COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67766 JAMES MINA : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SOUTHWEST GENERAL HOSPITAL, : ET AL. : : : Defendant-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 17, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-232671 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DAVID J. BRIGGS Sammon & Bolmeyer Co. 1160 Rockefeller Bldg. 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For Defendant-Appellants: WILLIAM L.S. ROSS JILL C. BOLAND FRED J. POMPEANI Calfee, Halter & Griswold Suite 1800 800 Superior Avenue Cleveland, Ohio 44114-2688 - 2 - O'DONNELL, J.: Appellants, Southwest General Hospital and the Ohio Bureau of Workers' Compensation, appeal from the common pleas court jury verdict finding appellee James Mina entitled to participate in the workers' compensation fund for an injury he received while employed at Southwest General Hospital. On January 3, 1990, appellee, a registered nurse, injured his back while attempting to move a patient. Appellee went immediately to the hospital's emergency room where an examination revealed "acute exacerbation of chronic low back syndrome". Southwest then transferred appellee to Lutheran Medical Center where after a one-week stay, Lutheran released appellee, but continued treatment for his injury. This treatment did not resolve appellee's back problems and, on March 5, 1990, appellee underwent surgery for a total replacement of the L4-L5 discs. Following this surgery appellee continued to experience pain in his legs and underwent a rhizotomy, which entails severance of the sensory portion of the nerve to the leg. That appellee had back problems before the 1990 incident is not disputed. Appellee herniated a disc in 1980 and an L5 discectomy and L5 laminectomy were performed. Appellee apparently recovered and remained pain free until May 16, 1988 when, while working at Lake West Hospital, he injured his lower back again. Doctors diagnosed appellee with a herniated L4 disc - 3 - and performed surgery, but were unable to completely relieve his pain. Further diagnostic procedures were initiated and in November of 1988 appellee was diagnosed with degenerated L4, L5 discs, and post-laminectomy state. Appellee underwent surgery in December 1988 which consisted of an L4 laminectomy, foraminotomy and discectomy. Appellee testified that he completely recovered after this surgery and resumed his normal day-to-day activities until the incident on January 3, 1990. On February 26, 1990, appellee filed a claim for benefits with the Bureau of Workers' Compensation. The district hearing officer disallowed the claim on May 22, 1990. Appellee appealed to the Cleveland Regional Board of Review which vacated the district officer's decision and allowed appellee's claim. The Industrial Commission affirmed and appellants appealed to the Cuyahoga County Court of Common Pleas pursuant to R.C. 4123.519. Prior to trial the parties stipulated that appellee's injuries arose in the course and scope of his employment leaving the sole trial issue whether or not the incident on January 3, 1990 aggravated a preexisting condition. At trial appellee testified about the nature and extent of his injuries and previous back problems. Next, Dr. Young Hwan Kim, who performed the L4 laminectomy, foraminotomy and discectomy and treated appellee after the January 3, 1990 incident testified that when he discharged appellee after surgery in March 1990 he diagnosed him with "degenerated L4 and L4 discs, - 4 - post-op laminectomy state". (Tr. 201.) Dr. Kim then testified that this aggravated appellee's preexisting condition. (Tr. 204, 205, 207, 209, 252.) On cross-examination, Dr. Kim testified that the January 3, 1990 incident aggravated appellee's preexisting condition (Tr. 251) but that appellee's anatomy remained unchanged by the incident (Tr. 252). In defense of this matter appellants presented the testimony of Dr. Edward Andrews who testified that on January 3, 1990 appellee merely aggravated the symptoms of a preexisting condition but not the condition itself. On June 10, 1994, the jury returned a verdict in favor of appellee entitling him to receive Workers' Compensation benefits. Appellants now appeal raising two assignments of error. I. For their first assignment of error appellants contend: THE TRIAL COURT'S DENIAL OF SOUTHWEST GENERAL HOSPITAL'S MOTION FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD BE REVERSED. Appellants argue entitlement to a directed verdict or judgment notwithstanding the verdict because appellee failed to present any evidence that he aggravated his preexisting condition or that the pathology of his degenerative disc disease changed as a result of the January 3, 1980 incident. Appellee believes that Dr. Kim's testimony sufficiently evidenced that he did aggravate - 5 - a preexisting condition and he is entitled to compensation under Ohio law. The issue then for our resolution is whether or not the trial judge properly denied appellants' motions for directed verdict or judgment notwithstanding the verdict. Civ. R. 50 provides that a motion for a directed verdict may be made "on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence" and further, that a motion for judgment notwithstanding the verdict may be made "not later than fourteen days after entry of judgment." The test applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test applied on a motion for directed verdict: The evidence adduced at trial and the facts 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. