Rowland v. Buehrer

[Cite as Rowland v. Buehrer, 2017-Ohio-7096.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

DIANE F. ROWLAND :
:
Plaintiff-Appellant : C.A. CASE NO. 27412
:
v. : T.C. NO. 15-CV-5441
:
STEVEN P. BUEHRER, : (Civil Appeal from
ADMINISTRATOR, et al. : Common Pleas Court)
:
Defendants-Appellees :

...........

OPINION

Rendered on the __4th_ day of __August____, 2017.

...........

GARY D. PLUNKETT, Atty. Reg. No. 0046805 and RACHEL D. SIEKMAN, Atty. Reg.
No. 0091012, 3033 Kettering Blvd., Suite 201, Dayton, Ohio 45439
Attorneys for Plaintiff-Appellant

DAVID C. KORTE, Atty. Reg. No. 0019382 and MICHELLE D. BACH, Atty. Reg. No.
0065313 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 W. First Street,
Suite 200, Dayton, Ohio 45402
Attorneys for Defendant-Appellee, Dayton Public Schools

CHERYL NESTER, Atty. Reg. No. 0013264, 150 E. Gay Street, 22nd Floor, Columbus,
Ohio 43215
Attorney for Defendant-Appellee, Bureau of Workers’ Compensation

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the January 17, 2017 Notice of Appeal of
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Diane Rowland. Rowland appeals from the January 13, 2017 decision of the trial court

that reconsidered and affirmed its decision on Dayton Public Schools’ (“DPS”) motion in

limine to exclude from trial the testimony of Rowland’s expert witness, Dr. Jonathon Paley,

and granted summary judgment in favor of DPS. For the reasons that follow, the trial

court’s decision is reversed, and the matter is remanded for proceedings consistent with

this opinion.

{¶ 2} On November 10, 2015, Rowland filed a Complaint against DPS and

Stephen P. Buehrer, Administrator, Bureau of Workers’ Compensation. The Complaint

provides that Rowland, a DPS employee, was injured in the course of her employment

on January 14, 2015, and that she filed a claim for workers’ compensation benefits, to

which Claim No. 15-801203 was assigned. According to the Complaint, the claim was

allowed for “concussion without coma; sprain of neck; sprain lumbar region; contusion

forehead; contusion right shoulder; contusion left shoulder; contusion left hip; contusion

left knee.” The Complaint provides that Rowland filed a motion to amend her claim to

include “left shoulder supraspinatus tendon tear,” and that the District Hearing Officer

denied the motion to amend the claim on June 19, 2015. The Complaint provides that

Rowland appealed the District Hearing Officer’s decision to the Staff Hearing Officer who,

on July 28, 2015, granted Rowland’s motion for the additional condition. DPS appealed

the Staff Hearing Officer’s decision to the Industrial Commission, and on August 19, 2015,

the Industrial Commission refused the appeal, according to the Complaint. The

Complaint provides that DPS filed a Notice of Appeal in the court of common pleas.

{¶ 3} On August 31, 2016, DPS filed the motion in limine asking the trial court to

exclude the deposition testimony of Dr. Paley. The motion provides that Rowland, a
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school bus driver, was injured on January 24, 2011, when she slipped on the ice, and that

she filed a claim that was assigned No. 11-303368 and allowed for “contusion left wrist;

contusion left hip; contusion left hand; cervical sprain; sprain left shoulder and sprain

lumbar.” The motion provides that Rowland initially obtained treatment at Concentra but

then sought treatment from Paley. The motion provides that “Dr. Paley stated on 5/12/14

and 11/19/14 that he suspected Rowland had a left rotator cuff tear. * * * He

recommended, but did not obtain, an MRI of the left shoulder to confirm the presence of

the tear, or its size.” The motion provides that DPS does not contest the allowed

conditions in Claim No. 15-801203, and that “the sole issue for the jury to decide in this

case is whether the 2015 claim should be additionally allowed for the left shoulder tear.”

{¶ 4} DPS asserted that Paley testified that Rowland “had a left rotator cuff tear

before 2015. * * * He explained that he made this diagnosis based upon the fact that she

fell in 2011, and her subjective and objective findings thereafter.” DPS asserted that

“[c]ritically, Dr. Paley was asked whether there was objective evidence of a rotator cuff

tear, but he was never asked if there was objective evidence of a substantial aggravation

of the tear as required by Ohio law. R.C. 4123.01(C)(4).” DPS argued that “since Dr.

Paley did not know or utilize the correct standard for substantial aggravation, his

testimony is unreliable and must be excluded.” According to DPS, “since Dr. Paley failed

to identify the objective diagnostic findings, objective clinical findings, or objective test

results that support the allowance of the tear by way of substantial aggravation, his

opinion is legally insufficient and must be barred.”

{¶ 5} DPS asserted that Paley defined “substantial aggravation” as “ ‘a condition

was preexisting * * * and that it was made worse by a more recent injury.’ ” DPS asserted
 -4-

that after “the enactment of Senate Bill 7 in 2006, however, a mere worsening of a

preexisting condition is not sufficient to support a claim by way of substantial aggravation.”

DPS asserted that R.C. 4123.01(C)(4) “now requires that an 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.” DPS noted that

the Ohio Jury Instructions define substantial aggravation as “ ‘major or significant, not

trifling or small.’ ” DPS asserted that “after giving a wrong definition, Dr. Paley quizzically

asked opposing counsel if he was correct! * * * His question confirms his uncertainty and

undermines all of his opinions.”

