[Cite as Brate v. Rolls-Royce Energy Sys., Inc., 2012-Ohio-4577.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PATRICK BRATE : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
ROLLS-ROYCE ENERGY :
SYSTEMS, INC., ET AL. : Case No. 12CA000001
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11WC050285
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: September 27, 2012
APPEARANCES:
For Plaintiff-Appellant For Rolls-Royce Energy Systems, Inc.
MARK A. ADAMS PRESTON J. GARVIN
1110 Beecher Crossing North DANIEL M. HALL
Suite D 181 East Livingston Avenue
Columbus, OH 43230 Columbus, OH 43215
For Ohio Bureau of Workers'
Compensation
JOHN SMART
150 East Gay Street, 22nd Floor
Columbus, OH 43215
Knox County, Case No. 12CA000001 2
Farmer, J.
{¶1} On October 7, 2007, appellant, Patrick Brate, twisted and injured his right
knee while working for appellee, Rolls-Royce Energy Systems, Inc. Appellant applied
for and was granted workers' compensation benefits for right knee sprain and internal
derangement.
{¶2} Appellant subsequently requested the Industrial Commission to allow the
claim for right medial meniscus tear, loose chondral bodies in the right knee, and
substantial aggravation of pre-existing osteoarthritis of the right knee. The Industrial
Commission denied the request.
{¶3} Appellant appealed to the Court of Common Pleas of Knox County. On
October 19, 2011, appellee filed a motion for summary judgment, claiming there was no
genuine issue of material fact regarding medical causation. By judgment entry filed
December 13, 2011, the trial court granted the motion.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT
ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY
JUDGMENT WHERE PLAINTIFF-APPELLANT'S TREATING PHYSICIANS OPINED
THAT A WORK-RELATED ACCIDENT PROXIMATELY CAUSED A SUBSTANTIAL
AGGRAVATION OF PRE-EXISTING OSTEOARTHRITIS IN PLAINTIFF-APPELLANT'S
KNEE, AND WHERE THEIR OPINIONS WERE SUPPORTED BY EVIDENCE OF
Knox County, Case No. 12CA000001 3
PLAINTIFF-APPELLANT'S HISTORY AND OBJECTIVE AND SUBJECTIVE
DIAGNOSTIC TESTS AND CLINICAL FINDINGS."
II
{¶6} "IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT
ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY
JUDGMENT WHERE PLAINTIFF-APPELLANT'S TREATING PHYSICIANS OPINED
THAT A WORK RELATED ACCIDENT PROXIMATELY CAUSED AN ACCELERATION
OF PLAINTIFF-APPELLANT'S PRE-EXISTING OSTEOARTHRITIS, AND THE TRIAL
COURT IMPROPERLY APPLIED THE 'SUBSTANTIAL AGGRAVATION' STANDARD
OF O.R.C. 4123.01(C)(4) TO THIS TYPE OF WORK-RELATED INJURY."
I, II
{¶7} Appellant claims the trial court erred in granting summary judgment to
appellee on his workers' compensation claim. We agree.
{¶8} Summary-judgment motions are to be resolved in light of the dictates of
Civ.R. 56. That doctrine was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448:
{¶9} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
Knox County, Case No. 12CA000001 4
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317, 327."
{¶10} As an appellate court reviewing summary-judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶11} The issue posed by appellee's motion for summary judgment was that
appellant could not satisfy the requirements of R.C. 4123.04(C)(4) which states the
following:
{¶12} " '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:
{¶13} "(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."
{¶14} Appellee argues objective diagnostic findings, objective clinical findings, or
objective tests results were not presented to establish the substantial aggravation of
appellant's pre-existing condition, right knee osteoarthritis. Appellee argues William
Elder, M.D., appellant's primary care physician, could not point to any objective findings
Knox County, Case No. 12CA000001 5
or test results to establish the existence of pre-existing osteoarthritis or its substantial
aggravation.as he deferred to the findings of appellant's treating physician, Gregory
Cush, M.D. Appellee argues Dr. Cush's testimony failed to establish objective findings
or test results that appellant's condition was made worse or substantially aggravated.
