[Cite as Aho v. RTI Internatl. Metals, Inc., 2017-Ohio-2803.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


WALTER AHO,                                              :      OPINION

                 Appellant,                              :
                                                                CASE NOS. 2016-T-0080
        - vs -                                           :                2016-T-0082

RTI INTERNATIONAL METALS, INC.,                          :
et al.,
                                                         :
                 Appellee.


Civil appeals from the Trumbull County Court of Common Pleas.
Case Nos. 2015 CV 01488 and 2016 CV 00131.

Judgment: Reversed and remanded.


Irene K. Makridis, 155 South Park Avenue, Suite 160, Warren, OH                 44481 (For
Appellant).

C. Scott Lanz and Adam V. Buente, Manchester Newman & Bennett, The Commerce
Building, Atrium Level Two, 201 East Commerce Street, Youngstown, OH 44503-1641
(For Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Walter D. Aho, appeals the judgment of the Trumbull County

Court of Common Pleas, which granted summary judgment in favor of appellee, RTI

International Metals, Inc. (“RTI”). For the following reasons, the trial court’s judgment is

reversed, and the case is remanded for further proceedings.
      {¶2}      Mr. Aho suffered a knee injury while climbing the stairs at work on the

premises of his employer, RTI.         The Industrial Commission allowed Mr. Aho to

participate in the worker’s compensation fund, first on a claim for a “strain/sprain right

knee” and subsequently on a claim for a “medial meniscus tear of the right knee,” for

which Mr. Aho underwent surgery and physical therapy. RTI appealed the allowance of

both claims to the Trumbull County Court of Common Pleas, and the cases were

consolidated.

      {¶3}      RTI took Mr. Aho’s deposition. RTI moved for summary judgment, arguing

there was no causal connection between Mr. Aho’s injury and his employment. Mr. Aho

took the deposition of his surgeon, Dr. Thomas Jones, but it was not filed until after Mr.

Aho responded to the motion for summary judgment and after the trial court granted

summary judgment in favor of RTI. The trial court found Mr. Aho’s injury did not arise

out of his employment with RTI and reversed the Industrial Commission’s decisions.

      {¶4}      Mr. Aho filed a timely notice of appeal and assigns one error for our

review:

      {¶5}      “The trial court committed error in granting appellee’s motion for summary

judgment based upon the conclusion that appellant was not injured in the course of and

out [of] his employment with appellee.”

      {¶6}      Mr. Aho argues the trial court erred in determining on summary judgment

that he did not suffer a compensable workplace injury as defined by R.C. 4123.01.

Summary Judgment Standard

      {¶7}      “While summary judgment is a beneficial procedure aiding in the swift

administration of justice, it must also ‘be used cautiously and with the utmost care so




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that litigant’s right to a trial * * * is not usurped in the presence of conflicting facts and

inferences.’” Fifth Third Mtge Co. v. Perry, 4th Dist. Pickaway No. 12CA13, 2013-Ohio-

3308, ¶35, quoting Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 14-15 (6th

Dist.1983). “[T]he trial court may not weigh the evidence or select among reasonable

inferences. * * * Rather, all doubts and questions must be resolved in the non-moving

party’s favor.” McCarthy v. Lordstown, 11th Dist. Trumbull No. 2014-T-0050, 2015-

Ohio-955, ¶7 (citations omitted).

       {¶8}   Summary judgment is, therefore, only proper when

              (1) [n]o genuine issue as to any material fact remains to be
              litigated; (2) the moving party is entitled to judgment as a matter of
              law; and (3) it appears from the evidence that reasonable minds
              can come to but one conclusion, and viewing such evidence most
              strongly in favor of the party against whom the motion for summary
              judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C).

       {¶9}   “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record before the

trial court which demonstrate the absence of a genuine issue of fact on a material

element of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292

(1996), citing Civ.R. 56(C) and Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986).

If the moving party fails to satisfy its initial burden, the motion for summary judgment

must be denied. Id. If the moving party satisfies this burden, the nonmoving party then

has the burden to provide evidence demonstrating a genuine issue of material fact. Id.

at 293, citing Civ.R. 56(E).

       {¶10} “Civ.R. 56(C) provides the exclusive list of documentary evidence to

support a summary judgment motion: affidavits, deposition, answers to interrogatories,



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written admissions, transcripts of evidence in the pending case, and written stipulations.

No other evidence may be considered.” Drawl v. Cornicelli, 124 Ohio App.3d 562, 569

(11th Dist.1997) (emphasis sic), citing Civ.R. 56(C); see also Rilley v. Brimfield Twp.,

11th Dist. Portage No. 2009-P-0036, 2010-Ohio-5181, ¶61.              “Other documentary

evidence may be admitted; however, the appropriate method to introduce this evidence

is by way of an affidavit that complies with Civ.R. 56(E).” Id., citing Martin v. Cent. Ohio

Trans. Auth., 70 Ohio App.3d 83, 89 (10th Dist.1990).

