[Cite as Vogelmeier v. Ohio Power Co., 2014-Ohio-5175.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NEIL VOGELMEIER JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 14CA14
OHIO POWER COMPANY, ET AL.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Case No. 13WC11-0456
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 19, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JERALD A. SCHNEIBERG CHRISTOPHER C. RUSSELL
JENNIFER L. LAWTHER Porter, Wright, Morris & Arthur, LLP
STACY M. CALLEN 41 South High Street
Nager, Romaine & Schneiberg Co. L.P.A. Columbus, Ohio 43215
27730 Euclid Ave.
Cleveland, Ohio 44132
For Defendant-Appellee,
Administrator, Bureau of Workers' Compensation
JOHN SMART
Assistant Attorney General
Ohio Attorney General
150 East Gay Street, 22nd Floor
Columbus, Ohio 43215-3130
Knox County, Case No. 14CA14 2
Hoffman, P.J.
{¶1} Defendant-appellant Ohio Power Co. appeals the May 16, 2014 Judgment
Entry entered by the Knox County Court of Common Pleas, which entered final
judgment on the jury’s verdict allowing plaintiff-appellee Neil Vogelmeier to participate in
the Workers’ Compensation Fund for additional conditions which resulted from his
October 30, 2007 injury.
{¶2} STATEMENT OF THE FACTS AND CASE
{¶3} On October 30, 2007, Appellee was injured during the course of and
arising out of his employment with Appellant. Appellee's application for worker's
compensation benefits was allowed for the conditions of left shoulder sprain, chest wall
strain, and left dorsal strain.
{¶4} Subsequently, Appellee filed for additional allowances for the conditions of
left shoulder rotator cuff syndrome, left shoulder impingement, substantial aggravation
of pre-existing acromioclavicular joint arthropathy, substantial aggravation of pre-
existing acromioclavicular joint arthropathy, substantial aggravation of pre-existing left
shoulder synovitis, substantial aggravation of pre-existing left shoulder capsulitis,
substantial aggravation of pre-existing left shoulder bursitis, left shoulder slap tear, C3-4
herniated nucleus pulpous, C4-5 herniated nucleus pulpous, C5-6 disc protrusion, C6-7
disc protrusion and dysthymic disorder. The Industrial Commission disallowed these
conditions.
{¶5} Thereafter, on January 30, 2012, Appellee filed for additional allowances
of disc herniation/protrusion at T5-6, T7-8, and T8-9. The District Hearing Officer
disallowed the claim. Appellee timely appealed the District Hearing Officer’s order. The
Knox County, Case No. 14CA14 3
Staff Hearing Officer vacated the order of the District Hearing Officer and allowed the
claim for disc herniation/protrusion at T5-6, T7-8 and T8-9. Appellant appealed the Staff
Hearing Officer’s decision to the Industrial Commission of Ohio, which refused to hear
the appeal.
{¶6} After exhausting its administrative appeals, Appellant filed an appeal to
the Knox County Court of Common Pleas. Appellee filed a motion in limine, seeking to
prevent Appellant from referencing any evidence of the previously denied and
disallowed left shoulder and neck conditions. The trial court granted the motion. The
matter proceeded to jury trial. The jury returned a verdict in favor of Appellee, finding he
was entitled to participate in the Workers’ Compensation Fund for the conditions of disc
herniation/protrusion at T5-6, T7-8 and T8-9.
{¶7} Appellant filed the instant appeal and this matter in now before this Court
for consideration. Appellant assigns as error:
{¶8} "I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY
ARBITRARILY GRANTING THE PLAINTIFF-APPELLEE'S MOTION IN LIMINE AND
BY PERMITTING THE PLAINTIFF-APPELLEE TO MAKE REFERENCE DURING
TRIAL TO THOSE CONDITIONS THAT WERE PREVIOUSLY ALLOWED AS PART
OF PLAINTIFF-APPELLEE'S WORKERS' COMPENSATION CLAIM BUT DENYING
DEFENDANT-APPELLANT OHIO POWER COMPANY'S ABILITY TO REFERENCE
THOSE CONDITIONS WHICH HAVE PREVIOUSLY BEEN SPECIFICALLY DENIED
AND DISALLOWED AS PART OF PLAINTIFF-APPELLEE'S WORKERS'
COMPENSATION CLAIM DURING A TRIAL TO ADDRESS PLAINTIFF-APPELLEE'S
REQUEST FOR THE ALLOWANCE OF SEPARATE ADDITIONAL CONDITIONS."
Knox County, Case No. 14CA14 4
{¶9} Evid. R. 402 provides, “All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the Constitution of the
State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of
the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme
Court of Ohio. Evidence which is not relevant is not admissible.”
{¶10} Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible.
Evid.R. 402.
{¶11} The issue of whether testimony is relevant or irrelevant, confusing or
misleading is best decided by the trial judge who is in a significantly better position to
analyze the impact of the evidence on the jury.” State v. Taylor, 39 Ohio St.3d 162, 164,
529 N.E.2d 1382(1988). Accordingly, the admission or exclusion of relevant evidence
lies within the sound discretion of the trial court. See: Glick v. Marler (1992), 82 Ohio
App.3d 752; Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66; Rigby v. Lake Cty.
(1991), 58 Ohio St.3d 269, 271. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217.
{¶12} We find no abuse of discretion in the trial court’s admission of evidence of
the previously allowed conditions. Appellee was seeking further allowances for
conditions resulting from the October 30, 2007 injury he suffered during the course and
Knox County, Case No. 14CA14 5
scope of his employment. Evidence of the previously allowed conditions is inherently
relevant to establish the background for the further allowances he sought.
{¶13} Furthermore, we find Appellant failed to preserve this error. Unlike
Appellee who filed a motion in limine to exclude reference to the disallowed conditions,
Appellant did not file a motion in limine seeking to have the evidence of prior allowed
conditions excluded. Appellant failed to object during trial to the trial court’s admission
of evidence of the previously allowed conditions. With respect to Appellant’s arguments
relative to the evidence of the disallowed conditions, we find the trial court did not abuse
its discretion in granting Appellee’s motion in limine. The disallowed conditions were
related to a different area of Appellee’s body; therefore, are of little, if any, relevance
and any testimony regarding the conditions could simply confuse the jury. We also find
Appellant failed to preserve this error. Appellant did not attempt to proffer any of the
excluded evidence.
{¶14} Appellant’s sole assignment of error is overruled. The judgment of the trial
court is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
Vogelmeier v. Ohio Power Co.
Combined Opinion