[Cite as Cook v. Admr., Bur. of Workers' Comp., 2017-Ohio-5849.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




RICKY COOK,                                           :

        Plaintiff-Appellee,                           :            CASE NO. CA2017-01-004

                                                      :                 OPINION
    - vs -                                                               7/17/2017
                                                      :

ADMINISTRATOR, BUREAU OF                              :
WORKERS' COMPENSATION, et al.,
                                                      :
        Defendant-Appellant.
                                                      :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2015-09-2058



Hochman & Plunkett Co., LPA, Gary D. Plunkett, 3033 Kettering Blvd., Point West, Suite
201, Dayton, Ohio 45439, for plaintiff-appellee

Taft Stettinius & Hollister LLP, Andrew R. Thaler, 425 Walnut Street, Suite 1800, Cincinnati,
Ohio 45202, for defendant-appellant, Rizzo Bros., Inc.



        PIPER, J.

        {¶ 1} Defendant-appellant, Rizzo Bros., Inc., appeals a Butler County jury verdict

entitling plaintiff-appellee, Ricky Cook, to participate in the workers' compensation fund.

Rizzo also appeals the Butler County Court of Common Pleas' subsequent decision denying

its motion for a new trial. For the reasons discussed below, we affirm the jury verdict and the
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court's decision.

       {¶ 2} In January 2015, Cook applied for workers' compensation benefits. Cook

alleged that he suffered an injury on July 3, 2014, while working for Rizzo, a commercial

painting company. In June 2015, the Industrial Commission approved Cook's claims for disc

herniation and lumbar strain. Rizzo appealed to the common pleas court in September 2015.

Cook's complaint alleged that the injury occurred "on or about" July 3, 2014.

       {¶ 3} The case proceeded to a jury trial in August 2016. Cook – who was 50 years

old at the time of trial – testified that he was a career residential and commercial painter. He

worked at several painting companies but spent most of his career working for Rizzo, where

he began in 1998 or 1999. Cook testified that painting was physically demanding work with

long hours: "[t]hey want to – the owners wants to make money and they demand you to bust

your butt and it's seven days a week from daylight to dark." [sic] Cook also testified that

before July 2014 he had never taken time off work for low back pain.

       {¶ 4} On July 3, 2014, Cook was working for Rizzo, painting handrails and a steel

column on a stairway in a dorm at Miami University in Oxford. Holding a paint roller, Cook

bent down and then "bent back up and when I did there was a loud pop in my back like a

stick had broke, a bone had broke, or something. And it scared me." Cook testified that he

felt pain when he heard the "pop" but it went away. He immediately told his supervisor on the

job site about the "pop," who "laughed it off."

       {¶ 5} Cook began to suffer pain in his lower back later that week. The pain steadily

increased for weeks until it became unbearable. Cook described the pain as a 10 out of 10

and he eventually went to the emergency room.

       {¶ 6} Dr. Bradley Patterson, Cook's primary care physician, testified for Cook. Cook

complained to Dr. Patterson of significant left side low back pain that continued down into his

left leg. After attempting unsuccessfully to treat Cook's pain with steroid shots and muscle
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relaxers, Dr. Patterson sent Cook to get an MRI.

       {¶ 7} An MRI revealed that Cook's L4 vertebrae had slipped forward and above his

L5 vertebrae, a condition called spondylolisthesis. In addition, the L4-L5 disc (the vertebral

disc between the L4 and L5 vertebrae), herniated on its left side. This herniation caused

pressure on the L5 nerve root, which runs down the left leg. This explained the pain in

Cook's left leg. Dr. Patterson opined that L4-L5 disc herniation was consistent with the work

injury that Cook described. Dr. Patterson testified that about two years before July 2014,

Cook complained to him of mild low back pain. However, Cook did not complain at that time

of any pain in his leg. Accordingly, Dr. Patterson felt that Cook was only suffering lumbar

strain in 2012.

       {¶ 8} Dr. Robert Whitehead also testified for Cook. Dr. Whitehead specializes in

sports medicine. The Ohio Bureau of Workers' Compensation retained Dr. Whitehead to

review Cook's medical records and render an opinion as to whether Cook's condition

appeared consistent with the claimed injury. Dr. Whitehead testified that Cook's claim of

bending his back and straightening it was a plausible mechanism for a lower spine injury and

that repetitive bending could cause a disc to herniate. He said that the "pop" Cook heard

may have been tearing of a muscle or the disc. He did not believe that Cook herniated his

disc prior to July 2014 and the "pop" was "something new." In this regard, Dr. Whitehead

found important that the MRI revealed that a disc was compressing a nerve. Dr. Whitehead

said that with this neurocompression there would almost always be pain down the leg. Dr.

