COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68489 VINCENZO BELLIA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GENERAL MOTORS CORP., : EUCLID PLANT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 19, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 236056 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: William T. Zaffiro, Esq. Thomas M. Carolin, Esq. 5555 Mayfield Road Greiner, Carolin & Spector Lyndhdurst, Ohio 44124 1370 West 6th Street, #203 Cleveland, Ohio 44113 FOR ADMINISTRATOR: Q. A. Corsi, Esq. Office of the Attorney General State Office Building, 12th Fl. 615 Superior Avenue, West Cleveland, Ohio 44113 -2- HARPER, J.: General Motors Corporation (hereinafter "appellant"), appeals from the judgment of the Cuyahoga Court of Common Pleas which found Vincent Bellia (hereinafter "appellee") was entitled to participate in the Workers Compensation Fund. A careful review of the record compels affirmance. I. On October 6, 1988, appellee injured his back while performing his routine job duties while in the employment of General Motors Corporation. Appellee filed a claim but it was disallowed during the course of the administrative proceeding by the district hearing officer and the denial of his claim was affirmed on appeal to the Regional Board of Review. Appellee then filed a complaint against appellant and the Administrator of the Bureau of Worker's Compensation in the Cuyahoga Court of Common Pleas on May 11, 1992. The case was assigned to Judge Timothy McMonagle and a trial date of December 7, 1993 was set. Dr. Itani was deposed pursuant to R.C. 4123.519 and during the deposition, Dr. Itani, on cross-examination, refused to answer some questions related to the matter. On December 6, 1993, appellant filed a motion to exclude the testimony of Dr. Itani but Judge McMonagle overruled the motion and ordered Dr. Itani to submit to cross-examination prior to his testimony in open court. The Journal Entry reads: Motion to Exclude is overruled. Claimant Dr. Itani is to submit to x-examination the discovery depositions to be introduced prior to his testimony in open court. Refusal will result in his exclusion. -3- (Vol. 1690. P 343). The case was reassigned to Judge Thomas Matia, due to Judge McMonagle's heavy trial schedule and proceeded to trial before a jury on December 7, 1993 as scheduled. Appellant renewed its objection to the admission of Dr. Itani's testimony at the outset of the trial. This motion was overruled. During closing argument, appellant moved for a Directed Verdict but the motion was denied. After appellee's closing argument, appellant requested a directed verdict and again it was denied. The jury returned a verdict in favor of the appellee, which entitled him to participate in the benefits of the Workers' Compensation Act. The Journal Entry read as follows: "Verdict for P at the D's cost." Appellant thereafter filed an appeal to this court. However, this court dismissed the case for lack of a final appealable order because the trial court's entry of December 13, 1995, which recorded the jury verdict, did not designate whether the verdict was rendered against defendant General Motors Corporation or the Industrial Commission. Appellee filed a motion to correct the judgment entry, and on January 4, 1995, a corrected entry was issued. Appellant then instituted a timely appeal. II. The following pertinent facts were adduced at trial: appellee was employed by appellant at General Motors Corporation's Inland Division. Appellee was a sewer and operated a French Seam Machine. The French Seam Machine was used to sew -4- together leather and vinyl products used in appellant's cars. To sew at the French Seam Machine, appellee stated he had to pick up pieces of material, turn his chair and then lift the product onto the machine. At trial, appellee described what happened on October 6, 1988, the date of his injury. He stated he was sitting at his chair at the French Seam Machine and after he had finished reaching for a bundle of work, the chair that he was sitting on spun around and he immediately felt a pinch in his back. He stated: So since I was short over there I can't reach and up I can't see. So I just sit down on the ends of the chair like that. So I sew; I take the seat from here. I sew; I put up here. I pick it from up from here (indicating). So when I finish this bundle I go turn to reach the other bundles of the seat, to bring that towards me. I was down on the edge of the chair. The chair spin. I was sit down, When I spin, I go, I turn to the table. And what I hear, I hear when I twist, I hear like a pinch in my back. He stated that within twenty minutes he started to feel a pain in his leg. He went to Eloise Hunter, his group leader, and told her he twisted his back and had pain in the back. He told Ms. Hunter he needed to see the nurse. After Ms. Hunter replaced him on the machine, appellee testified that he immediately went to the company nurse, who gave him two pills and instructed him to take the pills for the remainder of the workday. In the early hours of the next morning, appellee was rushed to the Emergency Room at Meridia Hillcrest Hospital with pain in his back and right leg. He was admitted on October 7, 1988. A CAT scan was performed on him on October 8, 1988 which stated, "a -5- minimal bulging of L4-L5." A week later he was discharged and was diagnosed as having a herniated lumbar disc. On October 24, 1988, appellee was re-admitted to Meridia Hillcrest Hospital where he underwent a CAT scan and a Mylegram test. The tests