[Cite as Fabro v. OhioHealth Corp., 2014-Ohio-5161.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Joan C. Fabro,                                     :

                Plaintiff-Appellant/               :
                Cross-Appellee,
                                                   :       No. 13AP-755
v.                                                      (C.P.C. No. 12CV-13675)
                                                   :
OhioHealth Corporation,
                                                   :   (REGULAR CALENDAR)
                Defendant-Appellee/
                Cross-Appellant,                   :

                                                   :
Steven Buehrer, Administrator
State of Ohio Bureau of Workers'                   :
Compensation,
                                                   :
                Defendant-Appellee.
                                                   :




                                        D E C I S I O N

                                  Rendered on November 20, 2014


                Agee, Clymer, Mitchell & Laret, and Katherine E. Ivan, for
                appellant.

                Habash & Reasoner LLC, Stephen J. Habash, and Dennis H.
                Behm, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
         {¶ 1} This is an appeal by plaintiff-appellant/cross-appellee, Joan C. Fabro, from
an entry of the Franklin County Court of Common Pleas granting summary judgment in
No. 13AP-755                                                                             2

favor of defendant-appellee/cross-appellant, OhioHealth Corporation ("OhioHealth").
OhioHealth has filed a cross-appeal from the trial court's entry of summary judgment.
        {¶ 2} On January 15, 2009, appellant, while working as a nurse's aide for
OhioHealth, suffered an injury when a patient she was assisting fell on top of her.
Appellant subsequently filed an application for workers' compensation benefits, and the
Ohio Bureau of Workers' Compensation ("BWC") allowed the claim for bilateral shoulder
sprain, cervical sprain, and thoracic sprain. On June 15, 2010, appellant filed a motion to
amend her claim for the additional conditions of substantial aggravation of pre-existing
"degenerative disc disease at C5-6 resulting in left C5-6 radiculopathy," and substantial
aggravation of pre-existing "degenerative joint disease at C5-6 resulting in left C5-6
radiculopathy."
        {¶ 3} A district hearing officer ("DHO") for the Industrial Commission of Ohio
("commission") issued an order granting appellant's request for the additional conditions,
and OhioHealth appealed that decision. A staff hearing officer subsequently vacated the
DHO's order, denying the requested additional allowances for substantial aggravation,
and the commission refused appellant's further appeal. On December 30, 2010, appellant
filed an appeal with the trial court from the commission's decision, seeking the right to
participate in the Ohio workers' compensation system. OhioHealth filed a motion for
summary judgment, and appellant voluntarily dismissed her appeal.
        {¶ 4} On October 30, 2012, appellant refiled her appeal, naming as defendants
OhioHealth and defendant-appellee, Steven Buehrer, administrator of the BWC. On
May 31, 2013, OhioHealth filed a motion for summary judgment asserting that the
evidence failed to establish a substantial aggravation of a pre-existing condition.
Appellant filed a memorandum in opposition to the motion for summary judgment. On
August 7, 2013, the trial court filed a decision granting summary judgment in favor of
OhioHealth.
        {¶ 5} On appeal, appellant sets forth the following three assignments of error for
this court's review:
               1. THE TRIAL COURT ERRED WHEN FINDING THAT A
               PLAINTIFF MUST PROVIDE DOCUMENTED EVIDENCE
               OF AN AGGRAVATED CONDITION FROM BEFORE THE
               INJURY TO PROVE A SUBSTANTIAL AGGRAVATION OF A
               PRE-EXISTING CONDITION.
No. 13AP-755                                                                              3


               2. THE TRIAL COURT ERRED WHEN FINDING THAT THE
               ONLY EVIDENCE MS. FABRO PRESENTED IN SUPPORT
               OF HER CLAIM IS THE TESTIMONY OF DR. MAY.

               3. THE TRIAL COURT ERRED WHEN FINDING THAT THE
               ONLY EVIDENCE DR. MAY PRESENTS TO ESTABLISH
               THE EXISTENCE OF THE CONDITION PRE-INJURY IS
               THE STATEMENTS MADE BY PLAINTIFF AFTER THE
               INJURY.

