Keaton v. Abbruzzese Bros.

2010 Ohio 3969, 189 Ohio App. 3d 737
CourtOhio Court of Appeals
DecidedAugust 24, 2010
DocketNo. 09AP-1146
StatusPublished
Cited by5 cases

This text of 2010 Ohio 3969 (Keaton v. Abbruzzese Bros.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keaton v. Abbruzzese Bros., 2010 Ohio 3969, 189 Ohio App. 3d 737 (Ohio Ct. App. 2010).

Opinion

McGrath, Judge.

{¶ 1} Appellant, Mark A. Keaton, appeals from a judgment of the Franklin County Court of Common Pleas entered upon a jury verdict in favor of appellees, Abbruzzese Bros., Inc. (“Abbruzzese”) and the Industrial Commission of Ohio, finding that appellant was not entitled to participate in the state insurance fund for the condition of disc protrusion L5-S1.

{¶ 2} The underlying facts in this case are undisputed. Appellant was injured on October 7, 2004, in the course and scope of his employment with Abbruzzese, and a workers’ compensation claim was allowed for multiple conditions. Thereafter, appellant requested an additional allowance of “L5-S1 Disc Protrusion.” In support of his request, appellant relied on the medical report of Charles J. Kistler, D.O. The request for the additional claim was denied at all administrative levels; therefore, in accordance with R.C. 4123.512, appellant filed an appeal with the Franklin County Court of Common Pleas.

{¶ 3} In preparation for trial, Dr. Kistler’s deposition was taken, at which time appellant’s counsel objected to a line of questioning on cross-examination. A day prior to the jury trial conducted by a visiting judge, the assigned judge reviewed the deposition and overruled appellant’s objections. The jury heard the evidence, and after deliberations rendered a verdict in favor of appellees, finding that appellant was not entitled to the requested condition of L5-S1 disc protrusion.

{¶ 4} This appeal followed, and appellant brings the following assignment of error for our review:

The trial court committed an abuse of discretion when it allowed the cross examination testimony of Dr. Kistler’s prior criminal conviction.

{¶ 5} “The admission of evidence is generally within the sound discretion of the trial court, and a reviewing court may reverse only upon the showing of an abuse of that discretion.” Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296, 299, 587 N.E.2d 290. An abuse of discretion connotes more than an error of law or judgment; it entails a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

[740]*740{¶ 6} At issue here is the cross-examination of Dr. Kistler and questions pertaining to his prior criminal conviction as depicted in the following exchange:

Q. You also mentioned earlier that you had trouble getting an MRI approved, correct?
A. Yes.
Q. And you said it had something to do with the HPP?
A. Yeah. The MCO would — has to approve any of the testing, yes.
Q. Now HPP is Health Partnership Program?
A. Yes.
Q. And the Health Partnership Program is comprised of the physicians that the Bureau of Workers’ Compensation approves to financially compensate for seeing injured workers?
A. No, I — the way I understand it that Health Partnership — the Health Partnership providers can be anything from diagnostic testing, places like MRI, x-ray places, to physicians, to hospitals, to anybody that’s a part of the— certified at the workers’ compensation program to provide services.
Q. Well, for a doctor to bill the Bureau for seeing an injured worker, they have to be HPP certified, correct?
A. The way I understand it the only — the criteria on that is that you can bill the Bureau but the Bureau will not pay you if you’re not HPP certified by them.
Q. You are currently not HPP certified, correct?
[Appellant’s counsel]: Objection.
That’s correct.
Q. You are not HPP certified because you had a felony conviction in Florida? [Appellant’s counsel]: Objection. I’m going to move a continuing objection to this line of questioning. I won’t keep interrupting if you’ll admit a continuing line of objections.
[Appellee’s counsel]: Okay. And he opened the door and it is relevant to his credibility.
A. The way I understand it, the reason I’m not HPP certified by the Bureau any longer is because they would not accept my reapplication. And it was because they wrongly certified me in the first place when they certified me over ten years ago.
Q. And when they wrong — they wrongly certified you because you had a felony conviction in Florida, correct?
A. You know, I’m presuming that that’s the — that’s the reason. But that wasn’t the reason that they gave me.
[741]*741Q. Well, you did have a felony conviction in Florida in 1981, correct?
A. Yes.
Q. And it was for insurance fraud?
A. Yes.
Q. You filed false and inflated medical bills to insurance company?
A. That’s what the allegation was, yes.
Q. And you pled guilty to that?
A. Yes.
Q. You prepared and costly prepared false medical records?
A. No, that’s not true.
Q. Well, you submitted false medical bills?
A. I believe that’s what it said, yes.
Q. Well, that’s what you pled guilty to, correct?
A. Yes.

At this time, cross-examination concluded.

{¶ 7} Evid.R. 609 provides:

(A) For the purpose of attacking the credibility of a witness:

(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.
(B) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives, to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

{¶ 8} It is appellant’s contention that pursuant to Evid.R. 609(B), evidence of Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
2010 Ohio 3969, 189 Ohio App. 3d 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keaton-v-abbruzzese-bros-ohioctapp-2010.