[Cite as Gardi v. Lakewood School Dist. Bd of Edn., 2013-Ohio-3436.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99414




                                        GARY GARDI
                                                          PLAINTIFF-APPELLANT

                                                    vs.

  BOARD OF EDUCATION OF THE LAKEWOOD CITY
           SCHOOL DISTRICT, ET AL.
                                                          DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-776793

        BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 8, 2013
ATTORNEY FOR APPELLANT

David L. Meyerson
Seaman, Garson, L.L.C.
1600 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Daniel S. Burley
Chester L. Sumpter
Chester L. Sumpter & Associates
16927 Detroit Road, Suite 4
Lakewood, Ohio 44107

Mark E. Mastrangelo
Principal Assistant Attorney General
Sandra L. Nimrick
Assistant Attorney General
State Office Building
11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Plaintiff-appellant, Gary Gardi (“Gardi”), appeals from the trial court’s

judgment granting the motion for summary judgment of defendant-appellee, Board of

Education of the Lakewood City School District (“Lakewood”). For the reasons that

follow, we reverse and remand.

                                      I. Background

       {¶2} On December 10, 2010, Gardi was injured when he slipped and fell on

black ice while working for Lakewood.             He filed an application for workers’

compensation benefits and, after a hearing by the Industrial Commission of Ohio, his

claim was allowed for injuries described as lumbar sprain/strain, left hip sprain/strain, and

left knee contusion.

       {¶3} Gardi subsequently filed a motion to amend his claim to include an

additional allowance for substantial aggravation of pre-existing osteoarthritis of the left

knee. The Industrial Commission denied this request, finding that the medical evidence

failed to demonstrate that Gardi’s osteoarthritis was substantially aggravated by his

workplace injury on December 10.

       {¶4} Gardi then filed an appeal of the Industrial Commission’s decision in the

common pleas court pursuant to R.C. 4123.412. Subsequently, Lakewood filed a motion

for summary judgment in which it argued that it was entitled to summary judgment

because Gardi had failed to present pre-injury medical evidence documenting his

osteoarthritis and, therefore, could not demonstrate substantial aggravation of a

pre-existing condition.
         {¶5} Gardi filed a brief in opposition to Lakewood’s motion in which he argued

that R.C. 4123.01(C)(4), which sets forth the requirements for demonstrating a substantial

aggravation of a pre-existing condition, does not require medical reports or other

documentation of the pre-existing condition that is dated prior to the workplace injury.

He also filed a motion to amend his complaint to include a claim for declaratory judgment

that R.C. 4123.01(C)(4) is unconstitutional if it requires a claimant to provide pre-injury

medical documentation of a pre-existing condition before the claimant may recover for

substantial aggravation of the condition.      The trial court granted Gardi’s motion to

amend his complaint.

         {¶6} The trial court subsequently granted Lakewood’s motion for summary

judgment. The court held that under R.C. 4123.01(C)(4), the condition a claimant asserts

was substantially aggravated by the workplace injury must be medically documented

prior to the workplace injury and presented in support of the claim. The trial court held

that Gardi had not presented such evidence and, therefore, the Industrial Commission had

properly denied his claim. Further, the trial court denied Gardi’s declaratory judgment

claim,    holding   that   R.C.   4123.01(C)(4)’s    requirement    of   pre-injury medical

documentation of a pre-existing condition does not violate the equal protection clause of

Ohio’s constitution and that the statute is therefore not unconstitutional.

         {¶7} Gardi now appeals from the trial court’s judgment.

                                        II. Analysis

         {¶8} In his first assignment of error, Gardi contends that the trial court erred in

granting Lakewood’s motion for summary judgment because R.C. 4123.01(C)(4) does not
require a claimant seeking substantial aggravation of a pre-existing condition to submit

pre-injury medical documentation of the pre-existing condition.

       {¶9} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) after construing the evidence most favorably for the party against

whom the motion is made, reasonable minds can only reach a conclusion that is adverse

to the nonmoving party.      Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201 (1998); Temple v. Wean United, Inc., 50 Ohio

St.2d 317, 327, 364 N.E.2d 267 (1977). We review the trial court’s judgment de novo,

using the same standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Accordingly, we

stand in the shoes of the trial court and conduct an independent review of the record.

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

compensation system. Schell v. Globe Trucking, Inc., 48 Ohio St.3d 1, 2, 548 N.E.2d

920 (1990); R.C. 4123.54. Under R.C. 4123.01(C):

       “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” does not include:

       ***

       (4) A condition that pre-existed an injury unless that pre-existing condition
       is substantially aggravated by the injury. Such a substantial aggravation
       must be documented by objective diagnostic findings, objective clinical
       findings, or objective test results. Subjective complaints may be evidence of
       such a substantial aggravation. However, subjective complaints without
       objective diagnostic findings, objective clinical findings, or objective test
       results are insufficient to substantiate a substantial aggravation.
       {¶11} “[W]here the language of a statute is clear and unambiguous, it is the duty

of the court to enforce the statute as written, making neither additions to the statute nor

subtractions therefrom.” Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451,

2002-Ohio-6718, 780 N.E.2d 543, ¶ 14, superseded by statute on other grounds.

