         [Cite as Rubenbauer v. C. W. Zumbiel Co., 2013-Ohio-929.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




JEFFREY RUBENBAUER,                              :         APPEAL NO. C-120486
                                                           TRIAL NO. A-1010531
        Plaintiff-Appellee,                      :
                                                                O P I N I O N.
  vs.                                            :

C.W. ZUMBIEL CO.,                                :

        Defendant-Appellant.                     :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed In Part, Reversed In Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: March 15, 2013


Weber, Dickey & Bellman and Gregory W. Bellman, for Plaintiff-Appellee,

Taft, Stettinius, & Hollister, LLP, and Charles M. Stephan, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



HILDEBRANDT, Judge.

       {¶1}   Defendant-appellant C.W. Zumbiel Company (“Zumbiel”) appeals

from the trial court’s judgment granting plaintiff-appellee Jeffrey Rubenbauer the

right to participate in Ohio’s workers’ compensation fund for the conditions of left-

elbow synovitis and left-elbow chondromalacia.       Zumbiel also appeals the trial

court’s judgment awarding Rubenbauer attorney fees. We affirm the trial court’s

judgment as to the merits of Rubenbauer’s claims, but we reverse the trial court’s

award of attorney fees and remand this cause for further proceedings on that issue.

                           Facts and Procedural Posture

       {¶2}   While working for Zumbiel, Rubenbauer injured his left elbow as he

was lifting a stack of cartons and moving them onto a skid. As a result, Rubenbauer

was allowed to participate in the workers’ compensation fund for left-elbow strain

and left-elbow loose bodies. Rubenbauer moved the Industrial Commission to allow

additional workers’ compensation claims for conditions known as “left-elbow

synovitis” and “left-elbow chondromalacia.” Rubenbauer claimed that his synovitis

was a direct result of his workplace injury and that his chondromalacia was a pre-

existing condition that had been substantially aggravated by his workplace injury.

The Industrial Commission denied Rubenbauer’s motion. Rubenbauer subsequently

appealed to the Hamilton County Common Pleas Court. Following a bench trial, the

court ruled in favor of Rubenbauer and allowed both claims. The court also awarded

Rubenbauer $4200 in attorney fees. This appeal followed.

                          Manifest Weight of the Evidence

       {¶3}   In its first assignment of error, Zumbiel contends that the trial court’s

judgment was against the manifest weight of the evidence because Rubenbauer’s

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expert could not state with certainty that Rubenbauer’s workplace injury had actually

caused his synovitis or that the injury had substantially aggravated a pre-exisiting

condition of chondromalacia.

       {¶4}    We will not reverse a trial court’s decision as against the manifest

weight of the evidence unless, after weighing the evidence and all reasonable

inferences and after considering the credibility of witnesses, we determine that the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the case must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12-22; State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶5}    To succeed on his workers’ compensation claim Rubenbauer had to

demonstrate by a preponderance of the evidence that he suffered from the conditions

alleged and that they had been proximately caused or had been substantially

aggravated by his workplace accident.      Fox v. Indus. Comm. of Ohio, 162 Ohio St.

569, 125 N.E.2d 1 (1955), paragraph one of the syllabus; Bell v. Admin., Ohio Bur. of

Workers’ Comp., 1st Dist. No. C-110166, 2012-Ohio-1364, ¶ 23; R.C. 4123.01(C)(4).

At issue in this case was whether Rubenbauer’s workplace injury (1) had directly

caused left-elbow synovitis and (2) had substantially aggravated the pre-existing

condition of left-elbow chondromalacia.

       {¶6}    Zumbiel contends that Rubenbauer failed to establish direct causation

or substantial aggravation because Rubenbauer’s treating physician and expert

witness, Dr. Timothy Kremchek, could not state with certainty whether either of

Rubenbauer’s conditions had pre-existed his workplace injury. Where, as here,

medical expert testimony was necessary to demonstrate causation, the testifying

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expert must be able to opine, at a minimum, that the injury was “more likely than

not” caused by or substantially aggravated by the accident. Krull v. Ryan, 1st Dist.

