[Cite as Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 2010-Ohio-4173.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY


SCHNIPKE,

        APPELLEE,
                                                                   CASE NO. 1-10-07
        v.

SAFE-TURF INSTALLATION
GROUP, L.L.C.,

        APPELLANT;                                                 OPINION


BUREAU OF WORKERS' COMPENSATION,

        APPELLEE.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV-2008-1288

                                     Judgment Affirmed

                          Date of Decision: September 7, 2010




APPEARANCES:

        Richard E. Siferd and Julie M. Shaw, for appellee Craig Schnipke.

        Robert P. King and Mark S. Barnes, for appellant.

        Colleen C. Erdman, for appellee Bureau of Workers’ Compensation.
Case No. 1-10-07


      WILLAMOWSKI, Presiding Judge.

      {¶1} Defendant-appellant, Safe-Turf Installation Group, L.L.C. (“Safe-

Turf”), appeals the decision of the Allen County Court of Common Pleas entering

judgment in favor of plaintiff-appellee, Craig Schnipke, after a jury found that

Schnipke was entitled to participate in the workers’ compensation fund as a result

of a work-related injury to his right knee. Safe-Turf contends that the trial court

erred by failing to exclude unreliable expert testimony, by failing to give proper

jury instructions and jury interrogatories, and by failing to grant Safe-Turf’s

motion for summary judgment prior to trial. For the reasons set forth below, the

judgment is affirmed.

      {¶2} This case arises out of a workers’ compensation claim in which

Schnipke claims that he injured his right knee while he was working at Safe-Turf

on February 12, 2008.      Safe-Turf makes rubberized athletic sports mats for

running tracks and fitness centers/gyms. While he was working, Schnipke felt his

right knee “pop,” resulting in great pain and precluding him from placing any

weight on it. Schnipke was unable to continue working, so he went home and then

saw a physician at Orthopaedic Institute of Ohio the following day. After an MRI

examination was performed, Dr. Nieman diagnosed Schnipke’s injury as a torn

right medial meniscus, which eventually required surgery.




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Case No. 1-10-07


         {¶3} Safe-Turf maintains that there was nothing about the work process

or the work conditions that caused Schnipke’s torn meniscus. Safe-Turf contends

that Schnipke was merely walking when he claims he felt the pain in his knee, that

he was not carrying any product or loading anything at the time, and, therefore, the

injury was not related to or caused by his job. Safe-Turf claims that the injury was

the result of Schnipke’s large size and could have happened anywhere. Schnipke

was over six feet, eight inches tall1 and weighed over 400 pounds.

         {¶4} Schnipke filed a claim for workers’ compensation benefits for his

injury. Initially, the bureau denied the claim, and Schnipke appealed the decision

to the Industrial Commission. On appeal, a hearing officer allowed the claim, and

this decision was upheld by the commission. On August 28, 2008, Safe-Turf

appealed to the trial court pursuant to R.C. 4123.512, and thereafter, filed a motion

for summary judgment. The trial court denied Safe-Turf’s motion for summary

judgment,2 and on November 23, 2009, the case proceeded to a jury trial.

         {¶5} At trial, Schnipke testified that he had been working at his job, and

as he was “turning, rotating” to take another bag off the machine, his knee

1
 The medical reports listed Schnipke as six feet, eight inches tall. Schnipke testified that he was measured
as six feet eleven. His weight was listed as 420 pounds in one record and 430 pounds in another.
2
  Safe-Turf filed a motion for summary judgment on April 3, 2009, and Schnipke filed a response on April
28, 2009. The trial court denied Safe-Turf’s motion on April 30, 2009. However, before Safe-Turf learned
of the trial court’s ruling, it filed a reply memorandum in support of summary judgment. Because the trial
court did not have the opportunity to review the reply memorandum before ruling, Safe-Turf filed a motion
for reconsideration. The trial court reconsidered Safe-Turf’s motion for summary judgment in light of the
arguments set forth in the reply memorandum and, on May 15, 2009, again overruled Safe-Turf’s motion
for summary judgment.


