COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69216 LAWRENCE A. CORBETT : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION FORD MOTOR COMPANY, ET AL. : : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-271673. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee Lawrence A. Corbett: Frank G. Bolmeyer, Esq., Sammon & Bolmeyer Co., L.P.A., 1160 Rockefeller Building, 614 Superior Avenue, N.W., Cleveland, Ohio, 44113. For Defendant-appellant Ford Motor Company: Timothy J. Krantz, Esq., Office of the General Counsel, P.O. Box 9900, 5600 Engle Road, Brook Park, Ohio, 44142. For Defendant-appellant Bureau of Workers' Compensation: Betty D. Montgomery, Attorney General of Ohio, Cash Mishka, Assistant Attorney General, 615 West Superior Avenue, State Office Building, 12th Floor, Cleveland, Ohio, 44113-1899. SWEENEY, JAMES D., P.J.: Defendant-appellant-employer Ford Motor Company ("FOMOCO") appeals from the jury verdict in favor of plaintiff-appellee- employee Lawrence A. Corbett ("Corbett," d.o.b. April 22, 1958) in this workers' compensation case which determined that Corbett was entitled to participate in the workers' compensation fund for the conditions of bilateral carpal tunnel syndrome and right pronator teres syndrome. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Corbett began his employment with FOMOCO in June of 1986 at the Cleveland Engine Casting Plant, performing various manual labor-type jobs on the assembly line and in the foundry requiring manipulation of power tools and the use of repetitive motions. In late 1988 to early 1989, Corbett began experiencing pain, including tingling, numbness and swelling, in his hands and wrists. On January 10, 1989, Corbett visited the plant's medical dispensary complaining of numbness in his right hand and difficulty in grasping and rotating his right wrist and hand while using a pneumatic chipping tool. On January 12, 1989, Corbett returned to the plant's medical dispensary complaining of having difficulty in grasping an air-hammer with his left hand which caused his left hand and wrist to hurt. The medical record from this January 12 visit notes that Corbett stated "I think I've got carpal tunnel syndrome in both hands. My lt. hand started hurting right after I - 3 - started this job today" and "Will go to urgent care tonite (sic) after work." On January 31, 1989, Corbett was examined by his doctor, Dr. Vasu Pandrangi, a board certified plastic and reconstructive surgeon, for the conditions previously complained of at the employer's medical dispensary in addition to cracking sensations in the right hand. Dr. Pandrangi diagnosed carpal tunnel syndrome in the right hand and treated the right hand, wrist and forearm with surgery on February 9, 1989, with external neurolysis, to release the median nerve followed by the application of a plaster of paris splint. On March 9, 1989, Dr. Pandrangi diagnosed carpal tunnel syndrome in Corbett's left wrist. The left wrist was treated also at this time with surgery by releasing the ulnar nerve from the Guyan's canal followed by the application of a plaster of paris splint. After several follow-up examinations which were unremarkable, Dr. Pandrangi noted on May 12, 1989, that the patient had no complaints and that the surgeries had healed beautifully. Following the May 12, 1989 visit with Dr. Pandrangi, Corbett returned to work at the engine plant and was assigned light duty, specifically marking parts with a wax crayon. The symptoms he had been experiencing prior to the surgeries were not evident for a period of time after his return to work, but eventually recurred. On April 24, 1991, Corbett was examined at the Southwest Urgicare in Strongsville, complaining of cramping, tingling, numbness, non-specific weakness and cracking in his hands. - 4 - Thereafter, Corbett contacted Dr. Norberto Marfori on May 20, 1991, who referred Corbett for an examination to Dr. Annie Lumanlan. On May 23, 1991, Dr. Lumanlan examined Corbett, concluding that her study "is consistent with bilateral median entrapment neuropathy at carpal tunnels bilaterally" and suggesting treatment consisting of bilateral carpal tunnel releases. Plaintiff's Exhibit 2. On June 11, 1991, Dr. Marfori, after noting that the patient had had previous surgery for carpal tunnel syndrome and the presence of "a lot of scar tissue, with the median nerve bogged down with the scar," performed surgical procedures on Corbett's right hand to resolve the recurrent carpal tunnel symptoms with an additional surgical procedure to release the right forearm's pronator teres component. Plaintiff's Exhibit 3. On August 15, 1991, Dr. Marfori performed surgery on Corbett's right index, middle, ring and little fingers to cure the crackling and triggering associated with those digits. Plaintiff's Exhibit 4. On