[Cite as Brate v. Rolls-Royce Energy Sys., Inc., 2012-Ohio-4577.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



PATRICK BRATE                                      :        JUDGES:
                                                   :        Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                        :        Hon. W. Scott Gwin, J.
                                                   :        Hon. Sheila G. Farmer, J.
-vs-                                               :
                                                   :
ROLLS-ROYCE ENERGY                                 :
SYSTEMS, INC., ET AL.                              :        Case No. 12CA000001
                                                   :
        Defendants-Appellees                       :        OPINION



CHARACTER OF PROCEEDING:                                    Appeal from the Court of Common
                                                            Pleas, Case No. 11WC050285


JUDGMENT:                                                   Reversed and Remanded



DATE OF JUDGMENT:                                           September 27, 2012



APPEARANCES:

For Plaintiff-Appellant                                     For Rolls-Royce Energy Systems, Inc.

MARK A. ADAMS                                               PRESTON J. GARVIN
1110 Beecher Crossing North                                 DANIEL M. HALL
Suite D                                                     181 East Livingston Avenue
Columbus, OH 43230                                          Columbus, OH 43215

                                                            For Ohio Bureau of Workers'
                                                            Compensation

                                                            JOHN SMART
                                                            150 East Gay Street, 22nd Floor
                                                            Columbus, OH 43215
Knox County, Case No. 12CA000001                                                      2

Farmer, J.

      {¶1}   On October 7, 2007, appellant, Patrick Brate, twisted and injured his right

knee while working for appellee, Rolls-Royce Energy Systems, Inc. Appellant applied

for and was granted workers' compensation benefits for right knee sprain and internal

derangement.

      {¶2}   Appellant subsequently requested the Industrial Commission to allow the

claim for right medial meniscus tear, loose chondral bodies in the right knee, and

substantial aggravation of pre-existing osteoarthritis of the right knee. The Industrial

Commission denied the request.

      {¶3}   Appellant appealed to the Court of Common Pleas of Knox County. On

October 19, 2011, appellee filed a motion for summary judgment, claiming there was no

genuine issue of material fact regarding medical causation. By judgment entry filed

December 13, 2011, the trial court granted the motion.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶5}   "IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT

ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY

JUDGMENT WHERE PLAINTIFF-APPELLANT'S TREATING PHYSICIANS OPINED

THAT A WORK-RELATED ACCIDENT PROXIMATELY CAUSED A SUBSTANTIAL

AGGRAVATION OF PRE-EXISTING OSTEOARTHRITIS IN PLAINTIFF-APPELLANT'S

KNEE, AND WHERE THEIR OPINIONS WERE SUPPORTED BY EVIDENCE OF
Knox County, Case No. 12CA000001                                                     3


PLAINTIFF-APPELLANT'S        HISTORY      AND     OBJECTIVE      AND     SUBJECTIVE

DIAGNOSTIC TESTS AND CLINICAL FINDINGS."

                                          II

      {¶6}   "IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT

ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY

JUDGMENT WHERE PLAINTIFF-APPELLANT'S TREATING PHYSICIANS OPINED

THAT A WORK RELATED ACCIDENT PROXIMATELY CAUSED AN ACCELERATION

OF PLAINTIFF-APPELLANT'S PRE-EXISTING OSTEOARTHRITIS, AND THE TRIAL

COURT IMPROPERLY APPLIED THE 'SUBSTANTIAL AGGRAVATION' STANDARD

OF O.R.C. 4123.01(C)(4) TO THIS TYPE OF WORK-RELATED INJURY."

                                         I, II

      {¶7}   Appellant claims the trial court erred in granting summary judgment to

appellee on his workers' compensation claim. We agree.

      {¶8}   Summary-judgment motions are to be resolved in light of the dictates of

Civ.R. 56. That doctrine was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448:

      {¶9}   "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State
Knox County, Case No. 12CA000001                                                         4

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, citing Temple v. Wean

United, Inc. (1977), 50 Ohio St.2d 317, 327."

       {¶10} As an appellate court reviewing summary-judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶11} The issue posed by appellee's motion for summary judgment was that

appellant could not satisfy the requirements of R.C. 4123.04(C)(4) which states the

following:

       {¶12} " 'Injury' includes any injury, whether caused by external accidental means

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

injured employee's employment. 'Injury' does not include:

       {¶13} "(4) A condition that pre-existed an injury unless that pre-existing condition

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

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

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

However, subjective complaints without objective diagnostic findings, objective clinical

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

aggravation."