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Case No. 1-10-07


“popped,” and he was in instant, severe pain.          He described his job duties as

follows:

              There’s a roll of plastic bags. I pull one off, put it on the
      machine and let the machine clamp down. It fills it to 55 pounds. I
      take that off, turn, sit it on a sealer, put it in the sealer, let it seal. By
      the time I’m grabbing the next bag, putting that on the machine. I
      got that bag done. I turn around, grab the bag off the sealer, turn
      around, walk over there, put them on a pallet, pat it down to flatten it
      out a little bit and then I turn right back around and do the process all
      over again. And it’s continuous all night long.

Schnipke also testified that the job was usually a two-person job, but he was doing

it alone because they were short of help. He further testified that his supervisor

had increased the speed of the machine without telling him. He had to move fast

because the conveyor belt feeding the pellets ran continuously, and the bag would

overflow if he did not keep up. He estimated that he had been working for

approximately 20 minutes into his shift and had filled about 25-30 bags before his

knee popped.

      {¶6} Schnipke’s mother, Vicky Schnipke, testified that Schnipke was 20

years old at the time of the injury and lived at home. Mrs. Schnipke, a registered

nurse, testified as to the pain and condition of Schnipke’s knee when he returned

home that evening and to taking him to see an orthopedic specialist the following

day. She confirmed Schnipke’s testimony that he had never had any prior health

problems, other than having his tonsils removed when he was five and having to




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Case No. 1-10-07


miss a few practices and briefly wearing a brace on his left knee when he played

high school football.

        {¶7} Dr. Nieman, Schnipke’s treating physician, testified via his video

deposition as to his initial examination of Schnipke and explained the MRI report

finding a “displaced bucket handle tear of the medial meniscus.”3 Based on

Schnipke’s description that the knee popped when he turned or twisted it at work,

Dr. Nieman stated that he believed that the injury was caused by his work. Dr.

Nieman testified that he did not believe that Schnipke’s massive body weight

alone could have caused the injury, stating that he had a “massive injury” and “a

big acute, usually a turn kind of torque injury where the knee somewhat subluxes a

little bit and you grab that tear, and the tear gets pulled in front of the knee.”

        {¶8} Richard Horstman, a company owner and vice president, testified

that the work Schnipke was doing that evening was repetitive, but not really

strenuous. He also testified that it was not normally a two-person job unless

someone was being trained.

        {¶9} Last, Dr. McGowen testified for Safe-Turf via video deposition.




3
 The doctor explained Schnipke’s “bucket handle” tear as follows: “On the side that [Schnipke] had pain
on, the front side of his knee, the meniscus was torn so bad that it was flipped forward and locked, like a
bucket handle would flip forward and lock, in the front part of his knee. So he had lost, I think the back
half or two-thirds of his meniscus that was flipped forward and locked in the front part of his knee. So,
usually very painful at the start and difficulty to walk around on.”


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Case No. 1-10-07


Dr. McGowen was a semiretired internal-medicine physician who had never met

or personally examined Schnipke.         Dr. McGowen deferred to Dr. Nieman’s

diagnosis of the torn meniscus. However, Dr. McGowen testified that it was his

opinion that the meniscus tear occurred spontaneously as a result of precocious

degenerative joint disease, that he didn’t believe that Schnipke’s work activities

proximately caused the torn meniscus, and that Schnipke’s morbid obesity could

not be ruled out as a cause.

       {¶10} The jury entered a unanimous verdict in favor of Schnipke. On

December 21, 2009, the trial court filed its judgment, finding that Schnipke was

entitled to participate in the workers’ compensation fund for the condition of

“right medial meniscus tear.” It is from this decision that Safe-Turf now appeals,

raising the following four assignments of error for our review.

                               First Assignment of Error

              The trial court committed reversible error by failing to grant
       Safe-Turf Installation Group, LLC’s motion for summary judgment
       where Appellee Craig Schnipke sustained an unexplained knee
       injury and failed to rule out idiopathic causes of the injury.

                           Second Assignment of Error

             The trial court committed reversible error by failing to
       exclude the expert testimony of James Nieman, M.D., because Dr.
       Nieman failed to give a reliable opinion under Evid.R. 702(C).

                               Third Assignment of Error




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Case No. 1-10-07


               Assuming the trial court properly denied Safe-Turf
       Installation Group, LLC’s motion for summary judgment, the court
       committed reversible error by failing [to] instruct the jury to rule out
       idiopathic causes of Appellee Craig Schnipke’s knee injury and by
       failing to include Safe-Turf Installation Group’s proposed jury
       interrogatory on idiopathic causes.

                           Fourth Assignment of Error

              The trial court committed reversible error by giving the jury
       an instruction on “aggravation,” where there was no record evidence
       to support an aggravation condition or theory of recovery.

                            First Assignment of Error

       {¶11} In its first assignment of error, Safe-Turf argues that it was entitled

to prevail on its motion for summary judgment because Schnipke failed to rule out

that a pre-existing condition, his morbid obesity, caused his knee injury. Safe-

Turf maintains that a workers’ compensation claimant is required by law to prove

that an injury sustained at work is unrelated to idiopathic causes when the injury

occurs as the result of an unexplained event. And Safe-Turf contends that even if

Schnipke had ruled out a pre-existing condition as the cause of his injury, he failed

to sustain his burden of establishing that the injury was proximately caused by the

performance of his job.

       {¶12} Summary judgment is appropriate when there are no genuine issues

as to any material fact and the moving party is entitled to judgment as a matter of

law. Civ.R. 56(C). “Summary judgment shall not be rendered unless it appears * *

* that reasonable minds can come to but one conclusion and that conclusion is


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Case No. 1-10-07


adverse to the party against whom the motion for summary judgment is made * *

*.” Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364

N.E.2d 267. “The purpose of summary judgment is not to try issues of fact, but is

rather to determine whether triable issues of fact exist.” Schnippel Constr., Inc. v.

Profitt, 3d Dist. No. 17-09-12, 2009-Ohio-5905, ¶10, quoting Lakota Local School

Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671 N.E.2d 578.

       {¶13} The trial court denied Safe-Turf’s motion for summary judgment,

finding that there were material issues of fact as to whether Schnipke’s condition

was caused by a workplace accident. For several reasons, we find that Safe-Turf’s

challenge of this decision on appeal is without merit.

       {¶14} First, Safe-Turf has misconstrued the burden placed on the

nonmoving party. When responding to a motion for summary judgment, the

nonmoving party does not have to prove its case; it is required only to set forth

specific facts showing that there is a genuine issue for trial. See Civ.R. 56(E);

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Safe-Turf’s

arguments on appeal complain that Schnipke did not establish the necessary

elements of his case. Schnipke’s only burden was to set forth specific facts

showing that there were genuine issues of fact to be determined at trial.

       {¶15} More important, however, the jury weighed all the evidence and

unanimously found that Schnipke had proved by a preponderance of the evidence



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Case No. 1-10-07


that he was entitled to participate in the workers’ compensation fund as a result of

a work-related injury. This alone demonstrates that there were triable issues of

fact and that reasonable minds could come to a conclusion that was adverse to

Safe-Turf’s position. Safe-Turf’s argument has been rendered moot.

              Any error by a trial court in denying a motion for summary
       judgment is rendered moot or harmless if a subsequent trial on the
       same issues raised in the motion demonstrates that there were
       genuine issues of material fact supporting a judgment in favor of the
       party against whom the motion was made.

Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 642 N.E.2d 615,

syllabus. The Ohio Supreme Court further reasoned, “The question whether the

trial court erred in denying [the movant’s] motion for summary judgment became

irrelevant and the error (if any) was corrected when the jury determined the issues

at trial in favor of [the nonmovant].” Id. at 157-158.

       {¶16} The issues tried before the jury were the same issues raised by Safe-

Turf in its motion for summary judgment. The jury had the opportunity to hear the

witnesses, judge their credibility, and weigh the evidence. On appeal, Safe-Turf

did not raise any issues questioning the sufficiency of the evidence or whether the

decision was against the manifest weight of the evidence. Nor did Safe-Turf claim

that the trial court erred in denying its motions for a directed verdict. The jury’s

decision after a trial on the merits renders the trial court’s decision on Safe-Turf’s




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Case No. 1-10-07


motion for summary judgment irrelevant. The issue is moot, and Safe-Turf’s first

assignment of error is overruled.