        {¶ 6} OhioHealth presents the following single assignment of error on cross-
appeal:
               THE TRIAL COURT ERRED BY FAILING TO ALSO GRANT
               SUMMARY JUDGMENT ON THE SEPARATE AND
               INDEPENDENT BASIS THAT PLAINTIFF'S SOLE EXPERT
               WITNESS TESTIFIED THAT HE WAS APPLYING THE
               INCORRECT LEGAL STANDARD WHILE OPINING THAT
               CLAIMANT INCURRED A "SUBSTANTIAL AGGRAVATION"
               OF A PRE-EXISTING CONDITION UNDER R.C.
               4123[.01](C)(4).

        {¶ 7} Under the first assignment of error, appellant challenges the trial court's
grant of summary judgment in favor of OhioHealth, asserting that the court erred in
holding that a claimant must present documented evidence of an aggravated condition
from both before and after the injury in order to prove substantial aggravation of a pre-
existing condition. Appellant maintains the trial court's reliance on a decision rendered
by the Sixth District Court of Appeals, Smith v. Lucas Cty., 6th Dist. No. L-10-1200, 2011-
Ohio-1548, was misplaced.
        {¶ 8} In accordance with Civ.R. 56(C), a trial court shall grant summary judgment
if the filings in the action, including the pleadings and affidavits, "show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law." This court's review of a trial court's decision on summary judgment is de
novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220,
¶ 24.
        {¶ 9} Under Ohio law, " '[a] workers' compensation claimant seeking the right to
participate for an injury arising from an industrial accident must show by a
preponderance of the evidence, medical or otherwise, the existence of a direct and
No. 13AP-755                                                                                4

proximate causal relationship between the accident and the injury.' " Briggs v. Franklin
Pre-Release Ctr., 12th Dist. No. CA2013-10-035, 2014-Ohio-2477, ¶ 10, quoting Phipps v.
Internatl. Paper Co., 12th Dist. No. CA2013-02-003, 2013-Ohio-3994, ¶ 12. Pursuant to
R.C. 4123.01(C)(4), "injury" does not include "[a] condition that pre-existed an injury
unless that pre-existing condition is substantially aggravated by the injury."            R.C.
4123.01(C)(4) further provides:
               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 aggravation. However, subjective
               complaints without objective diagnostic findings, objective
               clinical findings, or objective test results are insufficient to
               substantiate a substantial aggravation.

       {¶ 10} In 2006, the legislature added the above language of subdivision (C)(4) as
part of Am.Sub.S.B. No. 7 ("S.B. No. 7"). Pflanz v. Pilkington LOF, 1st Dist. No. C-100574,
2011-Ohio-2670, ¶ 13. Prior to this amendment, "the Ohio Supreme Court had held * * *
that '[a] workers' compensation claimant who has proven a work-related aggravation of a
pre-existing condition is not required to prove that the aggravation is substantial in order
to be entitled to a determination of the extent of his participation in the State Insurance
Fund.' " Id., quoting Schell v. Globe Trucking, Inc., 48 Ohio St.3d 1 (1990), syllabus.
       {¶ 11} At issue under the first assignment of error is the trial court's interpretation
of R.C. 4123.01(C)(4) as applied to the evidence presented on summary judgment. As
indicated above, appellant contends the trial court, in granting summary judgment in
favor of OhioHealth, erred in its interpretation and reliance on the decision in Smith.
Under the facts of that case, the appellant slipped and fell on a wet floor while acting
within the course and scope of her employment, sustaining injuries to her head, neck,
wrist, and elbow. BWC allowed the claim for various conditions, and appellant
subsequently filed a motion to amend her claim to include an additional allowance for
"aggravation of preexisting variant of Chiari malformation." Id. at ¶ 3. The commission
rejected the appellant's amended claim, and the trial court affirmed the order of the
commission.
       {¶ 12} On appeal, the appellant argued that the trial court erred in finding that a
claim for substantial aggravation of a pre-existing condition must be documented by
No. 13AP-755                                                                              5

