[Cite as Luckett v. Ryan, 2011-Ohio-2999.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




MARILYN L. LUCKETT,

        PLAINTIFF-APPELLANT,                             CASE NO. 1-10-49

        v.

MARSHA P. RYAN,                                          OPINION
ADMINISTRATOR, BWC, ET AL.,

        DEFENDANTS-APPELLEES.




        Administrative Appeal from Allen County Common Pleas Court
                         Trial Court No. CV090379

                                     Judgment Affirmed

                             Date of Decision: June 20, 2011




APPEARANCES:

        James C. Ayers for Appellant

        Hilla M. Zerbst and Catherine F. Lacho for Appellee, CFA Staffing

        Andrew J. Alatis for Appellee, Admr., Ohio B.W.C.
Case No. 1-10-49



PRESTON, J.

       {¶1} Plaintiff-appellant, Marilyn L. Luckett (hereinafter “Luckett”), appeals

the Allen County Court of Common Pleas’ judgment adopting the jury’s

determination that she was not entitled to participate in the benefits of the

Workers’ Compensation Act for the additional condition of “closed head injury.”

For the reasons that follow, we affirm.

       {¶2} On September 9, 2006, Luckett was struck in the back of her head

with a box containing empty liquid laundry detergent bottles while working for

C.F.A. Staffing, Inc. at the Proctor and Gamble distribution center in Lima, Ohio.

(May17-18, 2010 Tr. at 99); (Doc. No. 2, Ex. A). The box that struck Luckett

weighed two pounds, eight ounces (2.0 lbs. 8.0 oz.) and measured twelve inches

(12”) by eleven inches (11”) by eight inches (8”) by sixteen inches (16”). (May

17-18, 2010 Tr. at 157, 171).

       {¶3} On September 11, 2006, Luckett filed claim no. 06-859138 with the

Ohio Bureau of Workers’ Compensation (“BWC”) alleging that she suffered

cervical sprain and a closed head injury as a result of the accident. (Doc. No. 28,

Ex. 4); (P’s Ex. 4). Luckett’s claim was originally allowed for contusion of the

scalp. (Doc. No. 2, Ex. A).

       {¶4} On October 23, 2008, Luckett filed a motion with the BWC for the

following additional allowances arising from her accident: (1) cervical

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sprain/strain; (2) right shoulder sprain/strain; (3) thoracic sprain/strain; (4) lumbar

strain/sprain; and (5) closed head injury. (Id.). On December 8, 2008, a District

Hearing Officer allowed Luckett’s additional claims for cervical, thoracic, and

lumbar sprain/strain, and closed head injury, but disallowed her additional claim

for right shoulder sprain/strain. (Id.).

       {¶5} Both parties appealed the decision, and, on February 4, 2009, the Staff

Hearing Officer affirmed the District Hearing Officer’s additional allowances for

cervical, thoracic, and lumbar strain/sprain, but disagreed with the additional

allowance for closed head injury. (Doc. No. 2, Ex. B).

       {¶6} On February 20, 2009, the Ohio Industrial Commission affirmed the

Staff Hearing Officer’s decision. (Doc. Nos. 1-2).

       {¶7} On April 20, 2009, Luckett filed a notice of appeal and a complaint

against the BWC Administrator and C.F.A., Inc. in the Allen County Court of

Common Pleas pursuant to R.C. 4123.512. (Id.).

       {¶8} On May 11, 2010, Luckett filed a motion in limine seeking to exclude

from trial: the testimony of Drs. Neidhardt and Chavez concerning Luckett’s other

emergency room visits after the work-related injury; the medical records created

as a result of these visits; and testimony concerning Luckett’s previous medical

history. (Doc. No. 24). Luckett argued that the testimony was irrelevant and the

medical records were both irrelevant and inadmissible as hearsay. (Id.).

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       {¶9} On May 14, 2010, the defendants filed a response to the motion in

limine arguing that the testimony and medical records were relevant to whether or

not Luckett has, in fact, suffered a closed head injury as she alleged. (Doc. No.