September 19, 1991, following complaints by Corbett of recurring problems with his left hand, Dr. Marfori performed surgery on Corbett's left wrist to release the carpal tunnel there. On initial inspection of the exposed incision area, Dr. Marfori noted that the median nerve was "very exposed and scarred." Plaintiff's Exhibit 5. On July 14, 1992, Corbett reported to his employer that he was experiencing pain and numbness in his hands and wrists while installing throttle bodies on the engine assembly line. - 5 - On January 26, 1993, Corbett filed three separate claims for workers' compensation benefits. The first claim was for bilateral carpal tunnel syndrome based on the January, 1989 diagnosis. The second claim was for bilateral carpal tunnel syndrome, right pronator teres syndrome and trigger finger based on the May, 1991 diagnosis. The third claim was for aggravation of bilateral carpal tunnel syndrome based on the July 14, 1992 report. These claims were rejected by the district hearing officer, concluding that the claimant did not contract an occupational disease in the course of employment, and by the staff hearing officer. The Industrial Commission refused the appeal from the staff hearing officer level, thereby affirming the hearing officer's order. Thereafter, Corbett appealed to the common pleas court on June 6, 1994, only on claim number OD52483-22, the 1991-based claim. On April 23, 1995, FOMOCO filed a motion for summary judgment in which it was argued that Corbett's condition was time-barred in that he failed to comply with R.C. 4123.85 in not filing his application for benefits within the two-year time period after contracting the bilateral carpal tunnel syndrome in 1989, and that his current 1991 manifestation of this disease is an aggravation of 1 the 1989 disease. Attached to this motion were numerous copies of 1 R.C. 4123.85 provides in pertinent part as follows: In all cases of occupational disease or death resulting from occupational disease, claims for compensation or benefits are forever barred unless within two years after the disability due to the disease began, or - 6 - medical records, surgical reports, depositions and answers to interrogatories. Corbett filed a brief in opposition to summary judgment on April 25, 1995, with attached evidentiary support, arguing that the claim was timely filed since the 1989 condition and the 1991 condition are separate and distinct occupational diseases with the latter not being an aggravation of the former. FOMOCO filed a reply brief, with attached evidentiary support, relative to summary judgment on May 2, 1995. On June 1, 1995, just prior to the start of the trial that afternoon, the trial court denied the motion for summary judgment. At the trial, the plaintiff offered the testimony of three witnesses. The first witness for plaintiff was Mr. William Menner, who was called on cross-examination and testified in pertinent part as follows (R. 42-46): (1) he is employed by FOMOCO at the engine plant as the administrator of the workers' compensation fund, which covers approximately 5,000 employees; (2) a person can get carpal tunnel syndrome from doing repetitive tasks. The plaintiff testified next on his own behalf, stating in pertinent part as follows (R. 47-100): (1) he has never fractured within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician, or within two years after death occurs, application is made to the Industrial Commission of the Bureau of Workers' Compensation or to the employer if he is a self-insuring employer. (Emphasis added.) FOMOCO is a self-insured employer for purpose of workers' compensation. - 7 - his wrists, but has sustained fractures in his hands and fingers; (2) from 1976 to approximately 1982, he worked on the engine assembly line installing pistons into the engine blocks before being laid off; (3) returning from the layoff, he worked in the 2 foundry as a core setter until approximately 1989; (4) following a long layoff, he was assigned to the cleaning room doing varied repetitive motion-type tasks; (5) he first developed pain or problems with his hands and wrists at work in 1987, primarily tingling and swelling; (6) following the surgeries in 1989 by Dr. Pandrangi the symptoms decreased and he [Corbett] considered the surgery to be successful; (7) sometime in 1989-1990, the original symptoms recurred, with a new symptom of cracking in the fingers and trigger-type actions by the fingers, while performing tasks with a pneumatic tool on the assembly line, so he sought additional medical help with Dr. Marfori; (8) he told Dr. Marfori that he worked on the assembly line at FOMOCO; (9) at this time his arms and hands were subjected to an electromyograph [EMG], wherein needles are inserted into the muscles and the responses to electrical stimulation are