Thomas v. Bur. of Workers' Comp.

2016 Ohio 7246

• Court: Ohio Court of Appeals
• Decided: October 7, 2016
• Docket: 26805 26813
• Status: Published

Opinion

[Cite as Thomas v. Bur. of Workers' Comp., 2016-Ohio-7246.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

PAMELA R. THOMAS : : Plaintiff-Appellee : C.A. CASE NOS. 26805 and 26813 : v. : T.C. NO. 11CV6772 : BUREAU OF WORKERS’ : (Civil appeal from COMPENSATION, et al. : Common Pleas Court) : Defendants-Appellants :

...........

OPINION

Rendered on the ___7th___ day of _____October_____, 2016.

GARY D. PLUNKETT, Atty. Reg. No. 0046805 and RACHEL D. SIEKMAN, Atty. Reg. No. 0091012, 3033 Kettering Boulevard Point West, Suite 201, Dayton, Ohio 45439 Attorneys for Plaintiff-Appellee

LATAWNDA N. MOORE, Atty. Reg. No. 0084037, Assistant Attorney General, Workers’ Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellant, Bureau of Workers’ Compensation

DAVID C. KORTE, Atty. Reg. No. 0019382 and MICHELLE D. BACH, Atty. Reg. No. 0065313 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 W. First Street, Suite 200, Dayton, Ohio 45402 Attorneys for Defendant-Appellant, Dayton Public Schools .............

DONOVAN, P.J.

{¶ 1} This consolidated matter is before the Court on the August 24, 2015 Notice

of Appeal of the Administrator, Bureau of Workers’ Compensation (“BWC”) and the -2-

August 26, 2015 Notice of Appeal of the Dayton Public Schools (“DPS”). BWC and DPS

appeal from the trial court’s July 30, 2015 “Decision and Entry Granting Motion for New

Trial,” issued upon Pamela Thomas’ motion for a new trial, filed after a November 26,

2014 jury verdict was rendered denying Thomas’ participation in the BWC’s fund for “left

foot sprain” and “contusion of the left knee.”

I. Background

{¶ 2} The records before us present the following procedural history. Thomas, a

teacher, was injured at work on September 16, 2009, when a student fell onto her left

knee. Thomas applied for BWC benefits for left foot sprain and contusion of the left knee,

Claim No. 09-352832, (“Claim #1”), on September 17, 2009. Her claim was allowed for

contusion of the left knee on September 29, 2009. Thomas and DPS appealed to the

District Hearing Officer (“DHO”), and Thomas’ total claim was disallowed on December

3, 2009. The DHO found in part as follows:

It is the order of the [DHO] that Ms. Thomas’ benefit application, filed

on 09/17/2009, be denied.

This claim is ordered DISALLOWED.

The [DHO] finds that Ms. Thomas has not met her burden of proof.

Specifically, that she has not proven by a preponderance of the evidence

that she sustained an industrial injury as alleged.

The [DHO] is persuaded that an incident did occur at work involving

Ms. Thomas on 09/16/2009. Specifically, that she was struck in the lower

left extremity by a falling student.

The [DHO] finds that the preponderance of medical evidence in file, -3-

however, does not support that she sustained a new industrial injury.

The initial treatment records from Dr. Lee, from the date of the

incident do not include clinical/physical findings supporting the diagnosed

conditions of LEFT FOOT SPRAIN and CONTUSION OF THE LEFT KNEE.

On examination, Dr. Lee found on [sic] deformity, wound, swelling or

discoloration of the knee. The knee was found to be mobile. Further, Dr.

Lee found active range of motion of the toes and ankle. Based upon these

records, the Employer’s reviewing physician Dr. Wunder, concluded, in a

report dated 11/10/09, that Ms. Thomas did not sustain an industrial injury.

The Hearing Officer is persuaded by the report of Dr. Wunder and by

the clinical findings of Dr. Lee that no new injury occurred. * * *

{¶ 3} Thomas appealed to the Staff Hearing Officer (“SHO”), who by order dated

February 2, 2010 concluded as follows:

The order of the [DHO], from the hearing dated 12/03/2009, is

affirmed.

It is the order of the [SHO] that the FROI-1, filed 09/17/2009, is

denied.

The claim remains DISALLOWED. The [SHO] affirms the [DHO’s]

conclusions that the incident described by the Injured Worker occurred as

described and nevertheless the Injured Worker did not sustain a new injury

from this incident.

On 09/16/2009 a student who was involved in horseplay fell on the

Injured Worker’s left lower extremity. The Injured Worker has a known and -4-

substantial history of injuries to this extremity. The Injured Worker was

seen on the alleged date of injury by Dr. Lee at Concentra, who found an

active range of motion of the toes and ankles, the knee to be mobile, and

no deformity, wound, swelling, or discoloration of the knee. Upon review

of these records, Dr. Wunder, on 11/10/2009, concluded the Injured Worker

did not sustain any new injury. In reliance upon Dr. Winder’s report, the

claim remains disallowed.

{¶ 4} Thomas appealed to the Industrial Commission of Ohio (“IC”), which ordered

on February 27, 2010 that her appeal be refused. Thomas appealed to the Montgomery

County Court of Common Pleas. On January 18, 2011, DPS and BWC filed

“Defendants’ Joint Motion in Limine” asking the court to bar any testimony or written

evidence regarding the causal connection of any medical conditions other than left foot

sprain and contusion of the left knee. Thomas responded to the motion, and BWC and

DPS replied. Thomas dismissed her complaint on February 11, 2011. On February 17,

2011, Thomas filed a C86 motion in Claim #1 requesting an amendment to include the

condition of substantial aggravation and/or acceleration of pre-existing osteoarthritis left

knee. Thomas supported her motion with the deposition transcript of Dr. Jan Saunders.

On February 22, 2011, the BWC advised Thomas via correspondence as follows: “We

are dismissing the C86 motion filed on 02/17/2011 by the injured worker[’s] representative

because the industrial injury claim has been DISALLOWED per [SHO] order dated

02/02/10 & the [IC] dated 02/27/10 refused the Appeal filed 02/18/10 by the injured

worker[’s] representative.”

{¶ 5} Thomas subsequently filed, on March 22, 2011 an application for workers’ -5-

compensation benefits for substantial aggravation and/or acceleration of pre-existing

osteoarthritis, left knee, to which claim No. 09-869743 was assigned (“Claim #2”).

Thomas’ application was denied, and the decision of March 25, 2011 provides as follows:

There is no medical relationship between the diagnosed condition

and the described injury/occupational disease.

This decision is based on:

The alleged incident has already been adjudicated & denied by the

[IC].

{¶ 6} Thomas appealed to the DHO which ordered on May 26, 2011 “that the

FROI-1 First Report Of An Injury, filed by the Injured Worker on 03/22/2011 is dismissed.”

The DHO further found as follows:

The [DHO] finds that the Injured Worker is submitting a second

application for an injury that allegedly occurred on 09/16/2009. The [DHO]

notes that this alleged injury generated a FROI-1 application that was

administratively denied in claim 09-353832. At this hearing, the Injured

Worker’s representative requested that the condition of substantial

aggravation of pre-existing osteoarthritis of the left knee be allowed in this

claim. The [DHO] finds that this is not possible due to the doctrine of res

judicata as her alleged injury of 09/16/2009 has already been adjudicated

administratively. The Injured Worker’s representative argued that the only

jurisdiction that the court would have at this juncture for claim number 09-

352832 would include a contusion of left knee and a left foot sprain. The

[DHO] finds however that in the event that claim number 09-352832 is -6-

eventually allowed, there is nothing that prevents the Injured Worker from

requesting an additional condition such as the one requested at this hearing

in that claim.

Therefore, the FROI-1 First Report of an Injury, filed by the Injured

Worker on 03/22/2011 is dismissed.

{¶ 7} Thomas appealed to the SHO, who determined on July 22, 2011 as follows:

The [SHO] finds that this is the second injury application filed by Ms.

Thomas alleging an injury occurring in the course and scope of her

employment with the same Employer on 09/16/2009. Ms. Thomas’ first

injury application was denied and disallowed in Claim number 09-352832.

By [SHO] decision, mailed 02/052010, Ms. Thomas’ injury application was

denied and her claim disallowed in its entirety. The [SHO’s] decision was

based upon the report of Dr. Wunder, dated 11/10/2009. Thereafter, Ms.

Thomas filed an appeal into Common Pleas Court. The [SHO] finds that

Ms. Thomas’ second application alleges an injury occurring on the same

date as the prior injury application and arising from the exact same set of

facts. The [SHO] finds that the only difference between the two applications

is that the second application seeks allowance for a “different” condition, as

explained by legal counsel for Ms. Thomas.

The [SHO] finds that Ms. Thomas’ second application is barred by

the doctrine of res judicata. The [SHO] finds that the issue of whether or

not Ms. Thomas sustained an injury in the course of and arising out of her

employment on 09/16/2009 was previously adjudicated. The claim was -7-

disallowed in its entirety by [SHO] decision dated 02/02/2010.

At hearing today, legal counsel for Ms. Thomas argued that a second

application arising from the exact same set of facts is permitted pursuant to

the authority Ward v. Kroger Company (2005) 106 Ohio St.3d 35. The

[SHO] finds that the Ward case cited by counsel for Ms. Thomas does not

stand for the proposition, as it relates to the facts of the present claim, that

Ms. Thomas may file a second application for the same injury that was

previously disallowed. The [SHO] finds that the Supreme Court’s holding in

the Ward case concerns “conditions that were addressed in the

Administrative order from which the appeal is taken.” The [SHO’s] decision

dated 02/02/2010 disallowing Ms. Thomas’ first injury application did not

disallow any particular condition, but rather, disallowed her entire claim.

Thus, this [SHO] does not find that the Ward case is not applicable to the

facts of the present application [sic].

For the reasons stated above, this [SHO] finds that the [IC] lacks

jurisdiction to address Ms. Thomas’ second application.

{¶ 8} On September 21, 2011, Thomas filed a “Notice of Appeal” in the court of

common pleas that provides that “she is appealing from the July 22, 2011 Order of the

[SHO] in Claim No. 09-869743. The Commission in an Order dated August 11, 2011,

refused to accept the Plaintiff’s appeal.” Also on September 21, 2011 Thomas filed a

“Refiling of Case No. 2010 CV 02466 Pursuant to Section 2305.19 of the Ohio Rules of

Civil Procedure and Complaint and Demand for Trial by Jury (Workers’ Compensation

Case, I.C. Claim No. 09-352832 and I.C. Claim No. 09-869743).” -8-

{¶ 9} DPS answered the complaint on October 18, 2011, and BWC did so on

August 19, 2011. On October 26, 2011, Thomas filed a “Motion of Plaintiff to Transfer

Deposition of Dr. Saunders.” Saunders’ deposition was taken in Case No. 2010 CV

02466 on January 19, 2011, and Thomas asserted that the “issues before this Court are

fully addressed within Dr. Saunders’ deposition, as this is a re-filing of an appeal from an

adverse decision to Plaintiff from the [IC] coupled with an original filing of new conditions

relating to osteoarthritis, the subject of which has now been appealed to the [IC].” The

court granted the motion on October 26, 2011.

{¶ 10} On October 27, 2011, BWC filed a “Motion to Stay Plaintiff’s Motion to

Transfer,” which provides that this “case raises many unique legal issues and the

Defendants anticipate filing substantive motions, which may in turn effect Plaintiff’s

motion.” Also on October 27, 2011, BWC filed a “Motion for Reconsideration of Plaintiff’s

Motion to Transfer.” On November 28, 2011 the trial court vacated its entry granting

Thomas’ motion to transfer, noting that “the entry was inadvertently filed before opposing

counsel had an opportunity to respond to the Motion.” On November 29, 2011, the trial

court issued a “Final Pretrial Order,” in part scheduling trial for August 27, 2012.

II. Motions to Dismiss/ for Summary Judgment

{¶ 11} On February 20, 2012, a “Motion of Defendant, Dayton Public Schools, to

Dismiss the Appeal Relative to Claim No. 09-869743, or in the alternative, Defendant’s

Motion for Summary Judgment” was filed. DPS asserted that Thomas deposed her

expert, Dr. Saunders, on January 19, 2011, and that in the course of the deposition,

“despite the fact that the [IC] did not address any conditions other than ‘left foot sprain

and contusion of the left knee,’ Plaintiff’s counsel asked the doctor to provide a causal -9-

relationship opinion regarding the much more serious condition ‘substantial aggravation

of pre-existing osteoarthritis of the left knee.’ ” According to DPS, the trial court “lacked

jurisdiction to address the allowance of Claim #2 * * * because Claim #2 should be barred

by the doctrine of res judicata.” Alternatively, DPS asserted that the court should deny

Claim #2 as a matter of law.

