JANET LEASURE, Plaintiff-Appellant v. UVMC, et al., Defendants-Appellees
C.A. CASE NO. 2016-CA-21
T.C. NO. 14-CV-3
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
August 11, 2017
2017-Ohio-7196
DONOVAN, J.
(Civil Appeal from Common Pleas Court)
Attorney for Plaintiff-Appellant
DOUGLAS S. JENKS, Atty. Reg. No. 0079647 and GARY W. AUMAN, Atty. Reg. No. 0010414, 110 N. Main Street, Suite 1000, Dayton, Ohio 45402
Attorneys for Defendant-Appellee Upper Valley Medical Center
ERIC J. TARBOX, Assistant Attorney General, Atty. Reg. No. 0041459, 150 E. Gay Street, 22nd Floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee Administrator, Bureаu of Workers’ Compensation
O P I N I O N
DONOVAN, J.
{¶ 1} Plaintiff-appellant Janet J. Leasure appeals a decision of the Miami County
{¶ 2} On February 1, 1982, Leasure slipped and fell while walking to her housekeeping job at Dettmer Hospital, n/k/a/ Upper Vаlley Medical Center. Leasure was thirty years old at the time of her fall. As a result of the fall, Leasure filed a claim for worker‘s compensation and was subsequently awarded benefits for her injuries. Over the years, the following conditions have been allowed as a result of Leasure‘s claim, to wit: right hand sprain; partial tear of the medial meniscus, right leg; right ankle sprain; lumbosacral sprain; loose body, right knee; osteoarthritis, right lower leg; degenerative joint disease, right knee; chronic hypertrophic synovitis, right leg; mechanical loosening of prosthetic joint, right knee; piriformis syndrome; and posterior superior iliac spine syndrome. Additionally, Leаsure had arthroscopic surgery to repair her right meniscus on January 9, 1997. On June 6, 1998, Leasure had total knee replacement surgery on her right knee. Thereafter, Leasure had surgeries on February 28, 2007, and February 25, 2014, related to her right knee replacement.
{¶ 3} In addition to her injuries from the fall in 1982, Leasure has developed several health problems unrelated to her worker‘s compensation claim. These conditions include thyroid disease, diabetes, carpal tunnel syndrome, a pinched nerve radiating pain into her shoulder, and polyneuropathy (a condition related to her diabetes). Leasure also
{¶ 4} On January 6, 2014, Leasure filed a complaint against Dettmer Hospital (n/k/a Upper Valley Medical Center) and the Bureau of Worker‘s Compensation (BWC) in which she sought benefits for the additional condition of lumbar spondylosis. Specifically, Leasure argued that the injuries that she sustained in the 1982 fall cаused the condition of lumbar spondylosis with which she has been currently diagnosed. Defense expert Doctor Paul Hogya testified that lumbar spondylosis is a deteriorating condition of the lower back involving degenerative disc disease and arthritis. The discs that separate the lumbar vertebrae flatten and bulge out laterally over time, and the joints that connect the vertebrae become arthritic. Dr. Hogya testified that approximately eighty percent of everyone over the age of forty has lumbar spondylosis. Both Dr. Hogya and Leasure‘s expert, Dr. Jonathan Paley, testified that lumber spondylosis is primarily an age-related condition. In addition to her age, Dr. Hogya testified that he believes that Leasure‘s obesity directly contributes to her lumbar spondylosis. We note that Dr. Paley testified that he is an orthopedic surgeon who has been treating Leasure since
{¶ 5} Leasure‘s medical records establish that her lumbar spondylosis developed slowly over several years. When Leasure was in her early thirties, lower back x-rays were taken in 1982 and 1985 which indicated no lumbar spondylosis present. However, in 1997, when Leasure was forty-six years old, x-rays taken of her lower back indicated minimal spondylosis in two lumbar levels. Dr. Paley and Dr. Hogya both testified that by the time Leasure was fifty-eight years old in 2009, her spondylоsis had spread throughout the entirety of the lumbar area of her spine.
{¶ 6} The BWC filed an answer to Leasure‘s complaint on February 4, 2014, in which it stated that she should not be entitled to receive worker‘s compensation benefits for lumbar spondylosis. On February 13, 2014, Upper Valley filed its answer also seeking denial of Leasure‘s claim for benefits. As previously stated, a bench trial was held on January 30, 2015, after which all parties were permitted to file post-trial memoranda in support of their respective positions. On September 29, 2016, the trial court issued a decision denying Leasure‘s request to add lumbar spondylosis to her 1982 worker‘s compensation claim.