results showed "evidence of disc herniation at L4-5 seen best on scan #11 and more pronounced on the right than it is on the left." Appellee testified that on November 19, 1988, he had an appointment with Dr. Itani, a neurosurgeon. Dr. Itani admitted appellee to Meridia Euclid General Hospital where he performed a hemilaminectomy on November 10, 1988 to remove a herniated disc at L4-5. Dr. Itani, appellee's treating neurosurgeon, testified that appellee's back injury was caused by the work-related incident of October 6, 1988. Eloise Hunter, appellee's immediate supervisor, testified that on October 6, 1988, "I seen him him start hurting in the back. He started getting real stiff." On cross- examination, Ms. Hunter stated she saw him hurting and she heard him moaning. Josephine Zogbor, appellee's daughter, testified that she took appellee to the emergency room at Hillcrest Hospital because he was in pain. At the office, she filled out appellee's medical history forms. Ms. Zogbor stated that she did not provide a Workers Compensation claim number, because the appellee did not have a number, and because she was unsure of the date of the injury, she left that space blank. -6- Dr. Katz, an orthopedic surgeon, was the medical expert for the appellant and his deposition was read to the jury. Dr. Katz performed an orthopedic examination of appellee and it was Dr. Katz's opinion that the herniated disc was unrelated to the twisting episode at work. Nevertheless, the jury returned a unanimous verdict in favor of the appellee, authorizing appellee to participate in the Workers' Compensation Fund for his back injury. Appellant timely appeals this verdict. II. Appellant presents the following assignments of error: I. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE THE TESTIMONY OF DR. A.L. ITANI. II. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT IN FAVOR OF GENERAL MOTORS CORPORATION. III. THE JUDGEMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In appellant's first assignment of error, appellant contends the trial court abused its discretion when it overruled appellant's motion to exclude the testimony of appellee's medical expert. Appellant maintains the trial court abused its discretion by permitting Dr. Itani, appellee's expert witness, to testify at trial. Appellant argues Dr. Itani should not have been permitted to testify at the trial, because he refused to answer some questions during cross-examination at the deposition. R.C. 4123.519. Appellant further argues Dr. Itani's live testimony placed it in an unfavorable position, because it was unable to prepare for trial. Appellant points out -7- that Judge McMonagle directed Dr. Itani to submit to cross- examination prior to his testimony and that at trial, Judge Matia permitted Dr. Itani to testify over the objection of appellant. We disagree. First, appellant maintains its motion to exclude evidence should have been granted pursuant to R.C. 4123.519. Pursuant to R.C. 4123.519, a physician's deposition may be read at the trial, even though the physician is available for "live" testimony. Appellant's reliance on R.C. 4123.519, however, is misplaced because R.C. 4123.519 does not prohibit a doctor from providing live testimony at trial. Civ.R. 26(E) provides, in pertinent part: (1) A party is under a duty reasonably to supplement his response with respect to any question directly addressed to (a) the identity and location of persons having knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness at trial and the subject matter on which he is expected to testify. *** An objective of this rule is to provide opposing counsel with updated and complete discovery regarding the substance of expert testimony. Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App.3d 176. Further, one of the purposes of the Rules of Civil Procedure is to eliminate surprise. This is accomplished by way of the discovery procedure which mandates a free flow of accessible information between the parties upon request, and which imposes sanctions for failure to timely respond to reasonable inquiries. Jones v. Murphy (1984), 12 Ohio St.3d 84. -8- Further, when there is intentional violation of the rules, Civ.R. 37 permits the exclusion of expert testimony. Id. See, also, Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83. Civ.R. 37(B)(2) provides various sanctions for failure to comply with discovery, with dismissal of the action being the most harsh. The trial court has discretion in selecting the sanctions to be used because of non-compliance with Civ.R. 26(E). Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App.3d 36. Therefore, it is exclusively within the trial court's discretion to determine the particular sanction to be imposed for the particular infraction committed. An abuse of discretion is generally held to mean more than simply an error in judgment. Abuse is an error that is unreasonable or arbitrary or rises to the level of unconscionability. Rhodes v. Farmer (1970), 23 Ohio St.2d 82; Huffman, supra. In the instant case, we do not find persuasive appellant's argument the trial court abused its discretion by permitting Dr. Itani to testify live at the trial. Appellant knew as early as November 10, 1993, almost one month prior to the December 8, 1993 trial date, that Dr. Itani's deposition would not be read to the jury, and Dr. Itani would provide "live" testimony to the court. More importantly, the record indicates appellant made no attempt to cross-examine Dr. Itani prior to trial. Further, appellant's counsel were not