No. C-100019, 2010-Ohio-4422, ¶ 14; Shumaker v. Oliver B. Cannon & Sons, Inc.,

28 Ohio St.3d 367, 369, 540 N.E.2d 44 (1986).

       {¶7}   In this case, Kremchek could not state with absolute certainty whether

Rubenbauer’s chondromalacia was a pre-existing condition. But Kremchek did

testify that, based on what he had observed when he operated on Rubenbauer, it was

“more likely than not” that Rubenbauer’s chondromalacia had existed prior to his

workplace injury. Kremchek also opined that Rubenbauer’s synovitis was directly

caused by his work-place injury. Both of these opinions were based on Kremchek’s

education, training, experience, review of the case history, and personal

observations, and were made within a “reasonable degree of medical certainty.”

Under these circumstances, the trial court did not err in relying on Kremchek’s

opinion to establish causation. This assignment of error is overruled.

                           Kremchek Did Not Equivocate

       {¶8}   In its second, third, and fourth assignments of error, Zumbiel argues

that the trial court should not have afforded any weight to Kremchek’s testimony

because Kremchek contradicted himself on key issues.

       {¶9}   In State ex rel. Eberhard v. Flxible Corp, 70 Ohio St.3d 649, 657, 640

N.E.2d 815 (1994), the Ohio Supreme Court held that “equivocal medical opinions

are not evidence.” Equivocation occurs when a doctor repudiates an earlier opinion,

renders contradictory or uncertain opinions, or fails to clarify an ambiguous

statement.” Id.; see also Pflanz v. Pilkington LOF, 1st Dist. No. C-100574, 2011-

Ohio-2670, ¶ 24. Zumbiel points to several passages in Kremchek’s deposition and

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in a 2008 medical report in support of its argument that Kremchek equivocated.

These passages, however, were either taken out of context, were later clarified when

Kremchek explained his answer, or were corrected when Kremchek realized that he

had misspoken. His medical opinions were therefore not equivocal and the trial

court did not err by relying on them.          Zumbiel’s second, third, and fourth

assignments of error are overruled.

                                      Attorney Fees

       {¶10} In its fifth assignment of error, Zumbiel contends that the trial court

erred when it ordered Zumbiel to pay attorney fees under R.C. 4123.512(F) without

first conducting a hearing. We review the trial court’s decision for an abuse of

discretion. Bland v. Ryan, 2012-Ohio-3176, 977 N.E.2d 107, ¶ 7 (2d Dist.).

       {¶11} R.C. 4123.512(F) provides that a prevailing claimant is entitled to

attorney fees from his or her employer where the employer had contested the

claimant’s right to participate in the workers’ compensation fund. Attorney fees are

to be “fixed by the trial judge, based upon the effort expended,” and cannot exceed

$4200. R.C. 4123.512(F). The trial court may, in its discretion, order a hearing on

the issue of attorney fees, but a hearing is not required by statute. R.C. 4123.512(F);

Johnson-Floyd v. Rem Ohio Inc., 5th Dist. No 11-CA-25, 2011-Ohio-6542, ¶ 18. The

award, however, must be supported by the record. In this case, counsel failed to

submit a timesheet and accompanying affidavit detailing the hours expended on the

case and counsel’s hourly rate. And there is no other competent evidence in the

record to support the trial court’s award. We therefore reverse the trial court’s award

of attorney fees, and remand this case for further proceedings on this issue.

       {¶12} Zumbiel’s fifth assignment of error is sustained.

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       {¶13} In sum, we affirm the trial court’s judgment allowing Rubenbauer to

participate in the workers’ compensation fund for the additional conditions of left-

elbow synovitis and left-elbow chondromalacia. We reverse the trial court’s award of

attorney fees, and remand this cause for further proceedings on that issue, only.

                   Judgment affirmed in part, reversed in part, and cause remanded.

HENDON, P.J., and DEWINE, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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