged the remainder of the judgment on appeal, we affirm the portions of the judgment denying Ellis‘s claims for lumbar disc herniаtion at L2-3 or substantial aggravation of lumbar disc herniation at L5-S1 pursuant to the jury‘s verdicts on those claims. We remand the matter to that court for further proceedings consistent with law and this decision.
Judgment affirmed in part, reversed in part; and cause remanded.
BROWN, P.J., and LUPER SCHUSTER, J., concur.