objective medical evidence of the pre-existing condition from both before and after the
industrial injury. The court in Smith affirmed the judgment of the trial court, finding that
the appellant had not provided sufficient documentation of her symptoms preceding the
injury. In its decision, the Smith court noted that the appellant "failed to provide any
information such as records or a statement from her prior treating physician." Id. at ¶ 18.
The court further noted that a subsequent MRI "revealed only the existence of the Chiari
malformation and provided an explanation for appellant's current symptoms," but that
the testing "did not establish that the condition was substantially aggravated by the
injury." Id. The court thus concluded that "the trial court did not err in determining that
evidence of the condition or symptoms must be documented prior to the injury and
presented in support of the claim." Id. at ¶ 21.
       {¶ 13} In the instant case, the trial court, while acknowledging that Smith was not
binding, concluded: "the Court agrees with its logic and will apply its holding to the
present matter. Therefore, in order for Plaintiff to recover in the present situation she
must provide documented evidence of her aggravated condition from both before and
after the January 15, 2009 injury." In applying Smith "to the facts of this case," the trial
court determined that appellant's "claim falls apart," holding in relevant part:
               The only evidence that Plaintiff has presented in support of
               her claim of an aggravated condition is the testimony of her
               medical expert, Dr. Charles B. May, D.O. While Dr. May has
               provided sufficient testimony to show the existence of
               Plaintiff's current condition, his testimony is insufficient to
               show that the condition existed before the January 15, 2009
               injury. The only evidence that Dr. May presents to establish
               the existence of the condition pre-injury is the statements
               made by Plaintiff after the injury. This is not enough. It is the
               opinion of the Court that Plaintiff has failed to bring forth
               objective evidence to demonstrate the existence of her
               condition before the January 15, 2009 injury. As such,
               Plaintiff's claim for workers' compensation benefits lacks
               merit and Summary Judgment must be awarded in
               Defendant's favor.

       {¶ 14} We note that Smith was one of the first cases to address the 2006
amendment to R.C. 4123.01. Subsequent to Smith, several Ohio courts have had occasion
to interpret the language of R.C. 4123.01(C), as well as the holding in Smith. In Gardi v.
Lakewood School Dist. Bd. of Edn., 8th Dist. No. 99414, 2013-Ohio-3436, the plaintiff
No. 13AP-755                                                                              6

appealed the commission's denial of a request for an additional allowance for substantial
aggravation of a pre-existing condition. The trial court granted the employer's motion for
summary judgment, holding that a condition asserted by a claimant as being substantially
aggravated by a workplace injury "must be medically documented prior to the workplace
injury and presented in support of the claim." (Emphasis sic.) Id. at ¶ 6.
       {¶ 15} On further appeal to the Eighth District Court of Appeals, the plaintiff
asserted that the language of R.C. 4123.01(C)(4) did not require a claimant to submit pre-
injury medical documentation of a pre-existing condition. The court in Gardi agreed with
the plaintiff, reversing the trial court's grant of summary judgment and holding in part
that "any requirement that a claimant must present pre-injury documentation of the pre-
existing condition before the claimant may recover under R.C. 4123.01(C)(4) for
substantial aggravation of the condition adds a requirement that is not in the statute." Id.
at ¶ 12. The court cited case law from several other districts as consistent with its
determination, including Bohl v. Cassens Transport Co., 3d Dist. No. 13-11-36, 2012-
Ohio-2248, Brate v. Rolls-Royce Energy Sys., Inc., 5th Dist. No. 12CA000001, 2012-
Ohio-4577, and Pflanz. The Gardi court deemed it significant that in none of the above
cited cases did the courts require pre-injury documentation of a pre-existing condition in
order to find substantial aggravation of a pre-existing condition under R.C. 4123.01(C)(4).
       {¶ 16} In Gardi, the court further noted that the trial court had relied on Smith in
holding that objective medical evidence of a pre-existing condition must be documented
prior to the injury and presented in support of a substantial aggravation claim. The
appellate court found, however, that "Smith does not stand for this proposition." Id. at
¶ 20. Specifically, the court cited language in Smith stating that objective evidence of a
claimant's symptoms preceding an injury " 'would not necessarily require objective
"before" and "after" findings or results.' " (Emphasis sic.) Id. at ¶ 23, quoting Smith at
¶ 18. Thus, the Gardi court observed, "Smith merely stands for the proposition that to
recover under R.C. 4123.01(C)(4), there must be some objective evidence of substantial
aggravation of a pre-existing condition." Id. at ¶ 23.
       {¶ 17} Following Gardi, the Sixth District Court of Appeals revisited its decision in
Smith. Specifically, in Lake v. Anne Grady Corp., 6th Dist. No. L-12-1330, 2013-Ohio-
4740, the appellant-claimant challenged the trial court's decision to grant summary
No. 13AP-755                                                                             7