{¶ 12} DPS asserted that the Industrial Commission’s dismissal of Claim #2 is not

appealable to the common pleas court. According to DPS, citing Felty v. AT&T

Technologies, Inc., 65 Ohio St.3d 234, 602 N.E.2d 1141 (1992), “the only decisions of the

Industrial Commission that may be appealed to the common pleas court are those

decisions that are final and resolve the injured worker’s right to participate in the State

Insurance Fund.” DPS asserted that “the [IC’s] Decisions in Claim #2 were not final

decisions that granted, denied or terminated Plaintiff’s right to participate in the State

Insurance Fund.” DPS asserted that the DHO and the SHO “dismissed the First Report

of an Injury or Occupational Disease, as opposed to denying the Plaintiff’s claim

application.” In other words, according to DPS, “at the administrative level, the hearing

officers recognized that they had no jurisdiction under the statute to issue an order

denying or granting Plaintiff’s second claim application for the same injury allegedly

sustained on September 16, 2009.” DPS asserted that the trial court also lacked

jurisdiction to address Thomas’ appeal of Claim #2, and the appeal was subject to

dismissal.

{¶ 13} DPS further noted that both “hearing officers dismissed Claim #2 based

upon the doctrine of res judicata.” According to DPS, “the doctrine of res judicata bars

the adjudication of a second claim when the employee had the opportunity to litigate the -10-

same issues in her first application for benefits.” DPS asserted that Claim #1 “was denied

in its entirety,” and that “Claim #2 is for the exact same alleged injury on September 16,

2009.” DPS asserted that Claim #2 is accordingly “barred by the doctrine of res judicata.”

In a footnote, DPS noted that while res judicata generally “cannot be raised by a motion

to dismiss because it must be proved with evidence outside the pleadings,” herein “the

evidence of the prior adjudication is contained within the pleadings, namely Plaintiff’s

Complaint.” DPS asserted that if, “however, the Court must review evidence outside of

the pleadings, Defendant requests that this portion of Defendant’s Motion be converted

into a Motion for Summary Judgment.”

{¶ 14} DPS asserted that once “an appeal is filed with the common pleas court,

the [IC] lacks subject-matter jurisdiction to reconsider its prior orders.” According to DPS,

once “Thomas filed her appeal of the denial of Claim #1 with the common pleas court, the

[IC] no longer had jurisdiction to address further claim applications relative to Plaintiff’s

alleged injury on September 16, 2009.” DPS argued that “in addition to lacking

jurisdiction based upon res judicata, the Commission also lacked jurisdiction to address

Claim #2 based upon the pending litigation in the common pleas court.” DPS asserted

in a footnote that the “voluntary dismissal of Plaintiff’s Complaint does not affect the Notice

of Appeal, which remains pending until the refiling of the Complaint.” DPS argued that

since the Industrial Commission “lacked jurisdiction to address Plaintiff’s second claim

application for the same alleged September 16, 2009 injury, all Orders in Claim #2 are

void ab initio, and the Court lacks subject-matter jurisdiction over Plaintiff’s appeal from

same.”

{¶ 15} Finally, DPS asserted that Thomas should not be permitted to circumvent -11-

the requirements set forth in Ward v. Kroger, 106 Ohio St.3d 35, 2005-Ohio-3560, 830

N.E.2d 1155, which held at syllabus that the “claimant in an R.C. 4123.512 appeal may

seek to participate in the Workers’ Compensation Fund only for those conditions that were

addressed in the administrative order from which the appeal is taken.” According to DPS,

Thomas’ “obvious purpose in filing Claim #2 is to circumvent the requirements set forth in

Ward.” DPS asserted that despite “the fact that the only conditions addressed by the

[IC] in Claim #1 were ‘left foot sprain and contusion of the left knee,’ Plaintiff wants the

Court to also address whether she can participate in the Workers’ Compensation Fund

for ‘substantial aggravation and/or acceleration of pre-existing osteoarthritis left knee.’ ”

DPS asserts that Thomas “filed a motion administratively asking the [IC] to allow the

condition in Claim #1 after the claim was denied. * * * After that motion was dismissed

administratively, she filed Claim #2 alleging the same exact September 16, 2009 injury.”

DPS asserts that the IC “has never addressed the merits of Plaintiff’s current request for

‘substantial aggravation and/or acceleration of pre-existing osteoarthritis left knee.’

Every request for this condition has been dismissed by the [IC]. Plaintiff’s attempt to

have this condition addressed for the first time by the common pleas court is specifically

prohibited by Ward.”

{¶ 16} On February 23, 2012, a “Motion of Defendant, Administrator, to Dismiss

the Appeal Relative to Claim No. 09-869743, or in the Alternative, Defendant’s Motion

for Summary Judgment Relative to Claim No. 09-869743” was filed. BWC asserted that

after the IC “denied claim 2 based on the doctrine of res judicata, Thomas filed the instant

appeal. This case improperly combines Claim 1 and Claim 2 because Claim 2 is not

properly appealable under [R.C.] 4123.51.2. Claim 2 does not concern the right to -12-

participate and this court does not have jurisdiction over Claim 2.” BWC incorporated

DPS’ February 20, 2012 motion into its own. BWC asserted that when applied to Claim

#1, Ward prevents adjudication of any conditions other than left foot sprain and contusion

of the left knee. According to BWC, when applied to Claim #2, Ward prevents the

adjudication of the condition of substantial aggravation of osteoarthritis of the left knee

because the commission never ruled on the condition administratively. In conclusion,

BWC asserted that “Claim 1 was a final order finding that Thomas did not sustain a new

industrial injury. Claim 2 is barred by res judicata. To hold otherwise would unfairly

allow Thomas to circumvent established law, giving her a second bite at the apple.”

{¶ 17} On March 5, 2012 Thomas filed “Plaintiff’s Memorandum in Opposition to

Defendants’ Motions to Dismiss and Motions for Summary Judgment.” Thomas asserted

that Defendants “have moved for summary judgment on the basis that the claim for

osteoarthritis is barred due to res judicata, notwithstanding the fact that the First Claim is

still pending before this Court.” Thomas asserted that the trial court should not dismiss

Claim #2, as the IC issued an Order which denied the right to participate in the fund for

that condition, and the court had subject matter jurisdiction over the claim.

{¶ 18} Thomas argued that she “has satisfied her burden of establishing an Order

of the [IC] from which she is taking an appeal, as this issue involves the right to participate

for a certain medical condition, and is not appealing an ‘extent of disability’ issue.”

Thomas asserted as follows:

Defendants’ argument that this Court does not possess jurisdiction

to hear this appeal in the second claim must fail, as the [IC] issued an Order

which denied the right to participate. It is irrelevant that the [IC] used “res -13-

judicata” as the basis for the denial; in fact, because the [IC] was required

to look at previous decisions it made in the history of the case, it was,

necessarily, considering the merits of the claim, as res judicata is an

affirmative defense. * * * Because the [IC] could not have incorrectly

concluded that Plaintiff’s claim was barred by the previous denial without

considering the prior decision, the [IC] did, in fact, review the merits of the

claim, as the Commission Orders did not refer any statutory provision or

cases which concluded that the [IC] lacks jurisdiction to review a claim for a

second time. Rather, the application of res judicata applies when an issue

is presented to a tribunal for a second time.

A proper review of the issue finds that, had the [IC] been without

jurisdiction to decide the issue, it should have simply ceased to process the

claim, and issued a decision at the hearing which cited some provision of

law divesting it of jurisdiction to hear the issue. The [IC’s] denial of the

claim on the basis of res judicata was an adjudication on the merits, since

it took into account specific circumstances surrounding the claim. * * *

{¶ 19} Thomas further argued that res judicata does not bar her claim, since the

previous denial involved different conditions. Thomas asserted that while “it is true that

the [IC] denied Plaintiff’s previous workers’ compensation claim, this is not a ‘prior valid

judgment on the merits’ because it is not a final judgment, as the claim for benefits is

pending before this Court.” Thomas asserted that Claim #2 “cannot be barred on the

basis of res judicata under Ward v. Kroger, as only specific medical conditions were

barred. Additionally, her claim cannot be barred on the basis of res judicata, as the -14-

purported final judgment has not been rendered by the Court.”

{¶ 20} Finally, Thomas asserted as follows:

Ohio law is clear in this regard: the denial of a workers’ compensation

claim is limited to the conditions which have been denied by the [IC]. It is

not enough to claim that the claim has been denied, and therefore, remains

denied for all conditions.

Using Defendants’ reasoning, if a denial of a workers’ compensation

claim can operate as a denial of all conditions, whether alleged or not, then

an appeal filed pursuant to R.C. 4123.512 may involve all conditions –

otherwise Plaintiff would have no opportunity for judicial review for some

conditions. This is illogical. Because Ward v. Kroger limits judicial review

to only those conditions raised administratively, then Plaintiff is able to raise

only those conditions in this Court that were denied administratively. It

does not matter that Plaintiff “could have brought” the osteoarthritis claim

administratively in the First Claim; the Plaintiff brought them in the Second

Claim.

DPS and BWC replied to Thomas’ opposing memorandum on March 12, 2012.

III. Decision on Defendants’ Motions

{¶ 21} On July 10, 2012, the trial court issued a “Decision, Order and Entry

Sustaining Motion of Defendant, Dayton Public Schools, to Dismiss the Appeal Relative

to Claim No. 09-869743, or in the alternative, Defendant’s Motion for Summary Judgment

and Sustaining the Motion of Defendant, Administrator, to Dismiss the Appeal Relative to

Claim No. 09-869743, or in the alternative, Defendant’s Motion for Summary Judgment -15-

Relative to Claim No. 09-869743.” Under a section entitled “A. Motion to Dismiss – Civil

Rule 12(B)(1),” the court determined as follows:

Defendants argue that the [IC’s] dismissal of [Claim #2] was not a

final decision that granted, denied, or terminated Plaintiff’s right to

participate in the fund and that therefore this Court does not have

jurisdiction. In [Claim #2], the [IC] did not make a determination as to

granting, denying or terminating Plaintiff’s right to participate. Rather, the

[IC] determined that they did not have jurisdiction to make such a decision

in [Claim #2] because that decision had already been made in [Claim #1].

Similarly, Defendants’ [sic] argue that because the decision made in [Claim

#2] was not a determination of Plaintiff’s right to participate in the fund this

Court does not have jurisdiction to hear an appeal. This Court agrees.

{¶ 22} Under a heading entitled “B. Res Judicata,” the trial court first noted that

Claim #1 was “initially allowed, then disallowed by both the” SHO and the DHO, “then an

appeal was refused by” the I.C. The court noted that Thomas then appealed to the court

of common pleas in case 2010 CV 02466, and that Thomas voluntarily dismissed 2010

CV 02466. The court noted that Thomas filed Claim #2, “alleging the same injuries from

the September 2009 incident as well as ‘substantial aggravation and/or acceleration of

pre-existing osteoarthritis left knee.’ ” The court noted that Claim #2 “was refused by the

BWC because a determination of Plaintiff’s right to participate in the fund based on her

claimed injuries of September 2009 had already been made in relation to” Claim #1. The

court noted that Thomas unsuccessfully appealed the refusal of Claim #2 to a SHO, a

DHO and the IC, and that Thomas “then brought her appeal to this court, case number -16-

2011 CV 6772, the present case.” The court concluded that res judicata bars Thomas

from “taking a second bite of the apple by filing a second claim with the BWC claiming

injuries from the same incident that was alleged in the initial claim.”

{¶ 23} Finally, under a heading entitled “C. Ward v. Kroger,” the court concluded

as follows:

* * * Defendants contend that Plaintiff cannot be permitted to file a

second claim in order to skirt the requirements of Ward. Plaintiff’s claim for

“substantial aggravation and/or acceleration of pre-existing osteoarthritis

left knee” was not part of [Claim #1]. Defendants argue that the [IC] has

yet to consider whether Plaintiff can participate in the fund for “substantial

aggravation and/or acceleration of pre-existing osteoarthritis left knee,” and

that therefore it is improper for this Court to make that determination.

Plaintiff’s claim for “substantial aggravation and/or acceleration of pre-

existing osteoarthritis left knee may not be considered by this Court until it

has properly proceeded through the BWC system.

