COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59386 LOCAL 400 HEALTH & WELFARE FUND : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : LUCINDA DOMINICK, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT November 27, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Court Case No. 142747 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: Rudolph J. Geraci Charles S. Tricarichi 2191 East 19th Street 55 Public Square Cleveland, Ohio 44115 Suite 2120 Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: This appeal raises the issue of the liability of an health care insurer to pay benefits on a claim when the beneficiary has previously certified her condition to be work-related. Lucinda Dominick and her husband, John, are beneficiaries under a comprehensive health care plan sponsored by Local 400 Health and Welfare Fund ("the Fund"). In 1978, Lucinda Dominick, sustained injuries from a fall while working at Cook United, Inc. The Industrial Commission of Ohio determined her condition to be compensable. Three years later, Dominick had surgery to repair a herniated disc which she believed was causally related to the fall suffered in 1978. Dominick filed a C-85A claim with the Bureau of Workers' Compensation seeking to reactivate her claim and requested an additional allowance for necessary surgery in the amount of $6,020.83. Dominick's physician, Dr. Pete Poolos, certified to the Bureau that her surgery was performed by reason of a work-related injury. The Bureau District Hearing Officer, however, denied Dominick's application to re-activate the claim. He found that Dominick's back injury was unrelated to the original injury and, therefore, was not work-related. Dominick appealed to the Regional Board of Review which, in turn, affirmed the District - 2 - Hearing Officer's determination. The Industrial Commission refused to hear the claim. Dominick appealed that order to the court of common pleas. Before trial commenced, she entered into a settlement of her claim with her employer, Cook United, for three thousand dollars. As part of the settlement, Cook United expressly denied liability for compensation. Shortly thereafter, Cook United filed for bankruptcy and Dominick could not recover any portion of the settlement. After exhausting all administrative remedies, Dominick submitted her surgical bill to the Fund under her husband's health care plan, in which she was a named dependent. The Fund then filed this action seeking a declaratory judgment that, under the terms of the health care plan, the Fund was not required to pay. The Fund posited that Dominick's injury, by her admission and her doctor's opinion, was work-related. After a bench trial, the court found in favor of Dominick and ordered the Fund to pay the surgical bill plus costs. The court denied, however, Dominick's motion for attorney fees. It is from these orders that this appeal and cross-appeal are taken. The Fund raises one assignment of error, claiming the trial court's judgment was against the manifest weight of the evidence. Dominick complains that the court erred in not awarding attorney fees. We will address the Fund's argument first. - 3 - The standard for reviewing a challenge to the manifest weight of the evidence in a civil case is whether the judgment is "supported by some competent, credible evidence going to all the essential elements of the case ***." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, citing C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. An appellate court is "guided by a presumption that the findings of the trier- of-fact were indeed correct." Seasons Coal Co., supra, at 80. Moreover, we are mindful that the evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The Fund refused to pay Dominick's surgical bill since she averred she believed her back condition was related to the on- the-job fall in 1978. Plaintiff also relies on the opinion of Dominick's treating physician, Dr. Poolos, who opined her recent injury may have been work-related. Dr. Poolos stated "her original injury to the disc may very well have occurred then [in 1978], although the actual herniation may have happened in May of 1980 when the pain became severe and remained constant." The Fund argues, since this injury is work-related, it is not covered under the plan. Section D(8) of the plan provides: "All benefits described in the Comprehensive Health Care Plan are payable only for (a) accidental bodily injuries which do not arise out of and in the course of any employment for wage or profit or (b) diseases, illnesses, or other conditions for which the Participant is not entitled to a benefit under any Worker's Compensation Law or Act." - 4 - Dominick proffered into evidence a letter written by Dr. Dennis B. Brooks who examined defendant in 1983. Dr. Brooks stated Dominick initially suffered injuries to her back in 1980 when "she slipped on stairs" in her home. He concluded, "I do not believe that this [herniated disc] surgery was related to the accident of August 26, 1978." Dominick also offered the expert testimony of Alan Shapiro, an attorney with twenty-seven years experience in the field of workers' compensation. Mr. Shapiro testified that the claim for back surgery was denied at all three administrative levels of the Bureau of Workers' Compensation since the injury was deemed unrelated to the on-the-job fall in 1978. He also averred that, since a settlement was entered into between Dominick and her employer prior to trial in common pleas court, the order and determination made by the Industrial Commission stands. The trial judge placed great weight in the Bureau's finding that Dominick's back injury was not work-related. He was not persuaded by the fact that she thought her disc injury may have been related to the 1978 fall. We find the trial judge's determination was reasonable and supported by competent, credible evidence. Thus, we affirm the trial court's finding that Dominick's surgical bill is covered under her health care plan. Accordingly, this assignment of error is overruled. - 5 - Dominick's cross-assignment of error, urges that the court erred in denying her motion for attorney. The decision to award attorney fees and the amount thereof are within the discretion of the trial court. Cassaro v. Cassaro (1976), 50 Ohio App. 2d 368. Generally, courts will deny the recovery of attorney fees absent a statutory provision allowing attorney fees as costs or unless the party against whom the fees are taxed was found to have acted in bad faith. State ex rel. Durkin v. Urgaro (1988), 39 Ohio St. 3d 191, 193. In declining to award attorney fees, the trial court observed: "I see no impropriety in what the Local 400 did. There was a legitimate question of fact, legitimate legal question, if you will. I think the Local had a perfect right to pursue this case. "I would not allow attorney fees, Miss Tricarichi, in a circumstance like this. It would deprive them of the opportunity to come to court, although, I have seen a lot of cases where I think the attorney fees should be assessed, but I think this was just an honest disagreement and it was litigated and the Court has ruled." Since there was no evidence of bad faith on the part of the Fund in bringing this action, we find no abuse of discretion in the court's denial of attorney fees. Accordingly, the cross-assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant her 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 Common Pleas 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. DYKE, P.J., JAMES SWEENEY, J., CONCUR. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .