[Cite as Szulinski v. Kellison & Co, 2014-Ohio-111.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 99672 and 99674




                                       JEFF SZULINSKI
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                            KELLISON & CO., ET AL.
                                                             DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-783626


        BEFORE: Jones, J., Celebrezze, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: January 16, 2014
ATTORNEYS FOR APPELLANTS

For Kellison & Co.

Patricia F. Weisberg
Jonathan D. Greenberg
1301 East Ninth Street, Suite 3500
Cleveland, Ohio 44114


For Ohio Bureau of Workers’ Compensation

Mike DeWine
Ohio State Attorney General
30 East Broad Street
Columbus, Ohio 43215

BY: Timothy X. McGrail
Assistant Attorney General
Workers’ Compensation Section, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

David G. Schmidt
Schmidt Legal Group
614 W. Superior Avenue, Suite 1500
Cleveland, Ohio 44113




LARRY A. JONES, SR., J.:
       {¶1} In this consolidated appeal defendants-appellants, Kellison and Company and

the Bureau of Worker’s Compensation, appeal from the trial court’s judgment, rendered

after a bench trial, in favor of plaintiff-appellee Jeff Szulinski.      For the reasons that

follow, we affirm.

                                         I. Facts

       {¶2} In January 2009, Szulinski, an employee at Kellison, slipped and fell on ice as

he was exiting the company’s building to put a W-2 form in his car.       The form had been

handed out by a Kellison representative, Sharon Crile. Szulinski left the building through

the door designated for employee entrance and exit, and in an area designated for

employee use, slipped on ice, fell, and hit his head. Szulinski testified that he was using

one of his two break times to put the form in his car for safekeeping.

       {¶3} Szulinski was knocked unconscious when he fell, and the coldness from the

ice and water on the ground was what woke him up. Upon going back into the building,

Szulinski saw Crile and told her that he had been injured. Crile testified that she saw

blood coming from Szulinski’s head and called 911.      II. Procedural History

       {¶4} This worker’s compensation case began in March 2009 when Szulinski filed a

“first report of injury” with the bureau. The injuries for which he sought compensation

were “head injury, concussion, and scalp laceration.”

       {¶5} Szulinski’s claim was initially allowed by the district hearing officer for

“concussion, open wound of scalp and post-concussion syndrome.” Kellison appealed

and requested that Szulinski submit to an independent medical examination. Szulinski
submitted; the exam was conducted in June 2009 by Dr. Lisa Kurtz.

      {¶6}    The staff hearing officer granted Kellison’s appeal and disallowed the claim,

finding that Szulinski was “performing a personal errand at the time of the fall and so the

injury is not compensable” and that the “lot in which he fell was not under the control of

the employer.”   Szulinski appealed, but the industrial commission denied the appeal.    He

appealed to the common pleas court.

      {¶7} The case was tried before the bench.        Szulinski testified, and the defense

presented the testimony of Sharon Crile, the Kellison employee who interacted with

Szulinski after his fall and called 911. Dr. Kurtz did not testify, but her report was

admitted into evidence.   In her report, Dr. Kurtz opined as follows:

      Mr. Szulinski does suffer from the conditions of concussion, open wound of
      the scalp and post-concussive syndrome from the slip and fall on
      01/23/2009, of which it could be expected he could continue to have
      symptoms from the post-concussive syndrome upwards to six months
      following the injury * * *.

      {¶8} In finding in favor of Szulinski, the trial court found that his injury was

“obvious,” and, therefore, that Szulinski had “met his burden of proving that he suffered a

compensable injury from his fall within the zone of employment.”                  The court

additionally found that Dr. Kurtz’s report was admissible as an admission of a party

opponent under Evid.R. 801(D)(2) and constituted further evidence of Szulinski’s injuries.

      {¶9} Kellison and the bureau have raised two assignments of error for our review:

      [I.] The trial court abused its discretion and thereby committed reversible
      error when it admitted Dr. Kurtz[’s] report into evidence at trial.

