[Cite as Toth v. United States Steel Corp., 2012-Ohio-1390.]


STATE OF OHIO                     )                            IN THE COURT OF APPEALS
                                  )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JOSEPH TOTH                                                    C.A. No.   10CA009895

        Appellant

        v.                                                     APPEAL FROM JUDGMENT
                                                               ENTERED IN THE
UNITED STATES STEEL CORP.                                      COURT OF COMMON PLEAS
                                                               COUNTY OF LORAIN, OHIO
        Appellee                                               CASE No.   09CV163574

                                  DECISION AND JOURNAL ENTRY

Dated: March 30, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}     Joseph Toth has been confined to a wheelchair and receiving permanent total

disability benefits from the Workers’ Compensation Fund since he was injured while working

for United States Steel Corporation in 1965. In 2004, he fell from his wheelchair and struck his

head on a table, causing a hemorrhagic stroke that left him with a number of additional serious

medical problems. Following his traumatically induced stroke, he sought additional medical

coverage from the Workers’ Compensation Fund for the new medical conditions, arguing that his

new injury was a residual injury causally related to the original work-related injury. The trial

court denied his motion for summary judgment and granted summary judgment to U.S. Steel.

This Court affirms because Mr. Toth’s fall from the wheelchair was caused by the intervening

superseding negligence of a third-party.
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                                        BACKGROUND

       {¶2}    The facts of this case are undisputed and may be gleaned from the complaint and

the attached exhibits. Mr. Toth worked for U.S. Steel from 1946 until 1965 when he lost the use

of his legs due to an injury at work. His claim with the Bureau of Workers’ Compensation was

allowed for a ruptured disc at the L1-L2 level. In April 2004, a nurse’s aide lifted his legs

unexpectedly during a transfer, causing him to fall from his wheelchair and strike his head on a

table, resulting in a right parietal bleed or hemorrhagic stroke. This matter arose from his efforts

to recover from the Bureau of Workers’ Compensation for the 2004 injury.

       {¶3}    Mr. Toth moved the Bureau to amend his claim allowance to include coverage for

treatment of his head injury as flowing from his original industrial injury suffered at U.S. Steel.

A District Hearing Officer denied the additional allowance, having determined the fall from the

wheelchair was caused by a home health aide who created an intervening superseding cause,

breaking the chain of causation set in motion by the ruptured disc in 1965. Mr. Toth appealed to

the Industrial Commission, which vacated the order of the District Hearing Officer and granted

the motion for the additional allowance of the new condition as a “flow-thru injury.”

       {¶4}    U.S. Steel appealed that decision to the Industrial Commission, but the appeal was

refused. Apparently, U.S. Steel filed a notice of appeal with the Lorain County Common Pleas

Court. Under Section 4123.51.2(D) of the Ohio Revised Code, Mr. Toth was required to file a

“petition containing a statement of facts in ordinary and concise language showing a cause of

action to participate or to continue to participate in the fund[.]” He apparently did that in case

number 06 CV 146551, which he voluntarily dismissed before trial. In August 2009, Mr. Toth

refiled his “complaint” in this case, seeking participation in the Workers’ Compensation Fund for

the 2004 head injury.
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       {¶5}    The trial court set a dispositive motion deadline of August 30, 2010, with

responses due on or before September 13, 2010. U.S. Steel moved for summary judgment on

August 27, and Mr. Toth moved for summary judgment on August 30. Mr. Toth opposed U.S.

Steel’s motion for summary judgment with a one paragraph memorandum indicating that “[t]he

specific reasons for this request [for the court to overrule U.S. Steel’s motion for summary

judgment] are explained in detail in Plaintiff’s previously filed [m]otion for [s]ummary

[j]udgment and [b]rief in [s]upport, incorporated herein by reference. In summary, Plaintiff’s

stroke is a legitimate and compensable ‘flow-through’ injury, proximately caused by his original

allowed injuries in his Workers’ Compensation claim[.]” Mr. Toth’s memorandum in opposition

to summary judgment was time-stamped on September 3, but according to the certificate of

service, he mailed it on September 1. The trial court denied Mr. Toth’s motion and granted

summary judgment to U.S. Steel on September 1, 2010, the same day Mr. Toth served his

response to U.S. Steel’s motion.

                                   SUMMARY JUDGMENT

       {¶6}    Mr. Toth’s assignment of error is that the trial court incorrectly denied his motion

for summary judgment and granted summary judgment to U.S. Steel. Although a court of

common pleas gives no deference to the Industrial Commission’s decision in an appeal to it

under Section 4123.51.2 of the Ohio Revised Code, an appeal to this Court from the trial court’s

decision is subject to “the law applicable to the appeal of civil actions.” R.C. 4123.51.2(E); Luo

v. Gao, 9th Dist. No. 23310, 2007-Ohio-959, at ¶ 6. The trial court disposed of this matter via

summary judgment, having determined that there were no genuine issues of material fact for trial

and that U.S. Steel was entitled to judgment as a matter of law. It, therefore, denied Mr. Toth’s

motion for summary judgment and granted U.S. Steel’s motion. This Court reviews cases
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decided on summary judgment de novo according to the standard set forth in Rule 56 of the Ohio

Rules of Civil Procedure. New Destiny Treatment Ctr. Inc. v. Wheeler, 129 Ohio St. 3d 39,

2011-Ohio-2266, at ¶ 24.

