[Cite as Parker v. Honda of Am. Mfg., Inc., 2009-Ohio-6866.]




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



GAYLEEN PARKER,                                                CASE NO. 14-09-27

   PLAINTIFF-APPELLANT,

  v.

HONDA OF AMERICA MFG., ET AL.,                                   OPINION

   DEFENDANTS-APPELLEES.



                  Appeal from Union County Common Pleas Court
                           Trial Court No. 2008-CV-0489

                                     Judgment Affirmed

                          Date of Decision: December 28, 2009




APPEARANCES:

        Adam H. Leonatti for Appellant

        Gerald Waterman for Appellee
Case No. 14-09-27



ROGERS, J.

      {¶1} Plaintiff-Appellant, Gayleen Parker, appeals the judgment of the

Court of Common Pleas of Union County granting summary judgment in favor of

Defendant-Appellees, Honda of America MFG., Inc. (hereinafter “Honda”), and

the Ohio Bureau of Workers’ Compensation (hereinafter “BWC”), barring her

from receiving compensation under the Workers’ Compensation Act in

conjunction with the death of her husband, John Parker (hereinafter “the

decedent”). On appeal, Parker argues that the trial court erred in basing its grant

of summary judgment upon its own factual conclusions about the issues instead of

her medical expert’s testimony about the issues, and that the trial court erred in

concluding that the decedent’s prescription OxyContin abuse disqualified her

death claim pursuant to R.C. 4123.54(A)(1), even though her medical expert

offered testimony that the decedent’s drug abuse was unwillful and nonvolitional.

Based upon the following, we affirm the judgment of the trial court.

      {¶2} The following facts are undisputed.        In 1988, John Parker, the

decedent, suffered a severe back injury while employed by Honda. Thereafter, his

workers’ compensation claim was allowed for the injury and he underwent several

surgical procedures in an unsuccessful attempt to alleviate his pain. In order to

manage his pain, the decedent was prescribed and began using OxyContin in

March 1999, to which he subsequently became addicted. In August 2004, the



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decedent sought treatment for his dependency on cocaine and OxyContin. In

March 2005, he again sought treatment for his addictions which had grown to

include cocaine, OxyContin, Percocet, and heroin.       In March 2006, he was

discovered dead with a syringe in his arm, a lighter and spoon, and thirty-seven

OxyContin pills. Cocaine and OxyContin were found on both the syringe and

spoon. The coroner concluded that the immediate cause of the decedent’s death

was a lethal concentration of OxyContin, which he had melted down and injected

intravenously.

      {¶3} In September 2007, Gayleen Parker, the decedent’s wife, filed a

complaint in the trial court against Honda and BWC, asserting that the decedent,

while employed by Honda, suffered an injury as a direct and proximate result of

his work activities in 1988; that, in 2006, the decedent died as a result of an

OxyContin overdose which was the direct and proximate result of his work injury;

that she had filed a claim for death benefits with BWC and Honda; that, in May

2007, the district hearing officer of the Industrial Commission of Ohio denied her

claim for death benefits; that she appealed the May 2007 denial of her claim for

death benefits, which the Industrial Commission again denied in August 2007;

and, that she appealed the August 2007 denial of her claim for death benefits,

which the Industrial Commission denied for a third time later in August 2007.




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       {¶4} In September 2008, Honda filed an answer to Parker’s complaint,

denying the allegations, and contending that the complaint was barred by the

statute of limitations and by operation of R.C. 4123.54.

       {¶5} In May 2009, Honda filed a motion for summary judgment, arguing

that it had filed deposition testimony of two medical experts finding that the

decedent’s death was the result of his abuse of prescription medication in concert

with illegal drugs and that it was not an accidental overdose, but a purposeful

ingestion of controlled and illegal substances; that the decedent’s acts of melting

OxyContin, injecting it into his blood stream, and using street drugs was an

intervening cause that broke the chain of causation between his work injury and

his death; and, that the facts surrounding the decedent’s death were distinguishable

from those set forth in Borbely v. Prestole Everlock, Inc. (1991), 57 Ohio St.3d 67,

which carved out a narrow exception to the workers’ compensation recovery

exclusion for self-inflicted injuries in certain cases of suicide.

       {¶6} In June 2009, Parker filed a memorandum contra to Honda’s motion

for summary judgment, asserting that the decedent’s addiction to OxyContin was

caused by his work injury, and that his work-injury-induced addiction to

OxyContin caused him to be dominated by a severe disturbance of the mind that

overrode his normal, rational judgment, and lead to his death by overdose. In

support, Parker provided the expert testimony of Dr. Richard N. Whitney, who

was deposed and agreed that the decedent’s “work-injury-related addiction to


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OxyContin and/or oxycodone caused him to be so dominated by a disturbance of

the mind of such severity as to override his normal, rational judgment that it led to

his overdose and death” and stated that, consequently, he would not consider the

decedent’s addiction to be volitional or willful. (Whitney Dep., p. 59).

