COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60198 CITY OF BEDFORD HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION RONALD T. FRANCE, DEC'D, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT APRIL 16, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 177029 JUDGMENT: Reversed and judgment entered for employer. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: Charles E. Merchant Robert Shepard Katharine Lang Bettasso John A. Sivinki 700 West St. Clair Avenue 9th Floor, The Halle Building Hoyt Block - Suite 210 1228 Euclid Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44115-1802 Anthony J. Celebrezze, Jr. Attorney General Diane Karpinski, Assistant Attorney General 12th Floor, State Office Bldg. 615 Superior Avenue Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Plaintiff-appellant, City of Bedford Heights ("City") appeals from a jury verdict permitting claimants, defendants-appellees in this case, to participate in the Worker's Compensation Fund of Ohio. Claimants are Mary France McNerney and Ryan France, widow and son of former Bedford Heights Patrolman Ronald France, deceased. Ronald France was 27 years old, with no history of vascular disease, when a pulmonary embolism caused his death on March 11, 1986. On the evening of March 10, 1986, France was on night duty, from 10:30 p.m. until 6:30 a.m. He was assigned to patrol Zone 4 in the City of Bedford Heights, an industrial and residential area of approximately four and one-half square miles. Trial testimony indicated that he responded to two police calls, one lasting for one half-hour, the other for over two and one-half hours. Aside from two coffee breaks and refueling, he spent the remainder of his shift performing routine patrol in his police cruiser. After going off-duty at 6:15 a.m. on March 11, Officer France returned home. At trial, claimant Mary France McNerney testified that France appeared extremely pale and tired when he arrived, and that he went directly to bed instead of having breakfast as was his usual routine. Mary France left the house at approximately 7:00 a.m., and, when she returned home at about 1:30 p.m., she discovered her husband lying half on the floor, with his feet still in the bed, wrapped in the bed sheets and appearing very blue. Her attempts at resuscitation were - 2 - unsuccessful, and doctors pronounced him dead at Marymount Hospital at 2:23 p.m., March 11, 1986. The cause of death was "pulmonary thromboembolus, site of origin undetermined with hemorrhage infarct of lung, left, early." Claimants filed for death benefits with the Ohio Bureau of Workers compensation pursuant to former O.R.C. Section 4123.68 (BB) (now Section 4123.68). A district hearing officer determined that the Frances were entitled to death benefits. On May 11, 1989, the Cleveland Regional Board of Review affirmed this decision. The Industrial Commission of Ohio refused to hear the city's appeal, and the city then appealed to the common pleas court, pursuant to O.R.C. Section 4123.519. At trial, claimants presented the testimony of two expert witnesses, Dr. Bennett Levine, M.D. and Dr. Allan Harris, M.D., through videotaped depositions. Their testimony revealed that a pulmonary embolism is a condition in which a blood clot, formed elsewhere in the body, travels to and obstructs the blood flow in the lungs. Dr. Harris stated that such blood clots typically form following surgery, trauma or stasis of the blood (the slowing of blood flow) in the lower extremities. Dr. Levine testified that bed rest, prolonged sitting or prolonged inactivity from any cause can lead to the formation of such blood clots. Both doctors opined that Officer France's death by pulmonary embolism was caused by the immobility inherent in his job duties as a police officer. - 3 - Claimants also presented Lieutenant Mark Kwiatkowski of the Bedford Heights Police Department as a witness. He described Ronald France's usual duties as well as his activities on the night of March 10, 1986. Claimant Mary France McNerney verified Officer France's appearance and behavior when he returned home on the morning of March 11, 1986. At the close of claimants' evidence, the City moved for a directed verdict. The trial court denied this motion. The city then presented the testimony of two Bedford Heights Police Officers, one of whom, Executive Lieutenant Robert Hagquist, testified that it would be highly unusual for a police officer to spend five to six hours seated in his vehicle without getting out. He also stated that officers are free to leave their vehicles at any time. The city then presented the expert testimony of Dr. William Bruck. At the close of all evidence, the city renewed its motion for directed verdict, which was again denied. The jury found that claimants were entitled to receive death benefits under the Ohio Worker's Compensation Fund. Appellant City of Bedford Heights, in their timely appeal, raise four 1 assignments of error. 