prevented, by either judge, from filing a motion to compel discovery. -9- Finally, the record does not indicate Dr. Itani's trial testimony was radically different from his video tape deposition and written report. It must be noted appellant had the opportunity to review Dr.Itani's videotape testimony, because the videotape was made available to appellant on November 10, 1993. Accordingly, appellant's first assignment of error is not well taken and is overruled. Appellant asserts in its second assignment of error the trial court abused its discretion when it overruled appellant's motion for a directed verdict. Appellant's counsel contends a directed verdict should have been entered because reasonable minds could only conclude that on the issue of the causal relationship between appellant's injury and a herniated disc, the evidence of the relationship was not presented to the jury. Appellant also charges that Dr. Itani's medical opinion, which included answering a hypothetical question, was insufficient to establish the causal relationship. We disagree. An abuse of discretion is generally held to mean more than simply an error in judgment. Abuse is an error that is unreason- able or arbitrary or rises to the level of unconscionability. Huffman, supra; Rhodes, supra. In order to establish a right to a workers' compensation benefit for harm resulting from an accidental injury, it is necessary for the claimant to show, by a preponderance of the evidence, that a causal relationship existed between his injury and the harm. Fox v. Indus. Comm. (1955), 162 Ohio St. 569. The definition of "proximate cause" in the workers' compensation -10- context is the same as in the field of torts. Aiken v. Indus. Comm. (1944), 143 Ohio St. 113. "Proximate cause" is a happening or event which as a natural and continuous sequence produces an injury without which the result would not have occurred. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. When expert medical testimony is required in a case to establish a causal connection between the industrial injury and a subsequent physical condition, the proof must establish a probability and not a mere possibility of such causal connection. Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205. Civ. R. 50 in pertinent part states: When a motion for a directed verdict has been properly made, and 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, the court shall sustain the motion and direct a verdict for the moving party on that issue. Where there is substantial evidence to support the case of the non-moving party upon which reasonable minds could reach different conclusions, the motion for a directed verdict must be denied. Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94. Questions of proximate cause relating to the compensability of injuries in the area of workers' compensation are normally for the trier of fact. Hamilton v. Keller (1967), 11 Ohio App.2d 121. It is the duty of the trial court to submit an essential issue to the jury when there is sufficient evidence, if believed, relating to that issue to permit reasonable minds to -11- reach different conclusions on that issue. O'Day v. Webb (1972), 29 Ohio St.2d 215. In this case, appellee presented expert testimony from Dr. Itani, the neurosurgeon who performed the hemilaminectomy. The relevant portions of Dr. Itani's testimony read as follows: Q. Doctor, I'm going to ask you a few questions I want you to base your answer on reasonable medical certainty or probability. A. Yes. Q. After you took a history of Mr. Bellia you performed neurosurgical examination, and you reviewed the CAT scan and that Mylegram, and all the records from Hillcrest Hospital and after you performed the hemilaminectomy on November 10, 1988, did you form an opinion to a reasonable degree of medical certainty or probability, as to whether the incident that Mr. Bellia had at work on October 6, 1988, when he twisted and turned his back, was a competent and producing cause of the condition that you diagnosed as herniated disc L4,L5? MR. CRONLIN: Objection. THE COURT: Overruled. BY MR. ZAFFIRO: Q. What is your opinion doctor? A. My opinion is that the incident had contributed to the disc herniation. MR. CAROLIN: Move to strike. BY MR. ZAFFIRO: Q. Doctor, do you have an opinion as to whether it caused a herniation? A. Of course. MR. CAROLIN: Objection THE COURT: Overruled. -12- Q. What is your opinion? A. My opinion is that the incident had caused the herniation. (TR. 19-20). The deposition by appellant's medical expert, Dr. Katz, contradicted Dr. Itani's testimony concerning the proximate cause of the injury. Applying the standard for directed verdict to the facts of this case, and permitting all reasonable inferences in favor of the appellee, we find there was sufficient evidence from which reasonable minds could reach a different conclusion, which would warrant submitting to the jury, the issue of whether appellee's herniated disc was the result of an injury at work. We conclude the trial court was correct in denying the motion for a directed verdict. Next, appellant charges Dr. Itani's opinion, which was based on a hypothetical question, was insufficient to establish the causal relationship between the injury and the work he performed. We are unpersuaded by this argument. Evid.R. 703 and 705 provide the evidentiary requirements for expert testimony. Evid. R. 703 states, "the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." An expert can give an opinion based upon facts based upon his personal knowledge or upon