      [II.] The trial court erred as a matter of law in allowing plaintiff-appellee to
       participate in Ohio Workers’ Compensation Fund as plaintiff-appellee failed

       to present medical testimony to establish that he sustained open wound of

       scalp, concussion, and post-concussion syndrome during the course and

       scope of his employment.

                                    III.    Law and Analysis

Admission of Dr. Kurtz’s Report

       {¶10} For their first assigned error, Kellison and the bureau contend that the trial

court abused its discretion by admitting Dr. Kurtz’s report into evidence.

       {¶11} Appellants are correct that our standard of review for the admission or

exclusion of evidence at trial is abuse of discretion. Krischbaum v. Dillon, 58 Ohio St.3d

58, 66, 567 N.E.2d 1291 (1991).         Under this standard, we will not disturb the trial court’s

decision unless the decision was unreasonable, arbitrary, or unconscionable. Blakemore

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

       {¶12} Kellison and the bureau contend that the trial court abused its discretion in

admitting the report because (1) the admission against interest exception to the hearsay

rule upon which the court relied was inapplicable because Dr. Kurtz was an independent

witness and (2) it denied them the opportunity to cross-examine Dr. Kurtz on her report

because she did not testify at trial.

       {¶13} Evid.R. 801(D)(2) provides that a statement is not hearsay if:

       The statement is offered against a party and is (a) the party’s own statement,
       in either an individual or a representative capacity, or (b) a statement of
       which the party has manifested an adoption or belief in its truth, or (c) a
       statement by a person authorized by the party to make a statement
       concerning the subject, or (d) a statement by the party’s agent or servant
       concerning a matter within the scope of the agency or employment, made
       during the existence of the relationship, or (e) a statement by a
       co-conspirator of a party during the course and in furtherance of the
       conspiracy upon independent proof of the conspiracy.

       {¶14} We do not find that the trial court abused its discretion in finding that Dr.

Kurtz’s report was admissible as an admission against the interest of appellants. Kellison

requested that Szulinski submit to an independent medical exam, and Dr. Kurtz was the

physician chosen by Kellison for Szulinski to see.          Thus, Dr. Kurtz’s report was a

“statement by a person authorized by [Kellison] to make a statement concerning the

subject.”   Evid.R. 801(D)(2)(c).

       {¶15} Moreover, at least one other Ohio appellate court has held that a medical

report of a non-testifying physician can be admissible in workers’ compensation cases    as

a record kept in the regular course of medical treatment, as a regularly conducted business

activity, where it contains relevant and probative evidence.

       {¶16} In Wasinski v. Admr., Bur. of Workers’ Comp., 3d Dist. Crawford Nos.

3-08-14 and 3-08-16, 2009-Ohio-2615, Wasinski was injured in a motor vehicle accident

while on a business trip and sought payment for compensation and benefits. She was

treated by several physicians at the Cleveland Clinic.       One of her physicians from the

Clinic prepared a report, which was admitted into evidence during the trial in common

pleas court, but the doctor did not testify at trial.

       {¶17} The Third Appellate District found that the trial court did not abuse its

discretion in admitting the report.    The court stated that the report was a
       record kept in the regular course of treatment, in a regularly conducted
       business activity (i.e.[,] by the Cleveland Clinic), that it contained relevant,
       probative evidence of Wasinski’s medical condition, and there was no
       question concerning its authenticity. * * * [The] report itself falls within
       a recognized exception to the hearsay rule.              See Evid.R. 803(6).
       Therefore, we find that the trial court did not abuse its discretion by
       permitting [the doctor’s] report to be admitted into evidence and considered
       by the jury during their deliberations.

Id. at ¶ 31-32.

       {¶18} In Smith v. Dillard’s Dept. Stores, Inc., 8th Dist. Cuyahoga No. 75787,

2000-Ohio-2689, this court compared Evid.R. 803(6) to Fed.R.Evid. 803(6). It noted that

the Ohio evidentiary rule provided for records of acts, events, or conditions contained in

reports to be admissible as hearsay exceptions, whereas the rule’s federal counterpart

provided that records “of an act, event, condition, opinion, or diagnosis” contained in a

report could be admissible as hearsay exceptions.         Id. at *20-21.    See Fed.R.Evid.