{¶ 6} DPS asserted that “post-injury objective evidence revealing the existence of

a pre-existing condition is not sufficient to prove substantial aggravation. * * * The testing

must do more than simply reveal the existence of pre-existing condition and provide an

explanation for current symptoms. The testing must establish that the condition was

substantially aggravated by the injury.” According to DPS, “[w]ithout referencing any

objective findings as required by statute, Dr. Paley opines that [Rowland] had a small tear

before the 2015 fall, and larger tear thereafter.” DPS asserted that “objective evidence

that a condition exists is not evidence that the condition was substantially aggravated.”

DPS argued that “Dr. Paley’s opinion is based on the definition of aggravation that existed

before 2006.”

{¶ 7} Rowland responded to DPS’ motion on October 20, 2016. She asserted that

“Dr. Paley is not a lawyer and is not required to utilize the legalese [DPS] sought to elicit

during Dr. Paley’s testimony. Further, failure to utilize the buzz words DPS relies so

heavily upon in their Motion, does not, as asserted by DPS, call Dr. Paley’s entire medical
 -5-

opinion into question.” Rowland asserted that “the MRI performed after the January 14,

2015 injury is sufficient objective diagnostic testing to support a finding of substantial

aggravation.” Rowland argued that “not only did Dr. Paley testify to a substantial

aggravation, but he provided a full history of a pre-existing condition and objective

documentation of a substantial aggravation post-injury.” She argued that she “was

suffering from a small pre-existing rotator cuff tear and actually was seeking treatment for

same just a month prior to the 2015 work injury.” She asserted that she “still required

ongoing treatment, however, she was not a surgical candidate and was able to work.

The January 2015 work related injury resulted in a substantial aggravation of that tear,

rendering Ms. Rowland unable to work and making her a surgical candidate.” Rowland

asserted that Paley’s testimony “provides ample evidence of a pre-existing rotator cuff

tear that was substantially aggravated as documented by objective diagnostic testing.”

{¶ 8} DPS replied to Rowland’s memorandum in opposition on November 4, 2016.

According to DPS, Rowland “utterly fails to address the undisputed fact that Dr. Paley

incorrectly defined the substantial aggravation standard as a pre-existing condition that

was simply ‘made worse by a more recent injury.’ * * * Dr. Paley’s definition was

specifically overturned by Senate Bill 7 a decade ago.” DPS asserted that “Dr. Paley’s

testimony cannot possibly be deemed reliable pursuant to Ohio R. Evid. 702 since he

used an outdated legal standard.” DPS asserted that it “can certainly be argued that

[Rowland] simply had the surgery that she needed all along for her pre-existing tear after

she obtained an MRI. Surgery, in and of itself, is not objective evidence that her prior

condition was substantially worsened.” DPS asserted that “Dr. Paley was not specifically

asked during his deposition to identify the objective findings that support a substantial
 -6-

aggravation of a pre-existing tear.” According to DPS, Rowland “now points solely to the

post-injury MRI, surgery and her alleged inability to work as the ‘objective findings’

supporting her substantial aggravation claim.”

{¶ 9} Rowland filed a Sur Reply on November 14, 2016. She asserted that she

“provided ample documentation and expert testimony of her treatment and symptoms

preceding the injury. * * * The Plaintiff * * * provided the objective diagnostic testing, that

in conjunction with her prior symptoms, signs, treatment and diagnosis established the

substantial aggravation.”

{¶ 10} On December 7, 2016, the trial court sustained DPS’ motion in limine.

The court noted that “Paley stated on May 12, 2014 and November 19, 2014 that

[Rowland] had a left rotator cuff tear and recommended an MRI, which [Rowland] did not

do.” Regarding DPS’ assertion that Paley did not know or utilize the correct standard for

substantial aggravation, the court indicated that it “does not find Paley’s stated definition

of ‘substantial aggravation’ to be troubling. Paley is not a lawyer, and his

mischaracterization of the statutory definition would be of no consequence if Paley had

thereafter me[t] the statutory requirements.” The court indicated that “Paley, however,

did not set forth any objective diagnostic findings, objective clinical findings, or objective

test results that support a substantial aggravation of an existing tear.” The court found

that when “asked specifically about objective evidence, the question only related to a tear

and not a substantial aggravation of an existing tear. Further, Paley failed to cite to

objective diagnostic evidence showing such aggravation. Although a pre-injury MRI was

not required as objective evidence, post-injury testing must do more than show an injury.”

According to the court, post-injury “testing must demonstrate that a pre-existing injury was
 -7-

substantially aggravated. In the case at bar, there is no objective evidence or testimony

regarding objective evidence that shows a substantial aggravation.”

{¶ 11} On December 20, 2016, DPS filed a motion for leave to file a motion for

summary judgment, as well as its summary judgment motion. DPS asserted that “in

order to meet her burden of proof in this case, [Rowland] must present expert testimony

supporting her position that she sustained a substantial aggravation of her pre-existing

supraspinatus tendon tear in the course of, and arising out of, her employment with DPS

on January 14, 2015. This Court, however, has excluded the testimony of her sole

expert.” DPS asserted that as “a result, reasonable minds can only conclude that [DPS]

is entitled to Summary Judgment as a matter of law.”

{¶ 12} Rowland responded to the motion on December 22, 2016. Rowland

asserted that the trial court’s decision on DPS’ motion in limine was a four page decision

by the Court that:

1. Contained absolutely no citation to any case law;

2. Contained absolutely no citation to any regulation, statute or code other

than reference to the definition of injury;

3. Was devoid of any legal support;

4. Relied upon quoted testimony from the expert sought to be excluded,

editing and abridging the testimony to exclude pertinent, relevant testimony.