       {¶7} In July 2009, the trial court granted Honda’s motion for summary

judgment against Parker, finding that R.C. 4123.54 excluded workers’

compensation claims for dependents where the decedent’s injury was purposefully

self-inflicted or caused by the decedent being under the influence of a controlled

substance not prescribed by a physician, where the being under the influence of a

controlled substance not prescribed by a physician was the proximate cause of the

injury. The trial court concluded:

       [T]his court finds that Parker’s claims for workers’
       compensation benefits is precluded under the provisions of R.C.
       4123.54 and R.C. 4123.46. This court cannot find that there is
       any genuine issue as to whether [the decedent] acted voluntarily
       when he crushed, heated, and injected OxyContin directly into
       his veins. That misuse of the prescription drugs coupled with his
       ingestion of other controlled substances was an intentional and
       voluntary act. This Court must conclude that [the decedent’s]
       tragic death was purposefully self-inflicted.

(July 2009 Decision and Judgment Entry, p. 8). In support, the trial court cited

Vance v. Trimble (1996), 116 Ohio App.3d 549; Shope v. Meijer, Inc., 3d Dist.

No. 5-2000-30, 2001-Ohio-2133. Further, the trial court determined that Parker’s

claims also did not fall within the exception to R.C. 4123.54 and R.C. 4123.46

created by the Supreme Court of Ohio in Borbely, supra. The trial court stated:


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      Plaintiff urges this court to extend the Supreme Court’s holding
      in Borbely to death claims arising from purposefully self-
      inflicted drug overdoses. In so doing, Plaintiff invites the Court
      to disregard the Revised Code and the Court’s holding in
      Borbely. The court declines such an invitation[.] R.C. 4123.54
      and R.C. 4123.46 clearly provide that workers’ compensation
      benefits are not available when the injury is purposefully self-
      inflicted. The Ohio Supreme Court appears to have created a
      small exception to those statutes by finding that the “chain-of-
      causation approach is more logical and enlightened in
      determining cases involving a suicide that is alleged to be the
      proximate result of a work-related injury.” However, by its
      plain language, that holding applies only to cases involving a
      suicide. In this case, neither party suggests, nor does the
      evidence support, a finding that [the decedent] committed
      suicide. It follows that Borbely has no bearing on the outcome in
      this case.

(Emphasis sic.) (July 2009 Decision and Judgment Entry, p. 9).

      {¶8} It is from this judgment that Parker appeals, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED BY BASING SUMMARY
      JUDGMENT UPON ITS OWN FACTUAL CONCLUSION
      THAT THE DECEDENT’S ABUSE OF OXYCONTIN WAS
      “WILLFUL    AND    VOLUNTARY”    WHEN     THE
      APPELLANT’S MEDICAL EXPERT SPECIFICALLY
      TESTIFIED THAT THE DECEDENT’S “VOLITIONAL AND
      WILLFUL USE [OF OXYCONTIN] HAS GONE OUT THE
      WINDOW” AND THAT DECEDENT’S VERY ABUSE OF
      OXYCONTIN WAS CAUSED BY HIS WORK-INJURY-
      INDUCED ADDICTION WHICH CAUSED HIM TO BE
      “DOMINATED BY A DISTURBANCE OF THE MIND OF
      SUCH SEVERITY AS TO OVERRIDE HIS NORMAL,
      RATIONAL JUDGMENT.”




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                               Assignment of Error No. II

       THE TRIAL COURT ERRED IN CONCLUDING THAT THE
       DECEDENT’S PRESCRIPTION OXYCONTIN ABUSE
       DISQUALIFIES APPELLANT’S DEATH CLAIM PURSUANT
       TO R.C. 4123.54(A)(1), EVEN THOUGH APPELLANT CAN
       PROVE BY MEDICAL EXPERT TESTIMONY THAT THE
       DECEDENT’S DRUG ABUSE ITSELF WAS UNWILLFUL
       AND NONVOLITIONAL AND CAUSED BY HIS WORK-
       INJURY-INDUCED ADDICTION WHICH CAUSED HIM TO
       BE DOMINATED BY A DISTURBANCE OF THE MIND OF
       SUCH SEVERITY AS TO OVERRIDE HIS NORMAL,
       RATIONAL JUDGMENT.

       {¶9} Due to the nature of Parker’s assignments of error, we elect to

address them together and in reverse order.