       {¶11} On appeal, we review a trial court’s entry of summary judgment de novo,

i.e., “independently and without deference to the trial court’s determination.” Brown v.

Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted);

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); see also Conley-Slowinski

v. Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998)

(holding the de novo standard applies to common pleas rulings from an appeal of an

Industrial Commission’s decision).

Review of the Record

       {¶12} On appeal, Mr. Aho asserts, “[t]he record in this case contains ample facts

that show that appellant injured his right knee at the appellee’s titanium melt shop on

February 10, 2015, [and] that appellant was injured while doing his regular work for

appellee.” RTI responds that Mr. Aho is relying on evidence not properly before the trial

court at the time summary judgment was entered and that the injury is not compensable

merely because it happened at the workplace.




                                             4
      {¶13} On June 6, 2016, RTI filed its motion for summary judgment, arguing no

genuine issue of fact exists as to whether Mr. Aho’s injury is compensable. RTI relied

on Mr. Aho’s deposition, which was properly filed that same day.

      {¶14} On June 24, 2016, Mr. Aho filed his memorandum contra to the motion for

summary judgment, arguing genuine issues of fact exist regarding the compensability of

his injury. Mr. Aho attached the following to his memorandum contra: (a) the intake

report by the nurse at WorkMed, RTI’s own medical provider, where Mr. Aho was

immediately taken for treatment; (b) the physician’s report dictated by Dr. Stephen

Dubos at WorkMed; and (c) the physician’s report submitted by Dr. Dubos to the Ohio

Bureau of Worker’s Compensation.

      {¶15} On July 15, 2016, RTI filed a reply to Mr. Aho’s memorandum contra, in

which it argued Mr. Aho did not demonstrate a genuine issue of material fact because

the medical records attached to his memorandum contra contained hearsay and were

not properly authenticated. Pursuant to Civ.R. 56(E), RTI asserted, the trial court could

not consider these documents.

      {¶16} On July 20, 2016, Mr. Aho filed a response to RTI’s reply, in which he

argued the medical records could be considered by the trial court because they were

included as exhibits to the deposition of Dr. Thomas Jones.         Mr. Aho stated the

deposition of Dr. Jones was taken on June 15, 2016; “Defense counsel attended Dr.

Jones deposition, reviewed these exhibits and fully cross-examined Dr. Jones”; but the

transcript would not be completed until July 22, 2016. Mr. Aho asserted RTI’s reply

would be rendered moot upon proper filing of the exhibits with the deposition. Mr. Aho

also requested “that the Court delay ruling on Defendant Employer’s motion for




                                           5
summary judgment until Plaintiff’s formal filing of transcript of the deposition of Dr.

Thomas Jones.”

       {¶17} On July 22, 2016, the trial court granted summary judgment in favor of RTI

in an entry that had been signed on July 20, 2016, the same day Mr. Aho’s response

was filed with the request for delay.

       {¶18} On July 25, 2016, Dr. Jones’ deposition was properly filed. On that same

day, RTI also filed a sur-reply to Mr. Aho’s response, in which it stated the following:

              The transcript of Dr. Jones will demonstrate that Defendant
              objected to the use of these exhibits during Plaintiff’s counsel’s
              examination of Dr. Jones for the same reason that Defendant
              objects to the use of these documents as evidence in connection
              with Defendant’s Motion for Summary Judgment – namely, that the
              documents are hearsay and not admissible. The documents are
              not medical records that were prepared or authored by Dr. Jones
              and properly authenticated by Dr. Jones in his deposition, but are
              instead medical records from a completely different medical facility
              and doctor, Austintown Work-Med and Dr. Dubos. The records
              have not been properly authenticated, and the information
              contained within the records is hearsay.

       {¶19} We agree with RTI that the trial court could not consider the documents

attached to Mr. Aho’s memorandum contra. Regardless of whether the documents

contain hearsay, they were not properly authenticated or incorporated by way of an

affidavit that complies with Civ.R. 56(E). Additionally, the deposition of Dr. Jones had

not yet been filed. Mr. Aho, in his memorandum contra, requested the trial court to

delay its ruling but did not move for an extension of time to respond to the summary

judgment motion, as provided for in Civ.R. 56(F). The trial court’s decision not to delay

its ruling has not been assigned as error on appeal. As a result, we can only consider

the pleadings and the transcript of Mr. Aho’s deposition in determining whether

summary judgment should have been denied.



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Compensable Workplace Injury

      {¶20} “‘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). Therefore, “[a]n injury sustained by

an employee is compensable under the Workers’ Compensation Act only if it was

‘received in the course of, and arising out of, the injured employee’s employment.’”