{¶ 13} Rowland asserted that Paley testified that “Ms. Rowland suffered from a

small tear in 2011 that got better and allowed her to return to work. * * * Ms. Rowland then

suffered a major injury in January 2015 which resulted in a full blown tear to the same

shoulder necessitating surgery. * * * The January 2015 tear * * * was also confirmed and
 -8-

diagnosed through objective MRI findings.” Rowland sought reversal of the court’s ruling

on DPS’ motion in limine.

{¶ 14} Rowland asserted that under “established Ohio law, to establish a

substantial aggravation of a preexisting injury there must be admissible, expert medical

testimony that the injured worker suffered an injury.” According to Rowland, “courts have

interpreted R.C. 4123.01(C) and held that post-injury objective evidence, combined with

subjective complaints is ‘ample evidence’ to establish a substantial aggravation.”

Rowland asserted that “case law makes clear that to establish a substantial aggravation,

the claimant must provide sufficient documentation of a preexisting injury in tandem with

objective diagnostic findings, objective clinical findings or objective test results of the

substantial aggravation.” She argued that Paley’s testimony, “as to his ongoing

treatment of Ms. Rowland’s left shoulder injury dating back to 2011, provided ample

evidence of a preexisting condition * * * .” Rowland argued that “Dr. Paley provided more

than ample testimony of a substantial aggravation.” She asserted that the “objective

testing was in the form of an MRI performed in March 2015 that showed a full thickness

tear of the rotator cuff. * * * Consequently, Dr. Paley’s testimony is in accordance with

established case laws.” Rowland asserted that the exclusion of Paley’s testimony “was

reversible error,” and that without the exclusion of the testimony, “a genuine issue of

material fact exists precluding summary judgment.”

{¶ 15} DPS replied to Rowland’s response on December 28, 2016. According to

DPS, Rowland conceded that summary judgment is appropriate if Paley’s testimony is

excluded. DPS asserted that instead “of filing affidavits or other evidence to place in

issue the facts alleged by DPS, [Rowland] instead challenges this Court’s ruling on DPS’s
 -9-

Motion in Limine. [Rowland] is essentially using her Response as an avenue to relitigate

the issues already decided by this Court.” According to DPS, a “more appropriate

avenue for this argument would have been to file a motion to reconsider.” DPS asserted

that even if Rowland could relitigate the motion in limine, “she again fails to produce any

testimony from Dr. Paley mentioning any objective diagnostic findings, objective clinical

findings or objective test results to support his opinion that the pre-existing tear was

substantially aggravated.”

{¶ 16} In its decision sustaining DPS’ motion for summary judgment, the court

initially reconsidered its decision on DPS’ motion in limine, and it noted that Paley testified

that substantial aggravation meant “ ‘that a condition was pre-existing * * * and that it was

made worse by a more recent injury. Is that correct?’ ” After noting that in sustaining

DPS’ motion in limine, the court found that since Paley is not a lawyer, his

mischaracterization of the standard would be of no consequence if he thereafter met the

statutory definition, the court further noted that “this determination * * * was too generous

to [Rowland].” The court noted that “while Paley asked Plaintiff’s counsel if his definition

was correct, Plaintiff’s counsel responded yes and did not correct Paley.” The court

noted that “[u]pon reconsideration of its decision with respect to DPS’ motion in limine,

the Court finds that Paley did not use the correct standard when testifying as to a

‘substantial aggravation,’ and that such failure affected his testimony.” According to the

court, “[w]ithout an understanding of the statutory definition of ‘substantial aggravation,’ *

* * Paley’s determination that the worsening was substantial does not satisfy O.R.C.

Section 4123.01(C).”

{¶ 17} The court further determined that more “importantly, however, there is no
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objective evidence of a substantial aggravation. Paley did not set forth any objective

diagnostic findings, objective clinical findings, or objective test results that support a

substantial aggravation of an existing tear.” According to the court, when “asked

specifically about objective evidence, the question only related to a tear and not a

substantial aggravation of an existing tear. Further, Paley fails to cite to objective

diagnostic evidence showing such aggravation.” The court indicated that “[p]ost-injury

testing must demonstrate that a pre-existing injury was substantially aggravated.” The

court affirmed its decision on the motion in limine “with the modification that Paley did not

use the correct statutory standard under * * * [R.C.] 4123.01(C) to establish a ‘substantial

aggravation’ of the ‘left shoulder supraspinatus tendon tear.’ ”

{¶ 18} Regarding DPS’ motion for summary judgment, the court found that since

Rowland’s “injury is not observable by the trier of fact, expert testimony must establish

the cause of her injury. In this case, the Court has excluded the testimony of Plaintiff’s

only expert on this issue.” As a result, the court concluded that “no genuine issue of

material fact remains for trial * * *.”

{¶ 19} Rowland asserts two assignments of error herein which we will consider

together. They are as follows:

THE TRIAL COURT ERRED WHEN IT FOUND THAT PLAINTIFF’S

EXPERT DR. PALEY ALLEGEDLY MISCHARACTERIZED THE

STATUTORY DEFINTION OF SUBSTANTIAL AGGRAVATION

RENDERING HIS TESTIMONY INSUFFICIENT UNDER R.C. 4123.01,

And,

THE TRIAL COURT ERRED WHEN IT DETERMINED THAT DR.
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PALEY FAILED TO PROVIDE OBJECTIVE EVIDENCE OF A

SUBSTANTIAL AGGRAVATION.

{¶ 20} Regarding the trial court’s determination that “Dr. Paley’s response on

cross examination as to the statutory definition of ‘substantial aggravation’ discredited his

expert testimony,” Rowland asserts that this “unsupported contention that a medical

expert must recite statutory language to qualify his testimony is patently false. Dr.

Paley’s response as to the meaning of substantial aggravation may have bearing on his

credibility, but does not limit the admissibility of his testimony.” Rowland asserts that

“[m]ost importantly, the Court held again [that] Dr. Paley failed to provide objective

evidence of a substantial aggravation. This holding is erroneous. Dr. Paley’s testimony

is crystal clear that objective evidence was utilized to confirm a full blown rotator cuff tear

and it was confirmed by surgery.” Rowland argues that “Dr. Paley’s testimony was

erroneously excluded, and without the exclusion there exists a genuine issue of material

fact.”

{¶ 21} Rowland argues that “while the existence of a pre-existing condition and

objective evidence of a substantial aggravation are necessary, case law does not require

experts must utilize specific legalese when testifying regarding same.” Rowland asserts

that the court’s determination that “without an understanding of the statutory definition of

‘substantial aggravation’ Dr. Paley’s testimony does not meet the requirements of R.C.

4123.01(C)” is “unsupported and without merit.” Rowland argues that the “fact that Dr.

Paley made a rhetorical comment on cross examination has nothing to do with and does

not diminish the expert testimony he gave on direct.”

{¶ 22} Rowland asserts that her claim “is a textbook example of a substantial
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aggravation claim.” She asserts that she presented the “testimony of her treating

physician stating that his long term treatment of the Plaintiff prior to the January 2015

work related injury substantiated a diagnosis of a small rotator cuff tear.” At the time,

Rowland stated that she “was not a surgical candidate and was improving.” She argues

that after her fall in 2015, “the objective evidence was an MRI that showed a full blown

tear not present prior to January 2015 * * *.”

{¶ 23} DPS responds that the “issue is whether Dr. Paley’s incorrect understanding

of the definition of ‘substantial aggravation’ destroys the reliability of his opinion.”

According to DPS, “after giving a wrong definition, Dr. Paley quizzically asked opposing

counsel if he was correct. * * * His question confirms his uncertainty and undermines all

of his opinions.” DPS asserts that “Dr. Paley’s testimony was given based upon a faulty

understanding of the current ‘substantial aggravation’ standard, namely the pre-Senate

Bill 7 requirements to prove an aggravation.”

{¶ 24} DPS asserts that “the issue is not whether there is sufficient pre-injury

documentation of a rotator cuff tear. Indeed, it is undisputed that Appellant had a tear.

The issue is whether Dr. Paley identified objective evidence of a substantial aggravation

of the pre-injury rotator cuff tear.” DPS asserts that Paley’s testimony “clearly fails to set

forth objective evidence of a substantial aggravation of a previously diagnosed tear. Dr.

Paley was only asked whether there was objective evidence of a rotator cuff tear. He

was never asked if there was objective evidence of a substantial aggravation of the tear

as required by law.” According to DPS, post-injury testing “must do more than show an

injury. It must also demonstrate that a pre-existing injury was substantially aggravated.”

{¶ 25} In Reply, Rowland asserts that DPS “is conflating the admissibility of expert
 -13-

medical testimony with an issue over the weight to be given said testimony.” She asserts

that “Dr. Paley’s testimony taken as a whole provides ample, admissible expert medical

testimony of substantial aggravation in this matter.” Rowland argues that providing the

“proper definition of substantial aggravation is the province of the Court.” She asserts

that the First District’s holding in Pflanz v. Pilkington LOF, 1st Dist. Hamilton No. C-

100574, 2011-Ohio-2670, “is determinative in this present matter.” Therein, the

chiropractor who treated Thomas Pflanz for back pain before and after his workplace

injury at Pilkington LOF opined that Pflanz’s post-injury MRI and other post-injury range

of motion tests demonstrated that Pflanz’s workplace injury substantially aggravated his

pre-existing back problems. The court held that the “word ‘substantial’ has multiple

meanings, including ‘considerable in amount, value or the like,’ and ‘[f]irmly established;

solidly based.’ ” Id., ¶ 17. It concluded that “we find no ambiguity in the statute despite

these distinct meanings, because the statutory language indicates that the claimant must

demonstrate ‘substantial’ aggravation in both senses of the word.” Id. The First District

held that Pflanz “provided ample [objective and subjective] evidence” that his “workplace

injury had substantially aggravated his preexisting back conditions.” Id., ¶ 20.

{¶ 26} “A trial court has broad discretion in determining whether to admit or exclude

expert testimony, and thus, we will not reverse its decision absent an abuse of discretion.

State v. Jones (2000), 90 Ohio St.3d 403, 414, 739 N.E.2d 300.” Darden v. Cooper

Power Tools, Inc., 2d Dist. Montgomery No. 20190, 2004-Ohio-5277, ¶ 24. “ ‘Abuse of

discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be
 -14-

expected that most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.

{¶ 27} As this Court has previously noted, “[a] claimant must establish an injury to

participate in Ohio’s workers’ compensation system. * * *.” Harrison v. Panera, L.L.C.,

2d Dist. Montgomery No. 25626, 2013-Ohio-5338, ¶ 23. R.C. 4123.01(C)(4) defines

injury as follows:

(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.

{¶ 28} As this Court recently noted:

Subdivision (C)(4) was added to R.C. 4123.01 in 2006. Prior to that

time, the Supreme Court of Ohio had held that claimants were not required

to prove that an aggravation was substantial in order to recover. See
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Pflanz v. Pilkington LOF, 1st Dist. Hamilton No. C-100574, 2011-Ohio-

2670, ¶ 13, citing Schell v. Glove Trucking, Inc., 48 Ohio St.3d 1, 548 N.E.2d

920 (1990). In Pflanz, the court concluded that as a result of the

amendment, “to be compensable, the aggravation of a preexisting 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. * * *

Woods v. Bureau of Workers’ Compensation, 2016-Ohio-237, 57 N.E.3d 468, ¶ 17 (2d

Dist.).