30). Defendants further argued that: Luckett’s past medical history was relevant

on the issue of causation; the medical reports were admissible since they were

relied upon by the expert witnesses to formulate their opinions; and the testimony

and records were relevant to Luckett’s credibility and to impeach her based upon

her bias, interest, or motive to lie given Luckett’s alleged drug-seeking and

symptom magnification behaviors. (Id.).

       {¶10} On May 17, 2008, before the jury trial commenced, the trial court

issued its orders on the depositions of Drs. Chavez and Neidhardt. (Doc. Nos. 31-

32). That same morning before the jury trial commenced, the trial court ruled that:

the ICD codes were inadmissible; Luckett’s testimony was admissible; the extent

of injury was admissible; the medical evidence presented to the experts was

admissible; testimony concerning Luckett’s possible drug-seeking and symptom

magnification was admissible for impeachment purposes; and impeachment of the

experts was admissible. (May 17-18, 2010 Tr. at 3).

       {¶11} On May 17-18, 2010, the matter was presented to the jury, and, on

May 18, 2010, the jury rendered its verdict, finding that Luckett was not entitled to



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participate in the workers’ compensation system for the additional condition of a

closed head injury. (Doc. No. 35).

      {¶12} On June 21, 2010, the trial court entered judgment upon the jury’s

verdict, and, thereafter, filed an amended judgment entry reflecting the same on

July 8, 2010. (Doc. Nos. 37-38).

      {¶13} On July 20, 2010, Luckett filed a notice of appeal. (Doc. No. 40).

Luckett now appeals raising three assignments of error raising evidentiary matters,

which we will combine for our analysis.

                      ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT COMMITTED ERROR TO THE
      PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT
      PERMITTED DEFENDANTS-APPELLEE [SIC] EXHIBITS,
      OVER    OBJECTION,   THAT    WERE    NEITHER
      AUTHENTICATED NOR RELEVANT TO THE ISSUES AND
      TO WHICH NO WITNESSES WERE CALLED TO TESTIFY
      AS TO THE TRUTHFULNESS OF THE MATTER WITHIN
      WHEREBY HEARSAY AND HEARSAY WITHIN HEARSAY
      WAS ADMITTED.

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT COMMITTED ERROR TO THE
      PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT
      PERMITTED DEFENDANTS-APPELLEE [SIC], TO SOLICIT
      OPINIONS OF THEIR MEDICAL EXPERT WITNESS, JOSE
      CHAVEZ, M.D., OVER OBJECTIONS (105 OBJECTIONS
      OVERRULED), CONCERNING MATTER [SIC] WITHIN
      EXHIBITS NOS. B THROUGH W THAT WERE NEITHER
      AUTHENTICATED NOR RELEVANT TO THE ISSUES AND
      TO WHICH NO WITNESSES WERE CALLED TO TESTIFY

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       AS TO THE TRUTHFULNESS OF THE MATTER WITHIN;
       AND FURTHER PERMITTED DR. CHAVEZ TO
       INTERPRET AND PUT HIS SPIN ON THE HEARSAY AND
       HEARSAY WITHIN HEARSAY MATTER ALL OF WHICH
       WAS UNDULY PREJUDICIAL TO APPELLANT.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT COMMITTED ERROR TO THE
       PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT
       PERMITTED, OVER OBJECTIONS (36 OBJECTIONS
       OVERRULED), DEFENDANTS-APPELLEES’ COUNSEL ON
       CROSS-EXAMINATION TO EITHER READ, OSTENSIBLY
       AS A QUESTION, OR REQUEST THAT DR. NEIDHARDT
       READ, OSTENSIBLY AS AN ANSWER TO A QUESTION,
       STATEMENTS    FROM   APPELLEES’  EXHIBITS  B
       THROUGH I, THAT WERE NEITHER AUTHENTICATED
       NOR RELEVANT TO THE ISSUES, AND TO WHICH NO
       WITNESSES WERE CALLED TO TESTIFY AS TO THE
       TRUTHFULNESS OF THE MATTER WITHIN; THEREBY
       INTRODUCING IRRELEVANT MATTER [SIC] AND
       HEARSAY STATEMENTS INTO THE RECORD THAT
       WERE UNDULY PREJUDICIAL TO APPELLANT.