       {¶7}    “A ‘residual’ workers’ compensation claim occurs when a claimant’s work-

induced injury generates a medical condition in a body part other than [the one] the claimant

originally specified.” Specht v. BP Am. Inc., 86 Ohio St. 3d 29, 30 (1999); see also R.C.

4123.84(C) (“The commission has continuing jurisdiction . . . to award compensation or benefits

for loss or impairment of bodily functions developing in a part or parts of the body not

[previously] specified . . . if the commission finds that the loss or impairment of bodily functions

was due to and a result of or a residual of the [original] injury[.]”). “Where a workman has

sustained an accidental injury arising out of [his] employment, he may or may not be allowed

compensation for subsequent harm or injurious effects, depending upon whether they are the

direct or proximate consequences of the accidental injury, or whether the chain of causation has

been broken by intervening or superseding causes.” Fox v. Indus. Comm’n of Ohio, 162 Ohio St.

569, 575, (1955). “[T]he proximate cause of an event is that which in a natural and continuous

sequence, unbroken by any new, independent cause, produces that event and without which that

event would not have occurred.” Aiken v. Indus. Comm’n, 143 Ohio St. 113, 117 (1944).

       {¶8}    Mr. Toth’s argument is that he would not have struck his head and suffered a

stroke if he had not been confined to a wheelchair due to injuries received at U.S. Steel. The

parties do not dispute any facts in this refiled action. The only question is a legal one, that is,

whether Mr. Toth presented evidence of a causal relationship between his 1965 back injury and

his 2004 fall sufficient to create a genuine issue of material fact regarding whether his back

injury was a proximate cause of the stroke. The trial court determined that U.S. Steel was
                                                5


entitled to judgment as a matter of law because Mr. Toth’s head injury was not a residual injury

resulting from his compensable workplace back injury. U.S. Steel has argued that the fall was

caused by the independent negligence of the nurse’s aide, creating an intervening superseding

cause that broke the chain of causation between the back injury and the head injury. U.S. Steel

has argued that these facts are analogous to those considered by the Third District Court of

Appeals in Iiams v. Corporate Support Inc., 98 Ohio App. 3d 477 (3d Dist. 1994).

       {¶9}    In Iiams, the trial court determined that the claimant was not entitled to

compensation from the Workers’ Compensation Fund for a neck injury that she suffered when

her hospital bed collapsed while she was recuperating from work-related injuries to her lower

back, sacrum, and right elbow. Iiams v. Corporate Support Inc., 98 Ohio App. 3d 477, 479 (3d

Dist. 1994). According to the trial court, the neck injury was not causally related to her original

work-related injuries because it “did not arise ‘in a natural and continuous sequence, unbroken

by any new independent cause . . . without which [it] would not have occurred.’” Id. at 480. It

determined that the collapse of the hospital bed was an intervening act sufficient to break the

chain of causation. Id. (citing Fox v. Indus. Comm’n of Ohio, 162 Ohio St. 569, 575 (1955)). It

determined, and the Third District agreed, that the employer could not be held liable for injuries

caused by the collapse of the hospital bed because it was caused by an unforeseeable act of a

negligent third-party. Id. (citing Cascone v. Herb Kay Co., 6 Ohio St. 3d 155, paragraph one of

the syllabus (1983) (“Whether an intervening act breaks the causal connection between

negligence and injury . . . depends upon whether that intervening cause was a conscious and

responsible agency which could or should have eliminated the hazard, and whether the

intervening cause was reasonably foreseeable by the one who was guilty of the negligence.”)).
                                                 6


       {¶10} Mr. Toth, on the other hand, has argued that the facts are more analogous to those

considered by the Eighth District Court of Appeals in Kenyon v. Scott Fetzer Co., 113 Ohio App.

3d 264 (8th Dist. 1996). In that case, the trial court held, and the appellate court agreed, that the

claimant’s heart attack, suffered during the course of his treatment for work-related injuries to

his hip and groin, was a compensable residual injury proximately caused by the original injuries.

Kenyon, 113 Ohio App. 3d at 267-68. Mr. Kenyon fell at work, causing injuries that required

surgical replacement of both hips.      Following the second surgery, he was being taken by

ambulance to a rehabilitation hospital when the ambulance attendants dropped his gurney. An

hour later, when Mr. Kenyon arrived at the second hospital, doctors diagnosed a heart attack.