noted; (10) following surgery by Dr. Marfori, the symptoms improved; (11) he submitted health insurance forms to Dr. Marfori; (12) he was examined by Dr. Katz for FOMOCO over a forty-five minute period approximately one to one and one- half years before the trial; (13) in 1989 he went to Dr. Heyl for a second opinion from that of Dr. Pandrangi, at which time he 2 A core setter flips cores weighing between 7 to 22 pounds. - 8 - complained to Dr. Heyl about cracking in his fingers, and that cracking continued to 1991 (R. 70); (14) following light duty for a year marking parts with a crayon, he returned to work on the assembly line in 1990 installing pistons and oil dip stick tubes; (15) the numbness and tingling symptoms began to recur approximately six months prior to the 1991 surgeries; (16) he fractured his ring finger on his right hand in January of 1990, with treatment for this finger fracture lasting at least until May of 1990; (17) he does not recall if he told Dr. Marfori about the specific jobs he was doing at the plant, other than that he was an assembler; (18) he figured the 1991 complaints were unrelated to the 1989 complaints because the 1989 surgeries were supposed to have cured that problem of carpal tunnel syndrome; (19) Dr. Lumanlan performed an EMG on him in addition to other range of motion tests; (20) the trigger finger surgery did not abate the cracking sounds in his hands, so Dr. Marfori referred him to Dr. Shin, who saw him in September of 1991 regarding cracking sounds and pain in the hands; (21) Dr. Shin eventually performed surgery on several of his fingers on both hands; (22) he never reported to the company that the injuries were work related because he had no overt accidents at work involving his arms or hands, he did not know what was causing his physical complaints; (23) Dr. Marfori's treatment of the numbness and tingling was successful because those sensations went away. - 9 - The third witness for the plaintiff was Dr. Marfori, whose deposition taken on May 26, 1995, was read into the record. Dr. Marfori, a board certified plastic surgeon, testified in pertinent part as follows: (1) it was his understanding, without knowing the specific type of work that Corbett performed at the plant, that Corbett used both hands in repetitive-type motions with power tools; (2) the witness ordered an EMG test to determine whether the median nerve was still released from the earlier surgeries by Dr. Pandrangi or whether the median nerve was being pinched at some other point along the upper extremity; (3) the EMG test result indicated bilateral carpal tunnel syndrome and a history of previous release of the median nerve; (4) the pronator teres is a short flexor muscle in the forearm, and the witness manually tested for problems with this muscle, which test was positive; (5) pronator teres syndrome can have the same symptoms as carpal tunnel syndrome; (6) carpal tunnel syndrome has many causes, basically anything that would cause a pinching or irritation of the median nerve; (7) carpal tunnel problems are very common in the hands of persons who work with power tools or whose work requires repeated motions; (8) he knows from his practice that employees on assembly lines at FOMOCO use power tools; (9) his opinion as to the direct and proximate cause of Corbett's carpal tunnel syndrome, pronator teres syndrome and trigger finger is the repeated assembly line work and air tool usage Corbett does at FOMOCO, which themselves increased the risk to Corbett for contracting these ailments; (10) - 10 - the forms submitted to him by Corbett were initially filled out incorrectly by his office staff, to-wit, that Corbett's conditions were not work related, so the witness, upon becoming aware of the mistake after reviewing the forms and his dictation report, later notified the employer in October of 1991 of the mistake, thereby indicating for the record that the conditions were, in fact, work related; (11) the witness has treated other employees from the engine plant as well as from two other FOMOCO auto plants in Lorain County; (12) hand problems account for approximately thirty percent of his practice; (13) carpal tunnel syndrome can recur if you continue using the affected hand; (14) Corbett's symptoms were asymptomatic until approximately six months prior to first seeing the witness; (15) instead of an EMG which is an objective test, he performed a physical pinch pressure test, which is admittedly a subjective test, to diagnose the pronator teres syndrome; (16) the scar tissue found in the 1991 surgery of the carpal tunnel is "from the 1989 surgery" (Depo.R. 45); (17) the 1991 symptoms were "probably a factor" from the "scar tissue on the median nerve from the 1989 surgery" (Depo.R. 47). At this point the plaintiff rested (R. 104). The defense motioned