[Cite as Somerick v. YRC Worldwide, Inc., 2020-Ohio-2916.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JOHN P. SOMERICK, III                                    C.A. No.   29239

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
YRC WORLDWIDE INC.                                       COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   CV-2017-10-4512

                                DECISION AND JOURNAL ENTRY

Dated: May 13, 2020



        TEODOSIO, Presiding Judge.

        {¶1}    YRC Worldwide, Inc. appeals the order of the Summit County Court of Common

Pleas entering judgment in favor of John P. Somerick III. We affirm.

                                                    I.

        {¶2}    On August 5, 2016, John P. Somerick III sustained injuries while in the course of

his employment with YRC Worldwide, Inc. (“YRC”) when he was struck in the head by a deck

bar. A workers’ compensation claim was allowed for certain conditions associated with the injury

(laceration without foreign body of scalp; concussion with loss of consciousness of 30 minutes or

less; and injury to optic nerve, left eye) and disallowed for others. Germane to this appeal, Mr.

Somerick filed a motion with the Bureau of Workers’ Compensation requesting that a claim be

further allowed for post-concussion syndrome. The claim for this additional claim was initially

disallowed by the District Hearing Officer.
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       {¶3}    The order disallowing the additional claim was vacated on appeal, with the decision

of the Staff Hearing Officer allowing the claim for post-concussion syndrome. YRC attempted

further appeal to the Industrial Commission of Ohio, which refused to hear the appeal and affirmed

the order of the Staff Hearing Officer.

       {¶4}    In October 2017, YRC appealed the decision of Ohio Industrial Commission

allowing the additional claim of post-concussion syndrome to the Summit County Court of

Common Pleas. The matter proceeded to a jury trial, with the jury returning a verdict in favor of

Mr. Somerick. The trial court subsequently entered judgment on October 19, 2018, determining

that Mr. Somerick was entitled to participate in the Workers’ Compensation Fund for the condition

of post-concussion syndrome. YRC now appeals, raising two assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE MEDICAL
       OPINIONS AND DIAGNOSES OF MULTIPLE NON-TESTIFYING
       PHYSICIANS BECAUSE SUCH MEDICAL OPINIONS AND DIAGNOSES
       WERE IMPERMISSIBLE HEARSAY ON THE ULTIMATE ISSUE.

       {¶5}    In its first assignment of error, YRC argues that the trial court erred by admitting

medical opinions and diagnoses from non-testifying physicians. We disagree.

       {¶6}    Given the broad discretion accorded to trial courts to admit or exclude evidence,

this Court “will not disturb evidentiary rulings absent an abuse of discretion ‘that produced a

material prejudice’ to the aggrieved party.” In re I.W., 9th Dist. Wayne Nos. 07CA0056 and

07CA0057, 2008-Ohio-2492, ¶8, quoting State v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962,

¶ 14 (9th Dist.). An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, an appellate court
                                                 3


may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621 (1993). “Material prejudice exists when, after weighing the prejudicial effect of

the errors, the reviewing court is unable to find that without the errors the fact finder would

probably have reached the same decision.” In re Moore, 9th Dist. Summit No. 19217, 1999 WL

1215294, *17 (Dec. 15, 1999); Estate of Cushing v. Kuhns, 9th Dist. Lorain No. 97CA006981,

1999 WL 74626, *3 (Feb. 9, 1999).

       {¶7}    At issue are the medical records admitted by the trial court from non-testifying

physicians: Dr. James Matthew Gebel, Jr., Dr. Hugh Miller, Dr. Mark Pluskota, and Dr. W. Kent

Soderstrum. YRC directs us to the syllabus of Hytha v. Schwendeman, 40 Ohio App.2d 478 (10th

Dist.1974), which lists seven factors that must be present before the record of a medical diagnosis

made by a physician may be admitted into evidence:

       (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;

       (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 matter asserted
           at trial, it must be the product of the party seeking its admission;

       (7) It must be properly authenticated.

       {¶8}    We note that “[i]t is well established that although the syllabus of the Ohio Supreme

Court is the law, the syllabus of an Ohio appellate court is not.” Markovich v. Markovich, 8th Dist.