{¶ 29} Dr. Paley testified that he is a board certified orthopedic surgeon, and that

he completed a shoulder and knee fellowship at the University of Tennessee after his

residency. He testified that in 23 years of private practice, he has performed between

two and three thousand rotator cuff surgeries. Paley testified that a “rotator cuff tear can

occur when the tissue is overloaded. That can be through attrition in older people, that

can be through repetitive motion in athletes, that can be repetitive motion in the workforce.

And it could be overload as a result of a sudden forceful exertion such as a fall.” Paley

testified that he treated Rowland for a left shoulder sprain in 2011, after she fell at work.

He stated that an MRI was not done (notably DPS refused to pay for one), and that he

believed Rowland had a rotator cuff tear at the time. When asked the basis for his

opinion, Paley testified as follows:

The persistent pain. There is weakness. There is the objective

findings associated with particular motions that we do to produce pain that

would be elicited if someone tore a rotator cuff. I consider those objective.
 -16-

There is the failure to improve 100 percent, so we have this chronic sort of

nagging thing that typically a tendonitis or bursitis would get better with a

cortisone shot, that sort of thing. So, people with some of these

mechanical issues like a cuff tear or a tendon tear don’t always get

completely better.

{¶ 30} Paley testified that he treated Rowland on February 9, 2015 after she fell

on the ice at work on January 14, 2015. The following exchange occurred:

Q. * * * Did you do a physical examination of her at that time,

Doctor?

A. Yes.

Q. And what was that physical examination, what did it consist of

and what were the results?

***

A. She said that she had made some gradual improvement with

therapy, but she continued to have a lot of pain with her most painful

complaint being the left shoulder * * *.

***

We talked about her past surgical history. We documented that.

That she’s a non-smoker, which is important to me as a surgeon, especially

with rotator cuff pathology. * * * We examined the left shoulder, she had

very protected or guarded range of motion. She didn’t want to move the

shoulder. She had difficulty with any overhead activity. Active, passive

motion, where we have the patient actually - - we assist the patient lifting
 -17-

the arm. It was fairly limited to about 130 degrees.

There was significant pain with what we call the Neer and Hawkins

impingement maneuvers, and those procedures are designed to elicit pain.

The arm is actually brought up into abduction and internally rotated, and

people with a rotator cuff tear or significant cuff pathology will have a lot of

pain.

Q. Did she?

A. She did. There was some crepitations with passive range of

motion. Most significant was the apprehension. She was very

apprehensive. She had diminished strength and there was tenderness

over the lateral aspect of the left shoulder around the acromial border. And

she had some posterior trigger points over the trapezius, which was

uncomfortable. We examined her right shoulder. There was a well

healed incision from a prior rotator cuff surgery and so forth.

Q. What was the next thing you did, Doctor?

***

A. * * * We recommended x-rays. Both of her shoulders were

radiographed. * * * There was some sclerosing or changes over the rotator

cuff footprint over the greater tuberosity. * * *

***

Q. What’s the next thing you did, Doctor, as to the left shoulder?

A. We recommended ongoing therapy. We felt that what we found

on the examination was consistent with her traumatic fall. We requested
 -18-

additional physical therapy, predominantly for the shoulders. We said that

the healing process takes about six to eight weeks and we started her on

medications and suggested that she come back and see us in two or three

weeks’ time to see how she’s doing.

Q. Did you arrive at a diagnosis of the left shoulder?

A. Yes, we did. We, we gave her the allowed diagnosis under our

assessment for what she was actually allowed for, a right shoulder

contusion.

***

Q. Was there a suspicion of a rotator cuff tear?

A. A very high suspicion of a rotator cuff tear.

Q. Why is that?

A. Well, it’s the loss of function, it’s the provocative maneuvers, it’s

the diminished strength, it’s the sclerosing over the footprint. It’s the

previous and present pain, now worsening, with greater disability. So, yes,

I mean, all typical and classic for a rotator cuff injury.

Q. When is the next time that you saw Ms. Rowland, Doctor?

A. February 23.

Q. What happened at that visit?

A. Okay, she was here for a follow-up evaluation of all of her issues.

She had completed her physical therapy at Concentra. Was waiting for

additional authorization for therapy. Most significantly was complaining of

ongoing left shoulder pain and weakness * * *.
 -19-

* * * The left shoulder, again, significant guarding or loss of motion.

Forward flexion of only 90 degrees was noted. She had a fairly weak and

painful, what we call a drop arm maneuver on the left side.

Q. What’s that, Doctor?

A. Drop arm is a very objective exam where we actually bring the

arm up for the patient. So, we bring the arm up (indicating). And we ask

the patient to hold it. And then we have them bring it down. And when

they try to bring it down, the arm just drops. And the patient is unable to

hold the arm up and to bring it down in a slow guided manner. That’s pretty

pathognomonic for a rotator cuff tear. Pathognomonic meaning highly

indicative of.

***

Q. What is an MRI?

A. An MRI is a special x-ray study. It’s also known as a magnetic

resonance imaging study. And that allows us to see the soft tissue. It’s

very good for soft tissue pathology such as tears. It’s especially good for,

when done properly, good for rotator cuffs, good for anterior cruciate

ligament disruptions. * * *

Q. Did she eventually have an MRI?

A. She did.

Q. When was that done, Doctor?

A. * * * That MRI was done March 24th, 2015. So, the conclusion

was, one centimeter high grade partial versus full thickness tear, the
 -20-

supraspinatus high grade is * * * essentially the same as a full thickness

tear, meaning a dysfunctional or non-functional rotator cuff.