facts elicited from other evidence. Burens v. Industrial Commission (1955), 162 O.S. 549; Kraner v. Coastal Tank Lines (1971), 26 Ohio St.2d 59. In the instant case, Dr. Itani was appellee's treating physician and his opinion was based on facts derived from his -13- treatment of the appellee. Where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied. State v. Solomon (1991), 59 Ohio St.3d 124. Evid. R. 705 states, "The expert may testify in terms of opinion or inference and give his reasons therefore after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise." It is sufficient if the question assumes the existence of facts which support the evidence fairly and reasonably and tend to establish and support a claim or theory. Finally, appellant argues due to the trial court's changing the order of interrogation by permitting Dr. Itani to testify, appellant was placed at a disadvantage. Appellant also charges the trial court prevented its expert, Dr. Katz, from commenting on Dr. Itani's testimony. Evid. R. 611 provides that the scope of cross examination is "ultimately within the sound discretion of the trial court under the authority of Rule 611(A) and Rule 403." The trial court has discretion in applying and relaxing the general rules for the introduction of testimony according to the circumstances to achieve justice. Further, the admission of evidence during trial is a matter which rests within the sound discretion of the trial judge. O'Brien v. Angley (1980), 63 Ohio St.2d 159. Absent an abuse of discretion, a trial court's rulings on these matters will not be disturbed by courts on appellate review. An abuse of discretion connotes more than an error or law of judgment, it -14- implies that the court's attitude is unreasonable, arbitrary or unconscionable. Huffman, supra, at 87. Appellant's second assignment of error is not well taken and is overruled. In the third assignment of error, appellant contends the judgment is against the manifest weight of the evidence. Appellant asserts the jury was confused about the evidence and did not understand that their verdict would permit the appellee to participate in the workers' compensation fund. We disagree. In an appeal, pursuant to R.C. 4123.519, the trial court's procedure to determine the right of the claimant to participate in the Workers' Compensation Fund is in effect a trial de novo. Lemming v. Univ. of Cincinnati (1987), 41 Ohio App.3d 194. Thus, in order to establish a right to participate in the fund, it is necessary for the claimant to show by a preponderance of the evidence, medical or otherwise, that his injury arose out of and in the scope of his employment, and also, that his harm or disability was a direct cause of the injury. Id. The question of proximate cause of a claimant's injury is ordinarily not of science, or legal knowledge, but one of fact for the jury to determine in view of the accompanying circumstances. Randall v. Mihm (1992), 84 Ohio App.3d 402. Judgments supported by some competent, credible evidence going to all essential elements of the case will not be reversed by the reviewing court as against the manifest weight of evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. In fact, every reasonable presumption must be -15- made in favor of the findings of the trial court. Where there exists competent and credible evidence supporting findings and conclusions of the trial court, deference to such findings must be given by the reviewing court. Meyers v. Garson (1993), 66 Ohio St.3d 60; Seasons Coal Co v. Cleveland (1984), 10 Ohio St.3d 77. Furthermore, the weight to be given the evidence and witness credibility are primarily for the fact-finder. Shore, Shirley & Co. v. Kelley (1988), 40 Ohio App.3d 10. In the instant case, the record before us supports the jury's verdict, which had before it sufficient evidence concerning appellee's back injury. The jury found that appellee met his burden of proof that his herniated disc arose out of and in the scope of his employment. Dr. Itani opined that there was a causal connection between appellee's incident and the back injury Dr. Itani diagnosed. Ms. Elosie Hunter, appellee's group- leader, testified that on the day in question, she observed Mr. Bellia operating a French Seam Machine. Ms. Hunter stated she observed him become injured. Therefore, this court concludes the judgment is supported by competent and credible evidence. Appellant argues the verdict is incorrect because the jury did not comprehend the evidence put before them, nor did they understand their verdict permitted Vincenzo Bellia to participate in the Workers' Compensation Fund. To warrant a reversal of a jury verdict, it must be shown that the conclusion of the jury is unreasonable, improbable and illogical. Porkorny v. International Hod Carriers, Bld. Common Laborers Union (1973) 35 Ohio App.2d 178. -16- In the instant case, appellee presented sufficient evidence to warrant the jury verdict and the jury's affirmative answers to the interrogatories demonstrate they were not confused by the evidence to reach their verdict. Accordingly, appellant's third assignment of error is not well taken and is overruled. Judgment is affirmed. -17- 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 Cuyahoga County 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. JAMES D. SWEENEY, P. J., AND *JOHN V. CORRIGAN, J., CONCUR. JUDGE SARA J. HARPER *Judge John V. Corrigan, retired judge from the Eighth Appellate District, sitting by assignment. 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 .