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. *** Posin v. A.B.C. Motor Court Hotel, *** Shore, Shirley & Co. v. Kelley (1988), 40 Ohio App.3d 10, 13. *** The only issue before the trial court concerned appellee's entitlement to participate in the Workers' Compensation fund. In Boewe v. Ford Motor Co. (1992), 94 Ohio App.3d 270, at paragraph 10 of the syllabus, this court stated: In order to receive workers' compensation benefits for disability claimed to have resulted from - 6 - accidental injury, claimant must prove, by preponderance of evidence, that injury arose out of and in course of employment, and that there exists direct or proximate causal relationship between injury sustained and subsequent disability. A claimant may also receive benefits if the injury is a "substantial aggravation of a preexisting condition" where the injury arose out of a work related incident. Kane v. Ford (1984), 17 Ohio App.3d 111. However, this court in Kane admonished that the terms "substantial aggravation" in the testimony of a physician are not magic words without which a claimant must be denied recovery. Id. at 115. As long as the evidence can establish a substantial causal relationship that a preexisting condition was substantially aggravated by a work related injury, recovery may be made. Kane at 115. In construing the evidence in a light most favorable to the non-moving party, we find the testimony of Dr. Kim sufficient to demonstrate that appellee substantially aggravated a preexisting injury when, on January 3, 1990, he injured his back while working at Southwest General Hospital. Dr. Kim testified numerous times at trial that this injury, which required a total disc replacement and severing of the sensory nerve to the leg, aggravated appellee's previous back injury. That Dr. Kim also testified that this incident aggravated the symptoms of the injury as well is inconsequential because Dr. Kim did not recant the earlier testimony and, in fact, reiterated that appellee aggravated the preexisting condition on re-direct testimony. - 7 - Applying the standards of Civ. R. 50 we conclude that the trial court did not err in overruling appellants' motions for a directed verdict and judgment nonwithstanding the verdict. Appellants' first assignment of error is without merit. II. For their second assignment of error appellants contend: THE TRIAL COURT COMMITTED REVERSIBLE PREJUDICIAL ERROR. Appellants argues that the court erred in failing to give requested jury instructions and interrogatories, and abused its discretion in making several evidentiary rulings. Appellee believes that the requested jury instructions and interrogatories contained incorrect statements of law and were improper, and that the court did not abuse its discretion in making the evidentiary rulings. The issue then for our review is whether or not the court committed reversible error at trial. Pursuant to Civ. R. 49(B): a trial court shall give such explanation or instruction as may be necessary to enable the jury *** to render a general verdict. Ordinarily, requested instructions should be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. - 8 - Appellants sought to have the court instruct the jury that a claimant must demonstrate some underlying deterioration of the condition and not simply a substantial aggravation. This proposed instruction is based on the holding of the Franklin County Court of Appeals in Seymour v. Young (1960), 90 OLA 475. Seymour, however, is not a uniform statement of the law and has not been adopted by this court or the Supreme Court. In this case the trial court instructed the jury as follows: To participate in the Workers' Compensation fund, the plaintiff must establish by a preponder- ance of the evidence that on January 3rd, 1990, while in the course and scope of and arising out of his employment with Southwest General Hospital, he sustained aggravations of a preexisting degenerative L4, L5 disc aggravation. Since the legality of appellants' proposed jury instruction was in question, and the instruction that the court actually gave is a correct statement of the law, we conclude that the trial court did not err