Pflanz v. Pilkington LOF

2011 Ohio 2670

• Court: Ohio Court of Appeals
• Decided: June 3, 2011
• Docket: C-100574
• Status: Published

Opinion

[Cite as Pflanz v. Pilkington LOF, 2011-Ohio-2670.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

THOMAS PFLANZ, : APPEAL NO. C-100574 TRIAL NO. A-0805269 Plaintiff-Appellee, :

vs. : O P I N I O N.

PILKINGTON LOF, :

Defendant-Appellant. :

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from Is: Affirmed

Date of Judgment Entry on Appeal: June 3, 2011

Gerald Grubbs, for Plaintiff-Appellee,

Robert M. Robenalt and Schottenstein Zox & Dunn Co., L.P.A., for Defendant- Appellant.

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

H ILDEBRANDT , Presiding Judge.

{¶1} Defendant-appellant, Pilkington LOF, appeals the judgment of the

Hamilton County Court of Common Pleas allowing plaintiff-appellee, Thomas Pflanz,

to participate in the workers’ compensation fund for the substantial aggravation of a

preexisting medical condition. The judgment was entered following a bench trial.

Pflanz’s Back Problems and His Workplace Injuries

{¶2} Pflanz began experiencing back pain in 1983. In 1989, he was

working in a warehouse. While moving a large object, he severely injured his back.

He sought treatment with Dr. Thomas Sullivan, D.C., a chiropractor. Dr. Sullivan

referred Pflanz to a surgeon, who performed a lumbar laminectomy.

{¶3} In 2001, Pflanz again went to Dr. Sullivan complaining of low back

pain and weakness in his legs. Dr. Sullivan ordered a magnetic resonance imaging

scan (MRI). Dr. Sullivan testified that the MRI had revealed a lumbar disc

displacement at L-4/L-5.

{¶4} In 2007, Pflanz began working at Pilkington. One of his duties was to

unload large panes of glass from delivery trucks. On July 5, 2007, Pflanz was lifting

a pane of glass when he felt a “snap” and experienced what he termed an “electric

shock” in his back.

{¶5} Pflanz went to Dr. Sullivan, who ordered another MRI. In Dr.

Sullivan’s opinion, the MRI indicated that the July 5, 2007, incident had

substantially aggravated the preexisting lumbar disc displacement and preexisting

facet-joint osteoarthropathy. In addition to the MRI, Dr. Sullivan based his

diagnosis on range-of-motion tests and on other diagnostic tools he had

administered himself.

{¶6} Pflanz went to Dr. Sullivan for further chiropractic treatments

through August 24, 2007. He did not receive further treatment from Dr. Sullivan

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until December 24, 2007, when he reported that he had injured himself putting up

his Christmas tree. Pflanz explained that he had not sought treatment in the interim

because he could not afford it.

{¶7} Dr. Steven Wunder, M.D, testified on behalf of Pilkington. Wunder

examined Pflanz and reviewed the MRIs and other records relating to Pflanz’s

medical history. Dr. Wunder expressed the opinion that Pflanz merely suffered from

chronic back pain. Dr. Wunder concluded that the chronic pain had been

exacerbated by the July 5, 2007, incident, which had caused what Dr. Wunder

characterized as a sprain or strain. He based that opinion in part on Pflanz’s ongoing

complaints of back pain since the 1980s and on the fact that Pflanz had ceased

treatment between August 24, 2007, and December 24, 2007, with the implication

being that the sprain or strain had healed.

{¶8} The Industrial Commission allowed Pflanz to participate in the fund

for the substantial aggravation of the preexisting disc displacement and facet-joint

osteoarthropathy. The trial court upheld the determination of the Industrial

Commission, and Pilkington has appealed.

The Trial Court’s Construction of “Substantial Aggravation”

{¶9} We begin with the third and final assignment of error, in which

Pilkington contends that the trial court did not apply the correct “substantial

aggravation” standard in concluding that Pflanz had suffered a compensable injury.

{¶10} First, we must identify our standard of review. 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 worker’s compensation

fund.1 This court reviews the decision of the trial court under a manifest-weight-of-

1 Krull v. Ryan, 1st Dist. No. C-100019, 2010-Ohio-4422, ¶9.

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the-evidence standard, and we will not reverse the trial court’s judgment if it is

supported by some competent, credible evidence.2

{¶11} To participate in Ohio’s workers’ compensation fund, a claimant must

establish an “injury” as defined by R.C. 4123.01(C). This statute provides that an

injury includes “any injury, whether caused by external accidental means or

accidental in character and result, received in the course of, and arising out of, the

injured employee’s employment.”3

{¶12} The subdivisions of R.C. 4123.01(C) qualify the definition of a

compensable injury. R.C. 4123.01(C)(4) provides that an injury does not include “[a]

condition that pre-existed an injury unless that pre-existing condition is

substantially aggravated by the injury. Such a substantial aggravation must be

documented by objective diagnostic findings, objective clinical findings, or objective

test results. Subjective complaints may be evidence of such a substantial

aggravation. However, subjective complaints without objective diagnostic findings,

objective clinical findings, or objective test results are insufficient to substantiate a

substantial aggravation.”