       {¶14} In her three assignments of error, Luckett argues that the trial court

erred by allowing several of her medical records and testimony regarding those

medical records into evidence since: (1) the medical records were not properly

authenticated; (2) the medical records and testimony related thereto was irrelevant;

and (3) the medical records and testimony related thereto was inadmissible

hearsay.

       {¶15} As a preliminary matter, we note that, on January 13, 2011, Luckett

filed a motion to withdraw her arguments related to the authenticity of the medical

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Case No. 1-10-49



records since the parties stipulated to their authenticity at trial. (App. Doc. No.

16); (May 17-18, 2010 Tr. at 162-65). On January 26, 2011, this Court granted the

motion. (App. Doc. No. 19). Despite the parties’ stipulation to the authenticity of

the medical records, Luckett argued in the trial court that the medical records and

testimony related thereto was inadmissible on relevancy and hearsay grounds.

Therefore, our review of the three assignments of error will be limited to the issues

of relevancy and hearsay.

       {¶16} “‘Relevant evidence’ means 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.” Evid.R.

401. Relevant evidence is generally admissible. Evid.R. 402. Relevant evidence

may be excluded pursuant to Evid.R. 403:

       (A) Exclusion mandatory
       Although 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.

       (B) Exclusion discretionary
       Although relevant, evidence may be excluded if its probative
       value is substantially outweighed by considerations of undue
       delay, or needless presentation of cumulative evidence.

       {¶17} Hearsay evidence is defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Evid.R. 801(C). The Ohio Rules of Evidence

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forbid the use of hearsay evidence at trial absent a recognized exception. Evid.R.

802. Evid.R. 803 sets forth certain exceptions to the hearsay rule, and provides in

relevant part, as follows:

       The following are not excluded by the hearsay rule, even though
       the declarant is available as a witness:

       (4) Statements for purposes of medical diagnosis or treatment.
       Statements made for purposes of medical diagnosis or treatment
       and describing medical history, or past or present symptoms,
       pain, or sensations, or the inception or general character of the
       cause or external source thereof insofar as reasonably pertinent
       to diagnosis or treatment.

       ***
       (6) Records of regularly conducted activity. 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)(1), 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.

“‘Evid.R. 803(6) does not preclude the admissibility of opinions or diagnoses

contained in medical records or reports as long as they satisfy the foundational

authentication requirements of Evid.R. 803(6) and do not violate other evidentiary

rules (e.g. R.C. 2317.02(B); Evid.R. 402 and Evid.R. 702).’” Wasinski v. PECO II,


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Case No. 1-10-49



Inc., 3d Dist. Nos. 3-08-14, 3-08-16, 2009-Ohio-2615, ¶20, quoting Smith v.

Dillard’s Dept. Stores, Inc., 8th Dist. No. 75787, 2000-Ohio-2689.

      {¶18} R.C. 2317.40, Evid.R. 803(6)’s statutory equivalent, was enacted to

“‘liberalize and broaden the shop-book rule, recognized at common law as an

exception to the general rule excluding hearsay evidence, and to permit the

admissions of records regularly kept in the course of business.’” Smith, supra,

quoting Weis v. Weis (1947), 147 Ohio St. 416, 72 N.E.2d 245. Additionally, in

Weis, the Supreme Court of Ohio stated, in relevant part:

      [T]hose portions of hospital records made in the regular course
      of business and pertaining to the business of hospitalization and
      recording observable acts, transactions, occurrences or events
      incident to the treatment of a patient are admissible, in the
      absence of privilege, as evidence of the facts therein recorded,
      insofar as such records are helpful to an understanding of the
      medical or surgical aspects of the case, provided such records
      have been prepared, identified and authenticated in the manner
      specified in the statute itself. (Citations omitted).