Whitehead said that if he assumed the disc herniated before July 2014, the July 3 event was

a "substantial aggravation."

       {¶ 9} Dr. Steven Wunder testified for Rizzo. Dr. Wunder specializes in disorders of

the spine. Dr. Wunder examined Cook in April 2015. He said that Cook provided him with

uncertain responses concerning the cause of his herniated disc. Cook told him his low back
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pain began with a fall when Cook tripped over a spray line and that "he really did not even

remember any kind of event on July 3rd." Dr. Wunder had to prompt Cook to get him to talk

about the event of July 3rd. Cook told Dr. Wunder, "I was doing terrible up to then already; I

felt a pop in my back." Dr. Wunder said Cook told him he was uncertain whether the

"popping" occurred in June or July. Cook eventually told Dr. Wunder that his bone "popped"

while he was painting a column.

       {¶ 10} Dr. Wunder opined that bending over and straightening could not cause a

herniated disc. Dr. Wunder believed that Cook suffered a "spontaneous" disc herniation,

which was degenerative in nature. When the herniation occurred was "anyone's guess." Dr.

Wunder agreed that the herniation was symptomatic in July. However, Dr. Wunder opined,

within a reasonable degree of medical certainty, that the "popping" that occurred on July 3,

2014 did not cause the L4-L5 disc herniation or the lumbar strain.

       {¶ 11} After both sides rested, the trial court provided the jurors with jury instructions

agreed to by both parties. In relevant part, the jury instructions provided:

            The Workers' Compensation Law of Ohio provides that employees
            who are injured or develop occupational diseases in the course of
            and arising out of their employment are entitled to participate in the
            Workers' Compensation fund. To participate in the benefits of the
            Workers' Compensation Fund means to receive benefits from it.

            ***

            The law requires that Plaintiff Ricky Cook must prove that he
            sustained an injury in the course of his employment at Rizzo Bros
            Inc.

            An employee is in the course of employment while performing the
            obligations of his contract of hire; he is in the course of employment
            when performing some required duty done directly or incidentally in
            the service of the employer.

            An injury arises out of the employment when it is directly and
            proximately caused by something that occurred as part of the
            activities, conditions, and risks of the workplace.


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            Plaintiff Ricky Cook must prove that the incident of July 3, 2014 was
            the direct and proximate cause of his lumbar strain and paracentral
            disc herniation left L4-5.

            Plaintiff alleges that on July 3, 2014, he suffered an incident in the
            course of and arising out of his employment with defendant Rizzo
            Bros Inc. The plaintiff alleges that on July 3, 2014 he sustained a
            lumbar sprain and paracentral disc herniation left L4-5 in the course
            of and arising out his employment with Rizzo Bros. Inc. He filed a
            workers' compensation claim alleging injuries as a result of the
            painting event on July 3, 2014.

            ***

            Under Ohio's Workers Compensation Law, "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.

            Injury includes physical harm that develops over time as the gradual
            result of the injured employee's work on job-related duties.

            Injury does not include an injury or disability caused primarily by the
            natural deterioration of tissue, and organ, or body part. [sic]

(Emphasis added.)

       {¶ 12} The jury began deliberating. Repeatedly throughout its deliberations, the jury

sent notes to the court with various questions. Generally, the questions concerned the

evidence presented in the trial and the jurors' roles in reviewing the evidence. The third note

from the jury read:

            (1) Do we have to be certain that the disc herniation happened on
            July 3rd?

            (2) Or do we just have to determine that the disc herniation
            happened as a result of [Cook's] work at Rizzo?

       {¶ 13} Rizzo argued that the response to first question should be that the jury must be

certain that Cook's disc herniated on July 3, 2014. Cook argued that it was only necessary

that the jurors believed that the "popping" event occurred as Cook described it, while he was

working, and that the event was a proximate cause of the disc herniation. After an extended


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                                                                                   Butler CA2017-01-004

discussion, the court decided to tell the jury to simply refer to the jury instructions.

        {¶ 14} The jury resumed deliberations and then sent out another note with two

questions. The note read:

               If we believe defendant [sic] was hurt on or OR ABOUT July 3rd.
               Can we vote yes? OR do we need to be certain the incident
               happened on 3rd of July? The jury instructions are interpreted both
               ways and have us split.1 [sic]

(Emphasis in original.)