{¶13} The legislature added subdivision (C)(4) as part of Am.Sub.S.B. No. 7

(“Senate Bill 7”) in 2006. Before this amendment to the definition of a compensable

injury, the Ohio Supreme Court had held in Schell v. Globe Trucking, Inc.4 that “[a]

workers’ compensation claimant who has proven a work-related aggravation of a

pre-existing condition is not required to prove that the aggravation is substantial in

order to be entitled to a determination of the extent of his participation in the State

Insurance Fund.”5

2 Id. 3 R.C. 4123.01(C). 4 (1990), 48 Ohio St.3d 1, 548 N.E.2d 920. 5 Id., syllabus.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} The Schell court based its holding on the broad language used by the

General Assembly in defining a compensable injury. The court stated that “an

aggravation of a pre-existing condition having some real adverse effect, even if that

effect was relatively slight, would be within our understanding of the definition of

‘injury’ * * *.”6 The court reasoned that to read R.C. 4123.01(C), as it existed at the

time, “[t]o require that an injury, in the form of an aggravation of a pre-existing

condition, must be of a specified magnitude would work a change in the statutory

scheme that would best be left to the legislature.”7

{¶15} Further, before Senate Bill 7, Ohio appellate courts had held that, “in

certain instances, a claimant need not establish a measurable physiological change in

the underlying condition in order to demonstrate entitlement to benefits for the

aggravation of a preexisting condition.”8 Thus, the aggravation of the underlying

condition “[could] be evinced through either symptoms (‘debilitating effects’) or

physiological changes not due to the normal progression of the disease.”9 In other

words, a trier of fact could find “an aggravation through evidence of worsened

symptoms even though objective medical testing [did] not otherwise indicate a

worsening condition.”10

The Meaning of “Substantial Aggravation”

{¶16} While the General Assembly in Senate Bill 7 used the term

“substantial” to define the extent of the aggravation required to participate in the

workers’ compensation fund, it did not expressly define the term “substantial” in the

statute.

{¶17} “[W]here the language of a statute is clear and unambiguous, it is the

duty of the court to enforce the statute as written, making neither additions to the

6 Id. at fn 1. 7 Id. at 3, 548 N.E.2d 920. 8 Hess v. United Ins. Co. of America (1991), 74 Ohio App.3d 667, 674, 600 N.E.2d 285, citing Golden v. George Gradel Co. (Feb. 17, 1989), 6th Dist. No. L-88-091. 9 Hess, supra, at 679, 600 N.E.2d 285 (emphasis in original). 10 Gower v. Conrad (2001), 146 Ohio App.3d 200, 204, 765 N.E.2d 905.

5 OHIO FIRST DISTRICT COURT OF APPEALS

statute nor subtractions therefrom.”11 The word “substantial” has multiple

meanings, including “considerable in amount, value, or the like” and “[f]irmly

established; solidly based.”12 But we find no ambiguity in the statute despite these

distinct meanings, because the statutory language indicates that the claimant must

demonstrate “substantial” aggravation in both senses of the word.

{¶18} R.C. 4123.01(C)(4) first excepts from the definition of a compensable

injury “[a] condition that pre-existed an injury unless that pre-existing condition is

substantially aggravated by the injury.” The statute then provides that “[s]uch a

substantial aggravation must be documented by objective diagnostic findings,

objective clinical findings, or objective test results.” The statute further states that

subjective complaints may also be evidence of “such a substantial aggravation” but

that subjective complaints without the specified objective medical evidence “are

insufficient to substantiate a substantial aggravation.” Thus, to be compensable, the

aggravation of a preexisting condition must be substantial both in the sense of being

considerable and in the sense of being firmly established through the presentation of

objective evidence.

Pflanz’s Injury and Substantial Aggravation

{¶19} In this case, Pilkington has failed to demonstrate that the trial court

applied the wrong standard regarding substantial aggravation. According to

Pilkington, the trial court relied solely on the fact that Pflanz had not sought

treatment between 2001 and 2007 in arriving at the conclusion that Pflanz’s previous

back conditions had resolved and that the 2007 incident had substantially

aggravated those conditions.

