Bell v. Bur. of Workers' Comp.

2012 Ohio 1364

• Court: Ohio Court of Appeals
• Decided: March 30, 2012
• Docket: C-110166
• Status: Published

Opinion

[Cite as Bell v. Bur. of Workers' Comp., 2012-Ohio-1364.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ROBERT BELL, : APPEAL NO. C-110166 TRIAL NO. A-1003052 Plaintiff-Appellant, :

vs. : O P I N I ON.

ADMINISTRATOR, OHIO BUREAU : OF WORKERS’ COMPENSATION, : and : MIAMI TOWNSHIP TRUSTEES, : Defendants-Appellees. :

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 30, 2012

McKenzie & Snyder LLP, Andrew R. Tobergte and Kyle B. McKenzie, for Plaintiff- Appellant,

Michael DeWine, Attorney General of Ohio, and Jose E. Martinez, Assistant Attorney General, for Defendant-Appellee Administrator, Ohio Bureau of Workers’ Compensation.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} Plaintiff-appellant Robert Bell appeals from the judgment of the

Hamilton County Court of Common Pleas denying him, after a bench trial, the right

to participate in the Ohio Workers’ Compensation Fund for the additional conditions

of radiculopathy at L4-5 and L5-S1. Because we determine that the trial court’s

judgment is against the manifest weight of the evidence, we reverse.

I. Background Facts

{¶2} Bell, a Miami Township medical technician, suffered a work-related

injury in February 2008. As a result, he was approved to participate in the workers’

compensation fund for the condition of lumbosacral sprain. In October 2009, Bell

moved to amend his claim to allow the additional conditions of lumbar radiculopathy

at L4-5 and L5-S1 arising out of the same work-place injury.

{¶3} A district hearing officer denied Bell’s claim and that denial was

affirmed by a staff hearing officer. The Industrial Commission refused Bell’s appeal.

Bell then appealed to the common pleas court under R.C. 4123.512, requesting the

right to participate for the additional conditions and costs, including attorney fees.

Defendant-appellee administrator of workers’ compensation (“the administrator”)

and the Miami Township Trustees, Bell’s employer, were named as parties to the

appeal. Only the administrator actively defended the claim.

{¶4} At trial, Bell explained that while on duty in February 2008, he was

called to a home where a man weighing over 300 pounds needed assistance. He had

grabbed the patient from the back and had attempted to lift him with the aid of three

other individuals. When the others failed to hold on, Bell held the patient, on his

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own, for 25 to 30 seconds. During this time, Bell experienced a “pop” in his low back

accompanied by “unreal pain” that travelled down his legs.

{¶5} The emergency room physician diagnosed Bell with “lumbar strain”

and gave him injections as well as a prescription to alleviate pain in the low back

area. Bell attended several follow up visits with an emergency room doctor and with

Dr. Matthew Birkle at the hospital’s Medicenter. Birkle ordered an x-ray, which did

not revealed any conditions. Birkle noted after a February 19, 2008 exam that Bell

“still has stiffness in the lumbar region and radiating pain to bilateral thighs,

described as a tingling sensation or burning sensation.”

{¶6} Next Bell was examined by Dr. John Brannan at Beacon Orthopaedics

and Sports Medicine. Dr. Brannan had noted Bell’s complaint of pain across the low

back at his first office visit and had recommended a continuation of pain medication

and physical therapy. But Dr. Brannan concluded after an examination in early

March 2008 that Bell’s lumbar strain had resolved, and he released Bell to return to

work with unrestricted duties.

{¶7} According to Bell, his low back pain and radiating leg pain continued

and interfered with his work duties. In August 2008, he complained about this pain

to Dean Rottinghaus, a chiropractic doctor. Dr. Rottinghaus had previously provided

Bell on-going spine manipulation to treat a stiff neck. That treatment had not

included treatment to the low back area, although in 2005 Bell had suffered a low

back strain during a training drill. The 2005 work-place injury had been approved

for the condition of “lumbar sprain/strain” and Bell had no resulting radicular pain.

{¶8} After examining Bell in August 2008, Dr. Rottinghaus diagnosed a

sprain of the sacroiliac region. Over the course of a year, Dr. Rottinghaus treated

Bell for worsening pain and numbness in his left leg. Dr. Rottinghaus performed

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additional clinical examinations that indicated significant problems in Bell’s low

back. These problems included a radiculopathy, which Dr. Rottinghaus described as

pain radiating down Bell’s left leg due to compression on the nerves in the lumbar

spine area and a possible disc condition.

{¶9} In addition to the clinical exams, Dr. Rottinghaus ordered a series of

magnetic resonance imaging (“MRI”) scans that demonstrated that Bell’s discs at L2-

L3 and L-3-L4 had dried out at an abnormal level and that Bell had mild disc bulging

at L4-L-5, potential causes of compression on spinal nerves.