803(6).

       {¶19} After comparing the state and federal rules, this court noted the following:

       Because the federal rule setting forth the hearsay exception regarding
       records of regularly conducted business activity was adopted, at least in part,
       to reflect the common law of this state, we cannot say that the omission of
       the words “opinion” and “diagnoses” in Evid.R. 803(6) reflects an intent to
       preclude the admissibility of an otherwise qualified medical report or record
       under that exception merely because the report or record contains
       out-of-court opinions or diagnoses.

Smith at *23-24.

       {¶20} This court ultimately held that otherwise admissible medical records could

not be excluded under Evid.R. 803(6) solely because they contained an opinion or
diagnosis.    Id. at *27.1

       {¶21} Relying on Wasinski, Smith, and Evid.R. 801(D)(2) and 803(6), we find that

the trial court did not abuse its discretion by admitting Dr. Kurtz’s report into evidence.

       {¶22} Dr. Kurtz was a physician who was either employed by or contracted with the

Ohio Specialty Network, L.L.C. for the purpose of conducting independent medical

examinations. Upon appealing the district officer’s determination allowing Szulinski’s

appeal, Kellison requested that Szulinski submit to an independent medical examination

and selected the Ohio Specialty Network to perform the exam.              Dr. Kurtz and the Ohio

Specialty Network kept the report in the course of their regularly conducted business

activity.    The report contained relevant, probative evidence of Szulinski’s medical

condition, and the appellants stipulated to its authenticity. Further, Dr. Kurtz’s report

was a “statement by a person authorized by [Kellison] to make a statement concerning the

subject.”    Evid.R. 801(D)(2)(c).

       {¶23} Because we find that the report was properly admitted as non-hearsay under

Evid.R. 801(D)(2), we also find that its admission did not violate Kellison’s or the

Bureau’s rights to cross-examination.         As explained in Wigmore on Evidence, when

statements are admitted as an admission of a party-opponent, the party whom they are

offered against does not have a right to cross-examination, because that would be akin to

the party cross-examining itself. 4 Wigmore, Evidence, Section 1048 (1972).

       1
         But see Guarino-Wong v. Hosler, 1st Dist. Hamilton No. C-120453, 2013-Ohio-1625,
holding that Evid.R. 803(6) does not allow for opinions and diagnoses found in business records to be
admitted into evidence.
         {¶24} In light of the above, the first assignment of error is overruled.

Participation in Workers’ Compensation Fund

         {¶25} R.C. 4123.512 governs workers’ compensation appeals to the common pleas

court.     Under the statute, review of such an appeal is de novo, and the claimant bears the

burden of proving his or her right to participate in the workers’ compensation fund

regardless of an industrial commission decision.            Bennett v. Admr., Ohio Bur. of

Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639, 982 N.E.2d 666, ¶ 17. Under

R.C. 4123.512(D), “[t]he court * * * shall determine the right of the claimant to participate

in the fund upon the evidence adduced at the hearing of the action.”

         {¶26} To establish the right to participate in the fund, a claimant must show by a

preponderance of the evidence both that the injury arose out of and in the course of

employment and that a proximate causal relationship existed between the injury and the

harm or disability. White Motor Corp. v. Moore, 48 Ohio St.2d 156, 357 N.E.2d 1069

(1976), paragraph one of the syllabus.

         {¶27} Upon review of the judgment of a trial court following a bench trial, an

appellate court should be guided by a presumption that the factfinder’s findings are

correct.    Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273

(1984); Jones v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 82924, 2004-Ohio-746. In

addition, an appellate court should not substitute its judgment for that of the trial court

when there exists competent and credible evidence supporting the findings of fact and

conclusions of law rendered by the trial judge. Seasons Coal at 80. Thus, we will not
reverse the trial court’s judgment unless it is against the manifest weight of the evidence.

