[Cite as Cassens Transport Co. v. Bohl, 2012-Ohio-2248.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY



TONY B. BOHL,

        PLAINTIFF-APPELLEE,

        v.                                                 CASE NO. 13-11-36

CASSENS TRANSPORT CO.,

        DEFENDANT-APPELLANT,
        -and-

MARSHA P. RYAN, ADMR., OHIO                                OPINION
BUREAU OF WORKERS COMP.,

        DEFENDANT-APPELLEE.



                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 10-CV-0631

                                     Judgment Affirmed

                              Date of Decision: May 21. 2012



APPEARANCES:

        Corey V. Crognale and Meghan M. Majernik for Appellant

        Mark B. Weisser for Appellee, Tony B. Bohl

        Michael DeWine for Appellee, Industrial Commission of Ohio
Case No. 13-11-36


PRESTON, J.

       {¶1} Plaintiff-appellant, Cassens Transport Co. (hereinafter “Cassens”),

appeals the judgment of the Seneca County Court of Common Pleas finding that

defendant-appellee, Tony B. Bohl (hereinafter “Bohl”), was entitled to participate

in the workers’ compensation system for the condition of substantial aggravation

of preexisting degenerative arthritis of the cervical spine. For the reasons that

follow, we affirm.

       {¶2} On January 7, 2010, Bohl sustained a neck injury while working for

Cassens when the chain he was using to secure a motor vehicle to his semi-trailer

slipped from the ratchet. (Oct. 11, 2011 Tr. at 78-80, 97-98); (Dr. Heis Depo. at

12, 21). Thereafter, Bohl filed a claim for workers’ compensation benefits for

cervical strain, which was allowed.

       {¶3} On August 8, 2010, Bohl filed a motion to amend his workers’

compensation claim to include the condition of substantial aggravation of

preexisting degenerative arthritis of the cervical spine. (Doc. No. 1, Ex. A). On

November 8, 2010, a staff hearing officer granted the additional claim. (Id.).

       {¶4} On November 12, 2010, Cassens filed an appeal, but, on December 1,

2010, the industrial commission refused the appeal pursuant to R.C. 4123.511(E).

(Id., Ex. B).




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       {¶5} On December 17, 2010, Cassens filed a notice of appeal in the Seneca

County Court of Common Pleas pursuant to R.C. 4123.512. (Doc. No. 2).

       {¶6} On January 3, 2011, Bohl filed a complaint seeking to participate in

the workers’ compensation system for the additionally allowed claim. (Doc. No.

7).

       {¶7} On January 25, 2011, the administrator of the Ohio Bureau of Workers

Compensation (“BWC”) filed an answer admitting that Bohl was entitled to

participate for the additionally allowed claim. (Doc. No. 12). The administrator

also filed notice that the BWC would not participate further in the proceedings.

(Doc. No. 13). On January 27, 2011, the employer filed an answer denying Bohl’s

right to participate in the workers’ compensation system. (Doc. No. 15).

       {¶8} On October 11-12, 2011, a jury trial was held. On the first day of trial,

Cassens filed a Civ.R. 50 motion for directed verdict, arguing that Bohl failed to

produce objective evidence documenting his alleged substantial aggravation claim

as required under R.C. 4123.01(C)(4). (Doc. No. 30). Also on the first day of trial,

Bohl filed a motion in limine to exclude evidence that Cassens’ Fostoria terminal

was scheduled to close shortly after Bohl’s injury. (Doc. No. 33). The trial court

held Cassens’ motion for directed verdict under advisement until after the close of

defendant’s case, but the trial court granted Bohl’s motion in limine at the




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beginning of the trial. (Oct. 11, 2011 Tr. at 3, 12). The trial court subsequently

overruled the motion for directed verdict. (Oct. 12, 2012 Tr. at 143, 206).

       {¶9} The jury rendered a verdict concluding that Bohl was entitled to

participate in the workers’ compensation system for the condition of substantial

aggravation of preexisting degenerative arthritis of the cervical spine. (Doc. No.

34). On November 2, 2011, the trial court entered judgment accordingly. (Doc.

No. 35).

       {¶10} On November 10, 2011, Cassens filed a Civ.R. 59(A) motion for

new trial. (Doc. No. 36). On December 1, 2011, the trial court overruled the

motion. (Doc. No. 39).

       {¶11} On December 12, 2011, Cassens filed a notice of appeal. (Doc. No.

40). Cassens now appeals raising three assignments of error for our review.