                           Second Assignment of Error

       {¶17} In its second assignment of error, Safe-Turf argues that Schnipke’s

physician failed to provide a reliable expert opinion on causation under Ohio law.

Even though Dr. Nieman may have qualified as an expert witness under Evid.R.

702(B), Safe-Turf complains that his testimony as to causation should have been

excluded under Evid.R. 702(C), because Dr. Nieman’s expert opinion on causation

was unscientific and unreliable.

       {¶18} Safe-Turf maintains that the trial court failed in its role as a gate-

keeper when it denied its motion in limine to exclude Dr. Nieman’s opinion

testimony, because Dr. Nieman failed to provide the scientific methodology

underlying his opinion as required by Daubert v. Merrell Dow Pharmaceuticals,

Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Valentine v.

Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683.

       {¶19} Trial courts have broad discretion in determining the admissibility of

expert testimony, subject to review for an abuse of discretion.   Terry v. Caputo,

115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶16. An abuse of discretion

implies that the court’s decision was unreasonable, arbitrary, or unconscionable.

Valentine at ¶20. “Courts should favor the admissibility of expert testimony



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Case No. 1-10-07


whenever it is relevant and the criteria of Evid.R. 702 are met.” State v. Nemeth

(1998), 82 Ohio St.3d 202, 207, 694 N.E.2d 1332. In order for scientific evidence

to be admitted, it must be reliable and “must assist the trier of fact in determining a

fact issue or understanding the evidence.” Miller v. Bike Athletic Co. (1998), 80

Ohio St.3d 607, 611, 687 N.E.2d 735, following Daubert.

       {¶20} Evid.R. 702 governs the admissibility of expert testimony and

provides as follows:

       A witness may testify as an expert if all of the following apply:

       (A) The witness' testimony either relates to matters beyond the
       knowledge or experience possessed by lay persons or dispels a
       misconception common among lay persons;

       (B) The witness is qualified as an expert by specialized knowledge,
       skill, experience, training, or education regarding the subject matter
       of the testimony;

       (C) The witness' testimony is based on reliable, scientific,
       technical, or other specialized information.

       {¶21} In determining whether an expert’s testimony is reliable, courts must

focus their inquiry “on whether the opinion is based upon scientifically valid

principles, not whether the expert's conclusions are correct or whether the

testimony satisfies the proponent's burden of proof at trial.” Miller v. Bike Athletic

Co., at paragraph one of the syllabus. “The credibility of [an expert's] conclusion

and the relative weight it should enjoy are determinations left to the trier of fact.”

Nemeth at 210.


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Case No. 1-10-07


       {¶22} Safe-Turf does not object to Dr. Nieman’s being qualified as an

expert under Evid.R. 702(B). Under Ohio law, any doctor licensed to practice

medicine may testify as an expert on medical issues. State v. Snodgrass, 177 Ohio

App.3d 556, 2008-Ohio-4019, 895 N.E.2d 259, ¶ 7-8. Safe-Turf complains that

Dr. Nieman failed to provide the basis for his opinion that Schnipke’s employment

proximately caused the torn meniscus, asserting that unscientific opinions must be

excluded because they have no place in a court of law.

       {¶23} Dr. Nieman was an experienced orthopedic surgeon with a

subspecialty in orthopedic sports medicine.    He was also Schnipke’s treating

physician. He examined Schnipke’s knee the day after the injury, he reviewed the

MRI images diagnosing the torn meniscus, and he performed the surgery on

Schnipke’s knee.

       {¶24} Dr. Nieman’s video deposition was played at trial, showing the

doctor answering the questions posed and referring to Schnipke’s medical records.

The doctor answered questions about his training and experience, he described his

examination of Schnipke, and he explained what was involved with a torn medial

meniscus. The doctor was asked, “In your opinion, Doctor, was the injury which

you diagnosed in Schnipke caused by the work activities described by Schnipke

and the history given to you by Schnipke?”        Dr. Nieman responded in the

affirmative.



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Case No. 1-10-07


       {¶25} It was evident from the testimony that Dr. Nieman arrived at his

opinions by going through the history of the injury, the background information

given to him by Schnipke, his examinations, and his review of the imaging studies.