      Such a hospital or physician’s office record may properly
      include case history, diagnosis by one qualified to make it,
      condition and treatment of the patient covering such items as
      temperature, pulse, respiration, symptoms, food and medicines
      given, analysis of the tissues or fluids of the body and the
      behavior of and complaints made by the patient. (Citations
      omitted).

147 Ohio St. at 424-25.

      {¶19} A trial court has broad discretion to determine whether to admit or

exclude evidence. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d

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1291. As such, we will not disturb the trial court’s decision on that issue unless

the trial court abused its discretion. Id. An abuse of discretion suggests the trial

court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶20} With these applicable rules in mind, we turn to the medical records at

issue in this case. Dr. Neidhardt, the St. Rita’s Emergency Room physician who

treated Luckett on November 11, 2006 and diagnosed her with a “closed head

injury,” identified exhibits B, C, D, E, and F as CT scan reports for Luckett dated

11/02/06, 12/5/06, 4/10/08, and 7/30/08. (Neidhardt Depo. at 5-8, 21-28); (May

17-18, 2010 Tr. at 133). Dr. Neidhardt testified that each of these CT scans were

“normal” or “unremarkable,” meaning “that the radiologist could not see anything

on the x-ray image that seemed out of the ordinary.” (Neidhardt Depo. at 21-31).

Neidhardt further testified that exhibits B, C, D, E, and F were true and accurate

copies kept in the ordinary course of business. (Id. at 29). Contrary to Luckett’s

arguments, we find that these exhibits were relevant to whether or not Luckett

suffered a closed head injury on September 9, 2006 as a result of her workplace

injury. Furthermore, since the record contains testimony from a qualified witness

that the CT scans were true and accurate copies kept in the ordinary course of

business, we cannot conclude that the trial court abused its discretion by allowing

the CT scans to be admitted as business records under Evid.R. 803(6).

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       {¶21} Exhibits K through W were several of Luckett’s medical records,

including: progress records indicating her treatment for her workplace injuries (K,

L, M, N, & T), various emergency room visits (P, Q, V, & W), a visit to an eye

center (U), and physician peer review reports (O & R). Upon review of the record,

we cannot conclude that the trial court abused its discretion in admitting the above

exhibits since they were offered for impeachment purposes under Evid.R. 616(A)

and contained, in large part, admissions and statements made for purposes of

medical treatment, admissible pursuant to Evid.R. 801(D)(2), 803(4).

       {¶22} “[T]he credibility of a witness who testifies at trial is always in issue.

For that reason, a witness’s credibility may be impeached by extrinsic evidence

probative of the witness’s bias, prejudice, interest, or motive to misrepresent.”

Damron v. CSX Transp., Inc., 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d

169, ¶53, citing Evid.R. 616(A). Dr. Neidhardt testified that his diagnosis of a

closed head injury was dependent upon Luckett’s truthfulness in relating her

medical history. (May 17-28, 2010 Tr. at 138). Dr. Chavez testified that he

examined Luckett, and she demonstrated “significant symptom magnification,”

meaning “that a number of complaints that she presented or exhibited were not

consistent with the objective findings,” and that Luckett’s medical records

exhibited her “drug seeking behavior.” (May 17-18, 2010 Tr. at 188, 205).

Exhibits O, R, and U were admitted to demonstrate Luckett’s symptom

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magnification, and therefore, admissible under Evid.R. 616(A). Several of the

medical records admitted into evidence demonstrated that Luckett continuously

requested narcotics for pain treatment, refused non-narcotics and clinical pain

therapy, and missed several appointments for therapy and treatment. For example,

Dr. Raza noted in his August 29, 2008 report that Luckett visited the emergency

room complaining of a headache, and “[a]t the time of exam, [Luckett] state[d] she

wants Vicodin or Percocet and probably would rather have Percocet.” (Ex. H).