judgment in favor of the appellee-employer on the appellant's substantial aggravation
claim, asserting that the trial court had improperly relied on Smith, and arguing that
"requiring objective evidence of a condition both before and after an injury would be a
novel burden in [workers'] compensation law, and would go far beyond the intent of the
Smith decision." Lake at ¶ 16.
       {¶ 18} While the court in Lake ultimately affirmed the trial court's grant of
summary judgment in favor of appellee, it agreed with the appellant, as well as the
analysis of the Eighth District Court of Appeals in Gardi, that "Smith does not hold that
an injured worker is required to produce pre-injury objective medical evidence
documenting a pre-existing condition to support a substantial aggravation claim."
(Emphasis sic.) Lake at ¶ 20. The court in Lake clarified that, "while pre-injury evidence
of a pre-existing condition—whether objective or subjective—is helpful, it is not necessary
so long as the worker can demonstrate through 'objective diagnostic findings, objective
clinical findings, or objective test results' that the pre[-]existing condition was
substantially aggravated by the injury." Id., quoting R.C. 4123.01(C)(4). The court in
Lake further observed that, "[i]n cases where the pre-injury condition is asymptomatic,
providing an initial reference point becomes difficult, especially where the pre-existing
condition has never been diagnosed." Id. at ¶ 21.
       {¶ 19} Other appellate courts, including this court, have similarly recognized that
"[l]ack of pre-injury evidence * * * does not preclude a claimant from establishing the
existence of a pre-existing condition." Strickler v. Columbus, 10th Dist. No. 13AP-464,
2014-Ohio-1380, ¶ 11. See also Haynik v. Sherwin-Williams Co., 8th Dist. No. 100064,
2014-Ohio-1620, ¶ 17 (failure of claimant to present x-ray showing condition of knee prior
to workplace accident not fatal to claimant's substantial aggravation claim; requiring
documented proof of the injured worker's condition prior to the aggravation injury "is not
present" in R.C. 4123.01(C)(4), "and we decline to make it so in the present case").
       {¶ 20} In the instant case, the parties do not dispute the absence of pre-injury
medical test results or diagnostic findings documenting the conditions at issue. Appellant
argues, however, that she presented evidence that her conditions were asymptomatic
prior to the workplace injury, and that the trial court failed to consider objective post-
injury medical evidence, including the opinion testimony of Dr. May that post-injury
No. 13AP-755                                                                              8

diagnoses of degenerative disc disease and degenerative joint disease most likely preceded
the work-related injury.
       {¶ 21} Upon review of the relevant case law, we agree with appellant that the trial
court erred in its reliance on Smith in determining she was required to "provide
documented evidence of her aggravated condition from both before and after the
January 15, 2009 injury."       While R.C. 4123.01(C)(4) mandates objective evidence of
substantial aggravation of a pre-existing condition, we agree with those courts that have
held that the language of the statute does not require a plaintiff to produce pre-injury
documentation of a pre-existing condition in order to prove a substantial aggravation
claim. See, e.g., Gardi, Haynik, and Strickler. As noted by one court, requiring medically
documented proof of the injured worker's condition prior to the aggravation injury
"would be available only in the most limited and fortuitous circumstances wherein
imaging studies had been conducted of the afflicted body part before the workplace
accident occurred." Haynik at ¶ 17.
       {¶ 22} Thus, we conclude in the instant case that the trial court should have
determined whether the evidence presented on summary judgment, including the post-
injury medical evidence of pre-existing conditions, was sufficient to create a genuine issue
of material fact as to the substantial aggravation claim. Accordingly, the trial court erred
in granting summary judgment in favor of OhioHealth without considering such evidence,
and we therefore vacate the court's grant of summary judgment and remand this matter
to the court for its consideration of whether that evidence, construed most strongly in
favor of appellant, creates a triable issue of fact.
       {¶ 23} Appellant's first assignment of error is sustained.
       {¶ 24} Under the second and third assignments of error, appellant contends the
trial court erred in ignoring her testimony regarding her pre-injury status and treatment,
and in failing to consider the post-injury medical evidence in addressing her substantial
aggravation claim. Under both of these assignments of error, appellant again challenges
the trial court's reliance upon Smith to require pre-injury medical documentation of a
pre-existing condition. However, in light of our disposition of the first assignment of
error, finding that the trial court erred in its application of Smith and remanding this
matter for the court to consider all relevant evidence, including post-injury medical
No. 13AP-755                                                                                                   9