Cuyahoga No. 42888, 1981 WL 4995, *3 (July 2, 1981). Accord Royal Indemn. Co. v. McFadden,
                                                  4


65 Ohio App. 15, 21 (1st Dist.1940). Rather, we look to the text of the opinion itself for the correct

statement of the decision. Royal Indemn. Co. at 21. Accordingly, in previously recognizing Hytha,

we cited to the text of the opinion rather than the syllabus in determining that “[i]n terms of the

medical records, the requirements outlined in Hytha are factors that must be present before medical

records may be admitted into evidence.” Gerak v. Dentice, 9th Dist. Summit No. 19098, 1999 WL

334766, *1 (May 26, 1999), citing Hytha at 482-484.

       {¶9}    Under this assignment of error, YRC first argues that the medical records did not

meet the third factor listed in the Hytha syllabus; namely, that “[t]he diagnosis must not have rested

solely upon the subjective complaints of the patient * * *.” Hytha at syllabus. The text of the

opinion in Hytha does not specifically enumerate such a factor, nor does it contain language

referencing the subjective complaints of a patient. In fact, the Hytha opinion, in discussing the

Supreme Court of Ohio’s holding in Weis v. Weis that hospital records and physician office records

may be admissible, noted that “[s]uch 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 of fluids of the body and the behavior of and complaints made by the patient * * *.”

(Emphasis added.) Hytha at 482, quoting Weis v. Weis, 147 Ohio St. 416, 425 (1947).         As such,

we cannot take the view that the factor stated from the syllabus is an accurate statement of the law

as written in the opinion.

       {¶10} YRC directs us to the medical record from Dr. Gebel which determined, in part,

that Mr. Somerick had “a typical post[-]concussive syndrome with headaches, vertigo, irritability,

and mild cognitive impairment.” YRC identifies the statement in the medical record from Dr.

Miller noting the Mr. Somerick “complains of daily headaches * * *. Has dizziness with standing.
                                                 5


Describes as a pressure in the forehead.” YRC further points to the medical record from Dr.

Pluskota which noted “headache yes, 3-4 times a week. no sleep disturbance. memory loss yes.

some difficulty w/memory.” Likewise, YRC points to the medical record from Dr. Soderstrum

that describes the health-related complaints reported by Mr. Somerick and notes that “Mr.

Somerick had had symptoms consistent with post-concussion syndrome for two years * * *.

       {¶11} Even if we were to accept YRC’s statement of the law, there is no evidence that

any diagnosis “rested solely upon the subjective complaints of the patient.” See Hytha at syllabus.

The records from Dr. Gebel, Dr. Miller, Dr. Pluskota, and Dr. Soderstrum all indicate that they

performed examinations of Mr. Somerick, and discuss said examinations. We cannot conclude

that any diagnosis was based solely on subjective complaints. In addition, even if we could

conclude the trial court had erred, YRC has failed to establish that they were materially prejudiced.

       {¶12} YRC further argues the trial court erred in admitting the records into evidence

because: 1.) the diagnosis of post-concussion syndrome was not based on well-known and

accepted objective testing and examining practices and procedures; 2.) the diagnosis was not made

by a qualified person; and 3.) the evidence was not competent and relevant.

       {¶13} At the commencement of trial, YRC specifically made its objection to the medical

records of the non-testifying physicians, stating that for the evidence to have met the requirements

for a hearsay exemption under Hytha, the diagnosis could not be based solely on the subjective

complaints of the patient. Specifying grounds for an objection commits the party to that basis for

the objection. State v. Reed, 9th Dist. Summit No. 18076, 1997 WL 537660, *3 (Aug. 20, 1997).

“When a party makes a specific objection to the admission of evidence, ‘[that party] waives all

other objections and cannot assert them on appeal.’” Id., quoting State v. Smith, 63 Ohio App.3d

71, 77 (11th Dist.1989). Because YRC stated a specific objection at trial, it has waived the
                                                   6


different grounds for objection argued on appeal. See State v. Haendiges, 9th Dist. Lorain No.