        {¶ 15} The parties and court engaged in another extended discussion and debate

concerning the proper response to these questions. Rizzo again argued that the jury should

be instructed it must find that the claimed injuries occurred on July 3, 2014. Rizzo argued

that the evidence at trial was that the event occurred on July 3, 2014 and therefore the jury

instructions had to comport with the evidence. Cook argued that the jury could find in favor

of him so long as the jurors concluded that the incident occurred on or about July 3, 2014.

Eventually Cook located and pointed the court to case law holding that the date of injury is

not a material element in a worker's compensation claim. Based on this case law, the court

provided the following response to the jury, over Rizzo's objection:

               You do not need to be certain the injury happened on July 3, 2014.

               You must be convinced by a preponderance of the evidence that
               Mr. Cook was injured in the course of his employment [at] Rizzo
               Brothers.

               The fact that the date may be unknown may be used by you in
               casting doubt on whether the injury occurred during the course of
               Mr. Cook's employment.

               Please be mindful of all testimony presented in reference to any
               dates testified to.

        {¶ 16} Ultimately, the jury rendered a verdict in favor of Cook, finding that he was


1. The note also specifically referred to three paragraphs within the jury instructions, which are emphasized in
our recitation of the jury instructions in ¶ 11 above.
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                                                                        Butler CA2017-01-004

entitled to participate in the workers' compensation fund for the disc herniation claim. The

jury rendered a verdict against Cook with respect to the lumbar strain claim.

       {¶ 17} Rizzo later moved for a new trial, arguing that a trial irregularity occurred and

that the court made an error of law when it instructed the jurors that they need not be certain

Cook's injury occurred on July 3, 2014. The court denied Rizzo's motion. Rizzo presents two

assignments of error in this appeal.

       {¶ 18} Assignment of Error No. 1:

       {¶ 19} THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION

CONCERNING THE ALLEGED DATE OF INJURY WAS ERRONEOUS AND CONTRARY

TO THE EVIDENCE PRESENTED AT TRIAL AS WELL AS THE AGREED UPON JURY

INSTRUCTIONS AND HIGHLY PREJUDICIAL TO THE APPELLANT RIZZO BROS., INC.

       {¶ 20} Rizzo argues that the court's response to the jury's two questions was

erroneous because it failed to comport with the evidence presented at trial. Rizzo claims all

evidence at trial indicated Cook's injury occurred on July 3, 2014 and no other date. Rizzo

additionally argues that the court erred to the extent it relied upon the case law provided to it

by Cook while the parties were debating the issues raised by the jury questions.

       {¶ 21} Cook counters that there was a factual dispute over the date of the injury

because Rizzo's evidence suggested an injury date other than July 3, 2014. And Cook

argues that the case law he presented to the court was relevant to the case and established

that he was not required to prove the exact date he suffered the herniated disc.

       {¶ 22} "A trial court has the duty to instruct the jury as to the applicable law on all

issues presented in the case that are supported by the evidence." Enderle v. Zettler, 12th

Dist. Butler No. CA2005-11-484, 2006-Ohio-4326, ¶ 35.             Determining whether a jury

instruction is relevant rests within the sound discretion of the trial court.        Id.   When

considering the appropriateness of a jury instruction, or when a specific jury instruction is in
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dispute, a reviewing court must examine the instructions as a whole. Id. at ¶ 36. "If, taken in

their entirety, the instructions fairly and correctly state the law applicable to the evidence

presented at trial, reversible error will not be found merely on the possibility that the jury may

have been misled." Withers v. Mercy Hosp. of Fairfield, 12th Dist. Butler No. CA2010-02-

033, 2010-Ohio-6431, ¶ 17, quoting Wozniak v. Wozniack, 90 Ohio App.3d 400, 410 (9th

Dist.1993).