IV. Pre-Trial Filings

{¶ 24} The parties exchanged trial materials after the court’s July 10, 2012

decision, and on August 3, 2012, Thomas filed “Plaintiff’s Objections to Defendants’ Trial

Materials Exchange.” On the same date, DPS objected to Thomas’ trial materials, in part

objecting to “the submission of any and all causal relationship statements or opinions

made by non-testifying experts or physicians or other medical professionals as

inadmissible hearsay,” as well as “any document that supports the additional allowance

of substantial aggravation of pre-existing left knee osteoarthritis.” Also on August 3, 2012, -17-

BWC objected to Thomas’ trial materials exchange, specifically objecting to “the

unredacted medical records of Concerta Medical Center, a March 1, 2010 letter from Dr.

Saunders, and the medical records of Amita Patel.”

{¶ 25} On August 6, 2012, Thomas appealed the trial court’s July 10, 2012

decision to this Court. On August 7, 2012, Thomas moved the trial court to continue the

date set for trial, and on August 13, 2012, Thomas filed a motion to stay proceedings “as

an appeal has been filed which divests the Court of jurisdiction.” On August 16, 2012,

the trial court issued an “Order Granting Plaintiff’s Motion to Stay Proceedings.” On

September 19, 2012, this Court dismissed Thomas’ appeal for lack of a final appealable

order, noting that because “the July 20, 2012 order does not expressly determine that

there is no just reason for delay, pursuant to Civ.R. 54(B), we find that it is interlocutory

and subject to the court’s revision until all claims have been adjudicated.”

{¶ 26} On October 15, 2012, the trial court issued an “Amended Final Pretrial

Order,” in part setting the matter for a trial by jury for the week of May 29, 2013. On

March 25, 2013, Thomas filed a “Motion of Plaintiff to Transfer Deposition of Dr.

Saunders,” asserting that “Dr. Jan Saunders stated that numerous conditions were

related to plaintiff’s workers’ compensation claim.” Thomas asserted as follows:

This court has previously dismissed plaintiff’s request to include

certain conditions that have been raised as being related by Dr. Saunders.

With the assumption that this court will not change its ruling on this matter,

the parties have informally discussed the exclusion of certain parts of Dr.

Saunders’ deposition. While plaintiff will request formally those conditions

in Dr. Saunders’ deposition testimony to be played for the jury including -18-

those conditions, for purposes of preserving his record on appeal, it is

understood by plaintiff that this court will not allow such testimony.

Dr. Saunders gave a statement of causal relationship and testimony

pertaining to the same relating [sic] to the conditions that are the subject of

the current case.

{¶ 27} On April 5, 2013, DPS replied to Thomas motion to transfer, asserting that

“Defendants agree that the deposition of Dr. Saunders should be transferred, but assert

that the video must be redacted to exclude testimony regarding ‘substantial aggravation

of pre-existing osteoarthritis, left knee.’ ” Saunders’ deposition is attached to the reply and

DPS specified the pages and lines therein to which it objected.

{¶ 28} On April 12, 2013, Thomas filed a “Response of Plaintiff to Defendants’

Reply to Motion to Transfer Deposition of Dr. Saunders,” in which she asserted that she

“expects to renew her objection to this Court’s determination that the substantial

aggravation of pre-existing osteoarthritis of the left knee should be excluded, based upon

recent case law issued by the Ohio Supreme Court,” and that “in order to preserve any

rights on appeal, Plaintiff would proffer the evidence at trial.”

{¶ 29} On April 19, 2013, DPS requested a continuance of the trial date. The trial

court granted the motion. On May 22, 2013, the trial court issued an order in part

scheduling the matter for jury trial on March 17, 2014. The order set a February 21, 2014

deadline for the exchange of trial materials. On May 29, 2013 the court issued an

amended final pretrial order that provides: “The Court vacates the final pretrial order filed

May 22, 2013. The trial date, final pretrial dates and Defendant’s deadline for taking and

filing of perpetuation deposition are the only dates to be rescheduled. There will be no -19-

further discovery or motions in the case.”

{¶ 30} On June 10, 2013, the trial court issued a “Decision, Order and Entry

Sustaining Motion to Transfer Deposition of Dr. Saunders,” which provides in part that

Saunders’ deposition “shall be transferred from Montgomery County Case 2010 CV 2466

to the present case with all testimony related to ‘substantial aggravation of pre-existing

osteoarthritis, left knee’ redacted from the deposition.”

{¶ 31} On January 29, 2014, a “Stipulation Entry Regarding Transfer of the

Deposition of Dr. Jan Saunders, D.O.,” was filed that provides: “Now come all parties, by

and through undersigned counsel, and hereby agree to the transfer of the deposition of

Dr. Jan Saunders taken in Case No. 2010 CV 2466 into Case No. 2011 CV 06772, subject

to certain redactions. The parties agree that certain portions of Dr. Saunders’ deposition

shall not be played to the jury.” The stipulation identified the pages and lines from the

transcript to be excluded. The final page of the stipulation indicates that counsel for DPS

signed the stipulation “per e-mail authority 1/29/14,” and that counsel for BWC did so “per

e-email authority 1/15/14.” There is no indication that counsel for Thomas signed the

stipulation, although a blank line for signature appears on the final page.

{¶ 32} On February 12, 2014, “Plaintiff’s Trial Materials Exchange” was filed. On

February 21, 2014, BWC filed “Objections to Plaintiff’s Proposed Exhibits,” asserting in

part that “[m]edical opinions and diagnoses presented via a medical record do not fall

within the hearsay exception of Evid. R. 803(6). [H]earsay on hearsay, in the absence

of other exceptions to the general hearsay rule, is not admissible, even in view of the

business records as evidence statute.”

{¶ 33} On March 5, 2014, DPS filed a “Notice of Supplemental Trial Materials -20-

Exchange,” which included 248 pages denominated as a “Certified copy of BWC file

materials regarding Claim No. 07-373210.”

{¶ 34} On March 11, 2014, Thomas filed Saunders’ deposition, and two days later,

“Defendant BWC’s Objection Log Re: Jan Saunder[s], D.O.” was filed. BWC asserted in

part that most “of Plaintiff’s objections regarding Dr. Saunders’ deposition involve a

continuing objection to Defendant’s use of arthritis as a defense.” According to BWC,

“[n]otwithstanding the courts’ [sic] ruling granting Defendant’s motion to dismiss,

Defendants’ use of arthritis as a defense is permissible because defendants are arguing

that Thomas did not suffer a sprain of the left foot and contusion of the left knee as a

result of an alleged occurrence on September 16, 2009.” BWC asserted that “Thomas’

physical condition on that date was wholly due to a pre-existing condition.” BWC asserted

that though “both parties rely on the same extensive medical records, the purpose of the

proffered evidence differs. Where Thomas’ proposed purpose is barred by law,

Defendant’s proposed purpose is not.” BWC also filed a list of its objections to Saunders’

deposition.

{¶ 35} BWC also filed “Defendant BWC’s Objection Log Re: Steven Wunder, M.D.”

Therein BWC asserted as follows:

***

In this case, Plaintiff seeks to introduce another doctor’s (Dr. Lee)

ultimate conclusion that Plaintiff suffered a contusion of the knee through

Dr. Wunder’s testimony without subjecting the non-testifying doctor to

cross-examination. Whether Plaintiff suffered from a contusion is the

ultimate issue of fact before this court. Nothing prevents Plaintiff from calling -21-

Dr. Lee to testify. However, instead of calling Dr. Lee, Plaintiff focused her

entire cross-examination of Dr. Wunder on Dr. Lee’s ultimate conclusion.

Such action merely serves to unfairly prejudice Defendants’ case, both by

hinting that Dr. Wunder is hiding admissible evidence, and by introducing

an opinion that “likely bore a gloss of credibility” without being subject to

cross examination.

{¶ 36} Also on March 13, 2014, Thomas filed a Motion in Limine requesting “an

order in limine overruling [DPS’ and BWC’s] objections during Plaintiff’s cross-

examination of Dr. Steven Wunder.” The motion provides that it “pertains to the

telephone conference scheduled by Court for * * * March 14, 2014.”

{¶ 37} On March 17, 2014, “Defendant BWC’s Memorandum Contra to Thomas’

Motion in Limine” was filed which provides in part as follows:

* * * Both BWC and DPS have consistently argued that Thomas may

not introduce Dr. Lee’s hearsay diagnosis without subjecting Dr. Lee to

cross-examination. Despite this consistent stance, Thomas now alleges

that she was somehow caught off guard by BWC and DPS’ position. She

also alleges that Hytha v. Schwendeman, 40 Ohio App.2d 478 (10th Dist.

1974) has been superseded and is no longer good law. Additionally, she

argues that Dr. Wunder is DPS’ agent and thus his report is not hearsay.

Thomas also argues that BWC and DPS are selectively applying Hytha.

Finally, Thomas argues that Dr. Wunder relied on Dr. Lee’s diagnosis and

therefore Dr. Lee’s report is admissible. Each of these arguments is in

error. -22-

{¶ 38} Also on March 17, 2014, “Defendant, Dayton Public Schools’ Memorandum

Contra to Thomas’ Motion in Limine” was filed, in which DPS incorporated BWC’s March

17, 2014 memorandum and asked the court to deny Thomas’ motion in limine. Finally,

on March 17, 2014, “Plaintiff’s Clarifications of Objections to Defendants’ Trial Materials

Exchange” was filed. DPS responded to Thomas’ clarifications on March 18, 2014.

{¶ 39} On March 24, 2014, the trial court issued a “Final Pretrial Order” setting the

matter for trial on November 17, 2014. On November 12, 2014, “Plaintiff’s Supplemental

Memorandum in Support of Motion in Limine” was filed. On November 17, 2014,

Thomas filed a “Motion in Limine” for an order “preventing the jury from being provided

with any indication that Pamela Thomas’ workers’ compensation claim has been denied”

before the BWC and the IC.

V. Post-trial Filings and Motion for New Trial

{¶ 40} The matter was tried to a jury on November 17 and 19, 2014. On November

26, 2014 a “Verdict Entry” was issued in favor of BWC and DPS that provides that “the

jury found in favor of the Defendant(s) [BWC] and [DPS]. The jury returned Interrogatory

No. 1, finding the Plaintiff is not entitled to participate in the Workers’ Compensation Fund

for the condition of ‘Left knee contusion.’ ” The entry further provides that the “jury

returned Interrogatory No. 2, finding the Plaintiff is not entitled to participate in the

Workers’ Compensation Fund for the condition of ‘left foot sprain.’ ”

{¶ 41} On December 17, 2014, Thomas filed a motion to certify the jury’s verdict,

which provides in part that after the reading of the jury’s verdict, “this Court stated that the

Court would memorialize the jury’s verdict, and requested the parties to prepare a final

judgment entry. The parties have been unable to agree upon language to be contained -23-

within the Court’s final judgment entry, given the fact that not all of the conditions

previously raised were determined by the jury.”

{¶ 42} On December 31, 2014, “Defendant, Dayton Public Schools’

Memorandum in Opposition to Plaintiff’s Motion to Certify the Jury’s Verdict and Allocate

Costs” was filed, and DPS requested oral argument. On January 7, 2015, “Plaintiff’s

Memorandum in Response to Defendant’s Memorandum in Opposition to Plaintiff’s

Motion to Certify Jury Verdict and Tax Costs” was filed.

{¶ 43} On January 30, 2015, “Plaintiff’s Motion for New Trial,” pursuant to “Civil

Rule 59(A)(1) and (9), as well as other good cause shown under Civil Rule 59(A), and

Civ.R. 63(B)” was filed. Therein Thomas asserted as in part follows1:

On June 10, 2013, this Court issued its “Decision, Order and Entry

Sustaining Motion to Transfer Deposition of Dr. Saunders,” providing that

all testimony related to “substantial aggravation of pre-existing

osteoarthritis, left knee” must be redacted.

Less than two weeks before trial, on March 5, 2014, Defendant [DPS]

filed a “Notice of Supplement to Trial Materials Exchange,” seeking to

introduce an additional three hundred pages of documents at trial, including

approximately two-hundred and fifty documents consisting of “Certified

copy of BWC file materials regarding Claim No. 07-373210.” The

Supplement gave no indication that Defendants sought to introduce

redacted documents pertaining to Concentra or Dr. Wunder.

1 Footnotes omitted throughout. -24-

On March 6, 2014, the eve of the final pre-trial, and the eve of the

deposition of Dr. Steven Wunder, Defendants’ expert witness, [DPS] served

a “redacted” version of the medical records of Plaintiff from Concentra, a

medical provider who had found Plaintiff to have a contusion of the left knee

and a sprain of the left foot, at the time of her injury. Additionally, [DPS]

served a “redacted” version of Dr. Steven Wunder’s report. Dr. Wunder

had been hired by [DPS] to prepare a report and give testimony; his original

report was filed with the [IC] and relied upon by Defendants in presenting

their arguments to the [IC]. The “redactions” pertained to taking out

information relating to the fact that Concentra had diagnosed Plaintiff with

a sprain of the left foot and a contusion of the left knee.

