[Cite as Vogelmeier v. Ohio Power Co., 2014-Ohio-5175.]


                                      COURT OF APPEALS
                                     KNOX COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

NEIL VOGELMEIER                                           JUDGES:
                                                          Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                                Hon. Sheila G. Farmer, J.
                                                          Hon. Patricia A. Delaney, J.
-vs-
                                                          Case No. 14CA14
OHIO POWER COMPANY, ET AL.

        Defendant-Appellant                               OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Knox County Court of
                                                     Common Pleas, Case No. 13WC11-0456


JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              November 19, 2014

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JERALD A. SCHNEIBERG                                 CHRISTOPHER C. RUSSELL
JENNIFER L. LAWTHER                                  Porter, Wright, Morris & Arthur, LLP
STACY M. CALLEN                                      41 South High Street
Nager, Romaine & Schneiberg Co. L.P.A.               Columbus, Ohio 43215
27730 Euclid Ave.
Cleveland, Ohio 44132


For Defendant-Appellee,
Administrator, Bureau of Workers' Compensation

JOHN SMART
Assistant Attorney General
Ohio Attorney General
150 East Gay Street, 22nd Floor
Columbus, Ohio 43215-3130
Knox County, Case No. 14CA14                                                               2

Hoffman, P.J.


       {¶1}    Defendant-appellant Ohio Power Co. appeals the May 16, 2014 Judgment

Entry entered by the Knox County Court of Common Pleas, which entered final

judgment on the jury’s verdict allowing plaintiff-appellee Neil Vogelmeier to participate in

the Workers’ Compensation Fund for additional conditions which resulted from his

October 30, 2007 injury.

       {¶2}    STATEMENT OF THE FACTS AND CASE

       {¶3}    On October 30, 2007, Appellee was injured during the course of and

arising out of his employment with Appellant. Appellee's application for worker's

compensation benefits was allowed for the conditions of left shoulder sprain, chest wall

strain, and left dorsal strain.

       {¶4}    Subsequently, Appellee filed for additional allowances for the conditions of

left shoulder rotator cuff syndrome, left shoulder impingement, substantial aggravation

of pre-existing acromioclavicular joint arthropathy, substantial aggravation of pre-

existing acromioclavicular joint arthropathy, substantial aggravation of pre-existing left

shoulder synovitis, substantial aggravation of pre-existing left shoulder capsulitis,

substantial aggravation of pre-existing left shoulder bursitis, left shoulder slap tear, C3-4

herniated nucleus pulpous, C4-5 herniated nucleus pulpous, C5-6 disc protrusion, C6-7

disc protrusion and dysthymic disorder. The Industrial Commission disallowed these

conditions.

       {¶5}    Thereafter, on January 30, 2012, Appellee filed for additional allowances

of disc herniation/protrusion at T5-6, T7-8, and T8-9. The District Hearing Officer

disallowed the claim. Appellee timely appealed the District Hearing Officer’s order. The
Knox County, Case No. 14CA14                                                              3


Staff Hearing Officer vacated the order of the District Hearing Officer and allowed the

claim for disc herniation/protrusion at T5-6, T7-8 and T8-9. Appellant appealed the Staff

Hearing Officer’s decision to the Industrial Commission of Ohio, which refused to hear

the appeal.

       {¶6}   After exhausting its administrative appeals, Appellant filed an appeal to

the Knox County Court of Common Pleas. Appellee filed a motion in limine, seeking to

prevent Appellant from referencing any evidence of the previously denied and

disallowed left shoulder and neck conditions. The trial court granted the motion. The

matter proceeded to jury trial. The jury returned a verdict in favor of Appellee, finding he

was entitled to participate in the Workers’ Compensation Fund for the conditions of disc

herniation/protrusion at T5-6, T7-8 and T8-9.

       {¶7}   Appellant filed the instant appeal and this matter in now before this Court

for consideration. Appellant assigns as error:

       {¶8}   "I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY

ARBITRARILY GRANTING THE PLAINTIFF-APPELLEE'S MOTION IN LIMINE AND

BY PERMITTING THE PLAINTIFF-APPELLEE TO MAKE REFERENCE DURING

TRIAL TO THOSE CONDITIONS THAT WERE PREVIOUSLY ALLOWED AS PART

OF PLAINTIFF-APPELLEE'S WORKERS' COMPENSATION CLAIM BUT DENYING

DEFENDANT-APPELLANT OHIO POWER COMPANY'S ABILITY TO REFERENCE

THOSE CONDITIONS WHICH HAVE PREVIOUSLY BEEN SPECIFICALLY DENIED

AND     DISALLOWED        AS     PART     OF     PLAINTIFF-APPELLEE'S          WORKERS'

COMPENSATION CLAIM DURING A TRIAL TO ADDRESS PLAINTIFF-APPELLEE'S

REQUEST FOR THE ALLOWANCE OF SEPARATE ADDITIONAL CONDITIONS."
Knox County, Case No. 14CA14                                                            4

       {¶9}    Evid. R. 402 provides, “All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by the Constitution of the

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme

Court of Ohio. Evidence which is not relevant is not admissible.”

       {¶10} 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.” Evid.R. 401.

Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible.

Evid.R. 402.

       {¶11} The issue of whether testimony is relevant or irrelevant, confusing or

misleading is best decided by the trial judge who is in a significantly better position to

analyze the impact of the evidence on the jury.” State v. Taylor, 39 Ohio St.3d 162, 164,

529 N.E.2d 1382(1988). Accordingly, the admission or exclusion of relevant evidence

lies within the sound discretion of the trial court. See: Glick v. Marler (1992), 82 Ohio

App.3d 752; Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66; Rigby v. Lake Cty.

(1991), 58 Ohio St.3d 269, 271. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217.

       {¶12} We find no abuse of discretion in the trial court’s admission of evidence of

the previously allowed conditions.      Appellee was seeking further allowances for

conditions resulting from the October 30, 2007 injury he suffered during the course and
Knox County, Case No. 14CA14                                                              5


scope of his employment. Evidence of the previously allowed conditions is inherently

relevant to establish the background for the further allowances he sought.

       {¶13} Furthermore, we find Appellant failed to preserve this error.           Unlike

Appellee who filed a motion in limine to exclude reference to the disallowed conditions,

Appellant did not file a motion in limine seeking to have the evidence of prior allowed

conditions excluded. Appellant failed to object during trial to the trial court’s admission

of evidence of the previously allowed conditions. With respect to Appellant’s arguments

relative to the evidence of the disallowed conditions, we find the trial court did not abuse

its discretion in granting Appellee’s motion in limine. The disallowed conditions were

related to a different area of Appellee’s body; therefore, are of little, if any, relevance

and any testimony regarding the conditions could simply confuse the jury. We also find

Appellant failed to preserve this error. Appellant did not attempt to proffer any of the

excluded evidence.

       {¶14} Appellant’s sole assignment of error is overruled. The judgment of the trial

court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