       {¶ 23} In determining its response to the jurors' final question, the trial court relied on

Amie v. General Motors Corp., 69 Ohio App.2d 11 (8th Dist.1980). In Amie, the employer

appealed a worker's compensation decision in favor of an injured worker. Id. at 11-12. The

injured worker and a co-worker both testified at trial that the worker's injury occurred on

September 23, 1974. Id. at 12. However, the employer introduced payroll records indicating

that the worker was not paid for work that day. Id. at 14. The employer argued that the

payroll records were "conclusive" evidence that the worker was not at work on September 23,

1974. Id. The court of appeals rejected the employer's argument, finding that the payroll

records were not conclusive evidence but were merely circumstantial evidence of the

worker's presence at the workplace. Id. at 14-15. Furthermore, the court held that the exact

date of injury is not a necessary element of a claim in a workers' compensation case. Id. at

15, citing Wills v. Industrial Comm., 66 Ohio L. Abs. 577, 1950 Ohio App. LEXIS 844 (2d

Dist.1950); Industrial Comm. v. Motts, 17 Ohio L. Abs. 642, 1934 Ohio Misc. LEXIS 1211 (2d

Dist.1934).

       {¶ 24} In Wills, the Second District Court of Appeals reversed and remanded a case

where the jury returned a verdict finding against the plaintiff, who sought to obtain workers'

compensation benefits on behalf of the estate of a deceased worker. The verdict form

submitted to the jury required it to find that the death of the worker was the result of an injury

that occurred on June 15, 1943. Id. at *3. At the trial, several workers testified that an
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accident occurred on June 15, 1943 when a "sand slinger" machine injured the deceased

worker. The plaintiff presented medical testimony that the injuries suffered by the worker

would have led to his death. Id. However, the defense introduced evidence indicating that

the sand slinger was not in use in June 1943 and had not been used since July 1942. Id. at

*3-4.

        {¶ 25} The court of appeals held that the verdict form misled the jury into believing

that the date of the incident was a material aspect of a workers' compensation claim. Id. at

*4. Stated otherwise, the verdict form required the plaintiff to establish a noncontrolling fact

as an essential element of his case. The court held that the question that should have been

asked of the jurors was whether the worker's death was the result of an injury "received in the

course of and arising out of his employment." Id. The court noted that it is "common

knowledge that witnesses entirely truthful may be mistaken in fixing a definite date of

occurrence and yet be correct as to the happening of the event." Id. at *5.

        {¶ 26} Rizzo argues that Amie is distinguishable from this case because there was a

factual dispute in Amie as to the date of the injury and there was no similar factual dispute in

this case.2 However, even if we assumed that there was no factual dispute as to the date in

this case, this is a distinction without a difference. A fact, whether it is disputed or not, is only

"material" if it affects the outcome of the litigation.                   Butler v. Wyndtree Housing Ltd.

Partnership, 12th Dist. Butler No. CA2011-03-056, 2012-Ohio-49, ¶ 13. Despite arguing that

we should reject Amie, Rizzo never satisfactorily explains why the precise date of Cook's

injury was a material fact at trial.


2. The record belies Rizzo's claim that the injury date was undisputed. As discussed previously, Rizzo's expert
witness, Dr. Wunder, testified concerning Cook's inability to describe what happened on July 3 and that the initial
injury may have occurred in June, when Cook allegedly tripped over a spray line. Cook also points out that Rizzo
introduced into evidence a medical record and time sheets suggesting that the accident happened on July 4,
2014. In its reply brief, Rizzo contends that it did not submit this evidence to prove that the accident happened
on a day other than July 3, 2014, but rather to impeach Cook's credibility. Regardless of Rizzo's motivations, the
jury clearly considered the evidence, which likely was the cause of their difficulty with the agreed jury instructions.
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                                                                        Butler CA2017-01-004

       {¶ 27} We find no error in the court's instruction to the jurors that they need not be

certain that the injury occurred on July 3, 2014, but instead must find by a preponderance of

the evidence that Cook was injured in the course of his employment with Rizzo. Based on

the evidence presented at trial, the jury could conclude by a preponderance of the evidence

that Cook suffered a herniated disc in the manner he described while painting dorms for

Rizzo, while simultaneously concluding that Cook may have been mistaken as to the precise

day in July when the injury occurred.

       {¶ 28} We agree with the holding set forth in Amie and the rationale discussed in

Wills. The date of the injury is not a material factual issue. Certainly, an employer's or the

Bureau's ability to create doubt as to the worker's claimed date of injury could convince the

jury that the worker failed to prove that the injury took place while working. But the failure to

prove that an injury occurred on a specific date is not outcome determinative if the plaintiff

can otherwise prove an injury arising out of work.