Defendants utilized the “redacted” versions of the medical records

and Dr. Wunder’s report at Dr. Wunder’s deposition. Dr. Wunder testified

that the “redacted” version of the report was the only version of the report

he had authored; he failed to acknowledge in his testimony that he had

prepared the unredacted version, and testified that the “redacted” version

was modified by Defendant [DPS’] attorneys. On cross-examination, he

admitted that the original, unredacted version of his report was prepared by

him and given to Defendant [DPS] for hearings before the [IC], and that he

considered all of the unredacted versions of medical records which were

previously provided to him by Defendant [DPS], and that he considered the

opinions of non-testifying physicians in rendering his opinions.

Following Dr. Wunder’s deposition on March 7, numerous Motions in -25-

Limine, Objections to Trial Materials Exchanges, and Clarifications were

filed. Trial had been scheduled for March 17, 2014. The Court scheduled

a telephone conference for Friday, March 14, 2014. Shortly into the

conference, the Court announced that it was vacating the trial date to

consider all of the Motions filed. The Court scheduled an oral argument for

March 19, 2014.

On March 19, 2014, the oral argument did not proceed. Instead, the

Court proceeded to announce that it was considering the issues briefed by

the parties, and would be putting together an order in short course, together

with a new trial date. On March 24, 2014, the Court issued another Final

Pre-trial Order, setting trial for November 17, 2014.

Nearly eight months passed, and this Court did not issue any Order

as promised. The parties requested a conference with the Court, shortly

before trial. A conference was scheduled for November 13, 2014 at

11:00AM, but instead of being with the trial judge, it was with the Court’s

staff attorney, who proceeded to notify the parties that the trial judge was

unavailable, and that an email would be forthcoming to address the issues

raised by the parties. An email was sent out by the Court’s staff attorney

at 8:36PM, Friday, November 14, 2014, in anticipation for Monday,

November 17, 2014’s trial. The email overruled virtually all of Plaintiff’s

objections and sustained virtually all of Defendants’ objections.

At trial, Plaintiff reiterated her request regarding the “substantial

aggravation of pre-existing osteoarthritis of the left knee,” and this Court -26-

confirmed that testimony and argument pertaining to the osteoarthritis

conditions would not be allowed pursuant to this Court’s previous orders.

This matter proceeded to trial by jury on November 17 and November

19, 2014, with this Court only allowing the jury to consider whether Plaintiff

suffered from the conditions of “left foot sprain and left knee contusion.”

Plaintiff presented the deposition testimony of Dr. Jan Saunders, with the

testimony pertaining to the osteoarthritis condition redacted. Dr. Saunders

gave his opinion that the conditions were related to the workplace accident.

At Dr. Saunders’ deposition, he was shown a “First Report of Injury”

form by Plaintiff’s counsel, which was marked as Plaintiff’s Exhibit 1 to his

{¶ 44} Thomas cited the following exchange from Saunders’ deposition:

Q. Doctor, I’d like to show you some documents here. I’ll ask this

be marked as * * * Plaintiff’s Exhibit 1 which I will represent to you is a [BWC]

form called the first report of injury. Are you familiar with this type of

document?

A. I have seen it before, yes.

Q. There’s a description of the incident that was completed and

signed by Ms. Thomas. And it reads “I was standing at the classroom door.

Two students were horse playing. One of the students hit my leg as she

fell to the floor.” Is that history consistent with the history that you took?

A. It is. I mean she told me two kids were wrestling and fell onto

her leg hitting her on the outside and twisting her foot and hitting her knee. -27-

Q. And the type of injury listed is contusion of knee and foot sprain,

both on the left side. Would you agree with that assessment?

A. I think that’s reasonable, yes.

{¶ 45} Thomas asserted that she “attempted to publish the exhibit to the jury, on

the basis that no objection was timely made by Defendants. No objection was made at

Dr. Saunders’ deposition to the line of questing set forth above, and importantly, the line

of questioning from the deposition was played to the jury at trial.” Thomas asserted that

the court “refused to allow Dr. Saunders’ deposition Exhibit 1.” According to Thomas,

the “Court noted that ‘2 is - - supposedly a document that the doctor relied upon. The

court is not sending that or allowing that to go back to the jury based upon the fact that it

was not objected to at the proper time. In addition, we had some lengthy discussion at

side bar, and I’ll stand by that.’ ”

{¶ 46} Thomas asserted that “at trial, this Court allowed Defendants to introduce

evidence of Plaintiff’s prior workers[’] compensation claim from 2007, over the objection

of Plaintiff, notwithstanding the fact that Plaintiff specifically requested the Court only

allow questioning pertaining to the injury, not her worker’s compensation claim.”

{¶ 47} Thomas asserted that “this Court allowed Dr. Wunder’s deposition to be

played without including the majority of Plaintiff’s cross-examination.” Thomas asserted

that she renewed her objections “submitted in the Motion for Order in Limine, and

requested this Court give some indication as to the Court’s reasoning supporting the

same.” She asserted that rather than providing the reasoning, “this Court proceeded to

criticize Plaintiff’s counsel for the timing of making his objection, and summarily overruled

it, before ultimately allowing his deposition to be played.” -28-

{¶ 48} Thomas asserted that the trial court allowed “Defendants to introduce

exhibits which included Dr. Wunder’s redacted report, and all of the documentation

pertaining to Plaintiff’s 2007 workers’ compensation claim.” According to Thomas, “this

Court has not put on a final appealable order despite the parties [sic] request for a proper

termination entry; the parties disagree as to whether the court should include a specific

finding that the ‘substantial aggravation of pre-existing osteoarthritis’ is to be included in

the Judgment Entry.”

{¶ 49} Thomas asserted that “[b]y virtue of the expiration of her term, Judge

McGee is incompetent to determine the language to be included in the judgment entry or

to sign the judgment entry. * * * Therefore, it falls upon Your Honor to determine the proper

language to be included in the judgment entry and to sign the same.” Thomas noted that

in “contrast to the requirements of Civ.R. 59(A), the successor judge provisions of Civ.R.

63(B) do not require the Court to detail the reasons for granting a new trial in writing.”

{¶ 50} Thomas then asserted four specific arguments. His first argument was as

follows: “The trial court erred by allowing Dr. Wunder’s deposition to be played without

including Plaintiff’s cross-examination, and by ultimately allowing his ‘redacted’ report to

be submitted to the jury.” Thomas asserted as follows:

Plaintiff renewed his [sic] objection to Dr. Wunder’s testimony being

played without Plaintiff’s cross-examination immediately before it was

played to the jury. Instead of acknowledging Plaintiff’s objection, and

responding to Plaintiff’s request for the Court’s reasoning as to why

Plaintiff’s cross-examination was to be excluded, and as to why the jury

would not be allowed to see Dr. Wunder’s original report, this Court instead -29-

spent the time at side bar criticizing Plaintiff’s counsel for raising the

objection after the jury had shortly returned from lunch. Judge McGee did

not provide any reasoning for her ruling. * * * This Court compounded its

error by allowing Dr. Wunder’s redacted report, which constitutes hearsay

as a report prepared in anticipation of litigation, to be presented to the jury.

This had a substantial impact upon Plaintiff’s ability to present her

case. Dr. Wunder’s cross-examination was crafted in light of the fact that

modifications to a report prepared by Dr. Wunder had occurred. This

Court’s determination that Dr. Wunder’s cross-examination could not be

presented was unsupported by any reasoning given by the trial court.

Plaintiff was unable to cross-examine Dr. Wunder with respect to the fact

that he reviewed a record, in the ordinary course of preparing an

independent medical examination, and was of the type which he relied upon

extensively through his report, to Plaintiff’s detriment. The jury was left with

an altered report which was not authentic evidence, and from which

Defendants sought no order of the Court prior to the deposition in submitting

the information presented. This error is compounded by the fact that

Defendants had submitted multiple trial materials exchange which indicated

that no redaction was included. Rather, Defendants waited until the eve of

Dr. Wunder’s deposition to give its first notice that certain alterations were

going to be made by Defendant’s counsel notwithstanding the fact that they

constituted an admission of a party opponent.

Plaintiff had the right to seek the introduction of Dr. Wunder’s full -30-

report, as reports of independent medical examiners are statements of

party-opponents admissible as non-hearsay by an opponent under Evid.R.

801(d)(2), applied by Szulinski v. Kellison & Co., Cuyahoga App.No. 99672

and 99674, 2014-Ohio-111.

Notwithstanding the fact that Plaintiff had the right to seek the

introduction of Dr. Wunder’s report, Defendants should not have been

allowed to present the report of Dr. Wunder to the jury, as the report was

not a “business record” under Evid.R. 803(6), but rather was prepared in

anticipation of litigation. * * *

Dr. Wunder’s report was only redacted to include an elimination of

references to evidence favorable to Plaintiff in the record - - evidence of the

diagnosis of contusion and sprain. On the other hand, Dr. Wunder also

included in his report a discussion of other, non-treating experts. For

example, Dr. Wunder stated in his report that “Dr. Freemen did not think her

symptoms were due to a left knee contusion or sprain but rather due to non-

allowed osteoarthritis.” * * * No redaction was sought by Defendants, and

the Court, over the objection of Plaintiff, allowed the submission of non-

treating physician opinions, through Dr. Wunder, to the jury, despite the fact

that it resulted in a disparate application of Defendants’ supporting authority,

Hytha. That such disparate treatment is prohibited by case law was brought

to the attention of the trial court prior to trial, but this Court overruled such

arguments. Wolgamot v. Heit, 2002-Ohio-2332.

*** -31-

{¶ 51} Thomas’ second argument was as follows: “The trial court erred by

allowed [sic] the introduction of evidence pertaining to Plaintiff Pamela Thomas’ 2007

workers’ compensation claim, instead of simply allowing evidence pertaining to her knee

injury.” Thomas asserted as follows:

Interestingly, the evidence submitted by Defendants, and submitted

to the jury, included the entire administrative record of Plaintiff’s previous

workers’ compensation claim from 2007. This included diagnoses of non-

treating physicians, which would be hearsay utilizing Defendants’

reasoning. Notwithstanding the fact the documentation pertaining to her

workers’ compensation was entirely prejudicial to Plaintiff’s 2009 workers’

compensation claim, this Court allowed that information to be submitted to

the jury.

Additionally, this Court allowed the testimony of Pamela Thomas as

it pertained to her previous workers’ compensation claim. At trial, Plaintiff’s

counsel objected to the introduction of such testimony on the grounds that

it was prejudicial, and even conceded to the trial court that Defendants were

free to cross-examine Plaintiff Pamela Thomas regarding the fact that she

had a prior knee injury in 2007. Not willing to accept Plaintiff’s concession

that evidence pertaining to the prior injury to the knee was admissible, this

Court simply disregarded Plaintiff’s objection and allowed such evidence in

the form of testimony and documentation to be submitted to the jury.

* * * The fact that Plaintiff had a previous knee injury in 2007 may -32-

be helpful to the jury’s determination of whether she suffered a new injury

in 2009, but the manner in which her injury occurred, and the benefits she

applied for and may have received in 2007, was not helpful to the jury’s

rational determination of whether she suffered a new injury in 2009. Such

evidence was entirely prejudicial, as it led the jury to the ultimate conclusion

that she did not suffer an injury in 2009 at work, for the simple reason that

she had also suffered an injury in 2007. Clearly, the submission of such

evidence is evidence that the verdict was the product of passion and

prejudice, justifying a new trial. * * *

{¶ 52} Thomas’ third argument was as follows: “The trial court erred by refusing

to submit an exhibit to the jury when the exhibit was relied upon by Dr. Saunders at his

deposition to answer questions, without objection, and when the questions and answers

were played to the jury.” Thomas asserted as follows regarding the First Report of Injury

discussed above:

Plaintiff was clearly prejudiced by the Court’s refusal to allow the

exhibit to be presented to the jury. No objection was made to the exhibit

at the time of Dr. Saunders’ deposition, which allowed Plaintiff to believe the

document would be introduced into evidence, thus, necessitating the need

to call an additional witness from Concentra. Moreover, Dr. Saunders’

testimony would have lost credibility with the jury, considering that the jury

was not allowed to see a document that Dr. Saunders reviewed at his

deposition, thus calling into question his veracity, as he was rendering an

opinion on a document which was not received into evidence. -33-

As such, the failure of the Court to publish an exhibit to the jury, when

the document had been relied upon by a testifying expert to render an

opinion made without objection, clearly prejudiced Plaintiff, as it constitutes

an irregularity in the proceedings. * * *

{¶ 53} Finally, Thomas asserted the following final argument: “This Court should

grant a new trial, as this Court cannot effectively issue a judgment entry disposing of all

issues in the case under Civ.R. 63(B), as this Court has made inconsistent rulings

regarding the condition ‘substantial aggravation of pre-existing osteoarthritis of the left

knee’ which makes effective review of the case difficult.” Thomas asserted as follows:

Here, the Court’s denial of the claim for “substantial aggravation of

pre-existing osteoarthritis of the left knee” based upon res judicata is not

supported by solid reasoning. As discussed above, res judicata requires a

“final judgment or decree.” The [IC] purported to deny Plaintiff’s entire

claim in its [SHO’s] order. Because Plaintiff filed a Notice of Appeal which

vested the Court with jurisdiction, there was not a “final judgment or decree”

of any condition, as the claims were pending with this Court. It is

completely illogical to provide that a certain claim is denied on the basis of

“res judicata,” when the Court presently possessed jurisdiction to decide the

claim in the first instance. A claim cannot be denied on the basis that it

been [sic] finally denied before, when there has been no final determination

to begin with.

