3jr^ The 6upreme Court of Q bio

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1 3jr^ The 6upreme Court of Q bio..t^^- INAL JERI LEWIS, vs. Plaintiff-Appellant, CASHLAND FINANCIAL SERVICES, INC., and ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION, et al., Defendants-Appellees. Case No On Appeal from the Hamilton County Court of Appeals, First Appellate District Court of Appeals Case No. C MEMORANDUM OPPOSING JURISDICTION OF THE SUPREME COURT ON BEHALF OF THE ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION MICHAEL DEWINE ( ) Ohio Attorney General THOMAS J. STRAUS ( ) Assistant Attorney General Workers' Compensation Section 1600 Carew Tower 441 Vine Street Cincinnati, Ohio Direct Line Fax thomas. strausn,oh i oattorneyge neral. gov LAURA I. MURPHY ( ) JAMES A. WHITTAKER ( ) Law Offices of James A. Whittaker, LLC 432 Ray Norrish Drive Cincinnati, Ohio Fax lmurphygwhitslawfirm.com Counsel for Plaintiff-Appellant, Jeri Lewis Counsel for Defendant-Appellee, Administrator, Ohio Bureau of Workers' Compensation MICHELLE D. BACH ( ) DAVID C. KORTE ( ) Coolidge, Wall, Womsley & Lombard 33 W. First Street, Suite 600 Dayton, Ohio Fax bachgcoollaw.com JAN 2 5 ZGi3 CLERK OF COURT suprenfe CoURT OF ohi Counsel for Defendant-Appellee Cashland Financial Services, Inc.

2 TABLE OF CONTENTS INTRODUCTION...1 STATEMENT OF FACTS...2 THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST...3 ARGUMENT Appellee's proposition of law: The appellate court properly affirmed the grant of the motion in limine CONCLUSION....5 CERTIFICATE OF SERVICE...7 ii

3 INTRODUCTION This workers' compensation appeal involves a single evidentiary ruling regarding one of several claimed injuries, not a matter of public or great general interest. Here, the First District Court of Appeals properly affirmed the trial court's decision granting the motion in limine excluding evidence that the Plaintiff's injury was accelerated by the workplace accident. As the appellate court recognized, that ruling did not prohibit evidence that the accident either directly caused Plaintiff's injury or that the accident substantially aggravated a preexisting injury. App. Op. at 2. As a result of a slip and fall, Plaintiff filed a workers' compensation claim for several injuries. Most were allowed at the administrative level, but the conditions of discogenic spondylosis L5-S 1 and disc bulge L4-L5 (which was not appealed) were not. Plaintiff challenged that outcome by appeal to the common pleas court, where both medical experts agreed that the condition of discogenic spondylosis was not present before the January 31, 2009, injury. The common pleas court, after a bench trial, determined that the Plaintiff had no right to participate in the workers' compensation system for the spondylosis and disc bulge. On appeal to the First District, Plaintiff challenged only the ruling on the motion in limine. No novel legal or constitutional issues exist in this straightforward workers' compensation case. Plaintiff does not show how the ruling on the motion in limine prejudiced her. Indeed, Plaintiff never explains what evidence (if any) was actually excluded. This Court should deny review. 1

4 STATEMENT OF THE FACTS AND OF THE CASE Plaintiff filed a workers' compensation claim for injuries she sustained on January 31, Plaintiff's claim was allowed for minor head injury, sprain of neck, sprain of thoracic region, and lumbar sprain. Plaintiff's claim was denied for disc bulge at L4-5 and discogenic spondylosis at L5-S 1. Plaintiff appealed the denied conditions to the Hamilton County Court of Common Pleas pursuant to R.C Plaintiff had no prior back problems, treatment, or back symptoms before January 31, 2009, and that was verified by plaintiff's own testimony, the medical expert testimony of Dr. Wunder, a medical doctor, for the defense, and chiropractor Dr. Daniel Buchanan for the Plaintiff. Plaintiff's expert, Dr. Daniel Buchanan, testified the disc bulge was directly caused by the work injury but the discogenic spondylosis (arthritis) at L5-S 1 was accelerated over a substantial period of time after the fall. Buchanan testified that a magnetic resonance imaging (MRI) performed less than two weeks after the injury did not show spondylosis at L5-S 1, but an x-ray performed a vear later did show spondylosis at L5-S 1. Dr. Steven Wunder testified as a medical expert for the defendants. Dr. Wunder agreed that plaintiff had no prior back problems or treatment before January 31, Dr. Wunder testified that none of the diagnostic testing of the plaintiff showed spondylosis at L5-S 1. Dr. Wunder opined that plaintiff did not have the condition of spondylosis at L5-S 1 at any time. The trial court granted defendants' joint motion in limine as to the issue of acceleration of spondylosis at L5-S 1. Following that ruling, the trial court held a bench trial and ruled for the defense because Plaintiff failed to prove her case by a preponderance of the evidence. Plaintiff appealed only the ruling on the motion in limine related to the issue of acceleration of spondylosis at L5-S 1 to the First District Court of Appeals. 2

5 The First District Court of Appeals held that the trial court's granting of the motion in limine was not an abuse of discretion. The First District also held that for plaintiff to participate for acceleration of a medical condition, the condition (spondylosis) must have existed prior to the industrial accident. The First District also noted, however, that Plaintiff could have claimed that the spondylosis was directly caused by, substantially aggravated by, or the result of a flowthrough from, the accident. App. Op. at 2. Plaintiff did not pursue any of these theories on appeal. THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case does not warrant the Court's jurisdiction. There is no substantial constitutional question. And there are no questions of public or great general interest. The ruling on the motion in limine follows the law that substantial aggravation, flow thi ough and direct causation cover the univ e"rse of theories of recovery for medical conditions arising from an injury. Plaintiff cites no contrary authority, despite claiming that the appellate decision "change[s] the law." Jur. Mem. at 4. ^Tor does Plaintiff cite any split of authority or confusion in the lower court. This Court should deny review. Review is also improper for other reasons. First, Plaintiff challenges only a ruling about a particular theory of causation. But that theory of causation was not available in Plaintiff's case because it is not available absent a pre-accident medical condition. The ruling on the motion in limine, had no real consequence to her case, and affords no basis for discretionary review in this Cotui. Secorid, Plaintiff injected the idea of acceleration late in this litigation, when aggravation and direct causation started to look doubtful. Discretionary review is not warranted where the acceleration theory was not part of the case from the inception. Finally, Plaintiff does not show how the ruling on the niotion in limine prejudiced her by affecting the outcome of her case. Plaintiff never exp;ains what excluded evidence would have changed the result at trial.. Without 3

6 those specifics, review is unwarranted. The trial court ruled that Plaintiff failed to prove her case by a preponderance of the evidence This case does not address any substantial constitutional issue or legal issue of public or great general interest. Indeed, the First District adjudicated the matter with a Judgment Entry, "not an opinion of the court." App.R. 11.1(E); S.Ct.R.Rep.Op. 2; 1st Dist. Loc.R There is no need for further review. ARGUMENT Appellee's Proposition of Law: The appellate court properly afj^rmed the grant of the motion in limine. A motion in limine is reviewed for abuse of discretion and can be overturned only if it is arbitrary, unreasonable and unconscionable. State v. Garrett, 2010-Ohio-5431 (lst Dist.) (citing State v. Hand, 107 Ohio St.3d 378, 840 N.E.2d 151 (2006)); see also Brown v. Mabe, 170 Ohio App. 3d 13, 2007-Ohio-90, 865 N.E.2d 934 (1 St Dist.) (admission of evidence, including expert testimony, is reviewed for abuse of discretion); Illinois Control v. Langham, 70 Ohio St. 3d 512, 639 N.E.2d 771 (1994) (abuse of discretion means more than a mere error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary or unconscionable). There is no abuse in the ruling below. Acceleration in workers' compensation law requires a pre-existing medical condition to accelerate. That conclusion flows both from this Court and the intermediate appellate courts. See, e.g., Ackerman v. Indus. Comm. Of Ohio, 131 Ohio St. 371, 3 N.E.2d 44 (1936) (acceleration of an existing disease condition); Swanton v. Stringer, 42 Ohio St. 2d 356, 328 N.E.2d 794 (1975) (pre-existing disease accelerated by an injury is compensable); Oswald v. Connor, 16 Ohio St.3d 38, 476 N.E.2d 658 (1985) (pre-existing coronary disease substantially accelerated by occupational disease causing claimant's death); McKee v. The Electric Auto-Lite Co., 168 Ohio 4

7 St. 77, 151 N.E.2d 540 ( 1958) (pre-existing arteriosclerosis disease accelerated by work injury causing claimant's death); Pacatte v. Daugherty, 42 Ohio App.3d 188, 537 N.E.2d 697 (lst Dist. 1988) (pre-existing disease accelerated by work injury); Beardsley v. Manfredi Motor Transit Co., 97 Ohio App. 3d 768, 647 N.E.2d 555 (12t' Dist. 1994) (claimant's pre-existing disease accelerated by work lifting); Myers v. Ohio Valley Coal Co., 2005-Ohio-3314, 2005 Ohio App. LEXIS 3094 (7th Dist.) (acceleration of claimant's death from pre-existing condition fails because of no evidence of a pre-existing condition). Plaintiff cites no authority considering acceleration of a medical condition that post-dates the workplace accident. And that is not surprising. The acceleration theory of an industrial injury that Plaintiff wants to pursue-that the accident accelerated the onset of a new medical condition-simply does not exist. If there was no preexisting condition, the only possible theory of recovery is a direct-causation claim. See, e.g., Myers, 2005-Ohio-3314, at 35 ("Our decision to focus our discussion on the existence of a pre-existing condition is a result of the way Appellee framed the issues. She chose not to pursue that alternate legal theory [direct causation], so we see no need to explain in detail why that theory does not support the trial court's judgment.") (DeGenaro, J., concurring). Here, Plaintiff also pursued a direct-causation theory (otherwise the motion in limine would have left her with nothing to argue), and she lost. See App. Op. at 2. Plaintiff's narrow appellate challenge to the ruling on the motion in limine fails because the motion in limine related only to an unavailable theory. CONCLUSION For the above reasons, this Court should decline jurisdiction. 5

8 Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General THO AS J. STRAUS ( ) Assistant Attorney General Workers Compensation Section 1600 Carew Tower 441 Vine Street Cincinnati, Ohio (Direct Line) (Fax) thomas.straus@ohioattomeygeneral.gov Counsel for Defendant Administrator Bureau of Workers' Compensation 6

9 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Memorandum Opposing Jurisdiction of the Supreme Court on Behalf of the Administrator, Ohio Bureau of Workers' Compensation was served by and/or by U.S. mail service on January 24, Laura I. Murphy, Esq. James A. Whittaker, Esq. Law Offices of James A. Whittaker, LLC 432 Ray Norrish Drive Cincinnati, Ohio Counsel for Plaintiff-Appellant, Jeri Lewis Michelle D. Bach, Esq. David D. Korte, Esq. Coolidge, Wall, Womsley & Lombard 33 West First Street, Suite 600 Dayton, Ohio Counsel for Defendant-Appellee, Cashland Financial Services, Inc. THO AS J. STRAUS ( ) Assistant Attorney General Workers' Compensation Section 7