evidence, the issues raised under the second and third assignments of error are rendered
moot.
        {¶ 25} We next consider OhioHealth's cross-assignment of error in which it
contends the trial court erred in failing to grant summary judgment on the independent
ground that appellant's expert witness applied the incorrect legal standard. Specifically,
OhioHealth, citing Dr. May's deposition testimony that appellant's pre-existing condition
was made "worse" by the injury, argues that Dr. May's medical opinion was based on the
obsolete aggravation standard as it existed prior to the S.B. No. 7 amendment.
OhioHealth maintains that the new standard enacted in 2006 was a legislative rejection of
the "any worsening" standard set forth by the Supreme Court of Ohio in Schell.1
        {¶ 26} In response to OhioHealth's cross-assignment of error, appellant argues
that OhioHealth has mischaracterized Dr. May's testimony.                           Specifically, appellant
maintains that Dr. May never stated during his deposition that "any worsening" is enough
to satisfy the standard under R.C. 4123.01(C)(4), nor did he state that a change in
subjective findings is sufficient. Appellant further notes that Dr. May specifically opined
that the pre-existing condition of "degenerative disc disease at C5-6 was substantially
aggravated by her injury and did result in the radiculopathy," and he further opined that
the injury "caused a substantial aggravation of the pre[-]existing degenerative joint
disease at C5-6 resulting in the cervical radiculopathy." (Dr. May Depo. 42-43.)2
        {¶ 27} Here, the trial court never addressed OhioHealth's claim that Dr. May
utilized an obsolete standard because it granted summary judgment in favor of
OhioHealth solely on the basis that appellant failed to provide documented evidence of
her aggravated condition from both before and after the January 15, 2009 injury. Because
the trial court did not reach the merits of this issue, we leave such issue for that court to


1 Under Schell, an injury did "not have to be of any particular magnitude in order for a claimant to

participate in the fund." Swiczkowski v. Senior Care Mgt., 6th Dist. No. L-05-1211, 2006-Ohio-1398, ¶ 14,
citing Schell at 3. Accordingly, prior to S.B. No. 7, a trier of fact could "find an aggravation through evidence
of worsened symptoms even though objective medical testing does not otherwise indicate a worsening
condition." Gower v. Conrad, 146 Ohio App.3d 200, 204 (10th Dist.2001).
2 OhioHealth has filed a motion to strike certain exhibits from appellant's brief in response to the cross-

appeal. Specifically, OhioHealth seeks to strike exhibits identified as exhibits B and F on the basis that those
exhibits were never attached to the summary judgment pleadings before the trial court. In response,
appellant argues that those exhibits were introduced during the deposition testimony of Dr. May, but were
"inadvertently not included with the transcript." Because the exhibits at issue do not appear to be part of the
record on appeal, we hereby grant the motion to strike.
No. 13AP-755                                                                            10

resolve in the first instance, if necessary, on remand. See, e.g., Mehta v. Ohio Univ., 194
Ohio App.3d 844, 2011-Ohio-3484, ¶ 66 (10th Dist.) (where consideration of appellee's
cross-assignment of error would require appellate court to determine issues in the first
instance, "we will refrain from addressing these issues for the first time herein").
       {¶ 28} Accordingly, OhioHealth's cross-assignment of error is not ripe for review at
this time, and is therefore rendered moot.
       {¶ 29} Based upon the foregoing, appellant's first assignment of error is sustained,
appellant's second and third assignments of error are rendered moot, OhioHealth's cross-
assignment of error is rendered moot, the judgment of the Franklin County Court of
Common Pleas is reversed, and this matter is remanded to that court for further
proceedings in accordance with law, consistent with this decision.
                                              Motion to strike granted; judgment reversed
                                                                     and cause remanded.

                         SADLER, P.J., and DORRIAN, J., concur.

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