1 See Appendix. - 4 - In the first assignment of error, the city argues that the trial court erred in refusing to submit interrogatories to the jury as requested by the city pursuant to Civ. R. 49(B). We need not reach the merits of this claim because the city has failed to make the proposed jury interrogatories a part of the trial record. App. R. 9(B) clearly places the burden of compiling the record on appellants. Although the city has attached the proposed interrogatories to its brief on appeal, as this court held in Brookridge Party Center, Inc. v. Fisher Foods, Inc. (1983), 12 Ohio App. 3d 130, at 137, we cannot consider interrogatories attached to a party's appellate brief where such interrogatories were not proffered into the record, else we would "disregard all the safeguards for accuracy and reliability of a proper appellate record." An appellate court must limit its review of possible errors exemplified in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197. The first assignment of error is overruled. Because the second and third assignments of error address whether claimants produced any evidence tending to prove the elements of a compensable occupational disease under former R.C. Section 4123.68(BB) as outlined by the Ohio Supreme Court in State, ex rel. Ohio Bell Tel. Co. v. Krise (1975), 42 Ohio St. 2d 247, and whether such evidence was sufficient to survive the - 5 - city's motion for directed verdict, we shall address these two assignments together. In ruling on a Civ. R. 50 motion for directed verdict, the trial court must construe the evidence in favor of the party against whom the motion is directed and determine whether reasonable minds could come to but one conclusion. "The 'reasonable minds' test *** calls upon the court only to determine whether there exists any evidence of substantial probative value in support of that party's claim." Ruta v. Brickenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69. The court's role is not to weigh the evidence but to determine its legal sufficiency. Id. at 68. See, also, Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St. 3d 71, 74-75; Eldridge v. Firestone Fire & Rubber Co. (1985), 24 Ohio App. 3d 94. A trial court, therefore, "must direct a verdict in favor of the defendant when there is no evidence tending to prove an essential element of the plaintiff's cause of action." Job v. Cleveland Dance Center (1989), 62 Ohio App. 3d 678, paragraph four of syllabus. See, also, Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App. 3d 463. In the case sub judice, claimants were required, in order to prove their eligibility for worker's compensation benefits under former Section 4123.68(BB), to present evidence proving the three elements outlined in Krise, supra, which are as follows: "(1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the - 6 - characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally." Id., at syllabus. With regard to the first prong of the test set out in Krise, supra, claimants presented testimony at trial through the videotaped depositions of Dr. Levine and Dr. Harris that Ronald France was in good health with no prior vascular disease or blood disorders. Drs. Levine and Harris each stated that it was his opinion that there was a direct correlation between Officer France's duties on the night shift and the development of thrombosis in the lower extremities. Claimants further presented the testimony of Mary France McNerney who stated that her husband exhibited no signs of sickness or exhaustion before leaving for work on the night of March 10, but did exhibit these symptoms the following morning. We conclude that appellees presented sufficient evidence that Ronald France acquired the disease in the course of his employment by the city, in satisfaction of the first prong of the Krise test. The second prong of Krise, that "the disease is peculiar to the claimant's employment" does not require that claimant demonstrate that persons in the same occupation are more susceptible to the disease than the general public, but that the claimant himself, in his own daily activities, was more apt than - 7 - the general public to acquire the disease. Job, supra at 687; Patterson v. Connor (1984), 19 Ohio App. 3d 304, 306. To prove this element, Dr. Levine testified that, in his opinion, Ronald France was at greater risk of developing a pulmonary embolism than the general public because of the immobility inherent in Officer France's job duties. Dr. Levine, however, also testified as to other situations which could result in stagnation, or stasis of the blood flow in the legs. He named bed rest, prolonged sitting or any prolonged inactivity, including airplane rides or automobile trips, as possible situations in which the risk of blood clotting was present. Similarly, Dr. Harris testified that, in his opinion, France was "at greater risk to develop the thrombosis and pulmonary emboli than the average population doing whatever kind of work." He later acknowledged, however, that a thrombosis could happen to a member of the general public while taking a trip; that a pulmonary embolus could develop in his own legs if he remained seated at the deposition over the course of eight hours with short breaks to stretch his legs; and that he could not differentiate policemen from truck drivers or secretaries who sit at a desk all day. Therefore, the expert testimony presented by claimants to show that Officer France's disease was peculiar to his employment was qualified by the expert witnesses to show that such risks were common to any member of the public whose employment involved significant periods of immobility. Construing this evidence in - 8 - favor of claimant, we conclude that there was insufficient evidence to establish that Officer France's disease was peculiar to his employment or that his employment resulted in a hazard which distinguished it from employment generally. The third prong of Krise, somewhat similar to the second, requires that a claimant demonstrate that his employment created a "risk of contracting the disease in a greater degree and in a different manner than in the public generally." Id. As stated above, each of claimants' expert witnesses posited that Officer France was at greater risk of developing thrombosis in the lower extremities because of the prolonged inactivity over the course of his night duty. Claimants' witnesses, however, presented no evidence that Officer France contracted his condition in a different manner than the public generally. In fact, both witnesses testified that a long automobile trip was one of the situations in which a member of the general public could develop a thrombosis in the lower extremities. Dr. Levine testified that, in his experience as a physician, he had patients who experienced blood clotting due to automobile or bus trips. He also stated that an automobile trip as short as one hour could lead to the formation of blood clots in the leg, and that it was possible that Ronald France could have developed a blood clot by sitting immobile for two hours at home. Dr. Harris, while naming surgery, trauma and bug bites as frequent risk factors for the development of thrombophlebitis, also testified that stasis of the lower extremities is one of the - 9 - major risk factors associated with this condition. He testified that he advises his patients, when taking a long automobile ride, such as from Cleveland to Miami, or even from Cleveland to Cincinnati, to get out of the car frequently and exercise the legs to get their circulation going. On the basis of this testimony, construing it most favorably to the claimants, we find that the evidence was insufficient to establish that Officer France's employment created a risk of contracting a pulmonary embolism in a greater degree and in a different manner than in the public generally. Because there was insufficient evidence to establish the second and third prongs of the Krise test supra, the city's motion for directed verdict should have been granted. Accordingly, the city's second and third assignments of error are well taken. In their fourth assignment of error the city challenges the jury's verdict as against the manifest weight of the evidence. A judgment supported by some competent, credible evidence shall not be reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio st. 2d 279. Further, the weight to be given the evidence and the assessment of witness credibility is within the purview of the trier of - 10 - fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. As discussed above, claimants presented the testimony of Dr. Levine and Dr. Harris and of Lt. Kwiatkowski, tending to prove the first element of the Krise test of eligibility for worker's compensation benefits. Claimants produced insufficient evidence, however, to prove that Officer France's employment created a hazard distinguishing it from employment generally, in satisfaction of the second prong of Krise, supra. Furthermore, claimants produced no evidence tending to prove that Officer France contracted his condition in a different manner than the public generally, in satisfaction of the third prong of Krise. Because there was not competent, credible evidence going toward these essential elements of claimant's proof, the jury's verdict should be reversed as against the manifest weight of the evidence. This assignment of error is sustained. Judgment reversed, and judgment entered for appellant City of Bedford Heights. - 11 - It is ordered that the parties shall divide the costs taxed herein equally. 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. KRUPANSKY, J., CONCURS; SPELLACY, J., DISSENTS. (Dissent attached to Journal Entry and Opinion). PRESIDING 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. - 12 - APPENDIX Appellant's assignments of error are: I "The trial court erred to the prejudice of the City of Bedford Heights by refusing to submit interrogatories to the jury, upon a timely request, pursuant to Civ. R. 49(B)." II "The trial court erred to the prejudice of the appellant by denying the City's motion for directed verdict in that appellees failed to produce evidence that decedent's thromboembolus was peculiar to his employment by its causes and the characteristics of its manifestations or any evidence that decedent's employment created a condition which resulted in a hazard of contracting a thromboembolus, which condition distinguishes decedent's employment from employment generally. "A. Appellees produced no evidence that decedent's thromboembolus was peculiar to his employment by its causes and the characteristics of its manifestation or that conditions of decedent's employment resulted in a hazard which distinguishes the employment in character from employment generally." III "The trial court