Q. And I take it you would have also looked at that MRI?

A. Yes.

Q. And confirmed that?

A. Yes.

***

Q. How do you fix somebody who has that issue?

A. This is a surgical consideration at this point. The - - the rotator

cuff is kind of like a spring. And it’s spring loaded. And so, once it’s

attached here and then rips, it pulls back. And so, it’s just the nature of the

design. And under that tension, that’s what gives the MRI [sic] its ability to

lift your arm under power. That’s why she was having so much trouble

lifting the arm, was [sic] she wasn’t able to generate enough force because

it was torn. So, you basically have to respring it or put the spring back to

where it’s anchored to.

***

Q. Now, her prior rotator cuff tear from 2011, that was not a surgical

rotator cuff tear?

A. No. She was improving. I mean, you can’t argue with

improvement. And there’s a segment of the population, or a subset of the

population of people who have, you know, rotator cuff tears that get better.

They, they do better enough to function. And if they function, then you
 -21-

leave them be and, you know, you only operate on them if it worsens over

the course of time.

Q. Now, this MRI doesn’t show an improving rotator cuff tear?

A. No. In my opinion, it shows a rotator cuff tear that is not

improving, it’s present and needs to be fixed.

Q. Can that be treated conservatively, that kind of rotator cuff tear

that’s on the MRI?

A. I think that’s a big enough tear where she has enough problems,

it’s worsened, in my opinion it will continue to worsen, which is typically the

history of these, they get bigger in this younger population. I mean, she’s

only 48. Okay? She’s employable, she works. It’s, these are the people

that, you know, you have to fix.

Q. This - - if a person with that MRI presents in your office, is that

the standard of care, in other words, you need surgery for this?

A. Well, it’s not the standard of care just from my office, I think it’s

the national standard of care.

{¶ 31} Paley testified that he performed surgery on Rowland on September 22,

2015 to repair her torn rotator cuff. He stated she completed physical therapy and

returned to work. The following exchange occurred at the end of Paley’s direct

testimony:

Q. * * * Dr. Paley, based on the history that you took from Ms.

Rowland, your care and treatment of Ms. Rowland - -

A. Uh-huh.
 -22-

Q. - - and your education, training and experience as a board

certified orthopedic surgeon, do you have an opinion to a reasonable

medical certainty as to whether or not the, the fall that she described to you

in the history, as occurring [o]n January 14th, 2015, substantially

aggravated her preexisting left rotator cuff tear from 2011 that you

diagnosed?

A. I do.

***

Q. What is your opinion, Doctor?

***

A. My opinion, yes, is that she did substantially aggravate this

preexisting rotator cuff disease, this tear.

***

Q. And what was the event that substantially aggravated the

preexisting left shoulder rotator cuff tear?

***

THE WITNESS: Well, it was the January 15th fall on the ice.

***

Q. What medical analysis do you have that substantiates that

opinion, Doctor?

***

THE WITNESS: * * * My opinion is predicated on the fact that she

had a preexisting issue. This issue was painful. It didn’t immediately
 -23-

respond to supportive care, which we consider, such as medications,

physical therapy, injections, things along that line.

We attempted to get an MRI to confirm our suspicions, but that was

never approved. But nonetheless, we don’t always need MRI’s to

diagnose rotator cuff tears. The history of her injury was consistent with

that back from the 2011 injury. She got better, like many people get better,

to a point. But she was, she continued to be seen for this problem.

If I’m not mistaken, she was seen just the month prior to this with

ongoing shoulder pain. Classic and typical of someone who had ongoing

pathology, probably from a rotator cuff tear.

So, given the weakness, the continued complaints, given the fact that

she had sclerosing or changes over the rotator cuff insertional site on her

x-rays, then she had a rotator cuff tear. I don’t think that there’s any

surgeon who practices and does rotator cuff surgery that would argue that,

that she does not have a preexisting issue.

Now, fast forward to the next date, 2015, January, she falls again.

A similar mechanism of injury, already damaged tissue, not as good as the

original tissue, and she now completely tears the rotator cuff at this point.

To the point where there is no getting better. There is a percentage of

people, like I alluded to earlier, that with smaller tears they can get better to

a point where they can go back to work effectively. This was one of them.

People who typically go back to overhead repetitive activity, they’re not in

that subset because they tend to worsen.
 -24-

Diane Rowland, as a bus driver for Dayton Public Schools, was able

to function and to do the things that she, were required of her to do her job.

And that’s fine, all right? But with the fall, I think that that was the, that was

the thing that sealed the deal for her, was that she went on to tear the cuff.

***

Q. And the fall you’re referring to as the aggravating event is the

January 14th, 2015 fall?

A. That’s the one that worsened her problem, yes.

Q. And that worsening, would you say that that worsening was a

substantial worsening from the preexisting rotator cuff tear you diagnosed

in 2011?

***

A. Absolutely.

***

Q. And is that opinion to a reasonable degree of - -is that opinion to

a reasonable medical certainty?

***

A. I think it’s a hundred percent medical certainty, in my opinion.

***

Q. And was there objective evidence of a rotator cuff tear in 2015?

A. Yes.

Q. * * * And what was there?

A. Well, there was the MRI and there was the operative procedure.
 -25-

Q. * * * Have all of your opinions been to a reasonable medical

certainty, Doctor?

A. Yes.

{¶ 32} The following exchange occurred on cross-examination:

Q. I would like to show you your office note that’s dated April 13th

of 2015. And is that, in fact, your office note?

A. Yes, it is.

Q. * * * And isn’t it true, and this note again, April 13, would be about

what four months or so after this January of 2015 injury that we’re talking

about?

A. Yes. This clearly is the issue associated with her shoulder.

Q. Okay. And - -

A. I think she would benefit from this, and clearly this is a direct and

proximate result of her injury, okay?

Q. * * * And just to make sure for the jury that my question is clear,

your opinion at that time, as documented by this note, does in fact say that

this rotator cuff tear is a, quote - - in fact it says, quote, clearly this is a direct

and proximate result of her injury - -

MR. PLUNKETT: Objection, you’re misleading it. This note does

not say that.

THE WITNESS: I agree, it does not say that.

***

BY MS. BACH:
 -26-

Q. Doctor, why don’t you read the paragraph that says disposition

and plans at the bottom.

A. I have made recommendations for surgical intervention. This

is clearly the issue associated with her shoulder. I think she would benefit

from this and clearly this is a direct and proximate result of her injury. The

larger tear is the result of the more recent fall, okay? You can mince words

all you want, all right? But the point is is [sic] that you cannot just erase the

past, that she didn’t have a previous problem with her shoulder, that we

were suspicious of it was a rotator cuff.

That cuff has never - - that cuff tear has never gone away, all right?

Now she’s fallen and it’s larger and it’s bigger. And it’s, this is a result of

that.

Q. * * * But Doctor, you would agree that you can’t have a rotator

cuff tear that is directly caused by one injury and also substantially

aggravated by the same injury, correct?

A. Why not?

Q. So, you believed that you can render an opinion to a reasonable

degree - -

MR. PLUNKETT: Objection.

BY MS. BACH:

Q. - - of medical certainty - -

MR. PLUNKETT: He’s not saying that.

THE WITNESS: I believe - -
 -27-

MS. BACH: Well, why don’t you let him answer my question and I’d

like to finish the question.

THE WITNESS: I believe that you can have a small tear that’s

symptomatic, allowing a patient to work. And it’s still, by definition, a tear.

And then you could fall again and cause a larger tear.

BY MS. BACH: * * * Thank you, but that’s not my question.

A. Well, that’s the only way I know how to answer it. I’m sorry.

Q. Let me, let me just finish the question - -

A. Okay.

Q. - - so we can find out what your opinion is, please. My question

is, isn’t it true that you cannot testify to a reasonable degree of medical

probability that a rotator cuff tear is directly caused and also substantially

aggravated by the same incident?

MR. PLUNKETT: I’m going to object. You’re asking the doctor to

testify on a legal standard. We agree a doctor in the state of Ohio cannot

render that kind of opinion and he has not done so. Objection, move to

strike.

MS. BACH: And I would like to hear the doctor’s answer to the

question, please.

MR. PLUNKETT: Objection.

THE WITNESS: Okay, well, I’m not an attorney, okay? And this is

sometimes the problem, and sometimes why we have to come here to these

depositions, I guess to iron these things out. But it is my opinion that this
 -28-

is a result, and that probably would have been a better word to use, a result

of her fall, at that time, in January of 2015, on the ice. Okay?

And I probably should have said something to the effect that she

made her tear bigger and that she had a previous rotator cuff issue that was

made worse. I mean, would that have made it better? I mean, you’ve got

to understand, I don’t have a dog in this fight. You know, I’m here to fix her

shoulder and that’s it. So you know, I’m here to testify to the honesty of it.

BY MS. BACH:

Q. Well, Doctor, in all fairness, if her claim is allowed for certain

medical conditions, then you can get paid for treating her for those

conditions, correct?

A. I think, I don’t know if we have any bills with her. I don’t know.

Q. Again, it would be helpful if you would listen to my question and

answer the question that I’m asking you. As a general principle, isn’t it true

that if her Workers’ Compensation claim is allowed for a rotator cuff tear,

you can treat her for that condition and your bills will be paid under Workers’

Compensation?

A. Well, typically if a claim is allowed, then yes - -

Q. Okay.

A. - - you know, the practice gets paid for its treatment.

Q. All right.

A. Okay? But, you know, like I said, I’m not an attorney, and yes,

okay, it is, it is difficult sometimes to get the legalese correct.
 -29-

Q. All right. But you understand the concept of substantial

aggravation, correct?

A. Yes.

Q. What is substantial aggravation?

A. Well, that a condition was preexisting, according to our

discussion today, and that it was made worse by a more recent injury. Is

that correct?

MR. PLUNKETT: Yes, that’s correct.

{¶ 33} The following exchange occurred regarding Paley’s office note on redirect

examination:

Q. Doctor, I want to go back and talk about one of the exhibits that

Ms. Bach showed you. And this is the exhibit about your note, okay?

A. Uh-huh.

Q. - - okay? So, Exhibit B says, and I’m reading from the, the bottom

of this exhibit. It says, quote, I have made recommendations for surgical

intervention?

A. Yes.

Q. And is that the surgery that you performed on Ms. Rowland?

A. It is.

Q. And then it says, this is - - this is clearly the issue associated

with her shoulder.

A. Yes.

Q. And then it goes on to say, I think she would benefit from this.
 -30-

And clearly, this is a direct and proximate result of her injury. The surgery

directly and proximately resulted from the substantial aggravation of the

preexisting rotator cuff tear?

***

THE WITNESS: The surgery is - - yes.

Q. * * * In other words, before, I mean, before 2015, was there a

surgery that was recommended and done to the rotator cuff tear?

A. There was no surgery done to the left shoulder.

Q. * * * And is there anything in this paragraph that Ms. Bach

asked you that, where you say that the rotator cuff tear was directly caused

by the fall? This says the surgery was caused, necessitated by the fall.