Compounding this issue was the court’s refusal to allow the jury to -34-

consider the osteoarthritis condition on the original allowance claim. This

Court applied Ward v. Kroger to require Plaintiff to present her claim before

the [IC]; the[IC] denied the second filing on the basis or res judicata. Either

the osteoarthritis should have been allowed to be presented with respect to

the Court’s jurisdiction possessed from the first Notice of Appeal or the

second Notice of Appeal. Given that a single re-filing combined both

Notices of Appeal together into a single complaint, the Court must have had

jurisdiction to consider the condition under one or both. To find a lack of

jurisdiction in the first instance, and a denial based upon res judicata in the

second (referring to the first instance pending at the time when nothing was

adjudicated) is illogical.

The Court did not enter a final Judgment Entry. The parties could

not agree on appropriate language to be included in the Entry. Counsel for

Plaintiff believed that the Judgment Entry should reflect the fact that this

Court denied the claim for three conditions – (1) left foot sprain; (2) left knee

contusion; and (3) substantial aggravation of pre-existing osteoarthritis.

The first two conditions were denied by the jury verdict, while the third was

denied by the Court in its previous interlocutory decision. Counsel for

[DPS] believes the Judgment Entry should reflect that the “entire claim”

should be denied (notwithstanding its previous argument that only certain

conditions may be raised). As the parties cannot even agree upon what

was decided by Judge McGee, a new trial pursuant to Civ.R. 63(B) is

appropriate. -35-

{¶ 54} On March 13, 2015, BWC responded to Thomas’ motion for a new trial.

BWC initially argued that “Thomas failed to present a transcript of the proceedings

sufficient to enable the court to exercise its discretion in granting the motion for a

new trial.” BWC asserted as follows:

Here, Thomas improperly presents about 40 pages of testimony.

First, there is no evaluation of the Tape or CD recording form to ensure the

quality of the proceedings. Secondly, there is no indication of which

portions of the record were requested, and importantly, which portions were

excluded. * * *

Not only does the partial transcript fail to state what is included and

excluded, but the partial transcript also fails to explain why the court made

its rulings. Notably, the partial transcript, on page 4, states that the Court

“notes the objection” without more.

Further, on page 8-27, Thomas’ [sic] proffers one single page of

evidence. The parties talk in general about what the court previously ruled,

but the court’s actual ruling is not included in the transcript. In addition,

though Thomas proffered his [sic] exhibits, which, as the passage indicates,

was different from the one exchanged previously, Thomas does not submit

his [sic] proffered exhibits for the court’s review. Likewise, on page 22, as

the court was about to give its rational [sic] and explain its ruling, Thomas

cut her off. * * * Finally, the insufficiency of the transcript is apparent on page

31, where the court says “let’s follow what the court had allowed. And I -36-

think you made your point, but I’m going to overrule the objection.” * * *

Thomas does not attach, or include, “what the court has already ruled.”

Even assuming that some of the discussion found in the partial

transcript pertains to the court’s preliminary ruling sent via email on

November 13 and 14, 2014, a court’s preliminary ruling does not serve as

the basis for an assignment of error. The function of preliminary instruction

is to avoid error, prejudice, and possibly a mistrial by prohibiting opposing

counsel from raising or making reference to an evidentiary issue until the

trial court is better able to rule upon its admissibility outside the presence of

a jury once the trial has commenced. * * *

Moreover, it is well recognized that a court speaks only through its

journals. * * * Here, the e-mails were not journalized and not presented to

the clerk to become part of the permanent record of the court. Thomas

also did not reference the e-mails in the partial transcript that she provided.

The partial transcripts provided by Thomas do not contain any official rulings

from the court. Here, the improperly certified and incomplete transcript is

tantamount to no transcript, and should be disregarded. * * *

{¶ 55} BWC next asserted that “Thomas is not entitled to a new trial under

Civ.R. 59.” BWC argued that pursuant to Civ.R. 59(A)(1), there were no irregularities

warranting a new trial. According to BWC, “many of the issues Thomas complains of were

created by Thomas.” Citing a January 10, 2011 email correspondence between the

parties, BWC asserted that “despite knowing that DPS and BWC sought to limit the scope

of Dr. Saunders’ testimony, Thomas’s counsel pressured DPS and BWC to delay filing a -37-

motion in limine “until after Dr. Saunders’ [sic] testified.’ ” BWC argued that “any alleged

choppiness in Dr. Saunders’ video deposition” could have been avoided if counsel for

Thomas worked with BWC and DPS to “determine the scope of Dr. Saunders’ testimony”

prior to his deposition.

{¶ 56} BWC noted that while the rules of evidence “are not controlling in hearing[s]

at the administrative level,” “Dr. Wunder’s report was inadmissible under the court rules

of evidence.” BWC argued that Thomas knew that it and DPS objected to Dr. Lee’s

diagnoses in the Concentra records “as early as August 3, 2012,” and that they “supported

their objections with citations to Evid.R. 803(6), Hytha v. Schwendeman, 40 Ohio App.2d

478, and Ruth v. Moncrief, 2d Dist. Montgomery No. 18479, 2001-Ohio-1709.” BWC

argued as follows:

Despite this knowledge, Thomas never submitted Dr. Wunder’s

unredacted report as a trial exhibit. Instead, Thomas submitted two

different trial material lists on July 27, 2012 and February 21, 2014, neither

of which included Dr. Wunder’s unredacted report. If, as Thomas argues,

Dr. Wunder’s non-redacted report were so very vital to her defense, she

would have included it in her trial materials. Instead, the evidence strongly

suggests that Thomas took advantage of an unredacted diagnoses [sic],

which she knew or should have known was otherwise inadmissible.

{¶ 57} Thomas directed the court’s attention to Parrish v. Jones, 4th Dist. Ross No.

11CA3238, 2012-Ohio-1145 and argued as follows:

As in Parrish, Thomas had the ultimate burden to prove her case. If

Dr. Lee’s diagnosis was vital to her claim, she should have called Dr. Lee -38-

as a witness. However, she chose not to subject Dr. Lee to cross-

examination. Instead, Thomas used her entire cross-examination of Dr.

Wunder to discuss Dr. Lee’s inadmissible diagnosis. Rather than using her

cross-examination to challenge Dr. Wunder’s findings or diagnosis, she

insinuated that Dr. Wunder changed his opinion or relied on Dr. Lee’s

diagnosis. Dr. Wunder did not state that he relied on Dr. Lee’s diagnosis

in his independent medical examination report. In fact, he testified that he

did not rely on Dr. Lee’s opinion. Dr. Wunder deposition page 67-69, and

72. Therefore, it is fallacy for Thomas to suggest that she somehow relied

on Dr. Wunder’s mere recitation of Dr. Lee’s diagnosis. Though DPS

noticed the errant diagnosis in preparation of Dr. Wunder’s trial deposition,

the redactions to Dr. Wunder’s report conformed with DPS’ and BWC’s

ongoing objections. Because there was no irregularity, Thomas is not

entitled to a new trial under Civ.R. 59(A).

{¶ 58} BWC argued that the jury and the defendants did not engage is misconduct,

and that Thomas’ “bare allegation provides no information or basis for the court to grant

a motion for new trial.”

{¶ 59} BWC next argued that “Thomas has not met her burden of proving that she

has been prejudiced by the evidence admitted.” BWC asserted that Thomas’ cross-

examination of Dr. Wunder regarding the Concentra diagnosis was properly excluded by

the trial court, and “there is no colorable claim of surprise.” BWC argued that the

“redacted portions of Dr. Wunder’s IME report in no way alter his opinion. Dr. Wunder

opined that Thomas did not suffer a sprain of the foot or a contusion of the knee.” BWC -39-

asserted that “Dr. Wunder did not rely on Dr. Lee’s diagnosis.”

{¶ 60} BWC asserted as follows regarding Dr. Wunder’s report:

Thomas argues that she should have been permitted to submit Dr.

Wunder’s entire report because Dr. Wunder is a “party-opponent” because

DPS has retained him as an expert numerous times. In an attempt to

support her contention, Thomas cites Szulinski v. Kellison & Co., 8th Dist.

Cuyahoga No. 99672, 99674, 2014-Ohio-111. Significantly, unlike this

court, the 8th District Court of Appeals does not recognize Hytha, supra.

Szulinski specifically relies on the fact that the medical diagnosis of a non-

testifying physician is admissible. This is in direct contravention with

binding precedent in the 2nd District Court of Appeals.

{¶ 61} BWC asserted the “key determination in agency theory is who has the right

to control the manner or means of doing the work. * * *.” BWC argued that “there is no

evidence that Dr. Wunder agreed to be bound by DPS’ wishes or that he agreed to testify

in a particular manner. He did not agree to be subject to DPS’ control in giving his

testimony.” BWC argued that “the court properly excluded Thomas’ questions regarding

Dr. Lee’s records from Concentra as well as the unredacted report.” BWC asserted as

follows:

Moreover (and more locally), the diagnosis is still inadmissible

because it is attributable to a third party, rather than to Dr. Wunder himself.

Under Ohio law, “where the supplier of the hearsay information fails to

qualify under the rule then the evidence is inadmissible, despite the fact that

the recorder may be qualified.” McCormick v. Mirrored Image, Inc., 7 Ohio -40-

App.3d 232, 234 (Hamilton 1982), see also Ohio R.Evid. 805 (hearsay

within hearsay is inadmissible). Here, though Dr. Wunder may be the

recorder of Dr. Lee’s diagnosis, he is not the supplier.

Because an independent expert is not an agent of a party opponent,

granting a new trial on the basis that Dr. Wunder is an agent of Defendant

DPS would be in error.

{¶ 62} BWC next asserted that the “trial court properly applied Hytha, supra, to

redact statements made by a non-testifying doctor contained in Dr. Wunder’s records.”

BWC argued that “it would have been extremely prejudicial for a non-testifying physician’s

opinion to be heard” relating to the conditions at issue. BWC asserted that “Dr. Wunder

based his opinion on objective x-rays, CT scans and MRIs, which by law are not

considered diagnoses, rather are considered objective facts.” According to BWC,

because “the testifying experts in this case agreed that Thomas had long-standing

osteoarthritis, it was not error for the court to admit records from Dr. Dickens and

Grandview Hospital saying the same thing.”

{¶ 63} BWC argued that evidence of Thomas’ 2007 injury was properly admitted.

According to BWC, “Thomas testified that she had constant pain since her 2007 injury.

Thus, such injury, and the treatment she received as a result, was completely relevant for

the jury, which was asked to decide whether Thomas sustained a new injury.”

{¶ 64} BWC argued that the court’s redaction of Dr. Lee’s diagnosis from the First

Report of Injury did not prejudice Thomas. BWC asserted that “Thomas does not provide

the trial transcript concerning the court’s rulings on Exhibit 1, which is Plaintiff’s FROI,

containing the diagnosis.” BWC asserted as follows: -41-

Moreover, Thomas could have mitigated any perceived harm by

submitting the redacted FROI. Though Thomas used the unredacted

Exhibit 1 during Dr. Saunders’ testimony, she did not publish the document

to the jury at that time. Also, when Thomas’ counsel questioned Dr.

Saunders, she did not rely on those portions of the FROI that were

eventually redacted. Thomas fails to point out that she displayed the

redacted exhibit during her re-direct. * * * Yet, when the time came to

introduce exhibits, she refused to submit redacted documents to the jury. *

* * Simply put, the jury would not have known that the version of Exhibit 1

that was published during trial was not the same version of Exhibit 1 that

was before Dr. Saunders. Therefore, if Dr. Saunders “lost credibility” with

the jury due to Thomas’ failure to submit exhibits, then the error was created

by Thomas.

