COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59122 JOHNNY L. TORRES : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GENERAL MOTORS CORPORATION, : C.P.C. GROUP, PARMA PLANT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 21, 1991 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 124,663 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: GERALD A. BERK, ESQ. THOMAS M. CAROLIN, ESQ. STEUER, ESCOVAR & BERK SEELEY, SAVIDGE & AUSSEM The Illuminating Building 800 Baker Building 55 Public Sq., 18th Floor 1940 East Sixth Street Cleveland, Ohio 44113-1977 Cleveland, Ohio 44113-2239 Q.A. CORSI, ESQ. ASST. ATTORNEY GENERAL State Office Building, 12th Fl. 615 West Superior Ave. Cleveland, Ohio 44113-1899 - 2 - J.F. CORRIGAN, J., Appellant, General Motors Corporation, appeals from the decision of the trial court granting the application of appellee, Johnny Torres, for participation in the Workers' Compensation Fund. For the reasons set forth below, we affirm. I. Appellee commenced this action by filing an Application for Payment of Compensation and Medical Benefits with the Industrial Commission of Ohio for a back injury he suffered at work. The Industrial Commission initially granted appellee the right to participate in the Workers' Compensation benefits program. The claim was disallowed, however, by the Industrial Commission's Staff Hearing Officers under the authority of R.C. 4121.35(B)(6). Appellee then appealed that decision to the Cuyahoga County Court of Common Pleas. The matter proceeded to jury trial on December 13, 1989. In support of his claim, appellee testified that on September 5, 1985 he felt soreness and stiffness in his lower back and legs, after completing a task at work which required heavy lifting. Appellee did not report this to the nurse on duty and was able to sleep that night with the aid of muscle relaxant drugs. Further, appellee testified that on September 6, 1985, this soreness and stiffness continued, and that while at work on the 6th his back "popped" causing him severe pain. Appellee reported to the nurse at work and was sent home. On September - 3 - 23, 1985, after appellee had undergone a battery of diagnostic tests, a lumbar laminectomy was performed by Dr. Pradist Satayathum. Finally, appellee testified that in 1983, two years prior to this incident, he injured his back while at home and was treated by Dr. Satayathum. Appellee testified that the 1983 injury was treated with an injection into his spine, and that he had fully recovered before the 1985 incident. Dr. Satayathum testified on behalf of appellee. Dr. Satayathum testified that in 1983 he treated appellee for a herniated disk, L4-L5, left. This was treated by injecting Chymopapain to dissolve the herniated portion of the disk. Dr. Satayathum did not see or treat appellee between September 14, 1983, when it was determined that appellee had recovered, and September 13, 1985, when appellee was examined for the work related injury. Dr. Satayathum testified that on September 13, 1985, appellee came to his office with complaints of back and leg pain. Dr. Satayathum diagnosed appellee's injury as a recurrent herniation, L4-L5, right. Dr. Satayathum explained "recurrent" as a herniation "at the same level, L-4, L-5, as the 1983 herniation." This herniation was, however, to the right side of the disk. Dr. Satayathum testified that in his opinion this was not an aggravation of the 1983 injury. Finally, Dr. Satayathum testified that the events of - 4 - September 5, 1985 were the direct and proximate cause of appellee's injury. Appellee's wife, Patricia Torres, testified on his behalf as well. Mrs. Torres testified that on the night of September 5, 1985, appellee returned home from work very irritable, complaining of back pain and stiffness. Mrs. Torres observed an "L" shaped swelling on her husband's back. Finally, Mrs. Torres testified that her husband slept on the living room floor that evening, and that she gave him a muscle relaxant drug to ease his pain. Finally, Robert Harvey, a co-worker of appellee at General Motors, testified on appellee's behalf. Harvey testified that on the night of September 5, 1985, he and appellee were required to do some heavy lifting at work. Harvey did not notice if appellee was injured at that time. In defense of this action General Motors submitted the testimony of Dr. Gary Katz. Dr. Katz testified that he could "go along with" Dr. Satayathum's diagnosis of a herniated disk in 1985. Dr. Katz, however, felt from his examination that appellee's injury was unrelated to the events of September 5 and 6, 1985. Appellant also called MaryLou Hejra to the witness stand. Miss Hejra is the administrator of benefits for General Motors. Through this witness appellant introduced a medical complaint form appellee filled out at work on September 6, 1985. In that - 5 - complaint form appellee stated that he felt stiffness in his back after heavy lifting on the 5th of September, 1985, and pain after twisting his back on the 6th of September. II. For its first assignment of error appellant contends that the trial court erred in failing to grant appellant's motion for a directed verdict. The only issue before the Court of Common Pleas in an appeal from the Industrial Commission in a workmen's compensation case is the right of the claimant to participate or continue to participate in the State Insurance Fund, and the claimant has the affirmative of such issue and the burden of initially going forward with the proof. Zuljevic v. Midland Ross Corp. (1980), 62 Ohio St. 2d 116, 118; Swift & Co. v. Wreede, (1959), 110 Ohio App. 252. "In order to establish a right to workmen's compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his accidental injury and his harm or disability. *** The jury may determine the issue of proximate cause from the evidence on the basis of probabilities and not necessarily on the basis of absolute fact." (Emphasis added.) Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 576. At the close of appellee's case appellant made an oral motion for a directed verdict arguing that viewing the evidence - 6 - most strongly in favor of appellee, reasonable minds could not conclude that appellee sustained a herniated disk as a result of the heavy lifting on September 5, 1985. This argument is premised on appellant's belief that the Industrial Commission was not presented with the issue of appellee's injury on September 6, 1985, and therefore the Common Pleas Court lacked jurisdiction to determine that issue. We find appellant's premise in this argument to be false. The Workers' Compensation Statute, specifically R.C. 4123.01 thru 4123.94, is to be construed liberally in favor of the employee. R.C. 4123.95. The injury suffered by appellee was brought to the attention of the Industrial Commission, as was the course of events causing that injury. Therefore, appellee need only demonstrate that his injury meets the parameters set forth in Fox, supra. Civ. R. 50(A)(4) provides for a directed verdict where: "*** the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party." After reviewing all of the evidence presented at trial, we find that at the close of appellee's case, and again at the close of the entire case when appellant's motion was renewed, a directed verdict in favor of appellant would have been inappropriate. Appellee presented expert medical testimony that his injury, a herniated disk L4-L5, right, occurred while he was - 7 - at work and arose in the course and scope of his employment. Further, appellant's expert Dr. Katz "went along with" Dr. Satayathum's diagnosis and decision to operate. Based upon the foregoing facts, and the well established legal precept that the weight of the evidence and credibility of witnesses are matters to be determined by the jury, we find that appellant's first assignment of error is not well taken. III. For its second assignment of error appellant contends that the trial court erred in instructing the jury on the issue of aggravation of a pre-existing condition. Appellant's argument here is twofold. First, appellant argues that the aggravation of a pre-existing condition was never addressed administratively before the Industrial Commission. Second, appellant argues that no evidence of an aggravation of a pre-existing condition was set forth by appellee's expert witness. Appellant cites this court's decision in Ana Vinkovic v. MacMillan Bloedel Containers (Dec. 15, 1983), Cuyahoga App. No. 46825, unreported, and the case of Wilson v. Mayfield (Dec. 9, 1987), Fairfield App. No. 21-CA-87, unreported, for the proposition that a claimant may only appeal that which was presented before the Industrial Commission. This court stands behind that premise, however, appellant's reliance thereon is misapplied. In both of the above cited cases, the claimant - 8 - presented one injury before the Industrial Commission (Vinkovic, right arm; Wilson, back) and another injury to the Court of Common Pleas (Vinkovic, left arm; Wilson, knee). In both cases a new, separate and distinct injury was presented to the Common Pleas Court. In the case before this court the injury, a herniated disk, L4-L5, right, was presented to the Industrial Commission. The Industrial Commission took expert medical evidence concerning this injury and lay testimony as to its cause. Appellee has not asserted a new injury, for the first time, at the trial level. Further, as has been stated earlier in this opinion, R.C. 4123.01 and R.C. 4123.94 must be liberally construed in favor of the claimant. R.C. 4123.95. Finally, the testimony of Dr. Satayathum clearly established an issue of fact with regard to the aggravation of a pre-existing injury. As such the issue was properly presented to the jury for consideration. For these reasons we find that appellant's second assignment of error is not well taken. IV. For its third assignment of error appellant contends that the jury verdict was against the manifest weight of the evidence. In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, the court stated that: - 9 - "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." Id. at the syllabus. Our review of the record reveals that there was sufficient, competent, and credible evidence for the jury to reach the conclusion that appellee was entitled to participate in the Workers' Compensation Fund. The testimony of appellee revealed that the injury occurred while at work and in the course and scope of his employment. The testimony of Dr. Satayathum revealed the proximate relationship between the injury and the work related causation. While the testimony of Dr. Katz contradicted that of Dr. Satayathum, Dr. Katz's final conclusion was that he would "go along with" Dr. Satayathum's diagnosis and treatment. For these reasons we find that appellant's third assignment of error is not well taken. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. DYKE, P.J., and FRANCIS E. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .