[Cite as Hornschemeeier v. Buehrer, 2017-Ohio-7021.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
DWAYNE G. HORNSCHEMEIER, :
Plaintiff-Appellant, : CASE NO. CA2016-11-079
: OPINION
- vs - 7/31/2017
:
STEPHEN BUEHRER, ADMINISTRATOR, :
OHIO BUREAU OF WORKERS'
COMPENSATION, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2014CVD1261
Fox & Fox Co., L.P.A., Bernard C. Fox, Jr., M. Christopher Kneflin, P.O. Box 207, Amelia,
Ohio 45102, for plaintiff-appellant
Michael DeWine, Ohio Attorney General, Steven P. Fixler, 1600 Carew Tower, 441 Vine
Street, Cincinnati, Ohio 45202, for defendant-appellee, Stephen Buehrer
Scherner & Sybert, LLC, Brant K. Rhoad, Matthew S. Goff, 153 South Liberty Street, Powell,
Ohio 43065, for defendant-appellee, Access Management, LLC
RINGLAND, J.
{¶ 1} Plaintiff-appellant, Dwayne Hornschemeier, appeals the decision of the
Clermont County Court of Common Pleas, affirming the denial of his workers' compensation
appeal. For the reasons detailed below, we affirm.
Clermont CA2016-11-079
{¶ 2} Appellant injured his right knee while working for Access Management, LLC and
subsequently filed a workers' compensation claim. Appellant's claim was allowed for the
following conditions: "sprain right knee; lateral meniscus tear right knee; loose bodies right
knee." The Industrial Commission, however, disallowed appellant's claim for chondromalacia
of the right knee.
{¶ 3} Appellant filed an appeal and complaint with the Clermont County Court of
Common Pleas pursuant to R.C. 4123.512. Prior to trial, the Industrial Commission allowed
a new claim for osteoarthritis of the right knee. The appeal on the claim for chondromalacia
of the right knee was still pending at the time that the osteoarthritis condition was approved.
{¶ 4} The matter continued on the issue of whether the Bureau of Workers'
Compensation ("BWC") improperly disallowed appellant's claim for chondromalacia of the
right knee. A trial was held before a magistrate in which the only testimony introduced was
from appellant and his orthopedic surgeon. The magistrate found in favor of appellant and
concluded that appellant's claim for chondromalacia of the right knee should have been
allowed.
{¶ 5} The BWC filed objections to the magistrate's decision. The trial court found the
objections to be well-taken and declined to adopt the magistrate's decision. In so holding,
the trial court found that the testimony of appellant's orthopedic surgeon could only support a
finding that chondromalacia and osteoarthritis were "the same condition." Because
appellant's claim for osteoarthritis of the right knee had been allowed by the BWC, the trial
court found that the doctrine of res judicata applied. Accordingly, the trial court found in favor
of BWC and did not allow for the additional claim of chondromalacia of the right knee.
Appellant now appeals the decision of the trial court, raising three assignments of error for
review.
{¶ 6} Assignment of Error No. 1:
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Clermont CA2016-11-079
{¶ 7} THE TRIAL COURT ERRED AS A MATTER OF LAW IN APPLYING THE
DOCTRINE OF RES JUDICATA IN THIS CASE AS THE REQUIREMENTS FOR THIS
DEFENSE ARE NOT SATISFIED.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT'S RATIONALE IN ITS DECISION LEADS TO THE
CONCLUSION THAT CHONDROMALACIA CAN'T BE DISALLOWED AND TO DO SO
RUNS AFOUL OF THE WORKERS' COMPENSATION JURISDICTIONAL
REQUIREMENTS.
{¶ 10} Assignment of Error No. 3:
{¶ 11} THE DECISION OF THE TRIAL COURT CANNOT STAND AS IT
FRUSTRATES PUBLIC POLICY AND THE UNDERLYING PURPOSE OF THE WORKERS'
COMPENSATION SYSTEM.