                         ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN DENYING APPELLANT
       CASSENS’ MOTION FOR A DIRECTED VERDICT
       BECAUSE THE JUDGMENT IS NOT SUBSTANTIATED BY
       THE WEIGHT OF THE EVIDENCE.

       {¶12} In its first assignment of error, Cassens argues that the trial court

erred by denying its motion for a directed verdict since Bohl failed to present

objective diagnostic findings, objective clinical findings, or objective test results

evidencing his substantial aggravation claim as required by R.C. 4123.01(C)(4).



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      {¶13} A trial court shall sustain a party’s motion for directed verdict if,

after construing the evidence most strongly in favor of the party against whom the

motion is directed, reasonable minds could come to but one conclusion upon the

evidence submitted, and that conclusion is adverse to the party against whom the

motion is directed. Civ.R. 50(A)(4).

      {¶14} A motion for a directed verdict presents a question of law. Good

Year Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-

2842, ¶ 4, citing O’Day v. Webb, 29 Ohio St.2d 215 (1972), paragraph three of the

syllabus. As such, we review a trial court’s decision to grant or deny the motion

de novo. Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St.3d 521, 523

(1996).

      {¶15} A claimant must establish an injury to participate in Ohio’s workers’

compensation system. Schell v. Globe Trucking, Inc., 48 Ohio St.3d 1, 2 (1990);

Pflanz v. Pilkington LOF, 1st Dist. No. C–100547, 2011-Ohio-2670, ¶ 11; R.C.

4123.54. “‘Injury’ includes 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.” R.C. 4123.01(C).

      {¶16} As early as 1936, the Ohio Supreme Court concluded that the

aggravation of a preexisting condition was a compensable work-related injury.

Ackerman v. Indus. Comm., 131 Ohio St. 371 (1936), citing Weaver v. Indus.


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Comm., 125 Ohio St. 465 (1932). More recently, the Ohio Supreme Court held

that an aggravation of a preexisting condition did not have to be “substantial” in

order to be compensable. Schell, 48 Ohio St.3d 1, at syllabus. The Court in Schell

reasoned that:

          R.C. 4123.01(C) does not require that an injury be of any particular

          magnitude in order for a claimant to participate in the fund with

          respect to any disability resulting from the injury. To require that an

          injury, in the form of an aggravation of a pre-existing condition,

          must be of a specified magnitude would work a change in the

          statutory scheme that would best be left to the legislature. Id. at 3.

          {¶17} In response to Schell, supra, the General Assembly enacted Am. Sub.

S.B. No. 7 (eff. 6-30-06), which added subdivision (C)(4) to R.C. 4123.01 and

division (G) to R.C. 4123.54. Smith v. Lucas Cty., 6th Dist. No. L-10-1200, 2011-

Ohio-1548, ¶ 17. Subdivision (C)(4) excludes from R.C. 4123.01’s definition of

injury:

          [a] condition that pre-existed an injury unless that pre-existing

          condition is substantially aggravated by the injury. Such a

          substantial aggravation must be documented by objective diagnostic

          findings, objective clinical findings, or objective test results.

          Subjective complaints may be evidence of such a substantial


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Case No. 13-11-36


      aggravation. However, subjective complaints without objective

      diagnostic findings, objective clinical findings, or objective test

      results are insufficient to substantiate a substantial aggravation. R.C.

      4123.01(C)(4). (Am. Sub. S.B. No. 7, eff. 6-30-06).

Division (G) of R.C. 4123.54 provides:

      [i]f a condition that pre-existed an injury is substantially aggravated

      by the injury, and that substantial aggravation is documented by

      objective diagnostic findings, objective clinical findings, or objective

      test results, no compensation or benefits are payable because of the

      pre-existing condition once that condition has returned to a level that

      would have existed without the injury. R.C. 4123.54(G).

      {¶18} The Court of Appeals for the First District has recently concluded

that “* * * [an] aggravation of a preexisting condition must be substantial both in

the sense of being considerable and in the sense of being firmly established

through the presentation of objective evidence” to constitute an injury under R.C.

4123.01(C)(4). Pflanz, 2011-Ohio-2670, at ¶ 18.

      {¶19} With these rules in mind, we now turn to the evidence presented at

trial. John Elliot testified that he has been the manager of the Cassens Fostoria

terminal since 2004. (Oct. 11, 2011 Tr. at 66). Elliot testified that Ford vehicles

were railed into the Fostoria terminal, where 40 truck drivers loaded them onto


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trucks and drove them to auto dealers. (Id. at 67, 75). Elliot testified that the

drivers were laid off in January 2010 when Cassens closed the Fostoria terminal,

but 18 of the 40 drivers were rehired in Lordstown, Ohio and a few drivers retired.

(Id.); (Id. at 78, 82-83). Elliot testified that Bohl worked as a truck driver at the

Fostoria terminal since 2006, and Bohl was a good, reliable, and honest employee.

(Id. at 67-68).   Elliot testified that, on January 7, 2010, the dock supervisor

informed him that Bohl injured his neck, so Elliot told him that Bohl had to fill out

an injury report (P’s Ex. 1). (Id. at 68-69). Elliot further testified that Bohl told

him he injured his neck when he was tying down the last unit on the truck. (Id. at

69). Elliot testified that he did not have any reason to disbelieve Bohl. (Id.). Elliot

further testified that an employee, Bob Crawford, told him that he witnessed Bohl

get injured in the way Bohl described. (Id. at 71-72). Elliot testified that every

Cassens’ employee is part of the Teamsters Union. (Id. at 76). He testified that, in

December 2009, they first learned that the Fostoria terminal was going to close on

January 10, 2010, because Ford’s contract with the railroad company that passed

through the Fostoria terminal was ending. (Id. at 77).

       {¶20} Bohl testified that, on January 7, 2010, he was ratcheting down a

Ford Escape on the back bottom of the truck trailer when the chain kicked off the

idler and re-caught causing him to feel a snap in his neck and to stand there

“paralyzed.” (Id. at 97-98). Bohl testified that Bobby Crawford, who was loading


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his truck next to him when he was injured, heard the chain slip and came over to

ask him if he was alright. (Id. at 99). Bohl testified that the yardman, Jim, took

him to the terminal office to meet with Elliot and fill out paperwork. (Id. at 99-

100). Bohl testified that, after he filled out the paperwork, Elliot called Columbus,

and told him that his claim was denied. (Id. at 101). According to Bohl, Elliot told

him that he was not going to the clinic, but he was free to go seek medical

attention on his own. (Id.). Bohl testified that he drove himself to the hospital

because he was feeling sharp pains in his neck, he had numbness in his left arm,

and he could not move his head. (Id. at 102). Bohl testified that the hospital took

x-rays, and gave him some muscle relaxers. (Id. at 103). He testified that he saw

his back surgeon, Dr. Kramer, the next day since he already had a regular follow-

up appointment from his previous lower back surgery. (Id. at 103). Bohl testified

that Dr. Kramer referred him to Dr. Heis, who has been his primary doctor for his

neck injury since March 2010. (Id. at 104). According to Bohl, Dr. Heis initially

prescribed physical therapy, but he was still experiencing problems with his range

of motion. (Id. at 104-105). Bohl testified that he did not recall reporting some

neck pain to his family doctor, Dr. Donohoo, when he previously slipped and fell

at work. (Id. at 107). Bohl testified that he did not miss any work due to his neck

pain; he was not referred to another doctor; nor was an x-ray taken; but, he was

given some medication. (Id.). Concerning his present neck injury, Bohl testified


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that he was given four trigger-point injections into the spine to block the nerve

roots. (Id. at 109). Bohl testified that the second root blocker did give him some

temporary relief from headaches but he still is experiencing neck pain and a

reduced range of motion. (Id. at 110). Bohl also testified that, since his neck

injury, he has been unable to golf, ride a motorcycle, or work on cars like he used

to do before the injury. (Id. at 93-94, 113-114).

       {¶21} On cross-examination, Bohl testified that he had a previous back

injury while he was working for another trucking company, E & L, and missed

around three years of work. (Id. at 114). He testified that his medical bills were

paid through workers’ compensation, and he received temporary compensation

through workers’ compensation during those three years. (Id. at 114-115). Bohl

testified that he had 24½ years of seniority working for companies affiliated with

the Teamsters Union, which counted toward his retirement. (Id. at 115-116). Bohl

admitted telling Dr. Kramer during his February 29, 2000 check-up to keep him

healthy for a few more years so he could retire with 30 years and get the full

compliments of benefits through Teamsters. (Id. at 117-118). Bohl testified that he

drove himself to the hospital even though he had a difficult time driving the

vehicle with numbness in his left arm. (Id. at 120). Bohl testified that the

emergency room physician must have made an error in his report, because the

report indicated that the patient denied numbness in his extremities, i.e. arms and


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legs. (Id. at 122). Bohl also admitted that the emergency room physician noted

equal motor strength in the upper extremities and no weakness or loss of sensation.

(Id. at 122-123). Bohl admitted that he mistakenly denied having previous neck

pain during his deposition, though he testified that he forgot about the incident.

(Id. at 124). Bohl testified that he had surgery on his left shoulder for injuries he

sustained as a result of a gunshot wound. (Id. at 126). Bohl testified that two bullet

fragments are still lodged behind his left shoulder blade. (Id.). Bohl testified that

he did not recall his reports of neck pain to Dr. Donohoo on February 19, 2001,

May 19, 2003, June 6, 2003, May 26, 2007, and January 2, 2009. (Id. at 128-130).

Bohl did not recall that Dr. Donohoo diagnosed him with cervical strain in January

2009. (Id. at 130).

       {¶22} On re-direct, Bohl testified that, regardless of the emergency room

reports, he reported to Dr. Kramer on January 8, 2010, the day after the injury, that

he felt pain down his arm. (Id. at 131-132). He further testified that Dr. Kramer

noted that his injury was “degenerative in nature and could’ve been aggravated by

his job when he was tightening the chain on the truck transporting automobiles.”

(Id. at 132). Bohl also testified that, when he had neck pains in the past, he was

never given an x-ray or MRI, referred to another doctor, given injections, or

placed on work restrictions. (Id. at 133).




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       {¶23} Dr. Stephen Dale Heis (“Dr. Heis”) testified that he specializes in

physical medicine and rehabilitation, and he treats musculoskeletal injuries such as

neck pain. (Heis Depo. at 5-6). Dr. Heis testified that he first saw Bohl on March

15, 2010 after Dr. Kramer referred Bohl to his office. (Id. at 9). Dr. Heis testified

that, after viewing Bohl’s MRI, Dr. Kramer decided that Bohl did not need surgery

but more conservative treatment, including medication and physical therapy. (Id.

at 10). Dr. Heis testified that, when he initially saw Bohl, Bohl complained of pain

in the back of his neck going toward his left shoulder, which was worse when he

moved his neck to the right or left and when he lifted his left arm above his

shoulder. (Id. at 10-11). Bohl indicated that he was injured on January 7, 2010,

and that his neck felt better when he lied down and took pressure off it. (Id. at 11).

Dr. Heis testified that he did a physical examination of Bohl, which revealed

“some decreased rotation of his neck, ability to move his neck back and forth was

decreased.” (Id.). Dr. Heis further testified that Bohl had pain when he put

pressure on the muscles on the left side and the back side of Bohl’s neck. (Id.). Dr.

Heis testified that he determined that the pain was caused from a muscle strain, so

he ordered Bohl medication and physical therapy. (Id.). Dr. Heis testified that he

performed “trigger point injections,” which are small doses of cortisone injected

into the muscle at the point where the patient feels pain upon pressure, to reduce

inflammation of the muscles. (Id. at 14). Dr. Heis testified that, in June 2010, he


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referred Bohl to Dr. Atluri for cervical nerve root blocks. (Id. at 15). Dr. Heis

explained that cervical epidural injections contain cortisone for inflammation, like

trigger point injections, but epidural injections are made deep into the spine, near

the spinal cord. (Id.). Dr. Heis testified that these injections sometimes help

patients with spinal changes due to arthritis. (Id.).

       {¶24} Dr. Heis testified that, in August 2010, he requested that Bohl’s

workers’ compensation claim be amended to include substantial aggravation of

cervical degenerative disc disease. (Id. at 16). Dr. Heis explained that degenerative

disc disease is caused by normal aging of the spine due to body movement over

the years. (Id.); (Id. at 25-26). He testified that discs become thinner, begin to

bulge out posteriorly in the back of the disc, and bone spurs start developing in

patients with the disease. (Id. at 17). Dr. Heis concluded that Bohl had the disease

after viewing his MRI and x-rays. (Id. at 17-18). Dr. Heis testified that, during his

August 8, 2010 visit, he asked Bohl if he was able to do his work without any neck

pain prior to the work injury, and Bohl indicated “yes”. (Id. at 18-19). Dr. Heis

testified that, based upon his physical examination of Bohl, Bohl’s MRI and

medical records, and his own clinical observations, it was his opinion that Bohl

sustained a substantial aggravation of cervical disc disease as a result of his

workplace injury. (Id. at 19). Dr. Heis explained that he reached this opinion

because Bohl did not heal after several months of treatment. (Id. at 19-20). Dr.


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Heis testified that his diagnosis was consistent with other types of neck injuries

where the neck of the patient with degenerative arthritis is snapped back and forth.

(Id. at 21). Dr. Heis testified that he last saw Bohl on August 18, 2011, and Bohl

was still complaining of neck pain in spite of the months of treatment, so he

referred him back to Dr. Kramer for possible surgery. (Id. at 23-24).

       {¶25} On cross-examination, Dr. Heis testified that cervical spondylosis is

a general term for age-related wear and tear, which can contribute to the

development of osteoarthritis or degenerative disc disease. (Id. at 26). Dr. Heis

testified that a patient suffering from cervical spondylosis can experience a stiff or

painful neck, as well as pain in the shoulders, arms, and chest. (Id. at 27). He

testified that Bohl’s bone spurs on C4, C5, C6, and C7 took years to develop and

were there before the January 2010 injury. (Id. at 29-30). Dr. Heis testified that

MRI findings and clinical examinations are objective findings, but, with respect to

range of motion and pain, Dr. Heis testified “* * * it depends on how far they can

turn their neck and how hard they are pushing themselves, and how much pain

they’re having * * *.” (Id. at 32-33). Dr. Heis testified that Bohl had normal

strength in his upper extremities and no focal weakness was detected upon

examination. (Id. at 33). Dr. Heis classified these findings as objective. (Id. at 33-

34). Dr. Heis testified that he initially diagnosed Bohl with muscle strain, and he

noted that Bohl’s sensation was good. (Id. at 35). Dr. Heis testified that, when he


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examined Bohl, he was not aware of Bohl’s prior neck complaints in 2001, 2002,

and 2009. (Id. at 37-40). On re-direct, Dr. Heis testified that his opinion that Bohl

suffered a substantial aggravation of cervical disc disease is based upon Bohl’s

clinical presentation, medical history, the course of treatment, and his findings.

(Id. at 43-44).

       {¶26} Thereafter, defendant’s exhibits one through seven were admitted

without objection. (Oct. 12, 2011 Tr. at 141-142). Cassens made a motion for a

directed verdict, arguing that Dr. Heis made no reference to objective findings

supporting his opinion that Bohl suffered a substantial aggravation of degenerative

arthritis of the cervical spine. (Id. at 142-143). The trial court overruled the

motion. (Id. at 143). The defense, then, presented the depositional testimony of its

expert witness, Dr. Michael Rozen. (Id. at 145).

       {¶27} Dr. Michael Rozen testified that degenerative arthritis and cervical

spondylosis are synonymous terms, which refer to a condition that occurs over a

prolonged period of time from wear and tear and aging of the cervical spine.

(Rozen Depo. at 8-9). Some patients are asymptomatic, while other experience

pain, decreased range of motion, or numbness and tingling, according to Dr.

Rozen. (Id. at 9, 13). Dr. Rozen testified that pain and tenderness are subjective,

not objective, findings. (Id. at 15). He further testified that reflexes can be

objective findings for purposes of establishing a substantial aggravation if, and


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only if, there are measurements before and after the injury. (Id. at 15-16). Dr.

Rozen testified that he examined Bohl on March 16, 2010, and Bohl complained

of sharp neck pain on the left side of his neck, with pain that went down to his left

forearm. (Id. at 18). Bohl indicated that his neck pain increased when he moved

his head to the left and when he sat down to read papers, and he complained of

pain on the left side of his head and his left arm going numb, according to Dr.

Rozen. (Id. at 19). Dr. Rozen testified that Bohl indicated that Dr. Kramer

performed lower back surgeries on him in 1995, 1996, and 1999, but Bohl denied

prior neck problems. (Id.). Dr. Rozen testified that he performed a physical

examination of Bohl, which revealed normal reflexes in both of his arms and

normal sensation. (Id. at 21). He testified that he performed a Spurling test to

determine whether any nerves were being compressed by spinal bones or disc, and

the test results were normal. (Id. at 21-22). Dr. Rozen testified that, after

conducting his physical examination of Bohl, he was unable to find any objective

finding indicative of a substantial aggravation of Bohl’s degenerative condition.

(Id. at 22, 27). Dr. Rozen testified that he reviewed Bohl’s x-ray and MRI, which

indicated that Bohl has degenerative changes throughout his thoracic and cervical

spine. (Id. at 23). Dr. Rozen testified that there was no evidence of any acute

injury to Bohl’s cervical spine, only evidence of longstanding bone spurs. (Id. at

26). Dr. Rozen testified that he concluded that Bohl suffered from a cervical strain,


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which is a soft-tissue injury that generally resolves in a relatively short period of

time. (Id. at 27).

       {¶28} When questioned about locating any objective findings in Dr. Heis’

March 15, 2010 report, Dr. Rozen testified that “[t]he only objective finding

would be that Mr. Bohl did not have a normal range of motion of his cervical

spine; that would be consistent with a diagnosis of degenerative arthritis.” (Id. at

28-29). Dr. Rozen testified Dr. Heis’ findings that Bohl has normal strength, no

focal weaknesses, and intact sensation, are normal objective findings. (Id. at 29).

He further testified that Dr. Heis’ original diagnosis was that Bohl suffered a

muscle strain. (Id.). Dr. Rozen testified that Bohl is likely still having pain from

his arthritis, but Bohl has arthritis throughout his entire spine and there is no way

to determine the precise location of the pain. (Id. at 31-32).

       {¶29} On cross-examination, Dr. Rozen testified that he owns a company

called Independent Medical Specialist Evaluations, which started in 2006, and he

last practiced medicine in 1996. (Id. at 33). He testified that his company did

around 760 examinations last year for various entities like municipalities, the Ohio

Attorney General’s Office, hospitals, and insurance companies. (Id. at 34-35). Dr.

Rozen estimated that two-thirds of the examinations were on behalf of employers

or their insurers in workers’ compensation cases. (Id. at 35). Dr. Rozen agreed that

Bohl suffered an injury to his neck in January 2010. (Id. at 38). Dr. Rozen also


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agreed that the x-rays and MRIs indicate that Bohl has cervical arthritis. (Id. at

41). Dr. Rozen testified that “there is no evidence of any acute injury to [Bohl’s]

cervical spine * * * [t]here’s no soft tissue swelling. There’s no bone marrow

edema. There’s no bleeding in the area.” (Id. at 43). Because of that, there is no

way to state that the neck injury produced a substantial aggravation to a reasonable

degree of medical certainty, according to Dr. Rozen. (Id.). Dr. Rozen further

testified that if Bohl had a significant injury to his cervical spine, an MRI would

show lingering effects of that injury even if the MRI was taken about a month

after the injury, like the MRI in this case. (Id.). Dr. Rozen testified that he has

testified in other cases that the claimant suffered a substantial aggravation of an

existing condition, and he would not hesitate to testify that Bohl had a substantial

aggravation claim if he had found objective evidence supporting that position. (Id.

at 44, 46). Dr. Rozen further testified that, given Bohl’s history of back issues and

well-documented history of degenerative arthritis throughout his spine, he would

be surprised if Bohl’s range of motion prior to the incident was normal. (Id. at 50-

51). Dr. Rozen explained that he did not have proof that Bohl’s range of motion

was abnormal prior to the accident since he did not have medical records from

other physicians that Bohl might have seen for treatment. (Id. at 51-52).

       {¶30} Thereafter, the trial court admitted defense exhibits A, B, C, E, F,

and G without objection. (Oct. 12, 2011 Tr. at 146). Cassens renewed its motion


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for directed verdict, which was overruled. (Id. at 206). The matter was submitted

to the jury, which rendered a verdict in favor of Bohl. (Doc. No. 34).

       {¶31} After reviewing the evidence in a light most favorable to Bohl as the

non-movant, we cannot conclude that the trial court erred by denying the motion

for directed verdict. While we do not agree with the trial court’s conclusion that

Dr. Heis’ expert opinion that Bohl suffered from a substantial aggravation, alone,

was sufficient to overcome the motion for directed verdict, the evidence taken as a

whole and viewed in a light most favorable to Bohl was sufficient to overcome the

motion. (Oct. 12, 2011 Tr. at 143) (THE COURT: “I have to rule on it. He said -- I

don’t know about ‘magic words,’ but [Dr. Heis’] opinion was that it was

substantial. So in any event, [the motion] is overruled.”). When Dr. Heis was

specifically asked what formed the basis of his opinion that Bohl suffered a

substantial aggravation of cervical degenerative disc disease, he testified:

            Well, normally with the type of jerking injury to the neck you

       would expect the muscle to be pulled or strained and that normally

       would heal up on its own anywhere from six to 12 weeks.

            With conservative treatment and medication, and a lot of times

       these muscle injuries will heal up without any special treatment,

       studies have shown, and it doesn’t matter whether you go to a

       chiropractor or go to a doctor like myself or don’t get any treatment,


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       a lot of times these muscle strains will heal up eventually. His did

       not heal up, and became initially worse. He stated the therapy made

       his pain worse, and the fact that it had been so long, he was still

       having neck pain complaints in August when his injury occurred in

       January, it was my opinion that he had aggravation of his arthritis

       that was underlying the muscles in the neck from the jerking injury,

       and that’s what caused his pain to continue at that time. (Heis Depo.

       at 19-20).

       {¶32} As Cassens points out, Dr. Heis’ testimony fails to reference

“objective diagnostic findings, objective clinical findings, or objective test results”

as required under R.C. 4123.01(C)(4). Nevertheless, Dr. Heis’ testimony must be

read in light of his medical reports, which were admitted into evidence. On March

15, 2010, Bohl’s initial visit about two months after the injury, Dr. Heis made the

following notation: “[r]ange of motion of the cervical spine reveals rotation

possible to 75° to the right, and only 40° to the left, with full flexion and 30° of

cervical extension.” (P’s Ex. 4); (D’s Ex. G). On August 9, 2010, after several

months of treatment with medication, physical therapy, and cervical nerve root

blocks, Dr. Heis made the following notation concerning Bohl’s range of motion:

“exam today reveals rotation of the neck to the right and left at 45°, with 20° of

extension and only 30° of flexion noted today.” (Id.); (Id.). Consequently, the


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record contained objective clinical findings demonstrating that Bohl’s range of

motion decreased months after the initial injury despite medical treatment.

Viewing this evidence, along with Dr. Heis’ testimony and Bohl’s testimony, a

rational trier of fact could have concluded that Bohl suffered a substantial

aggravation of preexisting degenerative arthritis of the cervical spine. As such, the

trial court did not err by denying Cassens’ motion for a directed verdict.

       {¶33} Cassens’ first assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ABUSED ITS DISCRETION AND,
       THEREBY COMMITTED REVERSIBLE ERROR, WHEN IT
       PROHIBITED    CASSENS      FROM    INTRODUCING
       PERMISSIBLE IMPEACHMENT EVIDENCE OF BOHL’S
       POTENTIAL BIAS, PREJUDICE, OR MOTIVE.

       {¶34} In its second assignment of error, Cassens argues that the trial court

abused its discretion by excluding evidence of Bohl’s motive to misrepresent his

injury, which was admissible under Evid.R. 616(A). Specifically, Cassens argues

that Bohl had a motive to misrepresent his injury since he knew he would be laid

off when Cassens closed the Fostoria terminal on January 10, 2010. Cassens points

out that Bohl had 24½ years of service, and Bohl could accrue years of service

while collecting workers’ compensation but he could not accrue years of service

while laid off. Cassens argues that Bohl, therefore, had a motive to misrepresent

his injury so he could accrue time and retire with 25 years of service.


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       {¶35} “The admission of evidence is generally within the sound discretion

of the trial court, and a reviewing court may reverse only upon the showing of an

abuse of that discretion.” Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296,

299 (1992). An abuse of discretion constitutes more than an error of judgment;

rather, it implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.

       {¶36} Evid.R. 616(A) provides that “[b]ias, prejudice, interest, or any

motive to misrepresent may be shown to impeach the witness either by

examination of the witness or by extrinsic evidence.”

       {¶37} The trial court did not abuse its discretion by excluding evidence of

Bohl’s motive to misrepresent under the circumstances of this case. Dr. Rozen,

Cassens’ medical expert, agreed with Dr. Heis, Bohl’s physician, that Bohl

suffered a neck injury on January 7, 2010. (Rozen Depo. at 38). Bohl testified that

he wanted to retire with 30 years of service to receive full benefits. (Oct. 11, 2011

Tr. at 117). In light of this evidence, it was reasonable for the trial court to

conclude that evidence of Bohl’s possible motive to misrepresent, while relevant

and admissible under Evid.R. 616(A), was, nevertheless, unfairly prejudicial and

misleading and excluded from evidence under Evid.R. 403(A).