{¶ 7} It is from this judgment that Leasure now appeals.
{¶ 8} Leasure‘s sole assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRED IN FINDING LEASURE WAS NOT ENTITLED TO ADDITIONALLY PARTICIPATE FOR THE ADDITIONAL CONDITION OF LUMBAR SPONDYLOSIS BY WAY OF AGGRAVATION ON A FLOW-THROUGH BASIS.”
{¶ 10} In hеr sole assignment of error, Leasure contends that the trial court erred when it denied her request to add lumbar spondylosis to her 1982 worker‘s compensation
{¶ 11} Workers’ compensation statutes must be liberally construed in favor of the employee.
{¶ 12} “The ‘rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use thesе observations in weighing the credibility of the proffered testimony.’ ” In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33, quoting from Seasons Coal Co., 10 Ohio St.3d at 80.
{¶ 13} “In order to establish a right to workers’ compensation benefits for harm or death arising from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence that a direct and proximate causal relationship existed between his injury and the harm or death. * * * ‘Proximate cause’ is a happening or event which as a natural and continuous sequence produces an injury without which the result would not have occurred.” Randall v. Mihm, 84 Ohio App.3d 402, 406, 616 N.E.2d 1171 (2d Dist. 1992).
{¶ 14} It is undisputed that Leasure has lumbar spondylosis. In order to succeed on her workers’ compensation claim to pаrticipate for the additional condition of lumbar spondylosis, however, Leasure had to demonstrate by a preponderance of the evidence that she suffered from the additional condition and that it had been proximately caused by her workplace injury, i.e., the slip and fall in February of 1982.
{¶ 15} “Except as to quеstions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express suсh opinion.” Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970), syllabus. “When expert medical testimony is required in a case to establish a causal connection between the industrial injury and a subsequent physical condition, the proof must establish a probability and not a mere possibility of such causal connection.” Randall v. Mihm, 84 Ohio App.3d 402, 406, 616 N.E.2d 1171 (2d Dist.1992). “At a minimum, the trier of fact must be provided with evidence thаt an employee‘s employment-related activity ‘more
{¶ 16} On appeal, Leasure argues that the trial court erred when it denied her request to add lumbar spondylosis to her 1982 worker‘s compensation claim. At trial, Leasure‘s expert, Dr. Paley, testified that her lumbar spondylosis was caused by a “flow-through” condition from her 1982 injury. A “flow-through” injury is generally defined as an injury that subsequently develops in a body part not originally alleged under
{¶ 17} However, Dr. Hogya testified that medical research has not established a causal link between a limp and the onset of lumbаr spondylosis. Dr. Hogya further testified as follows during his direct examination:
Q: *** And what is your opinion about whether or not the Plaintiff has sustained lumbar spondylosis as a result of a slip and fall at work on February 1, 1982?
A: My opinion is that the lumbar spondylosis was not the result of that injury, February 1, 1982.
Q: She has lumbar spondylosis, correct?
A: Correct.
Q: Okay. Why don‘t you just walk us through your analysis and explain to the Court how it is that you arrived at that opinion.
A: Well, it‘s 28 years after the injury and she‘s 59 years old and significantly obese. So, those findings are what you would see, it‘s just natural degeneration or aging of the spine over that many years. And then the other issue was this – if it was flow-through or, again, like I said, a secondary effect to her primary injuries.
Q: Uh-huh.
A: And, I mean, that goes to what I was mentioning аbout the hip.
Q: Okay.
A: So, she did have changes within that hip and there were diagnoses for that, as part of the [original 1982] injury.
Q: Uh-huh.
A: But there was no evidence that the spinal changes [lumbar spondylosis] were a result of that. Which we covered that to some degree. The other factor is that she really hadn‘t done anything that physical since ‘83, in tеrms of work. So, if you‘re postulating that it was the stress from her underlying limping on [the right] side, we‘d have to establish what the particular stress was as compared to just natural degeneration time. So, if you‘re not an active person, you‘re not working over that many of years [sic], just routine activities of daily living, which were still limited, it‘s hard to postulatе that that, in and of itself, caused that on flow-through basis.
Q: Let me just make sure I ask this question directly. Did Janet Leasure‘s limp, on her right leg, cause her to develop her lumbar spondylosis?
A: In my opinion, no.