{¶ 12} Appellant claims the trial court erred by finding that chondromalacia and
osteoarthritis are the same condition. Therefore, appellant claims that the trial court erred by
applying the principles of res judicata and disallowing the additional claim for
chondromalacia. We agree that res judicata was not the appropriate method of resolution.
Nevertheless, in reviewing the record, we conclude the trial court did not err by disallowing
the claim.
{¶ 13} The Ohio Supreme Court, citing long-established principles, has stated that
"an R.C. 4123.512 appeal is de novo, in which a claimant bears the burden of proving his or
her right to participate in the workers' compensation fund regardless of an Industrial
Commission decision." Bennett v. Admr., Ohio Bur. of Workers' Comp., 134 Ohio St.3d 329,
2012-Ohio-5639, ¶ 17. R.C. 4123.512(D) provides that "[t]he court * * * shall determine the
right of the claimant to participate or to continue to participate in the fund upon the evidence
adduced at the hearing of the action."
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{¶ 14} To establish a right to participate in the workers' compensation fund, a
claimant must show by a preponderance of the evidence: (1) an injury received in the course
of, and arising out of, employment, and (2) a proximate causal relationship between the injury
and the harm or disability. Bennett at ¶ 18; Strickler v. City of Columbus, 10th Dist. Franklin
No. 13AP-464, 2014-Ohio-1380, ¶ 8.
{¶ 15} This court reviews the trial court's decision denying appellant's right to
participate under a manifest weight of the evidence standard. Moore v. Buehrer, 1st Dist.
Hamilton No. C-140413, 2015-Ohio-3969, ¶ 9. When reviewing the manifest weight of the
evidence, this court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
finder of fact clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, ¶ 20.
{¶ 16} Based on our review, we conclude the trial court did not err by disallowing the
chondromalacia claim. As previously noted, there is no dispute that appellant was injured
while on the job. Appellant was allowed to participate in the fund for several reasons,
including osteoarthritis of the right knee, but disallowed for the condition of right knee
chondromalacia. Therefore, appellant is participating in the fund for his right knee
osteoarthritis. The sole issue is whether appellant should also be able to participate in the
fund for chondromalacia of the same knee.
{¶ 17} This is a case where appellant failed to sustain his burden of proof on the
issue. The only evidence of appellant's chondromalacia comes from the testimony of his
orthopedic surgeon. The surgeon testified that he diagnosed appellant with a right knee
sprain and right knee arthritis. Following an MRI, the surgeon testified that appellant "had a
lot of inflammation and a high-grade chondromalacia in the lateral joint compartment of his
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Clermont CA2016-11-079
knee." The questioning then continued:
Q. Okay. In English what does that mean?
A. Chondromalacia is a form of arthritis. There's stage 1 through
4, and 4 being the most severe it's down to raw bone, 1 is the
most mild it's a fraying of the articular cartilage.
Appellant's attorney again asked the surgeon about any distinction between chondromalacia
and osteoarthritis:
Q. Okay. And what is the difference between chondromalacia
and osteoarthritis?
A. Basically, it's a form of arthritis.
Q. Okay. So, they're the same thing basically?
A. Same thing, yeah.
{¶ 18} The distinction between chondromalacia and osteoarthritis was not further
discussed in the testimony. Furthermore, there are no other medical records, supporting
testimonies, or any other evidence in the record to clarify the distinction between
chondromalacia and osteoarthritis.
{¶ 19} As noted above, an R.C. 4123.512 appeal is de novo and the claimant bears
the burden of proving his right to participate in the fund regardless of the Industrial
Commission decision. It is undisputed that appellant is participating in the fund for
osteoarthritis of the right knee. The only evidence before the trial court was that osteoarthritis
and chondromalacia were the "same thing." This court's review is limited to consideration of
the facts in the record. Based on the facts of this case, this court has no other evidence to
rely on and therefore we find that appellant has failed to meet his necessary burden of proof
with respect to the chondromalacia claim. This issue is dispositive as to appellant's three
assignments of error. Accordingly, we find appellant's three assignments of error are without
merit and hereby overruled.
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{¶ 20} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
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