erred to the prejudice of appellant by denying the City's motion for a directed verdict in that appellees failed to introduce sufficient, competent, probative evidence to satisfy the third requirement of the Krise test. "A Appellees produced no evidence that decedent's employment created a risk of contracting a thromboembolus in a greater degree than the risk to which the public, generally, is exposed. "B Appellees produced no evidence that decedent's employment created a risk of contracting a thromboembolus in a different manner than the risk to which the public, generally, is exposed." IV "The finding of the jury that Ronald France suffered from an occupational disease under Ohio Law allowing his dependents to share in the worker's compensation fund was against the manifest weight of the evidence." COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60198 CITY OF BEDFORD HEIGHTS : : : PLAINTIFF-APPELLANT : : DISSENTING v. : : OPINION RONALD T. FRANCE, DEC'D, ET AL. : : : DEFENDANT-APPELLEES : DATED APRIL 16, 1992 SPELLACY, J., DISSENTING: I must respectfully dissent from the majority's sustaining of appellant's second, third and fourth assignments of error. First, I disagree with the majority's finding that there was insufficient evidence to establish the second and third prongs of the Krise test. Second, I disagree with the trial court's conclusion that the jury's verdict was against the manifest weight of the evidence. With regard to the second prong of the test set forth in State, ex rel. Ohio Bell Tel. Co. v. Krise (1975), 42 Ohio St. 2d 247, in order for the disease to be contracted in the course of employment, the claimant must demonstrate that "the disease was peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a - 2 - hazard which distinguishes the employment in character from employment generally. Id. at syllabus. It must be demonstrated that in Ronald T. France's daily work activities, he was more apt than the general public to acquire the relevant unscheduled disease. Patterson v. Connor (1984), 19 Ohio App. 3d 304, 306. I am inclined to find that appellees presented ample evidence that Ronald T. France's pulmonary embolism was peculiar to his work and that he had a greater risk of contracting it in a different manner than did the public generally. Appellees presented the testimony of two physicians concerning the peculiarity of the disease to Ronald T. France's employment. Both Dr. Levine and Dr. Harris explicitly opined that Ronald T. France's employment resulted in a hazard which distinguished his employment in character from the employment generally. They both believed that Ronald T. France's work required him to spend long periods of immobility and lack of activity. This led to stagnation in his legs, which ultimately led to the formation of blood clots and a pulmonary embolism. I conclude that Dr. Levine and Dr. Harris's testimonies demonstrated that in Ronald T. France's daily work activities, he was more apt, than the general public, to suffer a pulmonary embolism. Accordingly, I determine that there was sufficient evidence to establish the second element. I further find that there was sufficient evidence from which the jury could infer that appellees met the third prong of Krise, - 3 - supra, i.e. that Ronald T. France's employment created "a risk of contracting the disease in a greater degree and in a different manner than in the public generally." Krise, supra, at syllabus. Both Dr. Levine and Dr. Harris specifically stated that Ronald T. France had a greater risk and likelihood of developing a blood clot and a pulmonary embolism than the general public. Dr. Levine and Dr. Harris both testified that the general public can get blood clots as a result of surgery, trauma or vascular disease. However, Ronald T. France's employment exposed him to long periods of inactivity which resulted in his blood clots. In light of the foregoing, I conclude that one could find that sufficient evidence was submitted regarding the third element. Therefore, I find that sufficient evidence did exist, which, when construed in a light most favorable to appellees, would cause reasonable minds to reach different conclusions concerning the issue of whether Ronald T. France suffered an occupational disease, thus, entitling appellees to participate in the Worker's Compensation Fund. I conclude that the trial court properly submitted this matter to the jury, and appellant's second and third assignments of error should be overruled. Upon carefully reviewing the entire transcript and record in this case and giving the proper deference to the jury's findings, I further find that its judgment is supported by competent and credible evidence. The jury simply chose to believe the testimony and evidence presented by appellees. - 4 - Appellees presented the testimony of two physicians who basically concluded that Ronald T. France suffered an occupational disease while he was employed with appellant. It was for the jury to determine the weight and credibility of these two physicians and the physician presented by appellant. I am unable to say that the jury's judgment was against the manifest weight of the evidence. Thus, I conclude that appellant's third assignment of error should be overruled. .