                          Assignments of Error Nos. I & II

       {¶10} In her second assignment of error, Parker contends that the trial

court erred in concluding that the decedent’s OxyContin abuse disqualified her

death claim pursuant to R.C. 4123.54(A)(1), because she produced medical expert

testimony that the decedent’s drug abuse was unwillful and nonvolitional because

it was caused by his work-injury-induced addiction.

       {¶11} R.C. 4123.54 governs workers’ compensation in cases of death and

provides, in pertinent part:

       (A) Except as otherwise provided in division (I) of this section,
       * * * the dependents of each employee who is killed, or dies as
       the result of an occupational disease contracted in the course of
       employment, wherever such injury has occurred or occupational
       disease has been contracted, provided the same were not:

       (1)    Purposely self-inflicted; or


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      (2)    Caused by the employee being intoxicated or under the
      influence of a controlled substance not prescribed by a physician
      where the intoxication or being under the influence of the
      controlled substance not prescribed by a physician was the
      proximate cause of the injury, is entitled to receive, either
      directly from the employee's self-insuring employer as provided
      in section 4123.35 of the Revised Code, or from the state
      insurance fund, the compensation for loss sustained on account
      of the injury, occupational disease, or death, and the medical,
      nurse, and hospital services and medicines, and the amount of
      funeral expenses in case of death, as are provided by this
      chapter.

      {¶12} Despite the exclusions set forth in R.C. 4123.54(A)(1) and (2), the

Supreme Court of Ohio has found that certain situations involving suicide are not

“purposefully self-inflicted.” In Borbely, 57 Ohio St.3d at 71, a decedent was

physically injured during the course of his employment at a plant. Although he

eventually returned to work two years later, he suffered a second work-related

injury shortly thereafter.    Several years later, the decedent overdosed on

prescription pain medication, and, two days after leaving the hospital, committed

suicide by shooting himself in the head.

      {¶13} The Supreme Court reasoned that, given the General Assembly’s

statutory directive to liberally construe the workers’ compensation provisions in

R.C. 4123.95, and, in order to be consistent with the purpose of workers’

compensation law under Section 35, Article II, Ohio Constitution, an exception

should be carved out in certain instances involving suicide. Accordingly, the

Court adopted a “chain-of-causation” approach to determine whether a suicide was


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a proximate result of a work-related injury, holding that, “[i]n order for dependents

to recover workers’ compensation benefits for a death by suicide, they must

establish by a preponderance of the evidence that (1) there was initially an injury

received in the course of, and arising out of, the employee’s employment as

defined by R.C. 4123.01(C); (2) the work-related injury caused the employee to

become dominated by a disturbance of the mind of such severity as to override

normal rational judgment; and (3) the disturbance resulted in the employee’s

suicide.” (Emphasis added.) Borbely, 57 Ohio St.3d 67, at syllabus.

       {¶14} The Sixth Appellate District considered the issue of whether the

exception for certain suicides meeting the criteria in Borbely may properly be

applied to incidents involving accidental death resulting from drug and alcohol

abuse in Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio

App.3d 360.    In Conley-Slowinski, a decedent was injured arising out of his

employment and was allowed workers’ compensation claims for his bodily

injuries, as well as aggravation of his pre-existing conditions of depression and

alcoholism.   Thereafter, the decedent died in a car/train collision and was

discovered to have a blood alcohol level of .34. Subsequently, the decedent’s

wife, Conley-Slowinski, filed a claim for workers’ compensation benefits on the

basis that the decedent’s death was caused by his alcohol abuse, which was caused

by his depression, which was aggravated due to his work-related injury. Conley-

Slowinski’s claim was denied by the Industrial Commission, and the denial was


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affirmed by the trial court. On appeal, the Sixth Appellate District determined

that, although courts had allowed benefits to be extended for medical conditions

that had a proximate link to the original work-related injury, including a secondary

drug or alcohol abuse problem, courts had not permitted the further linking of any

injuries caused by that secondary drug or alcohol abuse. See Conley-Slowinski,

128 Ohio App.3d at 364, citing Karavolos v. Brown Derby, Inc. (1994), 99 Ohio

App.3d 548. Accordingly, the Sixth Appellate District declined to expand R.C.

4123.54, and affirmed the trial court’s denial of Conley-Slowinski’s claim. See

Id.; see, also, Embry v. Bur. of Workers’ Comp., 10th Dist. No. 04AP-1374, 2005-

Ohio-7021, ¶26; Vance, supra.

      {¶15} We find the facts in the case sub judice analogous to Conley-

Slowinski, supra, and distinguished from Borbely, supra. Borbely set forth a three-

part test for determining whether a dependent may recover “workers’

compensation benefits for a death by suicide,” and the third step of the test

requires that the dependent establish by a preponderance of the evidence that “the

[mental] disturbance resulted in the employee’s suicide.”       (Emphasis added.)