       {¶12} We find the language of R.C. 4123.01(C)(4) to be clear and unambiguous.

Specifically, the statute requires that a substantial aggravation of a pre-existing injury

must be documented by objective diagnostic findings, objective clinical findings, or

objective test results. There is no language anywhere in the statute that requires the

pre-existing condition to be medically documented prior to the workplace injury that

allegedly aggravated the condition. Accordingly, 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.

       {¶13} Case law from other districts is consistent with this conclusion. In Pflanz

v. Pilkington LOF, 1st Dist. Hamilton No. C-100574, 2011-Ohio-2670, for example, the

First District likewise recognized that the language of R.C. 4123.01(C)(4) is clear and

unambiguous. It then interpreted the meaning of “substantial aggravation” in the statute

and found that “to be compensable, the aggravation of a pre-existing condition must be

substantial both in the sense of being considerable and in the sense of being firmly

established through the presentation of objective evidence.” Id. at ¶ 18.

       {¶14} The First District then analyzed Pflanz’s claim for substantial aggravation.
 The court found that the chiropractor who had treated Pflanz for back pain before and

after his workplace injury had opined that a post-injury MRI, as well as other post-injury

tests, indicated that Pflanz’s workplace injury had substantially aggravated his

pre-existing back condition.     The First District held that this post-injury objective

evidence, combined with Pflanz’s subjective complaints, was “ample evidence” of

substantial aggravation. It therefore affirmed the trial court’s judgment allowing Pflanz to

participate in the workers’ compensation fund for substantial aggravation of a

pre-existing condition.      Notably, the Pflanz court did not require pre-injury

documentation of Pflanz’s pre-existing condition in order to find that his workplace injury

had substantially aggravated his back problem.

       {¶15} Likewise, in Bohl v. Cassens Transport Co., 3d Dist. Seneca No. 13-11-36,

2012-Ohio-2248, the Third District did not require pre-injury documentation of a

pre-existing condition in order to find substantial aggravation of the condition.        In

analyzing whether Bohl had produced sufficient evidence under R.C. 4123.01(C)(4) to

overcome the employer’s motion for a directed verdict, the court noted that Bohl’s doctor

had testified that bone spurs seen on Bohl’s post-injury MRI and x-rays “took years to

develop and were there before the January 2010 injury,” and, accordingly, opined that

Bohl suffered from degenerative cervical disc disease. Id. at ¶ 25. The court found that

this testimony, coupled with clinical findings of a decreased range of motion after the

workplace injury that were documented by medical reports admitted into evidence at trial,

satisfied the requirements of R.C. 4123.01(C)(4).

       {¶16} Similarly, in Brate v. Rolls-Royce Energy Sys., Inc., 5th Dist. Knox No.
12CA000001, 2001-Ohio-4577, the Fifth District did not require the claimant to produce

pre-injury documentation of a pre-existing condition in order to recover under R.C.

4123.01(C)(4). In Brate, the Fifth District reversed the trial court’s grant of summary

judgment to the employer on the claimant’s claim for substantial aggravation of

pre-existing osteoarthritis of the right knee. The trial court had granted the motion upon

a finding that the claimant had not satisfied the requirements of R.C. 4123.01(C)(4) in

demonstrating a substantial aggravation of a pre-existing condition.

       {¶17}   On appeal, the Fifth District first analyzed whether testimony by the

treating doctor regarding the claimant’s post-injury arthroscopic procedure was sufficient

to demonstrate substantial aggravation of a pre-existing condition. The court noted that

there was no objective evidence of the claimant’s osteoarthritis prior to his workplace

accident, but found that the doctor had testified that during the post-injury diagnostic

arthroscopy, he had observed osteoarthritic changes that were of “advanced pathology,”

from which he concluded that the claimant suffered from osteoarthritis prior to his injury.

 The doctor testified further that the claimant’s osteoarthritis was made worse by the

twisting and torquing to the knee that occurred during the workplace injury, a conclusion

the court noted was based on the doctor’s post-injury clinical exam of the claimant, as

well as the claimant’s subjective report that his knee hurt after the injury, when it did not

hurt before.

       {¶18}   The court then analyzed the testimony of the claimant’s primary care

physician, who testified that the claimant’s post-injury MRI, the report from the

post-injury arthroscopic procedure, and the doctor’s post-injury clinical examination of
the claimant, all demonstrated a substantial aggravation of pre-existing osteoarthritis in

the claimant’s right knee.

       {¶19} In light of the doctors’ testimony, the Fifth District held that the claimant

had produced sufficient evidence of substantial aggravation to overcome the employer’s

motion for summary judgment. As with Pflanz and Bohl, the Brate court did not require

that the claimant produce pre-injury documentation of his osteoarthritis to satisfy the

requirements of R.C. 4123.01(C)(4).

       {¶20}     Here, in finding that objective medical evidence of the pre-existing

condition must be documented prior to the injury and presented in support of an R.C.

4123.01(C)(4) substantial aggravation claim, the trial court relied on Smith v. Lucas Cty.,

6th Dist. Lucas No. L-10-1200, 2011-Ohio-1548. But Smith does not stand for this

proposition.