       {¶14} Appellee argues objective diagnostic findings, objective clinical findings, or

objective tests results were not presented to establish the substantial aggravation of

appellant's pre-existing condition, right knee osteoarthritis.   Appellee argues William

Elder, M.D., appellant's primary care physician, could not point to any objective findings
Knox County, Case No. 12CA000001                                                          5


or test results to establish the existence of pre-existing osteoarthritis or its substantial

aggravation.as he deferred to the findings of appellant's treating physician, Gregory

Cush, M.D. Appellee argues Dr. Cush's testimony failed to establish objective findings

or test results that appellant's condition was made worse or substantially aggravated.

       {¶15} In response, appellant argues both physicians opined there was a

substantial aggravation, and the accident accelerated the osteoarthritis that existed prior

to the October, 2007 accident. Appellant argues it is sufficient to prove by objective

diagnostic findings, objective clinical findings, or objective test results that the pre-

existing condition existed prior to the incident and subjective complaints can be

evidence of substantial aggravation.

       {¶16} R.C. 4123.01 specifically delineates that subjective complaints standing

alone are insufficient to establish a substantial aggravation.           However, subjective

complaints, coupled with objective diagnostic findings, objective clinical findings, or

objective test results are sufficient. It is conceded sub judice that there are no objective

diagnostic findings or test results, but appellant argues there are objective clinical

findings. Objective diagnostic findings or test results are all concrete, tangible concepts;

however, objective clinical findings do not provide a bright-line test. Merriam-Webster

online dictionary defines "clinical" as:

       {¶17} "1 : of, relating to, or conducted in or as if in a clinic; as

       {¶18} "a : involving or concerned with the direct observation and treatment of

living patients." http://www.merriam-webster.com/medical/clinical.

       {¶19} "Clinical findings have been defined as observations, judgments or

assessments about patients.
Knox County, Case No. 12CA000001                                                        6


       {¶20} "***

       {¶21} "3. Findings cannot be temporally separate from the observing of them

(you can't observe them and say they are absent, nor can you have the finding present

when it is not capable of being observed).

       {¶22} "4. They cannot be defined in terms of an underlying pathological process

that    is     present    even      when      the   observation    is    not    present."

http://www.snomed.org/eg?t=findings_clinical_findings.

       {¶23} "Objective" means the observations are identifiable and capable of

description i.e., a person limps or is bleeding.

       {¶24} By necessity, the wording of the statute requires an analysis of the expert

testimony presented in each case. Specifically, the gravamen of this appeal is whether

there is evidence of a substantial aggravation of osteoarthritis in the experts' objective

clinical findings.

       {¶25} The best evidence is generally given by one who can offer direct

testimony of what he/she observed and if that person is an expert, what conclusions or

objective clinical findings he/she made.

       {¶26} Although there is much back and forth on direct and cross-examination as

to Dr. Cush's testimony, it is abundantly clear that Dr. Cush provided direct testimony of

his observations during the arthroscopic procedure he performed on appellant and the

clinical conclusions he reached. During the diagnostic arthroscopy, Dr. Cush observed

"preexisting osteoarthritic changes."        Cush depo. at 20.      Dr. Cush explained

osteoarthritis is classified as Grade 1 to Grade 4. Id. Dr. Cush observed a tear of the

medial meniscus, and pre-existing osteoarthritis changes of "Grade 2, moderate Grade
Knox County, Case No. 12CA000001                                                         7


2 chondral changes, as well as a rare Type 3 chondral changes." Id. at 21, 23. The

chondral changes were cracks and fissures "in the cartilage, and loose bodies are

floating fragments inside the joint." Id. at 21. Chondral changes are similar to what is

observed when bathtub grouting breaks and flakes between the tiles.             Id. at 20.

Because the arthritic changes were of the advanced pathology, they existed prior to the

accident and were made worse by the trauma to the knee. Id. at 30-31. Dr. Cush

opined the osteoarthritis predated the accident and was made worse by the twisting and

torquing forces applied to the knee due to the accident, relying on the following

evidence:

       {¶27} "Objective is my clinical exam demonstrating valgus instability, stress

testing demonstrating an MCL injury, arthroscopic evaluation with the intra photographs

demonstrating the medial meniscus tear. Subjective in that my patient, who seems like

an outstanding citizen, says that my knee hurts and it did not hurt before, and he did

have continued medial joint line pain, despite arthroscopic portions being resected, joint

pain and a torn meniscus, take out that torn portion, that pain should go away." Id. at

32.