Borbely, 57 Ohio St.3d 67, at syllabus. The language of Borbely clearly indicates

that it concerns suicide, and we are not persuaded by Parker’s argument that the

exception should be expanded to include accidental death caused by drug abuse.

Additionally, we note that it is undisputed that the decedent’s death was not

suicide, but was an accidental death due to a drug overdose.


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      {¶16} We next turn to Parker’s first assignment of error.        In her first

assignment of error, Parker contends that the trial court erred by basing its

summary judgment decision on its own factual conclusion that the decedent’s use

of OxyContin was willful and voluntary, when she presented medical expert

testimony that the decedent’s use of OxyContin was not willful and voluntary, but

was caused by his work-injury-induced addiction.

      {¶17} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels

v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party.            Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.


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      {¶18} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E). Additionally, in determining the

existence of a genuine triable issue, the trial court may not resolve issues of

credibility of witness testimony, including expert witness testimony, as this is

outside the province of summary judgment. Morton Internatl., Inc. v. Continental

Ins. Co. (1995), 104 Ohio App.3d 315, 323; Carpenter v. Scherer-Mountain Ins.

Co. (1999), 135 Ohio App.3d 316, 324.

      {¶19} Here, Parker contends that she offered Dr. Whitney’s medical expert

testimony that the decedent’s abuse of OxyContin was neither volitional nor

willful, but the product of a work-injury-induced addiction to his prescription pain

medication, and that the trial court either ignored or rejected Dr. Whitney’s

opinion, which was not mentioned in the judgment entry granting summary

judgment.    Further, Parker claims that the trial court’s statement that the

decedent’s “unfortunate death was the result of his willful and voluntary abuse of




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powerful controlled substances” demonstrated that it favored its own medical

opinion over the expert witness.

        {¶20} Initially, we note that Parker’s offer of expert testimony that the

decedent’s OxyContin addiction caused him “to be dominated by a disturbance of

the mind of such severity as to override his normal rational judgment”1 makes this

case unique from the others cited in our consideration of the second assignment of

error, as no such evidence was presented by the plaintiffs in those cases.

However, we find this distinction to be without meaning. Parker is correct that

Borbely carved out an exception to the workers’ compensation exclusion in cases

of self-inflicted injury where “the work-related injury caused the employee to

become dominated by a disturbance of the mind of such severity as to override

normal rational judgment”; however, as we found in our consideration of her

second assignment of error, the Borbely exception expressly refers to cases of

suicide, and has not been applied to cases of accidental death. Borbely, 57 Ohio

St.3d 67, at syllabus; see, also, Conley-Slowinski, supra. As we have declined to

extend the Supreme Court’s holding in Borbely to cases of accidental death, Dr.

Whitney’s medical expert testimony concerning the Borbely factors was irrelevant,

and the trial court did not err in finding that there were no genuine issues of

material fact and that Honda and BWC were entitled to judgment as a matter of



1
 We note that, interestingly, the phraseology of the expert’s testimony about the decedent’s addiction was
virtually identical to the standard set forth by the Supreme Court of Ohio in Borbely.


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law.

       {¶21} Finally, we agree with Honda’s averment at oral argument that the

facts in the case sub judice differ from those present in Osborn v. Bur. of Workers’

Comp. (1999), 134 Ohio App.3d 645, in which the Second Appellate District

reversed a trial court’s grant of summary judgment to BWC, determining that

genuine issues of material fact were present. In Osborn, the plaintiff seeking to

obtain workers’ compensation widow benefits presented expert testimony that the

decedent had taken a fatal dose of prescription pain medication following a work-

related injury, and that it was not uncommon for individuals to unintentionally

exceed the recommended dosage because the medication affected cognitive

abilities and could cause confusion over how many pills had been taken. In

reversing the trial court’s grant of summary judgment to BWC, the Second District

found that, in light of the expert testimony, a genuine issue existed as to whether

the decedent intentionally or accidentally took an overdose of the medication. In

contrast, here, Parker did not argue and offered no evidence that the decedent

accidently took more than the recommended dosage of OxyContin, which, we

note, he ingested along with cocaine. Instead, Parker’s argument focused on the

volition of the decedent’s intentional overdose of OxyContin due to his addiction

to the drug, which, as discussed above, is irrelevant because Borbely applies only

to suicides and not to accidental deaths.




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         {¶22} Accordingly, we overrule Parker’s first and second assignments of

error.

         {¶23} 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

PRESTON, P.J., and WILLMOWSKI, J., concurs.

/jnc




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