11 Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶14, superseded by statute on other grounds. 12 Seventh and ninth definitions of “substantial” in Webster’s Second New International Dictionary (1959) 2514.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} But Pilkington ignores the objective and subjective evidence adduced

by Pflanz in support of his claim. Pflanz provided ample evidence that the July 5,

2007, workplace injury had substantially aggravated his preexisting back conditions.

Dr. Sullivan established, through the MRIs and other test results, that Pflanz’s

lumbar disc displacement and osteoarthropathy had been made substantially worse

by the 2007 incident. The trial court accepted that evidence and applied the proper

statutory standard.

{¶21} In arguing that the trial court applied an improper standard,

Pilkington essentially contends that the trial court failed to properly consider the

testimony of Dr. Wunder. Pilkington emphasizes Dr. Wunder’s opinion that Pflanz

had merely suffered from chronic back pain that had been temporarily aggravated by

the July 2007 incident. Thus, Pilkington claims that the evidence did not support

the trial court’s finding of a substantial aggravation.

{¶22} We find no merit in Pilkington’s argument. The trial court explicitly

considered Dr. Wunder’s opinion in its written decision, but it simply found Dr.

Sullivan’s testimony to have been more compelling. Such a conclusion did not mean

that the trial court failed to apply the proper standard. Because the trial court’s

judgment was supported by competent, credible evidence, we overrule the third

assignment of error.

Reliability of Pflanz’s Expert

{¶23} In its first and second assignments of error, Pilkington argues that the

trial court erred in relying on the expert testimony of Dr. Sullivan because that

testimony was allegedly contradictory. We address the assignments together.

{¶24} In State ex rel. Eberhardt v. Flxible Corp.,13 the Supreme Court of

Ohio discussed the inherent deficiency of equivocal or contradictory opinions. The

Eberhardt court stated that “equivocation occurs when a doctor repudiates an earlier

13 (1994), 70 Ohio St.3d 649, 640 N.E.2d 815.

7 OHIO FIRST DISTRICT COURT OF APPEALS

opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous

statement.”14 Equivocal statements “reveal that the doctor is not sure what he means

and, therefore, they are inherently unreliable.”15

{¶25} In this case, we find no deficiency in Dr. Sullivan’s testimony.

Throughout the proceedings before the trial court, Dr. Sullivan maintained that the

July 2007 injury had substantially aggravated the lumbar displacement at L-4/L-5

and that the incident had substantially aggravated the osteoarthropathy in the same

area.

{¶26} But according to Pilkington, Dr. Sullivan also diagnosed the

conditions as new injuries rather than as an aggravation of previous conditions.

Pilkington bases its claim of equivocation or inconsistency largely on testimony

taken in isolation. To support its claim, Pilkington quotes Dr. Sullivan’s testimony

that Pflanz’s condition was “directly related to the mechanism of injury [Pflanz]

described from his work injury.” But in context, it is evident that he was referring to

the substantial aggravation being related to the work injury. In other words, he was

establishing that the 2007 incident had directly caused the substantial aggravation,

not that the incident had directly caused a new injury. And in any event, this court

has held that the aggravation of a preexisting injury is not a separate injury, but

merely a different theory of causation.16

{¶27} Pilkington also bases its claim of equivocation or inconsistency on Dr.

Sullivan’s concession that his opinion regarding “substantial aggravation” had not

been an explicit part of his “working diagnosis” at the outset of his evaluation of

Pflanz’s condition. But Dr. Sullivan emphasized that he had adduced evidence of

substantial aggravation before the Industrial Commission and that his diagnosis at

14 Id. at 657, 640 N.E.2d 815. 15 Id. 16 See Starkey v. Builders Firstsource Ohio Valley, LLC., 187 Ohio App.3d 199, 2010-Ohio-1571, 931 N.E.2d 633, discretionary appeal allowed, 126 Ohio St.3d 1554, 2010-Ohio-3855, 932 N.E.2d 338.

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the time of his deposition testimony remained the same. We fail to see how the

timing of the diagnosis was fatal to Dr. Sullivan’s credibility, especially in light of the

trial court’s de novo review of the case.

{¶28} Finally, we find no merit in Pilkington’s argument that the trial

court’s judgment ran afoul of the Supreme Court of Ohio’s decision in Ward v.

Kroger Co.17 In Ward, the court held that a claimant in an appeal under R.C.

4123.512 may seek to participate in the workers’ compensation fund only for those

conditions addressed in the administrative order from which the appeal was taken.18

Here, the conditions allowed by the trial court were the same as those addressed in

the administrative order, and we accordingly overrule the first and second

assignments of error.

Conclusion

{¶29} We affirm the judgment of the trial court.

SUNDERMANN and CUNNINGHAM, JJ., concur.

Please Note:

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

17 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155. 18 Id., syllabus. See, also, Starkey, supra.