A. Yes.

***

Q. * * * Doctor, the rotator cuff tear, okay - -

A. Uh-huh.

Q. - - is there anything in this paragraph that talks about the rotator

cuff tear being directly related or is it the surgery that you’re talking about in

this paragraph?

A. No, it’s the surgery that - - she had the surgery as a result of her

injury.

Q. Agreed.

A. Okay.

Q. Okay.
 -31-

A. * * * And so, the surgery’s a direct and proximate result, if that’s

how you want to say it, okay? That’s how I put it in there. And so, there

it is. I still maintain that it’s a substantial aggravation.

{¶ 34} As noted above, in sustaining DPS’ motion in limine, the trial court initially

indicated that it “does not find Paley’s stated definition of ‘substantial aggravation’ to be

troubling. Paley is not a lawyer, and his mischaracterization of the statutory definition

would be of no consequence if Paley had thereafter me[t] the statutory requirements.” In

granting DPS’s motion for summary judgment however, the court found, “[u]pon

reconsideration of its decision with respect to DPS’ motion in limine, the Court finds that

Paley did not use the correct standard when testifying to a ‘substantial aggravation,’ and

that such failure affected his testimony.” The court found that “[w]ithout an

understanding of the statutory definition of ‘substantial aggravation,’ however, Paley’s

determination that the worsening was substantial does not satisfy O.R.C. Section

4123.01(C).” Finally, the court concluded that “there is no objective evidence of a

substantial aggravation. Paley did not set forth any objective diagnostic findings,

objective clinical findings, or objective test results that support a substantial aggravation

of an existing tear.”

{¶ 35} We disagree. We initially note that while “injury” is defined as set forth

above, there is not a “statutory definition” of “substantial aggravation.” As did the First

District in Pflanz, ¶ 17, (and the Eighth District in Gardi v. Bd. of Educ. of the Lakewood

School District, 8th Dist. Cuyahoga No. 99414, 2013-Ohio-3436, ¶ 12), we find the

language of R.C. 4123.01(C)(4) to be unambiguous and clear. As this Court noted in

Woods, pursuant to Pflanz, “ ‘to be compensable, the aggravation of a preexisting
 -32-

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.’ ” Woods, ¶ 17.

{¶ 36} Dr. Paley opined that Rowland had a pre-existing rotator cuff tear in her

left shoulder. Paley stated that her condition had improved “to a point,” and she had

returned to work at the time of her 2015 fall. Paley stated that when he examined

Rowland on February 9, 2015, he observed “very protected or guarded range of motion,”

and that she “had difficulty with any overhead activity.” He stated that he tested

Rowland’s “[a]ctive, passive motion, where we have the patient actually - - we assist the

patient lifting the arm. It was fairly limited to about 130 degrees.” He stated that he

employed the “Neer and Hawkins impingement maneuvers,” which are designed to “elicit

pain,” and he testified that Rowland experienced a lot of pain and “some crepitations with

passive range of motion.” Paley stated that Rowland exhibited significant apprehension

and “diminished strength and there was tenderness over the lateral aspect of the left

shoulder around the acromial border. And she had some posterior trigger points over

the trapezius, which was uncomfortable.”

{¶ 37} Paley testified that he ordered x-rays which revealed “sclerosing or changes

over the rotator cuff footprint over the greater tuberosity.” Paley stated that he

recommended “ongoing therapy.” He testified that he had a “very high degree of

suspicion of a rotator cuff tear,” based upon his observation of Rowland’s “loss of function,

it’s the provocative maneuvers, it’s the diminished strength, it’s the slcerosing over the

footprint * * * the previous and present history of ongoing pain, now worsening, with

greater disability” which are “all typical and classic for a rotator cuff tear.”

{¶ 38} Paley stated that he examined Rowland again on February 23, 2015. He
 -33-

testified that he again observed “significant guarding or loss of motion. Forward flexion

of only 90 degrees was noted.” Paley stated that he performed “a very objective exam”

called the “drop arm maneuver,” and he stated that Rowland exhibited a “fairly weak and

painful” maneuver. Paley testified that he ordered an MRI and that Rowland’s March 24,

2015 exam revealed a “one centimeter high grade partial versus full thickness tear, * * *

[which is] essentially the same as a full thickness tear, meaning a dysfunctional or non-

functional rotator cuff.” (Emphasis added). Paley stated that the MRI revealed “why

[Rowland] was having so much trouble lifting the arm,” namely that “she wasn’t able to

generate enough force because it was torn.” Paley stated that in contrast to Rowland’s

2011 tear, which responded well enough to treatment to allow her to return to work, the

MRI revealed a “rotator cuff tear that is not improving, it’s present and needs to be fixed.”

Paley opined that the tear would continue to worsen if not repaired, and that the surgery

further confirmed the presence of the tear, which he repaired.

{¶ 39} Paley opined that the January 14, 2015 fall substantially aggravated

Rowland’s preexisting 2011 rotator cuff tear, and we conclude that his testimony

regarding Rowland’s 2011 injury, and the objective range of motion tests he administered

after her 2015 injury, and the MRI, is testimony sufficient to withstand the motion for

summary judgment and allow a jury to determine whether Rowland suffered a substantial

aggravation of a preexisting injury that is both considerable and firmly established through

the presentation of objective evidence. Accordingly, we conclude that the trial court

abused its discretion in determining that Paley’s testimony was subject to exclusion.

Rowland’s assigned errors are sustained, the judgment of the trial court granting

summary judgment in favor of DPS is reversed, and the matter is hereby remanded for
 -34-

further proceedings consistent with this opinion.

.............

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Gary D. Plunkett
Rachel D. Siekman
David C. Korte
Michelle D. Bach
Joshua R. Lounsbury
Cheryl Nester
Hon. Barbara P. Gorman