Bralley v. Daugherty, 61 Ohio St.2d 302, 303 (1980), quoting R.C. 4123.01(C) (citations

omitted); see also Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990) (recognizing both

elements must be met). Here, there is no dispute that the injury occurred in the course

of Mr. Aho’s employment. The dispute in this case centers on whether Mr. Aho’s injury

arose out of his employment.

      {¶21} The test for “arising out of” employment is not whether there was any fault

or neglect on the part of the employer or its employees. Lord v. Daugherty, 66 Ohio

St.2d 441, 444 (1981), citing Indus. Comm. v. Weigandt, 102 Ohio St. 1 (1921); Indus.

Comm. v. Gintert, 128 Ohio St. 129 (1934); Fox v. Schiele, 162 Ohio St. 569 (1955).

The test is, rather, “whether a ‘causal connection’ existed between an employee’s injury

and his employment either through the activities, the conditions or the environment of

the employment.” Bralley, supra, at 303, citing Weigandt, Gintert, and Schiele, supra.

Whether a “causal connection” exists “depends on the totality of the facts and

circumstances surrounding the accident, including, (1) the proximity of the scene of the

accident to the place of employment, (2) the degree of control the employer had over

the scene of the accident, and (3) the benefit the employer received from the injured

employee’s presence at the scene of the accident.” Lord, supra, at syllabus (emphasis




                                           7
added). An injury may be compensable “irrespective of the presence or absence of a

special hazard thereon which is distinctive in nature or quantitatively greater than

hazards encountered by the public at large.” Griffin v. Hydra-Matic Div., Gen. Motors

Corp., 39 Ohio St.3d 79 (1988), syllabus.

       {¶22} Because worker’s compensation cases are very fact specific, “no one test

or analysis can be said to apply to each and every factual possibility. Nor can only one

factor be considered controlling. Rather, a flexible and analytically sound approach to

these cases is preferable. Otherwise, the application of hard and fast rules can lead to

unsound and unfair results.” Fisher, supra, at 280. Additionally, worker’s compensation

statutes are to be liberally construed in favor of the employee and in favor of awarding

benefits. Id. at 278 (citation omitted).

       {¶23} “An injury caused by an unexplained slip or fall presents a unique case

under the workers’ compensation laws.” Waller v. Mayfield, 37 Ohio St.3d 118, 122

(1988).

              ‘All risks causing injury to a claimant can be brought within three
              categories: risks distinctly associated with the employment, risks
              personal to the claimant, and “neutral” risks—i.e., risks having no
              particular employment or personal character. Harms from the first
              are universally compensable.        Those from the second are
              universally noncompensable. It is within the third category that
              most controversy in modern compensation law occurs.’

Id., quoting 1 Larson, The Law of Workmen’s Compensation, Section 7.00, at 3-12

(1985).

       {¶24} Thus, under circumstances “where it may be shown that the unexplained

fall results from a neutral origin,” and idiopathic causes have been eliminated, an

inference arises that the fall is traceable “to some ordinary risk, albeit unidentified, to




                                            8
which the employee was exposed on the employment premises.” Id. at 124. The

claimant carries the ultimate burden to eliminate idiopathic causes (i.e., unique to the

claimant) for an unexplained fall. Id. at 125. Nevertheless, in the summary judgment

exercise, the moving party must initially demonstrate that there is no genuine issue of

material fact in that regard. Stewart v. B.F. Goodrich Co., 89 Ohio App.3d 35, 42 (4th

Dist.1993).

Trial Court’s Ruling

      {¶25} Here, the trial court stated the following in its entry granting summary

judgment:

              It is unfortunate that Aho sustained this injury. However, the fact
              that the injury was sustained at work performing a normal activity of
              daily life does not mean it is a compensable injury under workers’
              compensation. There was no direct benefit to the employer of Aho
              traversing the stairs consummate with his injury. This activity,
              much like that in Dailey, was a normal movement.

      {¶26} In Dailey v. Autozone, Inc., 11th Dist. Trumbull No. 99-T-0146, 2000 WL

1459708 (Sept. 29, 2000), the claimant, a cashier, was either walking or turning slightly

to hand off a paper receipt when he first experienced a pain in his back. Id. at *3. The

only evidence before the trial court on the issue of whether the claimant’s injury “arose

out of” his employment came from the claimant’s treating physician who was of the

opinion that the injury was not compensable as a worker’s compensation injury. Id.

The claimant’s request to participate in the worker’s compensation fund was denied by

the Industrial Commission. Id. at *1. This court held the claimant’s workplace injury

was not compensable because it “was a normal movement that could easily have

occurred at home, or any other place other than work. It was not specifically associated

with his work nor could it be considered a hazard of working at AutoZone.” Id. at *3.