       {¶ 29} Rizzo also argues that the court's response allowed the jury to consider an

alternate theory of how the injury occurred, i.e., that the herniated disc developed gradually

over time as opposed to being directly caused by the event of July 3, 2014. Rizzo argues

that "no evidence was presented that the injury had developed over time." However, Rizzo

ignores the testimony of its own expert. Dr. Wunder opined that Cook's herniated disc was

the result of degeneration that "would have taken months and months to develop."

       {¶ 30} Rizzo urges us to follow the holding of Engle v. Detroit Diesel Allison Div.

GMC, 2d Dist. Montgomery No. CA 9550, 1986 Ohio App. LEXIS 6954, where the appeals

court reversed a verdict in favor of a worker where the trial court's jury instruction permitted

the jury to consider an alternate theory of medical causation. Id. at *7. In Engle, the jury

instructions informed jurors that they could find that a compensable injury occurred whether

the injury was gradual or sudden. Id. at *2-3. The court reversed because there was no
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testimony presented concerning a theory of gradual onset injury. Id. at *5. Rizzo argues that

this case is like Engle because the jury could consider "other possible dates of injury, and

other mechanisms of injury."      However, we have already concluded that Rizzo itself

submitted the evidence that would support other possible dates of injury and other

mechanisms of injury. Accordingly, Engle is inapposite.

       {¶ 31} The parties chose to use general verdict forms as opposed to jury

interrogatories so there is nothing in the record that would suggest that the jury considered

alternate theories of medical causation. However, the jury's final note to the court strongly

suggests that it did not render a verdict for Cook based on a theory of medical causation not

presented at trial. Again, the jury's noted asked: "[i]f we believe defendant [sic] was hurt on

or OR ABOUT July 3rd. Can we vote yes?" (Emphasis in original.) The note impliedly

reveals that the jury: (1) believed that Cook experienced an injury in the manner he described

while working for Rizzo; (2) accepted Dr. Patterson's and Dr. Whitehead's medical causation

testimony over that of Dr. Wunder; and (3) was understandably confused that – despite the

two foregoing conclusions – the jury instructions indicated it must be convinced that Cook's

injury occurred precisely on July 3, 2014.       Once the court understood that the jury

instructions were improper by its reading of Amie, it correctly instructed the jury that they

need not be certain that the injury occurred on July 3, 2014, but could consider any

uncertainty regarding the injury date as to whether Cook proved he suffered an injury at work.

       {¶ 32} We find that the court properly instructed the jury with a fair and correct

statement of the law. Therefore, the court did not abuse its discretion. This assignment of

error is overruled.

       {¶ 33} Assignment of Error No. 2:

       {¶ 34} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE

RIZZO BROS., INC.'S MOTION FOR A NEW TRIAL UNDER CIVIL RULE 59(A)(1) AND
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(A)(9).

          {¶ 35} Civ.R. 59(A) sets forth nine grounds under which a party may seek a new trial.

Relevant to this assignment of error, the court may grant a new trial for: (1) "[i]rregularity in

the proceedings of the court * * * by which an aggrieved party was prevented from having a

fair trial" and, (2) "[e]rror of law occurring at the trial and brought to the attention of the trial

court by the party making the application." Civ.R. 59(A)(1) and (A)(9). The decision to grant

or deny a motion for a new trial is reviewed on appeal under an abuse of discretion standard

of review. Citibank v. Ebbing, 12th Dist. Butler No. CA2012-12-252, 2013-Ohio-4761, ¶ 57.

An abuse of discretion in ruling on a motion for a new trial connotes an unreasonable,

arbitrary, or unconscionable attitude on the part of the trial court. Domestic Linen Supply &

Laundry Co. v. Kenwood Dealer Group, Inc., 109 Ohio App.3d 312, 325 (12th Dist.1996).

          {¶ 36} Rizzo reiterates the arguments it raised in support of its first assignment of

error with respect to the trial court's denial of its motion for a new trial. Rizzo argues that the

irregularity occurring at trial was that the court provided a jury instruction that did not comport

with the evidence presented at trial. And Rizzo argues that the court's application of the

holding and rationale of Amie was erroneous as a matter of law. For the reasons discussed

in response to the first assignment of error, we conclude that no irregularity occurred at trial

and we do not find that Rizzo was denied a fair trial. Furthermore, we find that the court's

application of the holding of Amie in response to the jury's note was proper and not an error

of law. Accordingly, we find no abuse of discretion in the court's denial of Rizzo's motion for

a new trial. This assignment of error is therefore overruled.

          Judgment affirmed.


          S. POWELL, P.J., and RINGLAND, J., concur.




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