Dr. Raza further notes that Luckett has been seen for the same thing by Dr. Tucker

on 07/17/08, 08/12/08, and for chronic pain on 06/30/08. (Id.). Dr. Raza indicated

in his report that Luckett “repeatedly asked me to write her for Vicodin and

Percocet. To me it is suspicious behavior. The patient does have a chronic history

of this and I have seen her in the past for the same thing. I decided not to do any

work up at this time.” (Id.). The report further indicated that Luckett expressed

her displeasure with Dr. Raza’s decision not to prescribe these medications to

hospital staff, and that Luckett left without taking the non-narcotic medication Dr.

Raza prescribed. (Id.). Similarly, Luckett expressed her desire to have another

physician during her October 12, 2008 emergency room visit when the attending

physician similarly refused to prescribe her narcotics. (Ex. I). Exhibits H and I

were both admitted into evidence without objection. (May 17-18, 2010 Tr. at 289).

These exhibits were admissible pursuant to Evid.R. 616(A) for purposes of

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impeaching Luckett on the basis of her motive to misrepresent, and these exhibits

contained statements made for purposes of medical treatment admissible under

Evid.R. 803(4). Exhibits M, N, P, Q, R, T, V, and W were admissible for these

same reasons. Furthermore, any error with regard to the trial court’s admission of

exhibits M, N, P, Q, R, T, V, and W would be harmless since these exhibits were

merely cumulative of evidence in exhibits H and I entered into evidence without

objection. See, e.g., Peffer v. Cleveland Clinic, 8th Dist. No. 94356, 2011-Ohio-

450, ¶28.

       {¶23} Several other medical reports also contained statements Luckett

made to medical providers for purposes of medical treatment, admissible under

Evid.R. 803(4), that were inconsistent with her testimony at trial concerning how

the injury occurred. For example, Luckett testified at trial that the box struck the

right side of her head, but Luckett reported a “left-sided headache” to Dr. Young a

couple days after the injury. (May 17-18, 2010 Tr. at 109); (Ex. K). Additionally,

the medical records indicated that Luckett informed Dr. Young that she never lost

consciousness as a result of the injury, but Luckett testified at trial that she was

“knocked out” and a co-worker “came over and got [her] off the floor and was

waking [her] up and slapping [her], waking [her] up * * *.” (May 17-18, 2010 Tr.

at 100); (Ex. K). The medical records further contained notations indicating that

Luckett was released for work with restrictions, and that she was aware of this

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fact, despite Luckett’s testimony at trial that she was “unsure” whether she was

released for work. (May 17-18, 2010 Tr. at 109); (Exs. K, L). Aside from much of

this evidence in these exhibits being admissible under Evid.R. 803(4) as

statements Luckett made for purposes of medical treatment, the evidence within

these exhibits was also relevant to impeach Luckett’s testimony under Evid.R.

616(A).    Furthermore, exhibit K—admitted for the purpose of impeaching

Luckett’s testimony that she lost consciousness—was merely cumulative, and

therefore harmless error at most, since both Dr. Neidhardt and Dr. Chavez testified

that Luckett informed them that she had not lost consciousness as a result of the

injury. (May 17-18, 2010 Tr. at 137, 186).

       {¶24} Finally, Luckett argues that the trial court committed plain error by

allowing exhibits B through I into evidence. We disagree. We have already

concluded that exhibits B, C, D, E, and F, Luckett’s CT scan reports, were

admissible under Evid.R. 803(6). With regard to exhibits H and I, we have

already concluded that these exhibits were admissible under Evid.R. 616(A),

803(4), and we find that exhibit G is similarly admissible. As such, we cannot

find plain error with regard to the trial court’s admission of these exhibits or

admission of testimony related to the exhibits.

       {¶25} Luckett’s three assignments of error are, therefore, overruled.



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       {¶26} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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