COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67038 JERRY L. LANHAM, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION THE EXCELLO SPECIALTY CO., ET AL., : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 230232 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Todd J. McKenna James D. Shelby 55 Public Square, Suite 1260 Cleveland, Ohio 44113-1992 For defendant-appellee, The Michael J. Bertsch Excello Specialty Co.: James M. Gibbons ARTER & HADDEN Huntington Building 925 Euclid Avenue, Suite 1100 Cleveland, Ohio 44115-1475 For defendant-appellee, Steven Sterner Bureau of Workers' Compensation: Assistant Attorney General State Office Tower 615 W. Superior Avenue Cleveland, Ohio 44113-1899 -2- NAHRA, J.: Appellant, Jerry L. Lanham, is appealing the trial court's order denying his motion for judgment notwithstanding the verdict and motion for a new trial. The jury determined that appellant was not entitled to participate in the worker's compensation fund for his carpal tunnel syndrome claim. Appellant contends the judgment was against the weight and sufficiency of evidence, the court erred in excluding certain evidence and the jury considered matters outside the evidence. For the following reasons, we affirm. Appellant testified that his employment prior to Excello did not involve repetitive hand movements. Appellant started working for appellee, The Excello Specialty Co., in 1984. He initially worked as a "floorman" and "ovenman," where his duties consisted of pushing and pulling racks of product. In 1986, he became a racker and repetitively racked polyurethane sheets at a rate of 270 an hour. In 1986, he noticed an unusual sensation in his hands and arms. The symptoms became progressively worse in 1987 and 1988. In 1988, Lanham held the position of printer. He fed polyurethane sheets into the printer at a rate of over 282 sheets per hour. This rate entitled him to a bonus pay. He could maintain this rate although he had pain and numbness in his hands after working a shift. In November 1988, appellant was rear-ended in a car accident. Appellant sustained pain in his left arm and neck. Appellant missed work from November, 1988 to January, 1989 because of the car accident. In December, 1989, appellant was diagnosed with carpal tunnel syndrome. Appellant filed a lawsuit -3- for the car accident, claiming carpal tunnel syndrome. The claim for carpal tunnel syndrome was deleted in an amended complaint. Appellant took medical leaves for three months in 1989, 1990 and 1991. He went on leave for six months in 1992 for corrective surgery for the carpal tunnel syndrome. In June of 1990, Excello started using an automatic roll press. The operator of this press monitored the press for malfunctions and did not perform any repetitive hand motions. Appellant worked on the automatic press 68% of the time, and on the manual M&M press 32% of the time. In December of 1990, appellant filed the subject worker's compensation claim. The claim form said the symptoms of carpal tunnel syndrome appeared one and a half years ago. Appellant had told Dr. Kim that the symptoms started in November of 1988. In deposition, appellant testified that the deep pain started after the car accident in 1988. A videotaped deposition of Dr. Mahajan was played at the trial. Dr. Mahajan examined appellant on November 9, 1993 and reviewed some of appellant's medical records. The doctor concluded appellant experienced carpal tunnel syndrome symptoms for eight or nine years, since 1984 or 1985. Carpal tunnel syndrome can develop over a long period of time. Dr. Mahajan opined that appellant's carpal tunnel syndrome was related to the repetitive hand work at Excello. Carpal tunnel syndrome may even have developed from appellant's work as an ovenman or floorman. Appellant's work -4- activity was different from the activity of the general public, because it involved more wrist movements. As to the car accident in 1988, Dr. Mahajan stated it could not have caused the carpal tunnel syndrome, but could have triggered symptoms of pre-existing carpal tunnel syndrome. He stated he based his opinion on appellant working full time on the manual press. The doctor was unaware that in June of 1990, appellant operated the automatic press the majority of the time. Dr. Mahajan stated a minimum of repetitive work may or may not cause carpal tunnel syndrome. Toni Haenel, the human resource coordinator at Excello testified that no worker's compensation claim for carpal tunnel syndrome has been filed in Excello's fifty-four years in business. The jury answered in the negative an interrogatory asking whether appellant contracted the carpal tunnel syndrome in the course of his employment with Excello. I. Appellant's first assignment of error states: THE JURY'S VERDICT WAS WHOLLY UNSUPPORTED BY THE EVIDENCE. The standard of review for sufficiency of evidence in a civil case is similar to the standard for determining whether to sustain a motion for judgment notwithstanding the verdict. Hartford Cas. Ins. Co. v. Easley (1993), 90 Ohio App.3d 525, 530. The standard is whether the plaintiff-appellant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor -5- of defendant-appellee. Id. If reasonable minds could only conclude that plaintiff was entitled to participate in worker's compensation, the evidence was insufficient to support the verdict. See Civ.R. 50. The jury found that appellant did not contract the occupational disease in the course of his employment with Excello. See R.C. 4123.68, Ohio Bell Telephone Co. v. Krise (1976), 42 Ohio St.2d 247. Evidence existed to show the carpal tunnel syndrome developed in 1984 or 1985, while appellant did not perform repetitive hand work at Excello until 1986. The doctor testified that appellant's work as a floorman and ovenman "could" cause the disease if the job involved repetitive motions. Thus, the jury could reasonably conclude that appellant contracted carpal tunnel syndrome before his employment at Excello. The question arises whether appellant can recover for aggravation of a pre-existing occupational disease. Appellant never raised the argument in the trial court that his employment at Excello aggravated a pre-existing condition. Thus, appellant is precluded from raising this issue on appeal. See State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, Athens County v. Wolf (1991), 77 Ohio App.3d 619. Additionally, it is questionable whether an employee can participate in worker's compensation for aggravation of a pre- existing