in excluding appellant's proposed instruction. Appellants further sought the submission of an interrogatory which parallels the above referenced jury instruction. The submission of proposed interrogatories is governed by Civ. R.49(B),which provides in relevant part: The court shall submit interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. (Emphasis added.) - 9 - While a court has a mandatory duty under this rule to submit timely filed interrogatories, the form and content of the proposed interrogatories is within the sound discretion of the court. Job v. Cleveland (1989), 62 Ohio App.3d 678. In the instant case the trial court submitted the following interrogatory to the jury: Do you find that the plaintiff, Mr. Mina, has proven by a preponderance or greater weight of the evidence that his preexisting low-back condition of degenerative L4, L5 disc was aggravated or made worse when he lifted a patient at Southwest General Hospital on January 3rd, 1990? This interrogatory is legally and factually correct. The only material difference between appellants' proposed interrogatory and the one submitted by the court is that the court used the term "aggravated" and appellants used the term "actually medically deteriorated" in reference to appellee's condition. In this case the court gave the interrogatory requested by appellant, but exercised its discretion to submit it to the jury in conformity with existing case law in Ohio, which requires a claimant to demonstrate "aggravation" of a pre- existing condition. Since this is the court's prerogative under Job, supra, we do not find it to be an abuse of discretion nor prejudicial error. Appellants' four remaining arguments challenge the court's rulings on evidentiary matters. We note, however, that the admission or exclusion of relevant evidence is left to the sound discretion of the trial court and will not be disturbed by a - 10 - reviewing court absent a demonstration of an abuse thereof. State v. Sage (1987), 31 Ohio St.3d 173, 180. First, appellants argue that admission of appellee's MRI report was an abuse of discretion because appellee's expert, Dr. Kim, did not have that copy before him when testifying. The record reveals, however, that Dr. Kim was given an illegible duplicate of the original, but the information presented through the use of this copy by Dr. Kim was correct. Appellees produced a legible copy of the report for appellants' experts deposition. Therefore, it was not error to admit a legible copy of this report into evidence as appellee accurately placed the information in the report into the record. Second, appellants contend that the court abused its discretion by limiting cross-examination of appellee regarding injuries he suffered in a 1972 automobile accident. Appellee testified that, to the best of his knowledge, he did not injure his back in that accident. Under Evid. R. 401, evidence is irrelevant if it is so remote in time as not to have "*** any tendency to make the existence of any fact *** more probable *** than it would be without the evidence." McCuskey v. Burroughs (1982), 4 Ohio App.3d 182. We conclude that evidence of appellee's 1972 injury is so remote as to be irrelevant for any purpose in this case. Thirdly, appellants contend that the court abused its discretion in allowing appellee's wife, Virginia Grammes, to - 11 - testify appellee did not disclose her name to them prior to trial. The testimony of Ms. Grammes corroborated appellee's testimony regarding the extent of his disability and rehabilitation from the various back surgeries. Appellee's failure to disclose the name of this witness in a timely manner violated Local Rule 21.1 of the Cuyahoga County Court of Common Pleas, and such violation can be sanctioned, within the discretion of the court, by exclusion of that evidence. See Vinci v. Ceraolo (1992), 79 Ohio App.3d 640. We conclude, however, that the court did not abuse its discretion in allowing this testimony as Ms. Grammes was not a medical or expert witness, but merely provided cumulative evidence as to the effect these several injuries had on appellee and her testimony did not prejudice appellants' case. Finally, appellants argue that the court erred in excluding certain records from the Bureau of Workers Compensation. Our examination of the record below reveals, however, that these records were the subject of a motion in limine by appellants seeking their exclusion. The trial court granted that motion. Appellants have therefore waived their right to assert as error the exclusion of these records. Appellants' second assignment of error is without merit. Judgment affirmed. - 12 - It is ordered that appellee(s) recover of appellant(s) 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. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL 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- .