[Cite as Crisster v. Zimmer Surgical, Inc., 2015-Ohio-4754.]




                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



RAYMON CRITSER, II                                 :           JUDGES:
                                                   :           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        :           Hon. Sheila G. Farmer, J.
                                                   :           Hon. John W. Wise, J.
-vs-                                               :
                                                   :
ZIMMER SURGICAL, INC., ET AL.                      :           Case No. 2015 AP 04 0014
                                                   :
        Defendants-Appellees                       :           OPINION




CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Case No. 2014 CW 06 0386




JUDGMENT:                                                      Reversed and Remanded




DATE OF JUDGMENT:                                              November 13, 2015




APPEARANCES:

For Plaintiff-Appellant                                        For Defendants-Appellees

STEVEN J. BRIAN                                                R. CLINT ZOLLINGER, JR.
ABIGAIL I. MARCHISIO                                           Millennium Centre - Suite 300
81 Maplecrest Street, SW                                       200 Market Avenue North
North Canton, OH 44720                                         Canton, OH 44702
Tuscarawas County, Case No. 2015 AP 04 0014                                             2

Farmer, J.

      {¶1}   On July 30, 2013, appellant, Raymon Critser, II, was working for appellee,

Zimmer Surgical, Inc., when he complained of knee pain after his scheduled break after

lifting and maneuvering boxes onto a skid. Appellant filed a workers' compensation

claim for left knee sprain which the Industrial Commission denied on April 9, 2014

(Claim No. 13-839672).

      {¶2}   On June 27, 2014, appellant filed an appeal with the Court of Common

Pleas. On January 30, 2015, appellee filed a motion for summary judgment, claiming

appellant was not entitled to receive workers' compensation benefits because he was

not performing any work activities when the left knee pain occurred. On February 27,

2015, appellant filed his memorandum in opposition, and included his own affidavit and

the affidavit of his doctor, Mark Shepherd, M.D., who averred appellant suffered a "left

knee medial meniscus tear and left knee chondral injury when he was loading a skid at

work on July 30, 2013." By judgment entry filed March 18, 2015, the trial court granted

summary judgment to appellee, finding appellant's idiopathic injury did not "arise out of"

his employment with appellee, and dismissed the complaint.

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

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE     TRIAL    COURT      ERRONEOUSLY          FOUND      APPELLANT’S

TREATING PHYSICIAN’S AFFIDAVIT IMPROPER, UNDER CIVIL RULE 56(E), FOR

LACK OF PERSONAL KNOWLEDGE."
Tuscarawas County, Case No. 2015 AP 04 0014                                        3


                                          I

      {¶5}   Appellant claims the trial court erred in granting summary judgment for

appellee. We agree.

      {¶6}   Summary Judgment motions are to be resolved in light of the dictates of

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

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



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

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶7}   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., 30 Ohio

St.3d 35 (1987).
Tuscarawas County, Case No. 2015 AP 04 0014                                             4

      {¶8}   As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



             It is well established the party seeking summary judgment bears

      the burden of demonstrating that no issues of material fact exist for trial.

      Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

      L.Ed.2d 265(1986).      The standard for granting summary judgment is

      delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a

      party seeking summary judgment, on the ground that the nonmoving party

      cannot prove its case, bears the initial burden of informing the trial court of

      the basis for the motion, and identifying those portions of the record that

      demonstrate the absence of a genuine issue of material fact on the

      essential element(s) of the nonmoving party's claims. The moving party

      cannot discharge its initial burden under Civ.R. 56 simply by making a

      conclusory assertion the nonmoving party has no evidence to prove its

      case. Rather, the moving party must be able to specifically point to some

      evidence of the type listed in Civ.R. 56(C) which affirmatively

      demonstrates the nonmoving party has no evidence to support the

      nonmoving party's claims.     If the moving party fails to satisfy its initial

      burden, the motion for summary judgment must be denied. However, if

      the moving party has satisfied its initial burden, the nonmoving party then

      has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts

      showing there is a genuine issue for trial and, if the nonmovant does not
Tuscarawas County, Case No. 2015 AP 04 0014                                         5


      so respond, summary judgment, if appropriate, shall be entered against

      the nonmoving party." The record on summary judgment must be viewed

      in the light most favorable to the opposing party. Williams v. First United

      Church of Christ (1974), 37 Ohio St.2d 150.