{¶ 65} BWC asserted that the trial court “should perform the ministerial act of

signing the final judgment entry confirming the jury’s verdict” “denying Thomas’ right to

participate in the worker’s compensation fund for the conditions of left knee contusion and

left foot sprain.” BWC argued that “substantial aggravation of osteoarthritis was never

adjudicated. As such that condition was neither allowed nor denied.”

{¶ 66} Finally, BWC asserted that “Thomas attempted to create several errors,

which she now alleges entitle her to a new trial.” BWC noted that on “several occasions,

the court’s prior term cautioned Thomas that it appeared that Thomas was attempting to

sabotage the trial knowing that the court’s term was soon expiring * * * and calling

Thomas’ strategy a ‘trial by ambush.’ ” -42-

{¶ 67} On March 16, 2015, “Plaintiff’s Motion to Supplement Motion for New Trial”

was filed, in which Thomas sought to “supplement the partial transcript previously filed

with a full record of the proceedings.” The court granted the motion. On May 7, 2015

DPS opposed Thomas’ motion for a new trial, incorporating the arguments in BWC’s

memorandum in opposition.

{¶ 68} On May 8, 2015, Thomas filed “Plaintiff’s Supplemental Memorandum in

Support of Plaintiff’s Motion for New Trial,” noting that she supplemented the record with

the complete transcript and incorporating the transcript into her motion for new trial.

Thomas asserted that “trial court Judge McGee relied extensively upon-pre-trial rulings

which were filed with the Court exhibits at the trial of this matter. The trial court failed to

consider the arguments made at the time, and relied solely on the previous rulings

incorporated in the e-mail.”

VI. Decision on Motion for New Trial

{¶ 69} In its “Decision and Entry Granting Motion for New Trial,” the court initially

noted that since the verdict, “the parties have not resolved their differences about the

terms of a Judgment Entry and a Judgment Entry has not been filed.” The court then

noted the grounds for a new trial pursuant to Civ.R. 59(A), which provides in relevant part

(A) Grounds

A new trial may be granted to all or any of the parties and on all or part of

the issues upon any of the following grounds:

(1) Irregularity in the proceedings of the court, jury, magistrate, or

prevailing party, or any order of the court or magistrate, or abuse of -43-

discretion, by which an aggrieved party was prevented from having a fair

trial;

(2) Misconduct of the jury or prevailing party.

(7) The judgment is contrary to law;

(9) Error of law occurring at the trial and brought to the attention of

the trial court by the party making the application.

In addition to the above grounds, a new trial may also be granted in the

sound discretion of the court for good cause shown. When a new trial is

granted, the court shall specify in writing the grounds upon which such new

trial is granted.

{¶ 70} The court then determined that “Plaintiff’s motion details a myriad of

‘irregularities’ in this proceeding,” and that the “primary source of the ‘irregularities’ ” was

the trial court’s July 10, 2012 pretrial ruling. The court conducted the following analysis:

In Ward v. Kroger, the claimant injured his right knee during

employment with Kroger. The commission allowed for a “knee sprain” but

disallowed the claim of a medial meniscus tear and chondromalacia of the

right knee. The plaintiff appealed to the court of common pleas pursuant

to R.C. 4123.512 seeking to participate in the Workers Compensation Fund

for the medial meniscus tear and chondromalacia of the right knee. He

then amended his complaint to add the conditions of aggravation of

preexisting degenerative joint disease and aggravation of preexisting

osteoarthritis. * * * The jury found in the plaintiff’s favor on the added claim -44-

only. * * * The court of appeals reversed the trial court’s judgment as

exceeding the trial court’s jurisdiction since the added claim had never been

considered by the BWC.

The Supreme Court in Ward affirmed the holding that the medical

conditions addressed on appeal to the court of common pleas are those

addressed in the order that was appealed. It stated, “The grant or denial

of the right to participate for one injury or condition does not preclude a

subsequent claim for participation in the fund based on another injury or

condition arising out of the same industrial accident. But any such claim

must be initiated before the Industrial Commission.” * * * In other words,

“each injury or condition that is alleged to give the claimant a right to

participate . . . must be considered as a separate claim for purposes of R.C.

4123.511 and 4123.512 . . .” * * *

The Supreme Court distinguished the appellate decision in Robinson

v. AT&T Network Systems, 10th Dist. Franklin App. No. 02AP-807, 2003-

Ohio-1513 (10th Dist. Franklin [C]ounty, March 27, 2003), where a claimant

failed to appeal the denial of an earlier claim for degenerative disc disease

at L-4-5 and L5-S1 but then appealed a subsequent claim denial for

aggravation of preexisting disc disease at the same location. The Tenth

District Court of Appeals had applied res judicata to deny the subsequent

claim. The unappealed disallowance by the commission became a final

order: “when Robinson declined to pursue an R.C. 4123.512 appeal of the

original claim, where he could have presented the two arguments -45-

alternatively, he forfeited his opportunity to litigate a variant of the initial

causation theory.” * * *

The Supreme Court did not apply res judicata to the situation in

Ward. It held the court of common pleas reviewed orders from the

industrial commission so that a separate claim for aggravation of preexisting

osteoarthritis could not be added by the trial court without being considered

by the commission. * * * It stated, “In other words, the conditions of medial

meniscus tear and chondromalacia . . . are distinct from the conditions of

aggravation of preexisting degenerative joint disease and osteoarthritis.

Thus, regardless of whether Ward raised these latter conditions at trial,

Robinson would not apply to prevent him from going back to the

administrative agencies and requesting their allowance.” * * * The Supreme

Court concluded, “we hold that the claimant in an R.C. 4123.512 appeal

may seek to participate in the Workers’ Compensation Fund only for those

conditions that were addressed in the administrative order from which the

appeal is taken.” * * * It expressed “no opinion” on whether “a claim for a

certain condition by way of direct causation must necessarily include a claim

for aggravation of that condition for purposes of either R.C. 4123.512 or res

judicata.” * * *

{¶ 71} The court noted that Thomas “sought to amend the scope of her appeal

from ‘contusion left knee and sprain left foot’ to add the ‘aggravation of preexisting

osteoarthritis left knee,’ ” but she then “voluntarily dismissed the case without prejudice

and returned to the commission and filed a separate claim for the ‘aggravation’ condition.” -46-

The court noted that a dismissal pursuant to Civ.R. 41 “is not an adjudication on the

merits.” The court further noted that when Thomas “re-filed her case in this Court she

included the original claim for ‘contusion’ and the recently denied claim for ‘aggravation,’ ”

and the court concluded that doing so complied with Ward. The court further concluded

that “since the trial court had not ruled on the additional claim, there was no judgment

from this Court upon which res judicata could be based.” The court noted that its

predecessor denied the aggravation claim on the basis of res judicata, and BWC “stated

that the ‘aggravation’ claim was subsumed in the first claim for ‘contusion’ and its decision

on it was final, invoking a form of administrative res judicata referenced in Robinson,

supra.” The court concluded that “[t]his reasoning is contradicted by the Supreme Court

ruling in Ward v. Kroger that the aggravation claim is a separate claim.”

{¶ 72} The court further noted that “the denial of the contusion claim was not final

as in Robinson, supra. Thomas appealed to this Court for de novo review based on the

evidence presented before a jury and without deference to the rulings at the commission.”

In other words, the contusion claim was timely appealed and voluntarily dismissed without

prejudice, “so the dismissal was not a final judgment that could constitute res judicata. It

was subject to re-filing that occurred in this case. There is no basis for dismissing

Thomas’ appeal in the aggravation case based on res judicata since there was no final

judgment entered. The re-filing of the appeal continued the appeal to obtain de novo

review.”

{¶ 73} The court continued as follows:

Accordingly, the court now reconsiders the interlocutory decision,

Civ.R. 54(B), dismissing the appeal of the aggravation claim and overrules -47-

that decision as contrary to law. Civ.R. 59(A)(7). The irregularities at trial

and otherwise in this proceeding were linked to the Trial Court’s order of

dismissal and implementation of the same, including striking plaintiff’s

cross-examination of the defense expert witness and redaction of reports

and submission of reports to the jury, all of which prevented Thomas “from

having a fair trial”. Civ.R. 59(A)(1). In effect, the jury only heard the

defense expert, Dr. Wunder, on direct examination. His report was

redacted and modified by counsel for Dayton Public Schools, * * * but he

acknowledged that he considered all of the un-redacted versions of medical

records and considered the opinions of non-testifying physicians in

rendering his opinions. * * * This Court did not rule on objections to trial

material and motions in limine scheduled for telephone conference for

March 14, 2014 for the trial on March 17, 2014. This Court vacated the

trial date and reset it for November 17, 2014.

At trial, the Court only allowed the jury to consider whether Thomas

suffered from the conditions “left foot sprain and left knee contusion.” * * *

She was prevented from using the “First Report of Injury” exhibit relied on

by her expert, Dr. Saunders. * * * This Court allowed defendants to introduce

evidence of a prior workers (sic) compensation claim from 2007, overruling

the objection that questioning be limited to the injury and not the claim and

benefits sought. * * * The Court agrees that this information could have

caused the jury to react in a prejudicial manner to Thomas and her claim.

Also, Dr. Wunder’s report in anticipation of trial was presented to the -48-

jury over objection. * * * This included opinions of non-treating physicians.

See Ruth v. Moncrief, Montgomery App. No. 18479, 2001-Ohio-1709 (2d

Dist. Montgomery County, November 2, 2001). These matters were unfairly

prejudicial to Thomas’s case and presentation to the jury.

The Trial Court’s erroneous ruling prevented Thomas from having

effective de novo review in this Court with an untainted jury as the statute

contemplates in authorizing such an appeal. The parties’ preparation for

trial and evidentiary materials were so interrelated with both the contusion

claim and the aggravation claim that the Court’s attempt to dissect them

rendered the trial confusing and unfairly prejudicial to Thomas. * * * The trial

court’s attempts to conform the evidence and argument to its erroneous

order dismissing the case as to the “aggravation” claim cast Thomas’s case

in an unfairly negative light before the jury who were unaware of the legal

rulings and implications. This Court applies the principle stated in Pesek

v. Univ. Neurologists Assn, Inc., 87 Ohio St.3d 495, 502, 2000-Ohio-483,

721 N.E.2d 1011 (2000), that where there is “room for doubt” as to whether

the verdict “may have been influenced by” improper conduct or rulings, “that

doubt should be resolved in favor of the defeated party.”

Defendants argue that the trial problems were caused by Thomas’s

attorneys mishandling of the trial. * * * The Court does not agree.

Counsel for Thomas was continually placed in an unfair position in

presenting Plaintiff’s case. A new trial is mandated to allow Thomas a fair

trial for de novo consideration of her claims to participate in the workers[’] -49-

compensation fund for her work-related injuries. Therefore, the Court

hereby grants the motion for a new trial. * * *

VII. Arguments on Appeal

{¶ 74} In their briefs, BWC and DPS each assert four assignments of error. We

will first consider BWC’s first assigned error. BWC asserts as follows:

THE TRIAL COURT ERRED IN REVERSING A PREVIOULSY

GRANTED PRE-TRIAL MOTION TO DISMISS AFTER TRIAL

CONCLUDED.

{¶ 75} In its first assignment of error, BWC cites Zink v. Harrison, 2d Dist.

Montgomery Nos. 12201, 12684, 1992 WL 164053, *11 (July 16, 1992), which noted that

a “partial summary judgment is an interlocutory order under Civ.R. 56(C) which is subject

to revision at any time before the entry of final judgment. See Civ.R. 54(B). A motion to

vacate would appear to be a proper vehicle for obtaining such revision.” This court noted

that “a motion to vacate a partial summary judgment should only be entertained in

extraordinary circumstances because a party who has provided discovery to the non-

moving party in accordance with the civil rules, and who has obtained a partial summary

judgment in accordance with Civ.R. 56, should enjoy the benefit of the partial summary

judgment at trial.” Id. BWC asserts that “Thomas did not file a motion to vacate or

reconsider the court’s order, which granted Defendant’s motion for partial dismissal,

though she had more than two years to do so. As was the case in Zink, once trial started,

BWC and DPS were entitled to rely on the court’s grant of its partial motion to dismiss

once the trial began on the remaining issues.” In its reply brief, in reliance upon Zink,

BWC asserts that once “a trial commences, a partial dismissal becomes final and litigants -50-

are entitled to rely on the partial dismissal to determine what evidence to present.”