He was also given several hypothetical questions, to which he gave his opinion to

a reasonable degree of medical certainty, based on his medical training and

experience. Furthermore, as the trial court noted, “[t]he ‘what if’ questions and

‘please assume’ questions put into play [Schnipke’s] credibility as to the events,”

and were, therefore, matters for the jury to evaluate.

       {¶26} The methods and principles used by Dr. Nieman were those

generally applied in the formation of most medical opinions. We do not see any

evidence in the trial or deposition transcripts that Dr. Nieman varied from the

methods that other orthopedic surgeons would use in making a disability

evaluation. We agree with the Second District Court of Appeals’ commentary that

“[i]f Ohio courts considered the examination of a patient, review of his medical

records, and the taking of his history to be an unreliable methodology, the bulk of

all medical testimony would be inadmissible.” See Riblet v. Dayton Foods Ltd.

Partnership, 2nd Dist. No. 2006CA0058, 2007-Ohio-672, ¶18.

       {¶27} In Eve v. Johnson (Oct. 30, 1998), 1st Dist. No. C-970957, 1998 WL

754320, the First District Court of Appeals reviewed a similar issue wherein the

defendant was questioning whether the orthopedic physician’s methodology met



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the requirements of Evid.R. 702(C). The court stated, “[T]his is not a Daubert

case,” noting that "[o]rthopaedics is simply not the kind of 'junk science' or

unproven theory that Evid.R. 702(C) was drafted to exclude." Id. at * 3, quoting

Hutchins v. Delco Chassis Sys., GMC (Feb. 20, 1998), 2nd Dist. No. 16659, 1998

WL 70511, * 4.

          {¶28} Based on the above, we find that the trial court’s decision to allow

Dr.   Nieman’s       expert   testimony   was    not   unreasonable,     arbitrary,   or

unconscionable. Safe-Turf’s second assignment of error is overruled.

                       Third and Fourth Assignments of Error

          {¶29} Safe-Turf’s third and fourth assignments of error contend that the

trial court made several errors involving the jury instructions. Specifically, Safe-

Turf maintains that (1) the trial court should not have instructed the jury on

aggravation of injuries, because there was no evidence to support such an

instruction, (2) the trial court failed to give an instruction addressing the idiopathic

nature of Schnipke’s injury, and (3) the trial court erred when it failed to give the

jury interrogatories concerning the potential idiopathic nature of Schnipke’s

injury.

          {¶30} In reviewing the sufficiency of jury instructions given by a trial

court, the proper standard of review for an appellate court is whether the trial

court's refusal to give a requested jury instruction constituted an abuse of



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discretion under the facts and circumstances of the case. State v. Wolons (1989),

44 Ohio St.3d 64, 68, 541 N.E.2d 443. A strong presumption exists in favor of the

propriety of jury instructions. Burns v. Prudential Secs., Inc., 167 Ohio App.3d

809, 2006-Ohio-3550, 857 N.E.2d 621, ¶41. Generally, the trial court should give

requested jury instructions “if they are correct statements of the law applicable to

the facts in the case.” Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585,

591, 575 N.E.2d 828. Instructions that in their totality are sufficiently clear to

permit the jury to understand the relevant law will not be the cause of a reversal

upon appeal. Burns at ¶41. Whether the jury instructions correctly state the law is

a question of law, which we review de novo. Murphy at 591.

       {¶31} Safe-Turf submitted four proposed jury interrogatories. The trial

court used two of those interrogatories, which were submitted to the jury and

answered in the affirmative by all eight jurors before arriving at their verdict:

       (1) Did plaintiff sustain an injury in the course of his employment
       at Safe-Turf on February 12, 2008?

       (2) Did plaintiff’s injury to his right knee arise out of his
       employment on February 12, 2008?

       {¶32} The trial court did not use the other two proposed juror

interrogatories, although it did include an instruction to the jury on “pre-existing




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conditions.”4 The two unused interrogatories that were submitted by Safe-Turf

were:

              Was plaintiff’s injury on February 12, 2008 the result of an
        unexplained event?

               Did plaintiff present evidence which would rule out his pre-
        existing condition of morbid obesity as a cause of injury on February
        12, 2008?