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       {¶38} Even if the trial court erred by excluding the evidence as Cassens

argues, we find any error harmless in this case since the jury heard evidence from

which they could have drawn an inference of Bohl’s alleged motive to

misrepresent. Civ.R. 61. Elliot, the terminal manager, testified that, in December

2009, the workers learned that they would be laid off since the Fostoria terminal

was closing on January 10, 2010—just a few days after Bohl’s injury. (Oct. 11,

2011 Tr. at 67, 77-78). Bohl even acknowledged at trial during his direct

testimony that, prior to his injury, he knew the terminal was going to close. (Id. at

96). Bohl was also cross-examined about his statements to his doctors to keep him

healthy for a few more years so he could retire with full benefits. (Id. at 115-119).

In light of this evidence being presented to the jury, we are not persuaded that

Cassens’ substantial rights were affected by the trial court’s evidentiary ruling.

       {¶39} Cassens’ second assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       DENYING CASSENS’ MOTION FOR A NEW TRIAL.

       {¶40} In its third assignment of error, Cassens argues that the trial court

erred by denying its Civ.R. 59(A) motion for a new trial. Specifically, Cassens

argues that: (1) the judgment rendered was not sustained by the weight of the

evidence and is contrary to law; and (2) the trial court abused its discretion by



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prohibiting it from introducing impeachment evidence, thereby preventing it from

having a fair trial.

       {¶41} Civ.R. 59(A) provides several grounds for which a trial court may

grant a new trial, including the following grounds applicable to this appeal:

       (1) Irregularity in the proceedings of the court * * * or any order of

       the court * * * or abuse of discretion, by which an aggrieved party

       was prevented from having a fair trial;

       ***

       (6) The judgment is not sustained by the weight of the evidence;

       however, only one new trial may be granted on the weight of the

       evidence in the same case;

       ***

       (7) The judgment is contrary to law;

       {¶42} A trial court’s decision of whether to grant a motion for a new trial

premised upon Civ.R. 59(A)(1) or (6) is reviewed for an abuse of discretion.

Brown v. Senor Gringo’s, Inc., 3d Dist. No. 4-09-18, 2010-Ohio-985, ¶ 41, citing

Lewis v. Nease, 4th Dist. No. 05CA3025, 2006-Ohio-4362, ¶ 73; Ward v. Geiger,

3d Dist. No. 14-05-14, 2006-Ohio-6853, ¶ 56; Mannion v. Sandel, 91 Ohio St.3d

318, 321 (2001). A trial court’s ruling on a motion for a new trial premised upon




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Civ.R. 59(A)(7), however, presents a question of law reviewed de novo. Brown,

2010-Ohio-985, at ¶ 42, citing Lewis, 2006-Ohio-4362, at ¶ 76.

       {¶43} We have already concluded in the second assignment of error that the

trial court did not err by excluding the impeachment evidence and, regardless, any

potential error was rendered harmless in light of the evidence presented in this

case. Therefore, we cannot conclude that the trial court abused its discretion by

denying Cassens’ motion for a new trial under Civ.R. 59(A)(1) based upon this

same alleged evidentiary error. Neither can we conclude that the trial court’s

judgment was erroneous as a matter of law for purposes of Civ.R. 59(A)(7) when

the record contained objective clinical findings in support of Bohl’s substantial

aggravation claim as required by R.C. 4123.01(C)(4). Finally, we cannot conclude

that the trial court abused its discretion by denying Cassens’ motion for a new trial

under Civ.R. 59(A)(6), because the record contained competent, credible evidence

supporting the jury’s verdict. Striff v. Luke Md. Practitioners, Inc., 3d Dist. No. 1-

10-15, 2010-Ohio-6261, ¶ 72, citing Verbon v. Pennese, 7 Ohio App.3d 182, 183

(6th Dist.1982); Ball v. M.R. Philpot Masonry Co., Inc., 3d Dist. No. 17-90-4, at

*2 (Apr. 10, 1991).

       {¶44} Cassens’ third assignment of error is, therefore, overruled.




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       {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J., concurs.

/jlr




ROGERS, J., DISSENTS.

       {¶45} I respectfully dissent from the opinion of the majority as to the first

assignment of error. I would find that the evidence submitted by the Appellee did

not fulfill the statutory requirement that there be objective evidence of a

substantial aggravation of a pre-existing condition. The most that can be said is

that Appellee had a limited range of motion which is itself subject to distortion by

the person being tested and requires a subjective interpretation by the person

performing the test. I would, therefore, sustain the first assignment of error and

find the second and third assignments of error to be moot.




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