96CA006558, 1998 WL 103349, *5 (Feb. 25, 1998). See also Merchants & Mfrs. Ins. Co. v.

Lauderdale, 9th Dist. Summit No. 11557, 1985 WL 4650, *3 (Dec. 18, 1985).

       {¶14} YRC’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE
       DOCUMENTS AND TESTIMONY REFERRING TO THE UNDERLYING
       ADMINISTRATIVE PROCEEDINGS BECAUSE SUCH REFERENCES WERE
       IRRELEVANT, MISLEADING, CONFUSING, AND PREJUDICIAL.

       {¶15} In its second assignment of error, YRC argues the trial court erred by admitting into

evidence documents and testimony referring to the underlying administrative proceedings. We

disagree.

       {¶16} Specifically, YRC identifies two C-9 forms completed by Dr. Mark Pluskota on

August 30, 2016, requesting an initial evaluation with Dr. Deanna Frye and a vestibular evaluation

with Edwin Shaw, and a C-9 form completed by Dr. Frye on March 5, 2018, requesting

neuropsychological testing, all of which were denied.           YRC argues that these forms were

improperly admitted as irrelevant evidence pertaining to the underlying administrative

proceedings, and contends they were misleading and confusing for the jury because they addressed

the issue of “treatment” rather than the issue of whether a workers’ compensation claim should be

allowed for “post-concussion syndrome.”

       {¶17} With regard to Dr. Frye’s C-9, admitted as part of Plaintiff’s Exhibit 2, YRC did

not object to the admission of the exhibit, and therefore their argument has been waived. Failure

to object at the trial court level, when the issue is apparent at that time, constitutes a forfeiture of

that issue, and therefore the issue need not be heard for the first time on appeal. State v. Awan, 22

Ohio St.3d 120 (1986) syllabus.
                                                 7


       {¶18} With regard to Dr. Pluskota’s C-9 that requested an initial evaluation with Dr.

Deanna Frye, Mr. Somerick argued that it was responsive to testimony asking why his client waited

so long to get treatment. The trial court admitted the exhibit, noting that there had been “a lot of

testimony in this trial about why this didn’t get done, when it got done.” Likewise, with regard to

Dr. Pluskota’s C-9 that requested a vestibular evaluation with Edwin Shaw, Mr. Somerick argued

that it was relevant “to the issue of balance, vertigo, post-concussion syndrome.” The trial court

also admitted this exhibit, noting to the trial counsel for YRC:

       But you are referring to the jury that he is malingering with this delay because there
       was a final order that he’s going to schedule these things and he did not. Then
       you’re making that point to the jury almost as if that’s part of the malingering
       process, that he could have had that scheduled and he didn’t. There is some – I
       think there some [sic] argument by you about when they – when he actually
       scheduled it and why it took so long for him to schedule it because he couldn’t
       schedule it before. And there’s a lot of testimony about that so I think the C-9 that
       talks about denial, things related to post-concussion syndrome, should go back to
       the jury.

       {¶19} We find no abuse of discretion in the trial court’s decision to admit the form in

question into evidence. The transcript indicates these particular C-9 forms were admitted, while

others were excluded, because they were responsive and relevant to testimony elicited and

arguments made by YRC. YRC provides this Court with no argument or evidence to the contrary.

Furthermore, YRC has failed to show material prejudice.

       {¶20} We note that YRC’s additional argument with regard to comments made by

opposing counsel in his closing argument is not supported by law. It is well-established that

closing arguments are not evidence. See State v. Thomas, 9th Dist. Summit No. 22340, 2005–

Ohio–4265, ¶ 26.

       {¶21} YRC’s second assignment of error is overruled.
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                                                III.

       {¶22} YRC’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




SCHAFER, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.
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APPEARANCES:

SCOTT W. MCKINLEY, and CHRISTOPHER P. AEMISEGGER, Attorneys at Law, for
Appellant.

MARIO GAITANOS and PETER GAITANOS, Attorneys at Law, for Appellee.