disease. State ex rel. Miller v. Mead Corp. (1979), 58 Ohio St.2d 405, held that an employee could not participate for aggravation of a pre-existing disease, because R.C. 4123.68 limits -6- recovery to diseases contracted in the course of employment. One unreported case held that Miller has been overruled by Oswald v. Connor (1985), 16 Ohio St.3d 38. Makris v. Ornet (Aug. 26, 1988), Monroe App. No. 637, unreported. Two other appellate courts have held that Miller has not been overruled by Oswald, and the employee cannot recover for aggravation of a pre-existing disease. Brody v. Mihm (Sept. 13, 1993), Stark App. No. CA-9224, unreported, Heise v. Bureau of Worker's Compensation (June 9, 1993), Summit App. No. 15913, unreported. We need not resolve this issue, because appellant never raised the aggravation argument at trial. Thus, reasonable minds could reach different conclusions as to whether appellant contracted the occupational disease in the course of his employment with Excello, and was able to participate in the worker's compensation fund. There was sufficient evidence to support the jury's verdict. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, SINCE THERE WAS NO EVIDENTIARY BASIS FOR THE JURY TO LOGICALLY MAKE AN INFERENCE THAT THE PLAINTIFF'S OCCUPATIONAL DISEASE OCCURRED AS A RESULT OF ANYTHING OTHER THAN HIS EMPLOYMENT WITH DEFENDANT. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. There was -7- competent, credible evidence from which the jury could infer that appellant contracted carpal tunnel syndrome other than from his employment with Excello. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT SUSTAINED DEFENDANT-APPELLEE'S MOTION TO STRIKE CERTAIN DEPOSITION TESTIMONY OF DR. MAHAJAN. The plaintiff asked Dr. Mahajan at deposition: And if the employee were only doing that sort of work for ten (10%) or twenty percent (20%) of his time, and that work were intensive in terms of its quantity or the amount of production required of the employee, would it then be more probable than not that that would lead to a carpal tunnel injury? This question refers to plaintiff's work after June, 1990, where he 1 spent an estimated 80% of his time on the automatic press. The trial court sustained an objection to this question because the answer would be ambiguous whether 10% or 20% would lead to a carpal tunnel injury. Although no proffer was made, the content of the evidence was apparent from the discussion of the parties during the ruling on objections, and from the transcript of the deposition, which was adopted as the trial transcript. No proffer is needed if the evidence is apparent from the record. See Evid.R. 103(A), Birath v. Birath (1988), 53 Ohio App.3d 31. 1 The 80% figure referred to at Dr. Mahajan's deposition was revised to 68% at trial. -8- Error can only be predicated upon the exclusion of evidence if exclusion affects a substantial right of a party. Id. Exclusion of the evidence in question does not affect a substantial right of appellant. Appellant was diagnosed with carpal tunnel syndrome in December, 1989. Appellant did not claim aggravation of the carpal tunnel syndrome. Thus, whether appellant's work activities after December, 1989 could lead to carpal tunnel syndrome was irrelevant. Appellant was not prejudiced by the exclusion of this evidence. See Civ.R. 61. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE JURY FAILED TO FOLLOW THE INSTRUCTION OF THE COURT WHEN IT CONSIDERED MATTERS THAT WERE NOT IN EVIDENCE AND THAT WERE NOT IN ISSUE IN THIS CASE. During deliberations, the jury submitted the following question to the judge: If the jury feels that the defendant had a work- related injury but was not related to his work at Excello, would he be permitted to participate in the Workers' Compensation Fund? The answer given to the jury, with the concurrence of the attorneys for both parties was, "no." Appellant never objected to this answer. He now contends the answer was incorrect, because he can recover for aggravation of a pre-existing disease. If any error occurred, appellant invited the error, so he cannot raise the error on appeal. Hasapes v. Drake (1970), 24 Ohio St.2d 1, State v. Combs (1991), 62 Ohio St.3d 278. No error -9- occurred, because appellant never argued that his work at Excello aggravated a pre-existing disease. A jury instruction on aggravation of a pre-existing condition cannot be given if no such claim was asserted at trial. See State v. Pecora (1993), 87 Ohio App.3d 687, 690. Even if appellant could recover for aggravation of a pre-exisitng disease, the answer to the jury's question would still be "no." If the jury felt appellant's condition was "not related" to his employment at Excello, appellant could not recover for aggravation of the disease. Appellant contends the jury considered matters outside the record, because there was no evidence appellant's employment prior to Excello involved repetitive hand work. The jury could infer appellant contracted carpal tunnel syndrome at a prior employer from the evidence that appellant had symptoms in 1984 and 1985. Appellant started working for Excello in 1984, and did not perform repetitive hand work at that time. The jury did not consider matters outside the evidence, but made a reasonable inference based on the evidence. Accordingly, this assignment of error is overruled. IV. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR FOR A NEW TRIAL. The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts -10- established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, quoting Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275. As discussed above, viewing the evidence in a light most favorable to Excello, reasonable minds could reach different conclusions as to whether appellant was entitled to participate in the worker's compensation fund. The trial court did not err in denying the appellant's motion for judgment notwithstanding the verdict. Appellant was not entitled to a new trial under either Civ.R. 59(A)(6) or (A)(7). As discussed above, the verdict was supported by the weight and sufficiency of the evidence. The judgment was not contrary to law. Appellant asserts no error which would require a new trial. See Civ.R. 61. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -11- It is ordered that appellees recover of appellant their 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., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA JUDGE 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. .