{¶10} In June 2009, Bell’s left leg gave out while he was walking. Based on

Bell’s history, the examination findings, and the MRI scan results, Dr. Rottinghaus

referred Bell to Dr. Ayse Robinson for an electromyography (“EMG”). An EMG is a

nerve conduction study that determines if and where a nerve is affected and is most

commonly used to diagnose a radiculopathy. Unlike an MRI scan, which can

demonstrate the cause of the radiculopathy, the result of the EMG test can

specifically “pin point” a radiculopathy.

{¶11} Dr. Robinson found based on the EMG results that Bell had nerve

compression on the left side at L5 and S1 nerve roots and also mildly at L4 nerve

root. With these results, Dr. Rottinghaus confirmed that Bell was suffering from

radiculopathy due to the compression caused by the abnormalities revealed in the

MRI scans.

{¶12} Dr. Rottinghaus related the MRI and EMG findings to the February

2008 work-place injury because of the mechanism of the injury, which had placed

significant downward compression on Bell’s spine. Thus, based on Bell’s history, the

mechanism of injury, the absence of age-related degenerative disc disease in Bell’s

lumbar spine, the clinical examinations, and the medical records, Dr. Rottinghaus

4 OHIO FIRST DISTRICT COURT OF APPEALS

opined at trial that Bell had the conditions of lumbar radiculopathy at L4-5 and L5-

S1 and that these conditions had been directly caused by his 2008 work-place injury.

{¶13} Bell and his wife, Jill, both testified that Bell had no history of any

radicular pain before the 2008 work-place injury, and Bell’s medical records

supported this testimony. Both further testified that Bell’s low back and radicular

pain had been significant and constant since February 2008, and that Bell had

complained about this pain to his treating physicians, but only Dr. Birkle and Dr.

Rottinghaus had specifically noted these complaints.

{¶14} The administrator did not offer a medical opinion to controvert Dr.

Rottinghaus’s opinion. Instead, the administrator argued that even if Bell suffered

from the radiculopathy conditions, as demonstrated by the EMG results, Bell failed

to demonstrate that those conditions were caused by the 2008 work-place injury.

{¶15} In support of this argument, the administrator stressed that the EMG

had not been performed until one-and-a-half years after the lifting injury and that no

“compressive pathology” such as a disc herniation or spondylolisthesis that may

result in radiculopathy had been added to Bell’s claim as a condition. The

administrator conceded, however, that this was not a legal requirement for Bell to

participate for the condition of radiculopathy because radiculopathy had its own

distinct International Classifications of Diseases code.

{¶16} The trial court denied Bell the right to participate for the conditions of

lumbar radiculopathy at L4-5 and L5-S1. Bell now appeals, asserting that the trial

court erred by (1) treating radiculopathy as a symptom rather than a condition by

requiring a diagnosis of “compressive pathology” such as a herniated disc as a

condition precedent to an Ohio workers’ compensation claim allowance for

radiculopathy and (2) denying him the right to participate when he presented

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uncontroverted evidence that his radiculopathy arose out of and in the course of his

employment and that a direct or proximate casual relationship existed between his

injury and his harm or disability.

II. Civ.R. 52 and App.R. 4

{¶17} We begin with the first assignment of error, in which Bell argues that

the trial court erred as a matter of law by holding that a radiculopathy is a symptom

and that it could not be added to his claim without an allowance for a compressive

pathology.

{¶18} In this case, the trial court issued a general judgment. Bell moved for

findings of fact and conclusions of law under Civ.R. 52. Then, within 30 days of the

trial court’s general judgment but before the trial court had issued findings of fact

and conclusions of law, Bell filed his notice of appeal, thereby divesting the trial

court of jurisdiction to issue findings of fact and conclusions of law. Nonetheless, the

trial court subsequently purported to issue findings of fact and conclusions of law.

The parties made that entry a part of the appellate record by stipulation.

{¶19} A timely filed request for findings of fact and conclusions of law under

Civ.R. 52 tolls the time for filing a notice of appeal from the judgment. App.R. 4. But

if a party files a notice of appeal from an otherwise final judgment before the trial

court issues findings of fact and conclusions of law, then this court, “upon suggestion

of any of the parties, shall remand the matter to the trial court to resolve” the request

and “shall stay appellate proceedings until the trial court has done so.” Id.

{¶20} In this case, neither party requested a limited remand, as App.R. 4

directs, for the trial court to address Bell’s request for findings of fact and

conclusions of law. Thus, we are left with a record that does not contain properly

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issued findings of fact and conclusions of law. Because of this, the assignment of

error is not demonstrated by the record, and we overrule it.

III. Right to Participate

{¶21} Bell argues in his second assignment of error that the trial court’s

decision was against the manifest weight of the evidence where he demonstrated his

right to participate by a preponderance of the evidence. We agree.