       {¶21}    In Smith, the trial court granted the employer’s motion for summary

judgment regarding the claimant’s application for substantial aggravation of a

pre-existing condition under R.C. 4123.01(C)(4), finding that because there was no

testing or diagnostic procedure that documented the condition prior to the workplace

injury, the claimant had failed to provide the statutorily-required objective findings or

results. Id. at ¶ 6.

       {¶22}     On appeal, the Sixth District held that the trial court had not erred in

granting the motion for summary judgment because the claimant had not provided

sufficient documentation of her symptoms preceding the injury and, thus, could not

establish that her condition had been substantially aggravated by the injury. Id. at ¶ 18.
The court noted that the doctor’s affidavit and chart notes presented by the claimant in

support of her substantial aggravation claim were based only upon the subjective history

the claimant had reported to the doctor, and not upon any objective findings as required

by the statute. The court noted further that the claimant had not provided any records or

a statement from her prior treating physician, and that her post-injury MRI revealed the

existence of the condition and provided an explanation for her current symptoms, but did

not establish that the condition had been substantially aggravated by the injury.

       {¶23} Due to this absence of proof, the Smith court held that the claimant’s

application failed because she had not presented objective evidence of her symptoms

preceding the injury and, therefore, could not establish substantial aggravation, as

required by the statute. The court specifically noted, however, that “[s]uch evidence

would not necessarily require objective ‘before’ and ‘after’ findings or results.” Id.

(Emphasis added.) Accordingly, 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.

       {¶24} Therefore, we find that the trial court erred in finding that Lakewood was

entitled to summary judgment because Gardi did not produce pre-injury documentation of

his osteoarthritis. R.C. 4123.01(C)(4) does not require that he do so.

       {¶25} Lakewood contends, however, that even if pre-injury documentation of

Gardi’s osteoarthritis is not required, because our review of a summary judgment ruling is

de novo, we should affirm the trial court’s judgment because Gardi failed to present

sufficient objective medical evidence documenting a substantial aggravation of his
osteoarthritis. Lakewood offers various reasons regarding why Gardi’s medical evidence

is insufficient to substantiate his claim.

       {¶26}      Likewise, the Ohio Bureau of Workers’ Compensation (the “Bureau”)

asserts on appeal that this court should affirm the trial court’s grant of summary judgment

because Gardi’s medical evidence is insufficient to substantiate his claim. The Bureau

concedes that under R.C. 4123.01(C)(4), a claimant need not submit pre-injury

documentation of a pre-existing condition, but argues that the trial court properly granted

summary judgment because Gardi’s medical evidence failed to establish either a

pre-existing condition or a substantial aggravation of a condition.

       {¶27} It is well settled that arguments raised for the first time on appeal will not

be considered by an appellate court. State ex rel. Quarto Mining Co. v. Foreman, 79

Ohio St.3d 78, 81, 1997-Ohio-71, 679 N.E.2d 706. Motions for summary judgment are

no different:     “although we review summary judgment decisions de novo, ‘the parties

are not given a second chance to raise arguments that they should have raised below.’”

Hamper v. Suburban Umpires Assn., 8th Dist. Cuyahoga No. 92505, 2009-Ohio-5376, ¶

27, quoting Perlmutter v. People’s Jewelry Co., 6th Dist. Lucas No. L-04-1271,

2005-Ohio-5031; see also Hanley v. DaimlerChrysler Corp., 158 Ohio App.3d 261,

2004-Ohio-4279, 814 N.E.2d 1245, ¶ 23 (6th Dist.)

       {¶28} In its motion for summary judgment, Lakewood argued only that Gardi’s

claim failed because he had not presented pre-injury objective medical evidence of his

osteoarthritis.   The Bureau neither filed a motion for summary judgment below nor

joined Lakewood’s motion. Accordingly, any argument that Gardi’s medical evidence is
insufficient to demonstrate a substantial aggravation of his condition is raised for the first

time on appeal and we will not consider it. The first assignment of error is therefore

sustained.

       {¶29} In his second assignment of error, Gardi contends that the trial court erred

in denying his declaratory judgment claim because any requirement that a claimant must

produce pre-injury documentation of a pre-existing condition to support a substantial

aggravation claim under R.C. 4123.01(C)(4) violates the Equal Protection Clause of the

Ohio Constitution. Because Gardi is entitled to relief on other grounds, however, it is

not necessary for us to reach this constitutional issue. State v. Bloomer, 122 Ohio St.3d

200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 67, citing Massachusetts v. Westcott, 431 U.S.

322, 323, 97 S.Ct. 1755, 52 L.Ed.2d 349 (1977) (recognizing that courts should decide

constitutional issues only when necessary); State ex rel. Crabtree v. Ohio Bur. of

Workers’ Comp., 71 Ohio St.3d 504, 507, 1994-Ohio-4764, 644 N.E.2d 351 (“When a

case can be decided on other than a constitutional basis, we are bound to do

so.”) The second assignment of error is therefore overruled.

       {¶30} The trial court’s judgment granting summary judgment to Lakewood is

reversed, and the matter is remanded for further proceedings.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