        {¶33} Safe-Turf’s first issue concerning the jury instructions complains

that the trial court should not have given the instruction on the risk of aggravation

of pre-existing conditions (see fn. 4) because “the present case does not involve an

aggravation of a pre-existing condition.”

        {¶34} The trial court’s jury instruction concerning pre-existing conditions

came from the Ohio Jury Instructions, 1 Ohio Jury Instructions Section 427.13,

and was a correct statement of the law pursuant to R.C. 4123.01(C). Furthermore,

Safe-Turf had submitted a request for an interrogatory concerning Schnipke’s

“pre-existing condition of morbid obesity,” his alleged condition of “morbid

obesity” was mentioned throughout the trial, and Safe-Turf’s expert repeatedly

testified regarding degenerative and arthritic conditions in Schnipke’s right knee,

implying that they were pre-existing conditions involved in Schnipke’s injury. We

fail to see how the trial court erred in giving this instruction to the jury.


4
  The instruction concerning pre-existing conditions that was read to the jury was “Employers take their
employees as they find them and assume the risk of having an employee’s pre-existing condition
substantially aggravated by some injury which would not hurt or bother a perfectly healthy person.”


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       {¶35} In the remaining two jury-instruction issues, pertaining to the third

assignment of error, Safe-Turf complains that the trial court failed to give jury

instructions and an interrogatory pertaining to the “idiopathic nature of Appellee’s

alleged injury.” In addition to the proposed interrogatory discussed above, Safe-

Turf had requested the following jury instruction: “Injuries caused by unexplained

events are not compensable unless the plaintiff can rule out pre-existing conditions

as the cause of the injury.”

       {¶36} For workers’ compensation purposes, “idiopathic” refers to an

employee’s preexisting physical weakness or disease that contributes to the

accident. Waller v. Mayfield (1988), 37 Ohio St.3d 118, 121, 524 N.E.2d 458, fn.

3, citing 1 Larson, The Law of Workmen's Compensation (1985) 3-308, Section

12.00; Chappell v. Wal-Mart Stores, Inc., 3rd Dist. No. 9-08-43, 2009-Ohio-542,

¶17. A trial court must charge a jury with instructions that are a correct and

complete statement of the law. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12,

482 N.E.2d 583. However, the precise language of a jury instruction is within the

discretion of the trial court. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679,

690, 591 N.E.2d 762. A trial court has no obligation to give jury instructions in

the language proposed by the parties, even if the proposed instruction is an

accurate statement of the law. Henderson v. Spring Run Allotment (1994), 99




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Ohio App.3d 633, 638, 651 N.E.2d 489. “Instead, the court has the discretion to

use its own language to communicate the same legal principles.” Id.

       {¶37} In addition to the instruction on pre-existing conditions, the trial

court gave the jury the following instruction.

              Injury includes any injury, whether caused by external
       accidental means or accidental in character, received in the course
       of, and arising out of, the injured employee’s employment. Injury
       does not include injury or disability caused primarily by the natural
       deterioration of tissue, an organ, or part of the body. Nor does injury
       include physical harm caused by outside or external circumstances.

       {¶38} In reviewing the total of all of the 12 pages of jury instructions, we

find that they were correct statements of the law and were applicable to the facts in

the case. Safe-Turf’s proposed idiopathic instruction was based upon this court’s

decision in Chappell v. Wal-Mart Stores, Inc., 2009-Ohio-542, which involved an

unexplained fall. In the case before us, Schnipke’s injury was not an “unexplained

injury” – the record is replete with evidence that he was turning while he was

walking fast in order to grab another bag, as required by his job. As recorded in

Dr. Nieman’s medical records, Schnipke told him that he was “just somewhat

pivoting or twisting on this right knee and he felt a pop in his knee and he almost

felt like the knee subluxed or gave way on him.”          Granted, the weight that

Schnipke put on his knee as he was turning was substantial, but employers must

take their employees as they find them.




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       {¶39} The trial court’s choice of jury instructions and interrogatories was

not an abuse of discretion. Safe-Turf’s third and fourth assignments of error are

overruled.

       {¶40} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment affirmed.

       ROGERS and SHAW, JJ., concur.




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