{¶ 76} In Zink, the Zinks sued Harrison, asserting that excavation he performed

removed support from their premises. Id., *1. The trial court sustained Harrison’s motion

for summary judgment as to statutory violations, and at the end of the Zinks’ case in chief,

Harrison moved for a directed verdict on multiple grounds. Id., *2. In response, the Zinks

orally moved to vacate the prior summary judgment in Harrison’s favor on the grounds

that the evidence supported their statutory claim. Id. The trial court overruled the motion

and directed a verdict in favor of Harrison. Id.

{¶ 77} On the Zinks’ appeal, this Court noted that the only question relevant to the

determination of the statutory claim was whether Harrison’s excavation exceeded nine

feet in depth. Id., * 10. This Court noted that Harrison provided an affidavit averring that

he did not dig below nine feet, that it was then up to the Zinks to establish a genuine issue

of material fact on the issue for trial, and that they failed to do so. Id. This Court noted

that “Civ.R. 56(D) clearly states that once a trial court determines, in conjunction with a

motion for summary judgment, that a particular fact is without controversy, and journalizes

that determination, that fact is deemed established and may not be controverted at trial.”

Id., *11. This Court determined that Civ.R. 56(A-C, E) “strongly suggest that evidence in

support of a motion to vacate a partial summary judgment should not take the form of trial

evidence.” Id. Instead, this Court indicated that the evidence should “be attached to a

written motion to vacate, just as evidence is attached to a motion for, and memorandum

opposing, summary judgment. While there may be situations where these formalities

may be properly dispensed with, this case does not present any such situation.” Id.

This court concluded, “given the immediacy of trial, the Zinks were required to move to -51-

vacate as soon as they became aware of the trial court’s decision to grant summary

judgment.” Id., * 12.

{¶ 78} The procedural context herein and in Zink are distinct, and we cannot

conclude that Zink required Thomas to file a motion to vacate the dismissal of Claim #2.

Thomas proceeded to trial on Claim #1, and her motion for a new trial was based upon

“irregularities” that occurred at that trial. BWC’ first assignment of error is overruled.

{¶ 79} We will next address DPS’ first and second assignments of error, and

BWC’s second assignment of error together. DPS’ first and second assignments of error

are as follows:

JUDGE SKELTON ERRED WHEN HE REVERSED JUDGE

MCGEE’S DECISION TO GRANT APPELLANTS’ MOTION TO DISMISS

THE ARTHRITIS CLAIM.

And,

JUDGE SKELTON ERRED WHEN HE RELIED UPON HIS

DECISION TO OVERTURN JUDGE MCGEE’S GRANTING OF

APPELLANTS’ MOTION TO DISMISS IN ORDER TO GRANT THOMAS A

NEW TRIAL.

{¶ 80} BWC’s second assignment of error is as follows:

THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL ON THE

BASIS OF ITS PREVIOUSLY GRANTED MOTION TO DISMISS

BECAUSE A MOTION TO DISMISS IS NOT A TRIAL UNDER THE OHIO

RULES OF CIVIL PROCEDURE.

{¶ 81} In its first assignment of error, DPS asserts that “a motion for a new trial is -52-

not a proper, authorized or effective procedural device by a plaintiff to attack a dismissal

of an action.” In its second assignment of error, DPS asserts that a “new trial cannot be

granted based upon a decision to overrule a motion to dismiss.” DPS relies in part in

both assignments of error upon Knecht v. Ohio Department of Rehabilitation and

Correction, 78 Ohio App.3d 360, 363, 604 N.E.2d 820 (10th Dist. 1992), which concluded

in part that “the Ohio Rules of Civil Procedure do not intend rulings on Civ.R. 12(B)(1)

and 12(B)(6) motions to constitute trials.”

{¶ 82} In its second assignment of error, BWC asserts that “a new trial does not

properly lie from a motion to dismiss because no judgment was rendered on the

evidence.” Both parties cite First Bank of Marietta v Mascrete, 79 Ohio St.3d 503, 684

N.E.2d 38 (1997), which in turn cited L.A. & D., Inc. v. Lake Cty. Bd. of Commrs., 67 Ohio

St.2d 384, 423 N.E.2d 1109 (1981), which held that “ ‘a summary judgment proceeding

is not a trial but rather is a hearing upon a motion.’ ” Mascrete, 509.

{¶ 83} Thomas’ motion for new trial was not specifically addressed to the trial

court’s July 10, 2012 decision but rather to alleged errors that occurred at trial regarding

the omission and exclusion of evidence, pursuant to Civ.R. 59(A). The trial court

concluded that the “primary source” of the irregularities at trial resulted from the July 10,

2012 decision. As this Court previously determined, the trial court’s dismissal entry was

interlocutory in nature and, pursuant to Civ.R. 54(B), “subject to revision at any time

before the entry of judgment adjudicating all the claims and the rights and liabilities of all

the parties.” We conclude that DPS’ first and second assigned errors lack merit, and that

BWC’s second assignment of error lacks merit; while BWC is correct that no trial occurred

on Claim #2, nevertheless there was a trial on Claim #1, in which the court concluded that -53-

irregularities occurred, thereby depriving Thomas of a fair trial. Hence, there was no

absence of a trial as to whether or not Thomas sustained an injury on September 16,

2009. Accordingly, these assignments of error are overruled.

{¶ 84} We will next address BWC’s and DPS’ third assignments of error. BWC’s

third assignment of error is as follows:

THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL

BECAUSE IT HAD NO BASIS TO DO SO UNDER WARD V. KROGER.

1. Arthritis was not administratively adjudicated under Claim I.

2. Claim II is barred by res judicata.

3. Under Ward v. Kroger, the trial court lacks jurisdiction over Count

II/Claim II because the commission did not adjudicate arthritis.

{¶ 85} DPS’ third assignment of error is as follows:

JUDGE SKELTON ERRED WHEN HE IMPROPERLY APPLIED

WARD V. KROGER AND THE PRINCIPLES OF RES JUDICATA IN

ORDER TO GRANT A NEW TRIAL.

1. Thomas failed to request the allowance of arthritis in Claim #1;

as a result, this condition was not adjudicated administratively.

2. The doctrine of res judicata clearly bars Claim# 2.

3. Pursuant to Ward v. Kroger, the trial court lacked jurisdiction over

Claim# 2 because the Commission did not adjudicate the allowance of

arthritis.

{¶ 86} We must first address the appropriate standard of review herein for the

remaining assignments of error before addressing the basis of the decision granting a -54-

new trial. BWC directs our attention to Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d

685 (1970), which provides as follows at syllabus: “Where a trial court is authorized to

grant a new trial for a reason which requires the exercise of a sound discretion, the order

granting a new trial may be reversed only upon a showing of abuse of discretion by the

trial court.” “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary, or unconscionable. * * * A decision is unreasonable if there is no sound

reasoning process that would support that decision. AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990) * *

*.” Bohme v. Bohme, 2d Dist. Montgomery No. 26021, 2015–Ohio–339, ¶ 11. Rohde

further provides at syllabus: “Where a new trial is granted by a trial court, for reasons

which involve no exercise of discretion but only a decision on a question of law, the order

granting a new trial may be reversed upon the basis of a showing that the decision was

erroneous as a matter of law.”

{¶ 87} BWC asserts that the “Supreme Court of Ohio conclusively holds that a

motion to dismiss is a legal question, an appeal from which must employ a de novo

standard,” citing Cleveland Elec. Ilum. Co. v. Pub. Util. Comm., 76 Ohio St.3d 521, 668

N.E.2d 889 (1996), which involved an appeal which arose from the dismissal by the Public

Utilities Commission of Ohio of a complaint filed by the appellant electric utility, the review

of which involved a question of law.

{¶ 88} As noted above, this appeal is not from the trial court’s granting of the

motion to dismiss/motion for summary judgment, but rather BWC and DPS appeal from

the grant of the motion for a new trial, which grant was premised in part upon a question

of law, namely whether or not the dismissal of Claim #2 was contrary to law, and in part -55-

upon the “irregularities” in the admission and exclusion of evidence. We will first review

de novo the trial court’s reconsideration of, and overruling of, the interlocutory entry

dismissing the appeal of claim #2.

{¶ 89} We initially note that a “ ‘claim’ in a workers’ compensation case is the

basic or underlying request by an employee to participate in the compensation system

because of a specific work-related injury or disease.” Felty, 65 Ohio St.3d at 239. R.C.

4123.512 allows the “claimant or the employer” to “appeal an order of the industrial

commission made under division (E) of section 4123.511 in any injury or occupational

disease case * * * .” In Felty, the Supreme Court of Ohio noted that the “only decisions

of the commission that may be appealed to the court of common pleas” under R.C.

4123.512 “are those that are final and that resolve an employee’s right to participate in

the State Insurance Fund.” Id., 238. According to the Felty Court, this “narrow rule is

consistent with the goal of creating a workers’ compensation system that operates largely

outside of the courts.” Id.

{¶ 90} We conclude that the trial court erred in determining that the dismissal of

claim #2 was contrary to law. Most significant to our determination is the fact that the

DHO and the SHO determined in Claim #1 that Thomas failed to prove that she sustained

an industrial injury on September 16, 2009, and the IC refused her appeal. At that point,

the SHO decision that Thomas did not sustain any injury became a final appealable order.

{¶ 91} In Robinson v. AT&T Network Systems, 10th Dist. Franklin No. 02AP-807,

2003-Ohio-1513, the Tenth District noted as follows:

Res judicata operates “to preclude the relitigation of a point of law or

fact that was at issue in a former action between the same parties and was -56-

passed upon by a court of competent jurisdiction.” Consumers’ Counsel v.

Pub.Util. Comm. (1985), 16 Ohio St.3d 9, 10, 475 N.E.2d 782. The

doctrine applies to administrative proceedings that are judicial in nature,

such as claims before the commission, as they allow each of the parties an

ample opportunity to litigate the issues implicated in the dispute. Set

Products, Inc. v. Bainbridge Twp. Bd. Of Zoning Appeals (1987), 31 Ohio

St.3d 260, 263, 510 N.E.2d 373.

Furthermore, once a competent tribunal enters a valid, final judgment

on the merits, res judicata acts as a complete bar to any subsequent action

that arises from the same transaction or occurrence that was the core of the

previous matter litigated by the parties. Grava v. Parkman Twp. (1995), 73

Ohio St.3d 379, 653 N.E.2d 226, syllabus. Indeed, it applies to not only

those claims and defenses actually litigated in the first dispute, but is

conclusive as to any claim that may have been properly adjudicated. Id. at

382, 653 N.E.2d 226. State ex rel. B.O.C. Group v. Indus. Comm. (1991),

58 Ohio St.3d 199, 200, 569 N.E.2d 496. Therefore, “[t]he doctrine of res

judicata requires a plaintiff to present every ground for relief in the first

action, or be forever barred from asserting it.” Grava, supra, at 382, 653

N.E.2d 226, quoting Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio

St.3d 60,62, 558 N.E.2d 1178.

Id., ¶ 13-14.

{¶ 92} We note that in dismissing the FROI in Claim #2, the DHO noted that

counsel for Thomas acknowledged “that the only jurisdiction that the court would have at -57-

this juncture for [Claim #1] would include a contusion of left knee and a left foot sprain.”

As the DHO noted, “in the event that [Claim #1] is eventually allowed, there is nothing

that prevents the Injured Worker from requesting an additional condition such as the one

requested at this hearing in that claim.” In other words, in the event that Thomas

prevailed on her appeal of the SHO’s determination that she did not sustain an industrial

injury on the date of the accident, she could move to amend Claim #1 to include the

arthritis condition, which is based upon the same alleged injury, at that time. This

conclusion is consistent with the holding in Ward, since the IC never considered Thomas’

right to participate in the fund for the arthritis claim but rather dismissed the claim in its

entirety.

{¶ 93} For the foregoing reasons, BWC’s and DPS’ third assignments of error are

sustained; Claim #2 is not subject to a new trial.

{¶ 94} Finally, we will consider BWC’s and DPS’ fourth assignments of error

together. BWC’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL AS

THERE WERE NO “IRREGULARITIES” THAT PREVENTED THOMAS

FROM HAVING A FAIR TRIAL.

1. The court properly excluded Thomas’ cross-examination of Dr.

Wunder concerning the Concentra/Dr. Lee diagnoses of contusion of the

left knee and sprain of the left foot.

2. The court properly excluded the Concentra/ Dr. Lee’s diagnoses

on the FROI submitted to the jury.

3. The jury properly heard evidence of Thomas’ prior knee injuries -58-

including her prior workers’ compensation injury to the same body part.

{¶ 95} DPS’ fourth assignment of error is as follows:

IN THE ABSENCE OF ANY “IRREGULARITIES” PREVENTING A

FAIR TRIAL, JUDGE SKELTON ERRED WHEN HE GRANTED A NEW

TRIAL.