{¶15} In response, appellant argues both physicians opined there was a
substantial aggravation, and the accident accelerated the osteoarthritis that existed prior
to the October, 2007 accident. Appellant argues it is sufficient to prove by objective
diagnostic findings, objective clinical findings, or objective test results that the pre-
existing condition existed prior to the incident and subjective complaints can be
evidence of substantial aggravation.
{¶16} R.C. 4123.01 specifically delineates that subjective complaints standing
alone are insufficient to establish a substantial aggravation. However, subjective
complaints, coupled with objective diagnostic findings, objective clinical findings, or
objective test results are sufficient. It is conceded sub judice that there are no objective
diagnostic findings or test results, but appellant argues there are objective clinical
findings. Objective diagnostic findings or test results are all concrete, tangible concepts;
however, objective clinical findings do not provide a bright-line test. Merriam-Webster
online dictionary defines "clinical" as:
{¶17} "1 : of, relating to, or conducted in or as if in a clinic; as
{¶18} "a : involving or concerned with the direct observation and treatment of
living patients." http://www.merriam-webster.com/medical/clinical.
{¶19} "Clinical findings have been defined as observations, judgments or
assessments about patients.
Knox County, Case No. 12CA000001 6
{¶20} "***
{¶21} "3. Findings cannot be temporally separate from the observing of them
(you can't observe them and say they are absent, nor can you have the finding present
when it is not capable of being observed).
{¶22} "4. They cannot be defined in terms of an underlying pathological process
that is present even when the observation is not present."
http://www.snomed.org/eg?t=findings_clinical_findings.
{¶23} "Objective" means the observations are identifiable and capable of
description i.e., a person limps or is bleeding.
{¶24} By necessity, the wording of the statute requires an analysis of the expert
testimony presented in each case. Specifically, the gravamen of this appeal is whether
there is evidence of a substantial aggravation of osteoarthritis in the experts' objective
clinical findings.
{¶25} The best evidence is generally given by one who can offer direct
testimony of what he/she observed and if that person is an expert, what conclusions or
objective clinical findings he/she made.
{¶26} Although there is much back and forth on direct and cross-examination as
to Dr. Cush's testimony, it is abundantly clear that Dr. Cush provided direct testimony of
his observations during the arthroscopic procedure he performed on appellant and the
clinical conclusions he reached. During the diagnostic arthroscopy, Dr. Cush observed
"preexisting osteoarthritic changes." Cush depo. at 20. Dr. Cush explained
osteoarthritis is classified as Grade 1 to Grade 4. Id. Dr. Cush observed a tear of the
medial meniscus, and pre-existing osteoarthritis changes of "Grade 2, moderate Grade
Knox County, Case No. 12CA000001 7
2 chondral changes, as well as a rare Type 3 chondral changes." Id. at 21, 23. The
chondral changes were cracks and fissures "in the cartilage, and loose bodies are
floating fragments inside the joint." Id. at 21. Chondral changes are similar to what is
observed when bathtub grouting breaks and flakes between the tiles. Id. at 20.
Because the arthritic changes were of the advanced pathology, they existed prior to the
accident and were made worse by the trauma to the knee. Id. at 30-31. Dr. Cush
opined the osteoarthritis predated the accident and was made worse by the twisting and
torquing forces applied to the knee due to the accident, relying on the following
evidence:
{¶27} "Objective is my clinical exam demonstrating valgus instability, stress
testing demonstrating an MCL injury, arthroscopic evaluation with the intra photographs
demonstrating the medial meniscus tear. Subjective in that my patient, who seems like
an outstanding citizen, says that my knee hurts and it did not hurt before, and he did
have continued medial joint line pain, despite arthroscopic portions being resected, joint
pain and a torn meniscus, take out that torn portion, that pain should go away." Id. at
32.
{¶28} Dr. Cush further opined the accident accelerated appellant's osteoarthritis:
{¶29} "Q. In your opinion, Doctor, did that twisting injury in any way accelerated
Mr. Brate's osteoarthritis?
{¶30} "A. I think so. In my clinical experience, plenty of folks have an
aggravation due to a particular accident, a twisting injury, and then very rapidly their x-
ray findings only worsened. Again, osteoarthritis is much worse in an accelerated
Knox County, Case No. 12CA000001 8
fashion, and furthermore can be accelerated by the fact that a partial menisectomy was
performed. We know that." Id. at 33.
{¶31} On cross-examination, Dr. Cush stated there was no objective evidence of
osteoarthritis prior to the accident; however, his objective findings after the accident
were the result of his "visualization on surgery and the photographs taken, still
photographs, and the interpretation of the MRI." Id. at 46. On redirect, Dr. Cush
explained in doing the actual operation, he verified why appellant "had persistent joint
medial line pain***even after the meniscus tear was repaired and the collateral ligament
healed." Id. at 50.
{¶32} Dr. Elder found appellant's MRI suggested pre-existence of osteoarthritis
in the right knee. Elder depo. at 25. Dr. Elder opined there was substantial aggravation
of the osteoarthritis:
{¶33} "Q. Okay. Using the MRI, the operative report and your own examination
and findings, was there objective evidence that you can point to that - - in which you
believe would show that there was a substantial aggravation of the osteoarthritis?
{¶34} "A I think that there was a substantial aggravation of the arthritis, he did
have some breakdown of the articular surfaces and according to Dr. Cush's notes, there
was definitely some injuries at the back of the patella, as well as some loose bodies
within the knee joint." Id. at 26.
{¶35} Dr. Elder concluded, as did Dr. Cush, that once the repair was done to the
medial meniscus, the pain and tenderness appellant continued to experience suggested
aggravation of the osteoarthritis. Id. at 26-27. When asked if the accident caused
Knox County, Case No. 12CA000001 9
substantial aggravation of the osteoarthritis, Dr. Elder stated, "I think it certainly was
accelerated," explaining the following:
{¶36} "Ah, it became - - we start deteriorating at age 18, all our joints are starting
to show some arthritic changes. If we injure a joint, we have an inflammatory response
in that joint. This type of injury certainly could have accelerated or promoted an
advanced injury to the knee and increased arthritis in the knee thus leading to chronic
pain." Id. at 28.
{¶37} Although the words "I think" were used, the matter was corrected via the
preliminary questioning of appellant's trial counsel wherein Dr. Elder agreed to answer
the questions "based on a reasonable degree of medical certainty." Id. at 25, 27-28.
{¶38} Employing the standard of a Civ.R. 56, motion, we find the testimonies of
Drs. Cush and Elder are sufficient to establish the existence of genuine issues of
material facts to overcome the motion for summary judgment.
{¶39} Upon review, we find the trial court erred in granting summary judgment to
appellee.
{¶40} Assignments of Error I and II are granted.
Knox County, Case No. 12CA000001 10
{¶41} The judgment of the Court of Common Pleas of Knox County, Ohio is
hereby reversed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s / Sheila G. Farmer______________
s / Patricia A. Delaney_____________
s / W. Scott Gwin _______________
JUDGES
SGF/sg 907
[Cite as Brate v. Rolls-Royce Energy Sys., Inc., 2012-Ohio-4577.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PATRICK BRATE :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
ROLLS-ROYCE ENERGY :
SYSTEMS, INC., ET AL. :
:
Defendants-Appellees : CASE NO. 12CA000001
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Knox County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee Rolls-Royce Energy Systems, Inc.
s / Sheila G. Farmer______________
s / Patricia A. Delaney_____________
s / W. Scott Gwin _______________
JUDGES