[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
Gardi v. Lakewood School Dist. Bd. of Edn.
Combined Opinion