       {¶28} Dr. Cush further opined the accident accelerated appellant's osteoarthritis:

       {¶29} "Q. In your opinion, Doctor, did that twisting injury in any way accelerated

Mr. Brate's osteoarthritis?

       {¶30} "A. I think so.     In my clinical experience, plenty of folks have an

aggravation due to a particular accident, a twisting injury, and then very rapidly their x-

ray findings only worsened.     Again, osteoarthritis is much worse in an accelerated
Knox County, Case No. 12CA000001                                                       8


fashion, and furthermore can be accelerated by the fact that a partial menisectomy was

performed. We know that." Id. at 33.

       {¶31} On cross-examination, Dr. Cush stated there was no objective evidence of

osteoarthritis prior to the accident; however, his objective findings after the accident

were the result of his "visualization on surgery and the photographs taken, still

photographs, and the interpretation of the MRI."     Id. at 46.   On redirect, Dr. Cush

explained in doing the actual operation, he verified why appellant "had persistent joint

medial line pain***even after the meniscus tear was repaired and the collateral ligament

healed." Id. at 50.

       {¶32} Dr. Elder found appellant's MRI suggested pre-existence of osteoarthritis

in the right knee. Elder depo. at 25. Dr. Elder opined there was substantial aggravation

of the osteoarthritis:

       {¶33} "Q. Okay. Using the MRI, the operative report and your own examination

and findings, was there objective evidence that you can point to that - - in which you

believe would show that there was a substantial aggravation of the osteoarthritis?

       {¶34} "A I think that there was a substantial aggravation of the arthritis, he did

have some breakdown of the articular surfaces and according to Dr. Cush's notes, there

was definitely some injuries at the back of the patella, as well as some loose bodies

within the knee joint." Id. at 26.

       {¶35} Dr. Elder concluded, as did Dr. Cush, that once the repair was done to the

medial meniscus, the pain and tenderness appellant continued to experience suggested

aggravation of the osteoarthritis. Id. at 26-27. When asked if the accident caused
Knox County, Case No. 12CA000001                                                           9


substantial aggravation of the osteoarthritis, Dr. Elder stated, "I think it certainly was

accelerated," explaining the following:

       {¶36} "Ah, it became - - we start deteriorating at age 18, all our joints are starting

to show some arthritic changes. If we injure a joint, we have an inflammatory response

in that joint.   This type of injury certainly could have accelerated or promoted an

advanced injury to the knee and increased arthritis in the knee thus leading to chronic

pain." Id. at 28.

       {¶37} Although the words "I think" were used, the matter was corrected via the

preliminary questioning of appellant's trial counsel wherein Dr. Elder agreed to answer

the questions "based on a reasonable degree of medical certainty." Id. at 25, 27-28.

       {¶38} Employing the standard of a Civ.R. 56, motion, we find the testimonies of

Drs. Cush and Elder are sufficient to establish the existence of genuine issues of

material facts to overcome the motion for summary judgment.

       {¶39} Upon review, we find the trial court erred in granting summary judgment to

appellee.

       {¶40} Assignments of Error I and II are granted.
Knox County, Case No. 12CA000001                                             10


      {¶41} The judgment of the Court of Common Pleas of Knox County, Ohio is

hereby reversed.

By Farmer, J.

Delaney, P.J. and

Gwin, J. concur.




                                      s / Sheila G. Farmer______________



                                      s / Patricia A. Delaney_____________



                                      s / W. Scott Gwin   _______________

                                               JUDGES



SGF/sg 907
[Cite as Brate v. Rolls-Royce Energy Sys., Inc., 2012-Ohio-4577.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



PATRICK BRATE                                           :
                                                        :
        Plaintiff-Appellant                             :
                                                        :
-vs-                                                    :           JUDGMENT ENTRY
                                                        :
ROLLS-ROYCE ENERGY                                      :
SYSTEMS, INC., ET AL.                                   :
                                                        :
        Defendants-Appellees                            :           CASE NO. 12CA000001




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Knox County, Ohio is reversed, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellee Rolls-Royce Energy Systems, Inc.




                                                        s / Sheila G. Farmer______________



                                                        s / Patricia A. Delaney_____________



                                                        s / W. Scott Gwin    _______________

                                                                    JUDGES