1. Thomas’ cross-examination of Dr. Wunder regarding the hearsay

diagnoses was properly excluded.

2. Hearsay diagnoses from Concentra/Dr. Lee were properly

redacted from trial exhibits, including the FROI.

3. Evidence regarding Thomas’ prior knee injuries was properly

submitted to the jury.

{¶ 96} As noted above, Civ.R. 59(A)(1) provides for a new trial on the grounds of

“[i]rregularity in the proceedings of the court, * * * or prevailing party, or any order of the

court, or abuse of discretion, by which the aggrieved party was prevented from having a

fair trial.” As this Court further noted in Meyer v. Srivastava, 141 Ohio App.3d 662, 752

N.E.2d 1011 (2d Dist. 2001), “an irregularity is any matter ‘as constitutes a departure from

the due, orderly and established mode of proceeding therein, where a party, with no fault

on his part, has been deprived of some right or benefit otherwise available to him.’

Sherwin-Williams Co. v. Globe Rutgers Fire Ins. Co. (1912), 20 Ohio C.C. (N.S.) 151,

154, 31 Ohio C.D. 248, 1912 WL 768.” Meyer, 667.

{¶ 97} We will first address the exclusion of Thomas’ cross-examination of Dr.

Wunder. Evid.R. 801(C) defines hearsay as “a statement, other than one made by the

declarant while testifying at trial or hearing, offered in evidence to prove the truth of the -59-

matter asserted.” Evid. R. 803 enumerates hearsay exceptions when the declarant is

unavailable to testify, including Evid.R. 803(6), which lists:

A memorandum, report, record, or data compilation, in any form, of

acts, events, or conditions, made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that

business activity to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the custodian or other qualified

witness or as provided by Rule 901(B)(10), unless the source of information

or the method or circumstances of preparation indicate lack of

trustworthiness. The term “business” as used in this paragraph includes

business, institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit.

{¶ 98} The Staff Notes to this rule provide:

The Ohio rule departs from the Federal Evidence rule by deleting

“opinions and diagnoses” as admissible under the section. It is not clear

how far present Ohio law permits such evidence to be admitted. In Hytha v.

Schwendeman (1974), 40 Ohio App.2d 478 [320 N.E.2d 312], the Franklin

County Court of Appeals set forth seven criteria for a diagnosis to be

admissible when contained in a hospital record. The Hytha case may retain

validity in so far as it may assist in determining the point at which, in medical

records, an act, event or condition admissible under the exception becomes

an impermissible opinion or diagnosis under the rule. -60-

{¶ 99} As noted by this Court in Ruth v. Moncrief, 2d Dist. Montgomery No. 18479,

2001 WL 1346086, * 3-4 (Nov. 2, 2001):

The great weight of authority in Ohio holds that medical opinions and

diagnoses are not within the hearsay exception of Evid.R. 803(6). See, e.g.,

Meyers v. Hot Bagels Factory, Inc. (1999), 131 Ohio App.3d 82, 101 (First

District); Hytha v. Schwendeman (1974), 40 Ohio App.2d 478, syllabus

(Tenth District); Bush v. Burchett (June 13, 1995), Athens App. No.

94CA2237, unreported, at *3-4 (Fourth District). This court has noted that

the admissibility of diagnoses and opinions under Evid.R. 803(6) is unclear

and has applied Hytha to determine such admissibility. See Drury v. Jones

(Nov. 14, 1988), Miami App. No. 87-CA-56, at *9. We agree with these

cases that medical opinions and diagnoses are not admissible under the

Ohio version of Evid.R. 803(6) unless the seven criteria set forth in Hytha

are present. Under Hytha, the following factors must exist before a

diagnosis can be admitted:

(1) The record must have been a systematic entry kept in the records

of the hospital or physician and made in the regular course of business;

(2) The diagnosis must have been the result of well-known and

accepted objective testing and examining practices and procedures which

are not of such a technical nature as to require cross-examination;

(3) The diagnosis must not have rested solely upon the subjective

complaints of the patient;

(4) The diagnosis must have been made by a qualified person; -61-

(5) The evidence sought to be introduced must be competent and

relevant;

(6) If the use of the record is for the purpose of proving the truth of

the matter asserted at trial, it must be the product of the party seeking its

admission;

(7) It must be properly authenticated.

{¶ 100} Below is the relevant unredacted version of Dr. Wunder’s report, with the

subsequent redactions underlined:

Records from Concentra Medical Center were reviewed. She was

seen on September 16, 2009. She reported that one of two females who

were horseplaying fell to the floor and hit her left knee and she fell. She

had a history of left knee surgery in 1997 and a left knee injury in 2007.

With the 2007 injury claim she was off work for three months. She also

had requested aggravation of pre-existing osteoarthritis. It was specifically

noted that there was no deformity, open wound, swelling or discoloration.

She simply had marked diffuse to moderate tenderness over the knee and

foot. There was tenderness actually noted over the entire lower leg. The

patella was mobile. No bruising or contusion was described. She had

limited range of motion of the knee. Range of motion of the toes and

ankles was normal. An x-ray of the foot was normal. She was given a

diagnosis of “contusion left knee and strain left foot.” The FROI was noted.

She was seen on September 18, 2009, and complained of severe pain in

the left lower extremity. There were no new findings. X-rays of the lower -62-

leg were normal, and a diagnosis of contusion left knee and sprain left foot

was given. She called to state she was going to see her own orthopedic

doctor and would not be returning.

{¶ 101} On direct examination, Dr. Wunder identified his report, redacted to

exclude the diagnoses he noted therein from the Concentra records. He testified to a

reasonable degree of medical probability that Thomas did not suffer a contusion or sprain.

In the course of the excluded portion of his cross-examination, the following exchange

occurred:

Q. Now, Doctor, page four of your report - -

A. Um-hum.

Q. - - You note in the first paragraph a diagnosis of contusion of the

left knee and sprain left foot was given - -

A. Correct.

Q. - - is that correct?

A. That is correct.

Q. And that is the finding that you made on November 10th, 2009?

MS. BACH: Objection.

THE WITNESS: That’s not a finding that I made, no, that’s a finding

that was noted at Concentra.

Q. Doctor, is that a statement in your report?

A. Correct. It’s not a diagnosis I made, though, that’s what you

said.

{¶ 102} On subsequent direct examination by counsel for DPS (also excluded), the -63-

following exchange occurred:

Q. The - - do the redacted portions of this report affect your ultimate

conclusion in this case?

A. No, because none of the - -the redacted areas, again, showed

any evidence, medical evidence, of the requested conditions.

Q. And, again, Doctor, what is your medical opinion in this case?

A. That there was no contusion to the knee and no sprain.

{¶ 103} Pursuant to Ruth, we conclude that the trial court did not err in excluding

evidence of the medical diagnoses contained in the Concentra records as inadmissible

hearsay. We further conclude that the hearsay diagnoses contained in the FROI were

properly excluded for the same reason.

{¶ 104} We further note, however, that in moving the court for a new trial, Thomas

asserted, as he does herein, that “Dr. Wunder also included in his report a discussion of

other, non-treating experts. For example, Dr. Wunder stated in his report that ‘Dr.

Freeman did not think her symptoms were due to a left knee contusion or sprain but rather

due to non-allowed osteoarthritis.’ ” The trial court determined that Dr. Wunder’s report

“included opinions of non-treating physicians,” citing Ruth. Dr. Wunder’s report

additionally provides: “A file review by Dr. Andrew Freeman from April 24, 2009, was

reviewed. Dr. Freeman did not think that her symptoms were due to a left knee contusion

or sprain but rather due to non-allowed left knee osteoarthritis. She was noted to have

a chronically painful knee with episodic flare-ups even prior to September 2009.” We

agree with Thomas that Freeman’s diagnosis is inadmissible hearsay not within the

exception of Evid.R. 803(6). -64-

{¶ 105} Finally, we will address BWC’s and DPS’ assertions regarding the

admission of evidence of Thomas’ 2007 injury and attendant workers’ compensation file.

Pursuant to Evid.R. 401, relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Pursuant to Evid.R.

402, “* * * [e]vidence which is not relevant is not admissible.” “[I]t is the trial court’s

province to determine whether, under the circumstances, testimony is ‘essentially

misleading or too remote’ to be deemed relevant. * * * Trial courts have ‘broad discretion

in determining relevance * * *.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-

2126, 767 N.E.2d 216, ¶ 35. Pursuant to Evid.R. 403(A), “[a]lthough relevant, evidence

is not admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”

{¶ 106} As noted above, on March 5, 2014, DPS supplemented its Trial Materials

Exchange after the court’s deadline with the “Certified copy of BWC file materials

regarding Claim No. 07-373210,” page numbers 420 - 668. In her March 17, 2014

objections to the Trial Materials Exchange, Thomas asserted that while “Defendants are

free to introduce evidence of prior problems with Plaintiff’s left knee, through medical

records, it is unfairly prejudicial for them to introduce records discussing Plaintiff’s

workers’ compensation claim. This is not relevant to the issues in this case.” Thomas

asserted that such “documentation only serves to inflame the prejudice of the jury, by

charactering [sic] Plaintiff unfairly as one who repetitively seeks workers’ compensation

benefits, and also seeks to mislead the jury into believing they should not find the Plaintiff

suffered an injury in the course of and arising out of her employment on September 16, -65-

2009,” since she already recovered benefits based upon her 2007 injury. In the November

14, 2014 pre-trial email addressing the parties’ objections to trial materials, the trial court

overruled Thomas’ objection.

{¶ 107} At trial, counsel for DPS asked Thomas about her 2007 injury, and counsel

for Thomas objected, asserting that the fact that she received workers’ compensation

benefits for the 2007 injury was irrelevant and prejudicial, and the court overruled the

objection. Counsel for Thomas requested and received a continuing objection.

Thomas testified that she was injured when two male students were fighting, pinning her

between a table and a chalkboard. Thomas identified a “Record of Proceedings” from

her 2007 Workers’ Compensation file and testified that her 2007 claim was allowed for

left knee contusion, and sprain of her left knee and leg.

{¶ 108} In its July 30, 2015 Decision, the court noted that the trial court “allowed

defendants to introduce evidence of a prior workers’ compensation claim from 2007,

overruling the objection that questioning be limited to the injury and not the claim and

benefits sought. * * * The Court agrees that this information could have caused the jury

to react in a prejudicial manner to Thomas and her claim.”

{¶ 109} Both Appellants direct our attention to the Tenth District’s decision in Tonti

v. Morrison, 29 Ohio App.2d 273, 281 N.E.2d 12 (10th Dist. 1971), wherein the court

noted, quoting 69 A.L.R.2d 593, as follows:

* * * “Most of the cases in which the question has been raised have

held or recognized that the plaintiff may properly be cross-examined as to

his previous injuries, physical condition, claims, or actions for injuries similar

to that constituting the basis of the present action, for the purpose of -66-

showing that his present physical condition is not the result of the injury

presently sued for, but was caused wholly or partially, by an earlier injury or

preexisting condition. * * *.”

{¶ 110} The issue before the trial court was whether or not Thomas was entitled

to participate in the BWC’s fund for the conditions appealed in Claim #1. We conclude

that cross-examination of Thomas as to her 2007 injury was relevant to suggest that her

present condition was related to her 2007 injury. We further conclude, however, that the

admission of Thomas’ entire 2007 workers’ compensation file was prejudicial. The file is

almost 250 pages in length and contains diagnoses of non-testifying physicians, as well

as irrelevant information relating to the benefits that Thomas received, and we agree with

the trial court that the voluminous file “could have caused the jury to react in a prejudicial

manner to Thomas and her claim.”

{¶ 111} For the foregoing reasons, BWC’s and DPS’ fourth assignments of error

are overruled in part and sustained in part; while the trial court properly excluded Thomas’

cross-examination of Dr. Wunder regarding the Concentra records as well as the FROI

containing the Concentra diagnosis, the court improperly admitted the diagnoses of non-

testifying physicians in Dr. Wunder’s report and in the 2007 workers’ compensation file.

We accordingly affirm the trial court’s determination that irregularities at trial prevented

Thomas from having a fair trial on Claim #1.

{¶ 112} For the foregoing reasons, the judgment of the trial court granting Thomas

a new trial on Claim #2 is reversed and vacated; the judgment of the trial court granting

Thomas a new trial on Claim #1 is affirmed. The matter is remanded for a new trial on

Claim #1. -67-

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Gary D. Plunkett Rachel D. Siekman Latawnda N. Moore David C. Korte Michelle D. Bach Joshua R. Lounsbury Hon. Richard Skelton