{¶22} In an appeal under R.C. 4123.512 from an order of the Industrial

Commission, the trial court reviews de novo the issue of whether the claimant can

participate in the workers’ compensation fund. This court reviews the decision of the

trial court as to issues of fact under a manifest-weight-of-the-evidence standard, and

we will not reverse the trial court’s judgment if it is supported by some competent,

credible evidence. Pflanz v. Pinkington Lof, 1st Dist. No. C-100574, 2011-Ohio-2670,

¶ 10.

{¶23} To succeed on his workers’ compensation claim to participate for the

additional conditions, Bell had to demonstrate by a preponderance of the evidence

that he suffered from the additional conditions and that they had been proximately

caused by his February 2008 workplace injury. See R.C. 4123.01(C); see also Fox v.

Indus. Comm. of Ohio, 162 Ohio St. 569, 576, 125 N.E.2d 1 (1955).

{¶24} Bell argues that the record contains no competent, credible evidence

to support the trial court’s judgment. He notes that Dr. Rottinghaus’s opinions on

the existence of the conditions and causation were uncontroverted and supported by

substantial objective medical evidence and the history of the injury as presented by

the testimony of Bell and his wife.

{¶25} We begin by noting that there was no real dispute at trial that Bell

suffered from the additional conditions. The question was whether those conditions

7 OHIO FIRST DISTRICT COURT OF APPEALS

had been proximately caused by the 2008 work-place injury. Dr. Rottinghaus

testified that they had been, and his expert opinion was well supported by objective

medical evidence.

{¶26} The administrator contends that the trial court was free to reject Dr.

Rottinghaus’s opinion. Generally, the administrator is correct. Expert testimony is

not necessarily conclusive, even when it is not contradicted by the opposing party’s

evidence. See State v. Brown, 5 Ohio St.3d 133, 135, 449 N.E.2d 449 (1983); Croft v.

State Farm Mut. Auto. Ins. Co., 3rd Dist. No. 1-01-72, 2002 Ohio App. LEXIS 29, *7-

8 (Jan. 8, 2002). See also Walker v. Holland, 117 Ohio App.3d 775, 794, 691 N.E.2d

719 (2nd Dist.1997).

{¶27} But the trier of fact may not arbitrarily ignore expert testimony;

rather, some objective reasoning must support the decision to reject it. State v.

White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 71-73; Walker;

Coleman v. City of Hamilton, 12th Dist. Nos. CA2011-03-049, CA2011-03-050, and

CA2011-03-051, 2011-Ohio-4717, ¶ 14; Croft.

{¶28} Nothing in the record supports the administrator’s claim that Bell

needed an allowance for a “compressive pathology” condition before radiculopathy

could be added to Bell’s claim as a condition. Rottinghaus clearly rejected that

position, and he unequivocally testified that in his opinion, the workplace injury had

caused Bell’s radiculopathy.

{¶29} The administrator suggests that the trial court was justified in

rejecting Dr. Rottinghaus’s testimony because Dr. Brannan had cleared Bell to return

to work by April 2008 and because the conditions had not been conclusively

diagnosed until one and one half years after the work-place injury.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶30} We are not persuaded by this rationale. Dr. Brannan’s records do not

demonstrate that Dr. Brannan gave any consideration to Bell’s specific complaints of

radiating pain to his thighs, which Dr. Birkle had earlier documented and confirmed.

Further, the gap in time between the EMG nerve conduction study showing the

radiculopathy and the work-place injury does not alone completely undermine Dr.

Rottinghaus’s opinion in this case where the test was taken as part of a progression

of diagnostic tools and the results of the EMG were entirely consistent with the

medical findings and the medical history leading up to the EMG. Finally, the record

contains no other explanation for Bell’s radiculopathy other than the 2008 work-

place injury.

{¶31} As a reviewing court, we must indulge every reasonable presumption

in favor of the trial court’s judgment. See Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 79-80, 461 N.E.2d 1273 (1984); Bales v. Miami Univ., 12th Dist. No.

CA2006-11-295, 2007-Ohio-6032, ¶ 16. But for a presumption to be reasonable, it

must be supported by competent, credible evidence. See id. In this case, the record

does not contain any competent, credible evidence to support the trial court’s

judgment denying Bell the right to participate in the workers’ compensation fund for

the additional conditions requested.

{¶32} Accordingly, we sustain the second assignment of error, and we

reverse the trial court’s decision based on the manifest weight of the evidence.

Additionally, we remand the case for the trial court to enter a judgment allowing Bell

to participate in the workers’ compensation fund for the additional conditions of

lumbar radiculopathy at L4-5 and L5-S1 and to resolve Bell’s claim for costs,

including attorney fees, under R.C. 4123.512(F).

Judgment reversed and cause remanded.

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DINKELACKER, P.J., HENDON and CUNNINGHAM, JJ.

Please note:

The court has recorded its own entry on the date of the release of this decision.