537 N.E.2d 713 | Ohio Ct. App. | 1988
Lorenz Schill ("appellee") was employed at General Motors Corporation's ("appellant's") automobile assembly plant. On September 26, 1979, in the course of performing his job duties, the vehicle appellee was driving was struck broadside by an automobile, causing the appellee to be thrown to the floor where he struck his back and head. Appellee was first taken to the plant dispensary for a cursory examination and later taken to Youngstown Osteopathic Hospital where he was treated by Dr. Shimon Zuckerman. Thereafter, appellee engaged Dr. Donald Surridge as his treating physician.
Appellee's Bureau of Workers' Compensation ("BWC") claim was originally allowed for cervical, dorsal, lumbar and sacroiliac strain and sprain. In 1983, appellee sought to have his claim further allowed for the following eight conditions:
1. Somatic dysfunction of low back;
2. Somatic dysfunction of left hip;
3. Somatic dysfunction of pelvis;
4. Left chronic sciatic neuralgia of low back; *193
5. Chronic spasm of left lumbar spinal mass;
6. Aggravation of osteoarthritis of low back;
7. Aggravation of degenerative disc disease with marked degenerative arthritis L5-S1;
8. Paravertebral myofascitis at L-4.
Conditions 6 and 7 preexisted the work accident and allegedly were aggravated by it.
Two issues for jury determination involved the medical questions:
"(A) Are injuries Nos. 1 through 5 medical diagnoses of adverse bodily conditions distinctively different and separate from the previously allowed lumbar strain?
"(B) Did appellee's September 26, 1979 work accident substantially (or otherwise) aggravate both preexisting conditions Nos. 6 and 7?"
The medical evidence presented during appellee's case-in-chief included the testimony of Surridge. Surridge testified that question (B) could not be answered affirmatively because it is unknown and unknowable what may have caused appellee's preexisting arthritic conditions to progress from an "early" stage in 1976 to a "moderate" stage in 1982. Surridge could not state with a certainty that the work accident aggravated those conditions.
Appellant moved for a directed verdict at the close of appellee's case-in-chief, but was overruled. The testimony of Dr. Barry Greenberg, a board-certified orthopedic surgeon with a spinal subspecialty, included his opinion that:
"1. Appellee's preexisting conditions Nos. 6 and 7 were aggravated — though not `substantially' — by his work accident; and
"2. The first six aforelisted conditions identified by Surridge were not true orthopedic diagnoses but merely different descriptions of the one, theretofore allowed condition of lumbar strain, as corroborated by Surridge's own prior written statements."
Over appellant's objection, the court instructed the jury that appellee was entitled to participate in appellant's BWC fund if the preexisting conditions were simply aggravated without any proof requirement that such aggravation was substantial.
The jury returned its verdict finding in appellee's favor for seven of the eight conditions, the only exception being paravertebral myofascitis at L-4.
On April 10, 1987, the court entered a judgment on the verdict. On April 23, 1987, appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied on May 22, 1987. On June 22, 1987, appellant timely filed its notice of appeal assigning these errors:
"1. The trial court committed error prejudicial to appellant by overruling appellant's motion in limine objecting to direct examination questions propounded by appellee to Dr. Surridge upon deposition, which resulted in the improper admission of the speculative opinion testimony of appellee's expert witness as to the proximate causative agent of appellee's aggravation of his preexisting arthritic and degenerative disc conditions.
"2. The trial court committed error prejudicial to appellant by refusing to direct a verdict for appellant at the close of appellee's case-in-chief and at the close of all the evidence, and in overruling appellant's motion for judgment notwithstanding the verdict and for a new trial where there was a total failure by appellee to present competent proof upon the issue of the substantial aggravation of appellee's preexisting arthritic and degenerative disc conditions.
"3. The trial court committed error prejudicial to appellant by failing to instruct the jury as to the law applicable *194 to aggravation of preexisting conditions as it refused to advise the jury that appellee must prove that such aggravation was substantial in nature in order to establish entitlement to participate in appellant's workers' compensation fund.
"4. The judgment of the trial court is against the manifest weight of the evidence."
Appellant's first and second assignments of error are not well-taken. The granting of a request for a motion in limine lies in the power and discretion of the trial court. RiversideMethodist Hospital Assn. v. Guthrie (1982),
"* * * We note that the record does not disclose any objectionby appellant at trial concerning the issue of hypnotic testimony.
"Motions in limine are discussed in some detail by a Texas appellate court in Redding v. Ferguson (Tex.Civ.App. 1973),
"This analysis by Texas is in accord with Ohio's recent appellate court decisions in State v. White (1982),
"`An appellate court need not consider an error which a partycomplaining of the trial court's judgment could have called, butdid not call, to the trial court's attention at a time when sucherror could have been avoided or corrected by the trial court.'State v. Williams (1977),
In its second assignment of error, once again, appellant asserts that the trial court erred by refusing appellant's request to exclude portions of Surridge's testimony. However, as was previously discussed, the introduction of this testimony was not properly objected to at trial; therefore, appellant's second assignment of error is also not well-taken.
Appellant's third assignment of error lacks merit. Appellant argues that the trial court erred in not instructing the jury that appellee must prove that the aggravation of appellee's preexisting condition was "substantial." This question was addressed in the *195
case of Starcher v. Chrysler Corp. (1984),
"In an appeal brought pursuant to R.C.
Appellant cites as precedent this court's decision in Goricki v. General Motors Corp. (Dec. 31, 1985), Trumbull App. No. 3527, unreported, which rejects the holding of Starcher. In so holding, the court pointed out that Starcher was the only case which had adopted such a position. However, since the Goricki decision, another appeals court has adopted the Starcher holding, i.e.,Heichel v. Administrator (Oct. 8, 1986), Richland App. No. CA-2398, unreported, wherein the court held at 5-6:
"It is interesting to note that the 1986-1 replacement page to 3 Ohio [Jury] Instructions, Section[s] 365.13 and 365.15, deletes any reference to `substantial.'
"The Starcher court in stating that `substantial' is not part of the Ohio Law on aggravation, states further at p. 59:
"`That legal premise is well-stated in the case of Hamilton v.Keller (1976),
"`"* * * Every workman brings with him to his employment certain infirmities. The employer takes an employee as he finds him and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal healthy person. If that injury is the proximate cause of the death or disability for which compensation is sought, the previous physical condition is unimportant and recovery may be had independently of the pre-existing weakness or disease. 99 Corpus Juris Secundum 589, Workmen's Compensation, Section 170."'
"We hold that one may qualify for benefits under the Workers' Compensation Law for aggravation of the pre-existing injury caused by a work-related incident if such aggravation be proved by a preponderance of the evidence."
Appellant's fourth assignment of error, that the judgment is against the manifest weight of the evidence, is not well-taken. In C.E. Morris Co. v. Foley Construction Co. (1978),
"Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence."
In the case sub judice, there is competent, credible evidence going to all the essential elements of the case.
We, therefore, reject the fourth assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
O'NEILL, P.J., and HOFSTETTER, J., concur.
JOSEPH E. O'NEILL, P.J., of the Seventh Appellate District, SAUL G. STILLMAN, J., retired, of the Eighth Appellate District, and EDWIN T. HOFSTETTER, J., retired, of the Eleventh Appellate District, sitting by assignment. *196