Before that time, Mr. Kenyon had not been diagnosed with coronary artery disease. An expert

cardiologist testified, however, that Mr. Kenyon’s heart attack was a “direct result” of the work-

related hip and groin injuries through a series of factors including decreased mobility, ulcers, and

pain. Id. at 266. The cardiologist testified that the multiple surgeries and recovery periods

required to treat the allowed conditions aggravated and accelerated Mr. Kenyon’s coronary

disease. Although the fright caused by being dropped while strapped to a gurney triggered the

heart attack, the court determined that it did not cause the underlying coronary disease. Id. at

268.

       {¶11} The court in Kenyon distinguished Iiams. “While [in] both cases . . . there was a

dropping of the claimant just prior to the outward manifestation of the residual injury, the

underlying cause of the [subsequent] injury in Iiams is distinguishable . . . [because] the collapse

of the bed [in Iiams] caused the new injury [and] there was nothing demonstrating a connection

between the allowed injury and the [new injury] apart from the claimant’s being in the hospital

bed recuperating from the allowed injury . . . [at the time of the collapse].” Kenyon v. Scott
                                                 7


Fetzer Co., 113 Ohio App. 3d 264, 267 (8th Dist. 1996). In Kenyon, on the other hand, there was

expert testimony tending to show that the allowed conditions and the treatment of them over time

aggravated an underlying condition of coronary disease, which first manifested itself with a heart

attack triggered by being dropped by ambulance attendants. Id.

       {¶12} The facts of the present case more closely resemble the facts of Iiams than those

of Kenyon. In this case, there was no expert or other testimony tending to show that anything

other than the fall from the wheelchair caused Mr. Toth’s stroke. Mr. Toth testified at deposition

that the nurse’s aide who was helping him with a transfer to the wheelchair caused him to fall

over backward and hit his head on a table, causing the stroke. The expert report that Mr. Toth

filed in April 2010 cannot properly be considered under Rule 56(C) of the Ohio Rules of Civil

Procedure because it is not incorporated into an affidavit. In any event, the report of Victor

Trzeciak, M.D., does not include a statement that, let alone any explanation regarding how, Mr.

Toth’s paralysis more likely than not caused his stroke. The parties seem to agree that the

trauma of striking his head on a table while falling from the wheelchair caused Mr. Toth’s stroke.

They also agree that the nurse’s aide’s negligence caused Mr. Toth to fall from the wheelchair.

The tipping of the wheelchair was an unforeseeable act of a negligent third-party, similar to the

collapse of the hospital bed in Iiams. See Iiams v. Corporate Support Inc., 98 Ohio App. 3d 477,

480 (3d Dist. 1994). The evidence tended to show that the nurse’s aide’s negligent act was an

independent superseding cause of the stroke. There is no evidence in the record to create a

genuine issue of material fact regarding the cause of the stroke.

       {¶13} As a matter of law, the fact that Mr. Toth was in a wheelchair and receiving help

from a nurse’s aide due to injuries received at U.S. Steel does not create a sufficient causal

connection to hold U.S. Steel liable for Mr. Toth’s stroke and its aftermath. There is no genuine
                                                 8


issue of material fact regarding whether Mr. Toth’s ruptured L1-L2 disc caused his stroke, and

U.S. Steel is entitled to judgment as a matter of law. Mr. Toth’s assignment of error is overruled.

                                         CONCLUSION

       {¶14} Mr. Toth’s assignment of error is overruled because there is no genuine issue of

material fact regarding whether his allowed condition of a ruptured disc at L1-L2 caused him to

fall from his wheelchair and suffer a traumatically induced stroke. Mr. Toth testified that a

nurse’s aide caused him to fall and there was no evidence tending to show any connection

between the ruptured disc and the hemorrhagic stroke. The judgment of the Lorain County

Common Pleas Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to Appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT




WHITMORE, J.
CONCURS.

BELFANCE, P. J.
DISSENTING.

       {¶15} I respectfully dissent.     In this matter, the trial court ruled on the summary

judgment motions on September 1, 2010, in contravention of its own August 6, 2010 order

stating that responses were due on or before September 13, 2010.        Procedural fairness is

fundamental to the summary judgment process. This Court has previously stated that summary

judgment should only be granted after all parties have had a fair opportunity to be heard. Bank

of New York v. Brunson, 9th Dist. No. 25118, 2010-Ohio-3978, ¶ 10; see also TimePayment

Corp. v. Rite Stop, Inc., 8th Dist. No. 95334, 2010-Ohio-5852, ¶ 10 (concluding the trial court

erred in prematurely considering the summary judgment motions even though the issue was not

specifically raised on appeal).    Here, the trial court’s August 6, 2010 order provided that

responses were due on or before September 13, 2010; thus, any ruling on the motions for

summary judgment prior to that date was premature.

       {¶16} Accordingly, I would take no position on the merits of Mr. Toth’s complaint and

would remand the matter to the trial court for further consideration.
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APPEARANCES:

ROBERT C. OCHS and JESSE M. SCHMIDT, Attorneys at Law, for Appellant.

LEE S. KOLCZUN, Attorney at Law, for Appellant.

ROBERT C. MCCLELLAND and ERIN E. HOOPER, Attorneys at Law, for Appellee.