Id.

          {¶28} The weight of the evidence and the credibility of witnesses is primarily a

function for the trier of the fact. Charles v. Admr., Bur. of Workers’ Comp., 8th Dist.

Cuyahoga No. 71100, 1997 Ohio App. LEXIS 1306, *6 (Apr. 3, 1997). In reviewing a

bench trial, an appellate court will uphold the trial court’s evaluations unless it appears the

record is insufficient to support a reasonable person in concluding as the trial judge did.

Id. at *7.

          {¶29} Upon review, we initially note how this case was postured at the trial court

level.        In opening statement, counsel for Szulinski represented to the court that the

appellants’ contention was that Szulinski’s injury did not occur within the “zone of

employment.”         Counsel stated to the court that the evidence would demonstrate that

Szulinski was in fact injured within the “zone of employment.”

          {¶30} As to Szulinski’s injuries, his counsel further told the court the following in

opening statement:

          [Szulinski] does not believe that there is any dispute concerning the injuries
          that [he] received. The evidence is clear that he received a concussion,
          post-concussion syndrome and scalp laceration. However, anticipating an
          objection or disagreement from defense counsel, I have served a subpoena
          on Linda Derringer, who is the owner of the Ohio Speciality Network who
          conducted an examination at the specific request of Walter-Haverfield for
          the employer.2



          Derringer did not testify because the appellants stipulated to the authenticity of Dr. Kurtz’s
          2

report.
       The purpose of the examination was to determine possible medical
       conditions that [Szulinski] may have sustained from a work injury on
       January 23rd. This is a seven page document, but the only page, the only
       sentence that I am concerned with is found on page five that says Mr.
       Szulinski does suffer from the conditions of concussion, open wound of the
       scalp and post-concussion syndrome from the slip and fall on January 23rd,
       2009.

       We submit that that would be an admission by a party opponent through an
       agent authorized to conduct the IME examination and therefore is
       admissible.

       {¶31} In his opening statement, counsel for the bureau agreed that Szulinski’s

counsel was “correct,” [t]his [case] is relatively simply.”     The bureau’s counsel then

outlined for the court how he believed the evidence would show that Szulinski was on a

“personal mission” at the time he sustained his injuries.   The bureau’s counsel made no

statement whatsoever to refute Szulinski’s contention that the injuries were not in dispute.

 Counsel for Kellison waived opening statement, and the questioning of the witnesses

(Szulinski and Kellison’s representative Sharon Crile) were mainly relative to the “zone of

employment.”

       {¶32} Thus, the parties represented to the court that the issue in the case was

whether Szulinski was in the “zone of employment” when he was injured, and the

questioning of the witnesses was directed toward establishing the parties’ position as to

that issue.   The issue of a compensable medical injury did not come up until the defense

moved for a directed verdict at the conclusion of Szulinski’s case.

       {¶33} We are well aware that opening statements are not evidence, and that the

burden of proof rested with Szulinski. But, we find that how the parties framed the issue
for the court’s determination is relevant because it ostensibly explains why Szulinski did

not present Dr. Kurtz as a witness at trial.3 As we previously found, though, the trial

court did not abuse its discretion by admitting Dr. Kurtz’s report into evidence. And Dr.

Kurtz’s report provided competent and credible evidence supporting the trial court’s

determination that Szulinski suffered a compensable injury, to the extent that his injuries

were not obvious. Thus, the trial court’s judgment allowing Szulinski to participate in

the workers’ compensation fund was supported by competent and credible evidence.

       {¶34} In light of the above, the second assignment of error is overruled.

       {¶35} Judgment affirmed.

       It is ordered that appellee recover of appellants his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
TIM McCORMACK, J., CONCUR

       3
        Presumably the parties framed the issue as they did because the claim was denied at the
administrative proceedings by the staff hearing officer because the officer found that Szulinski was
“performing a personal errand at the time of the fall * * *.”