      {¶9}   R.C. 4123.01(C) defines "injury" for purposes of workers' compensation

benefits as: "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."

      {¶10} In granting summary judgment to appellee, the trial court stated the

following in its March 18, 2015 judgment entry:



             FINDS that the evidence allowed to be considered on a summary

      judgment motion supports the conclusion that Plaintiff sustained an

      idiopathic injury on 7/30/2013; that the statutory elements of an injury as

      provided in R.C. 4123.01(C) cannot be established by the undisputed

      facts in this case; that Plaintiff's alleged injury was not caused by

      accidental means, nor was it accidental in character and result; and,

      consequently, Plaintiff's idiopathic injury did not "arise out of" his

      employment with Defendant Zimmer Surgical Inc. The Affidavit of Mark

      Shepherd M.D. cannot be considered as appropriate under Civ.R. 56(E)

      because Dr. Shepherd has provided no evidence, beyond the Affidavit,

      that he has any personal knowledge as to whether the Plaintiff was
Tuscarawas County, Case No. 2015 AP 04 0014                                              6


       "loading skids when his injury occurred," and, consequently, cannot testify

       to this alleged fact by affidavit or otherwise.



       {¶11} An "idiopathic injury," for purposes of workers' compensation, "refers to an

employee's preexisting physical weakness or disease which contributes to the

accident." Waller v. Mayfield, 37 Ohio St.3d 118, fn. 3 (1988), citing 1 Larson, The Law

of Workmen's Compensation (1985) 3–308, Section 12.00.

       {¶12} Appellant argues the trial court erred in finding Dr. Shepherd's affidavit

was insufficient and there was no proof that his injury arose out of his employment. In

his affidavit filed February 27, 2015, Dr. Shepherd averred the following: "Based on the

enclosed records, it is my opinion, within a reasonable degree of medical probably, that

Mr. Crister (sic) suffered a 'left knee medial meniscus tear and left knee chondral injury'

when he was loading a skid at work on July 30, 2013."

       {¶13} Dr. Shepherd prefaced his opinion on the medical record he prepared of

appellant’s visit on August 28, 2013, attached to his affidavit, which included the

following in pertinent part:



              PRESENT ILLNESS INFORMATION

              Chief Complaint: Here for left knee pain

              HPI:

              S1: Here for left knee pain. Patient states that he thinks he injured

       his knee at work on July 30, but no actual injury recalled. States he was

       working fine then knee just became very painful. He states he pivots and
Tuscarawas County, Case No. 2015 AP 04 0014                                           7


      twists on his knee all day long. Gets swelling in the knee, pain is anterior-

      medial.      Denies click, grind, pop.   Notices stiffness when gets up in

      morning. Dr. Fusek, work dr. has him off work. Was taking ibuprofen,

      didn't really help. Dr. Varrati took xray in his office, did not bring. Had

      MRI, brought disc. No prev sx. cwinesdoerfferLPN.

             ***

             PHYSICAL EXAMINATION

             Examination of his left knee reveals a mild effusion. Patellofemoral

      crepitus is present with pain on patellar compression.           No patellar

      apprehension or instability is noted. Lateral patellar tracking is noted with

      lateral patellar tilt.   Tenderness is present over his medial joint and

      anterior medial aspect of his knee.      No anterior posterior varus/valgus

      instability is present. No deformity is noted. No ccchymosis is noted. No

      crythema or warmth is noted.         Reflexes are 2+ and pulses are 2+

      bilaterally. Motor sensory examination is intact.