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       {¶27} We do not find this case to be determinative of Mr. Aho’s claim. First,

unlike Dailey, Mr. Aho’s claims were allowed by the Industrial Commission. Second,

unlike Dailey, we do not have an opinion from Mr. Aho’s treating physician that his injury

is not compensable. Third, although climbing stairs is a normal movement that Mr. Aho

would engage in other than at work, similar to Dailey, climbing this particular unlit

staircase is only associated with Mr. Aho performing a necessary function of his job

duties, unlike Dailey. Mr. Aho testified in his deposition that the injury to his knee

occurred when he was climbing a staircase at work. RTI emphasizes that Mr. Aho did

not slip, fall, or trip when he was climbing the staircase. Mr. Aho did repeatedly testify,

however, to the following: it “felt like my foot didn’t hit the stair tread correctly”; his “foot

felt awkward on that stair tread”; “I don’t know how my foot hit the stair tread. Something

wasn’t right”; his “foot hit the stair tread, and it felt awkward”; “I almost fell down. But

thank God there was a steel railing on both sides”; and “when I felt and heard the loud

pop in my right knee, I grabbed onto the railing with the travel card in my hand, and

that’s how I got the rest of the way up the steps.” He additionally testified that the lights

were out in the stairwell, and the emergency light was not working. He stated: “I don’t

know if there was something on the step that made my foot not hit it right, or if it just

popped and happened. I don’t know. Because the lights were out. It was a very dark

area.” And he stated: “All I know is that the lights were out, and there may have been

something on the step.”

       {¶28} Further, “other courts have eschewed the reasoning of Dailey where an

activity, event, or condition of employment is a precipitating or contributing factor in the

claimant’s injury.” Luettke v. Autoneum N. Am., Inc., 6th Dist. Lucas No. L-14-1236,




                                               10
2015-Ohio-3210, *12 (adopting the trial court’s decision in Appendix A as its own), citing

Bahr v. Progressive Cas. Ins. Co., 8th Dist. Cuyahoga No. 92620, 2009-Ohio-6641

(claimant twisted her knee and tore her ACL while turning to walk away after engaging

in an employment-related physical activity); and Emmert v. Mabe, 1st Dist. Hamilton No.

C-070315, 2008-Ohio-1844, ¶10 (claimant-housekeeper tore the meniscus in her knee

when bending over to pick up trash: “That she could have sustained the injury at home

or elsewhere was immaterial in light of the uncontroverted evidence that the

performance of her job duties had directly led to her injuries.”).

       {¶29} Additionally, RTI did not argue in its motion for summary judgment that Mr.

Aho’s unexplained injury was idiopathic, thus Mr. Aho did not have a burden to

demonstrate a factual issue in that regard to survive summary judgment. Because Mr.

Aho could not identify the origin of his knee injury, other than his foot hit the stair tread

“awkwardly,” an inference arises that it is traceable to some ordinary, yet unidentified,

risk, to which Mr. Aho was exposed on RTI’s premises. This is further bolstered by Mr.

Aho’s testimony that the stairwell was unlit at the time of his injury.

       {¶30} Finally, we do not agree with the trial court that RTI did not receive a direct

benefit from Mr. Aho climbing that staircase, and counsel for appellees conceded this

fact at oral argument. Mr. Aho testified that it was necessary for him to climb those

stairs to take a “travel card” from the floor to the furnace operator on the “pulpit,” which

is one of his job duties at RTI. He explained why he was climbing the stairs at the time

of his injury:

                 Well, we were out on the floor working the furnaces. And I was the
                 bolt man that day, so my job is to tear the furnaces down and put
                 them back together. And then when I get a furnace done, I’m to
                 take the travel card to the furnace operator on the pulpit. There is



                                              11
              approximately 13 steps that I have to go up and hand him the travel
              card. * * * On the second or third step, I felt a loud, I felt a hard
              and loud pop, a very painful pop in my right knee. It’s like I heard
              and felt it at the same time, or I felt and heard it all at the split
              second, just like bam. I hobbled the rest of the way up the steps. I
              handed [a co-worker] the travel card.

       {¶31} RTI did not meet its initial summary judgment burden to demonstrate the

absence of any genuine issues of material fact. It did not establish that reasonable

minds could only reach the conclusion that Mr. Aho’s injury did not arise out of his

employment. In other words, considering the record at the time summary judgment was

entered, whether Mr. Aho’s knee injury arose out of his employment cannot be decided

in favor of RTI as a matter of law. The trial court’s decision to grant summary judgment

in favor of RTI was in error.

       {¶32} Mr. Aho’s assignment of error is with merit.

       {¶33} The judgment of the Trumbull County Court of Common Pleas is reversed.

This matter is remanded to the trial court for further proceedings consistent with this

opinion.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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