{¶ 18} Conversely, Dr. Paley did not explain how the stresses or forces from a limp could cause lumbar spondylosis. Dr. Paley merely concluded that Leasure has “developed these problems with her right side and that translates to right-sided low back pain.” Rather than explain how he reached this conclusion, Dr. Paley simply asserted that there is a causal relationship between Leasure‘s limp and her lumbar spondylosis. As noted by the trial court in its decision Dr. Paley failed to explain how the stress or forces from a limp could cause lumber spondylosis. At trial, Dr. Paley testified as follows regarding the causal relationship between Leasure‘s right-leg limp and her lumbar spondylosis:
I don‘t think that‘s purely serendipitous that we get an MRI [Magnetic Resonance Imaging] of somebody who has injured their right side convincingly, has had multiple knee surgeries on the right side, and now we find that she has right low back arthritis [lumber spondylosis]. So I don‘t think that there‘s anything just happenstance about that. I think it‘s all part and parcel of the same disease process stemming from the same injury from ‘82.
{¶ 19} Significantly, when treating Leasure in 2003, Dr. Paley previously suggested that her lumbar spondylosis was not a flow-through сondition caused by her right-leg limp. Rather, Dr. Paley indicated in a 2003 report that he believed Leasure‘s lumbar spondylosis was caused by aggravation of a pre-existing problem, and alternatively that it was directly caused by the 1982 slip and fall. Not only are aggravation of a pre-existing condition and direct causation mutually еxclusive theories, but both theories also contradict his current theory that Leasure‘s lumbar spondylosis is a flow-through condition caused by her right-leg limp. More importantly, x-rays taken just after the date of injury in 1982 establish that Leasure did not have lumbar spondylosis at that time. Furthermore, the trial court found Dr. Paley‘s flow-through theory of causation to be unpersuasive.
{¶ 20} We also note that medical records entered in to evidence at trial establish that Leasure did not complain of back pain from 2004 through 2009. In late July of 2009, Dr. Paley, who was treating Leasure at the time, diagnosed her with piriformis syndrome, a condition which causes sciatic pain, that is, pain in the lowеr back region. At the same time, Dr. Paley also diagnosed her posterior superior iliac spine tendonitis, a condition
{¶ 21} Lastly, Leasure argues that she should be entitled to worker‘s compensation benefits for lumbar spondylosis under the theory of dual causation. “It is a well-established principle of tort law that an injury may have more than one proximate cause. See Prosser and Keeton, Law of Torts (5 Ed.1984) 266-268, Section 41; 2 Restatement of the Law 2d, Torts (1965) 432, Section 433; 1B Larson, Law of Workers’ Compensation (1991) 7-612 to 7-941, Section 41.64; 1 Ohio Jury Instructions (1988) 183, Section 11.10 (‘There may be more than one proximate cause.‘). Ohio case law also supports this fundamental tenet of tort law: ‘In Ohio, when two factors combine to produce damage or illness, each is a proximate cause.’ ” Murphy v. Carrollton Manufacturing Company, 61 Ohio St.3d 585, 587-588, 575 N.E.2d 828 (1991); Plaster v. Elbeco, Inc., 3d Dist. Crawford No. 3-07-06, 2007-Ohio-5623, ¶ 22 (dual causation requires evidence of two or more proximate causes of injury).
{¶ 22} Leasure argued that her lumbar spondylosis is a flow-through condition caused by her right-leg limp which was caused by her fall in 1982. Dual сausation would only be applicable in the instant case if Leasure established that her non-work related health problems associated with her obesity and advanced age as well as her 1982 work injury were both separate and independent causes of her lumbar spondylosis. At trial, evidence was adduced which suрported only two alternative theories of causation for Leasure‘s lumbar spondylosis, to wit: flow-through or natural deterioration. The theory
{¶ 23} Upon review, it is clear that the trial court found Dr. Hogya‘s testimony regarding natural deterioration more credible than Dr. Paley‘s flow-through analysis as a basis for Leasure‘s lumbar spondylosis. Therefore, we conclude that the trial court‘s decision denying Leasure‘s request to add lumbar spondylosis to her 1982 worker‘s compensation claim was not against the manifest weight of the evidence.
{¶ 24} Leasure‘s sole assignment of error is overruled.
{¶ 25} Leasure‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Dennis A. Becker
Douglas S. Jenks
Gary W. Auman
Eric J. Tarbox
Hon. Christopher Gee