             MRI evaluation of his left knee reveals a possible tear in his medial

      meniscus. Chondral injury is also noted over his medial femoral condyle.

             IMPRESSION

             Left knee strain with possible chondral injury or meniscal tear.



      {¶14} This medical record was followed up with medical records of visits dated

September 13 and 27, 2013, November 8, 2013, December 6, 2013, March 11, 2014,

and April 2, 2014. Appellant had surgery on his knee on September 19, 2013.
Tuscarawas County, Case No. 2015 AP 04 0014                                           8


      {¶15} Civ.R. 56(E) states the following:



             Supporting and opposing affidavits shall be made on personal

      knowledge, shall set forth such facts as would be admissible in evidence,

      and shall show affirmatively that the affiant is competent to testify to the

      matters stated in the affidavit. Sworn or certified copies of all papers or

      parts of papers referred to in an affidavit shall be attached to or served

      with the affidavit. The court may permit affidavits to be supplemented or

      opposed by depositions or by further affidavits.       When a motion for

      summary judgment is made and supported as provided in this rule, an

      adverse party may not rest upon the mere allegations or denials of the

      party's pleadings, but the party's response, by affidavit or as otherwise

      provided in this rule, must set forth specific facts showing that there is a

      genuine issue for trial.   If the party does not so respond, summary

      judgment, if appropriate, shall be entered against the party.



      {¶16} As argued by appellee in its motion for summary judgment, it is appellee’s

position, embraced by the trial court, that Dr. Shepherd's affidavit was not based upon

his personal knowledge regarding the origin of appellant’s present left knee pain.

Appellee picks apart various statements made in the medical records. Some of the

observations are correct. No treating physician can actually testify as to what happened

on the date of the claimed injury. That is why Ohio courts require an opinion based
Tuscarawas County, Case No. 2015 AP 04 0014                                             9


upon "facts or data" as set forth in Evid.R. 703, 704, and 705 which state the following,

respectively:



                [Evid.R. 703] The facts or data in the particular case upon which an

       expert bases an opinion or inference may be those perceived by the

       expert or admitted in evidence at the hearing.

                [Evid.R. 704] Testimony in the form of an opinion or inference

       otherwise admissible is not objectionable solely because it embraces an

       ultimate issue to be decided by the trier of fact.

                [Evid.R. 705] The expert may testify in terms of opinion or inference

       and give the expert's reasons therefor after disclosure of the underlying

       facts or data.     The disclosure may be in response to a hypothetical

       question or otherwise.



       {¶17} We find Dr. Shepherd's affidavit meets the requirements of these rules.

       {¶18} Appellee also challenges the issue of whether appellant's injury "arose out

of" his employment. We find appellant's affidavit, filed February 27, 2015, created an

issue of fact on whether he sustained the left knee injury in the course of his

employment:



                2. I was injured during my employment with Zimmer Surgical, Inc.

       on July 30, 2013.

                3. On that date I was working as an inspector/packer.
Tuscarawas County, Case No. 2015 AP 04 0014                                           10


              4. Before going to break, I was tidying up the packers' work

      stations. When doing so, I was putting boxes onto a skid.

              5. I did not feel pain in my knee at that time.

              6. After tidying up, I went to break. When I tried to get up from the

      table after break, I felt pain in my left knee.

              7. I feel that the pivoting and twisting when putting boxes on skids

      caused injury to my left knee.

              8. I had prior problems with my left knee in 2002 through early

      2003.

              9. My knee did not bother me after I stopped treating in 2003 until

      July 30, 2013, when I had this injury.



      {¶19} As stated above, the record on summary judgment must be viewed in a

light most favorable to the non-moving party.           We accept the affidavit under the

summary judgment standards, and find genuine issues of material facts exist to survive

the motion for summary judgment.

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

appellee.

      {¶21} The sole assignment of error is granted.
Tuscarawas County, Case No. 2015 AP 04 0014                                      11


       {¶22} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 1029