the court for a directed verdict on the basis of the two- year statute of limitations having expired. This motion was overruled subsequent to limited argument (R. 109). The defense then offered the testimony of three witnesses. The first witness for the defense was Mr. Duane Modock, who testified - 11 - in pertinent part as follows (R. 111-134): (1) he is employed by FOMOCO and is the union's appointed ergonomics representative for the Cleveland Engine Plant No. 1; (2) his union position acts to help investigate, identify and prevent ergonomic-related injuries in the workplace; (3) to the best of his knowledge, at least since 1989 when he began working on the ergonomics committee at the Cleveland plant, no one has reported any carpal tunnel, pronator teres, trigger finger or wrist problems from performing the tasks 3 of piston hook-ups and oil dip stick/dip stick tube installation , which are, along with core setting, repetitive motion tasks; (4) one employee, although performing the same task as another employee, may develop carpal tunnel while that other employee may not; (5) he has not done any specific study at FOMOCO regarding carpal tunnel; (6) based on his experience, a significant cause of carpal tunnel syndrome is the use of power tools, particularly prior to 1992 when the company replaced all the pneumatic power tools at the plant, which older designed tools developed excessive torque or kick for the operator. The second witness for the defense was Mr. Menner who reiterated his previous testimony, adding that Corbett had sustained a home-related right hand fracture to a finger which is reflected in his administrative file (R. 134-140). 3 The jury was shown a video tape of the actual tasks being performed on the assembly line, with the witness describing the operations taking place. - 12 - The third witness for the defense was Dr. Gary Katz, whose deposition taken on May 19, 1995, was read into the record. Dr. Katz testified in pertinent part as follows: (1) he is a board certified orthopod; (2) pronator teres syndrome is very rare; (3) anything that causes pressure against the median nerve can cause carpal tunnel syndrome; (4) he estimates that less than 10% of the carpal tunnel cases he has seen were caused by work-related repetitive motions; (5) his personal treatment approach is conservative to carpal tunnel syndrome cases in that he initially treats with non-surgical methods, and if that fails, then proceeds to surgical intervention as a last resort; (6) he has never seen a case of pronator teres syndrome in his practice; (7) he examined Corbett one time, in January of 1995, at which time Corbett, except for complaining of the same complaints he was experiencing in the early 1990's, appeared normal; (8) based on the medical records provided, he found no evidence of carpal tunnel syndrome, pronator teres syndrome or trigger finger in 1991 as a result of Corbett's work activities at FOMOCO (Depo.R. 36-38); (9) in his practice, it is unusual to see this amount of surgery for a patient for hand problems; (10) he does not disagree that Corbett had carpal tunnel syndrome, pronator teres syndrome or trigger finger (Depo.R. 44- 45); (11) he would not disagree as to what caused the symptoms because these symptoms are idiopathic in nature (Depo.R. 45); (12) repetitive tasks on an assembly line with power tools, such as those tasks done at FOMOCO, are known causes of carpal tunnel - 13 - syndrome; (13) although he has stopped performing surgery over one and one-half years ago, he has performed carpal tunnel surgery in the past without having first conducted a nerve conduction study or an EMG test because those tests can have false results (Depo.R. 52); (14) a fracture of the hand or fingers would not impact the carpal tunnel; (15) surgery for carpal tunnel syndrome is sometimes not successful; (16) theoretically, a patient who undergoes carpal tunnel syndrome can be diagnosed with the condition again after a period of years where something causes pressure on the median nerve; (17) in his opinion, surgery for carpal tunnel syndrome is not needed unless you have atrophy of the affected area. At this point the defense rested and renewed its motion for a directed verdict on the same ground previously presented (R. 144). This motion was overruled. Corbett then resumed the stand in rebuttal (R. 150-157). Following the final arguments and the instructions to the jury, the verdict was returned in favor of the plaintiff. This appeal followed presenting three assignments of error. I PLAINTIFF'S CLAIM FOR BILATERAL CARPAL TUNNEL SYNDROME IS TIME BARRED UNDER R.C. 4123.85 BECAUSE HIS CLAIM ACCRUED IN 1989 WHEN HE WAS FIRST DIAGNOSED, RECEIVED TREATMENT AND MISSED WORK DUE TO THIS CONDITION. The claims at issue in this workers compensation case were originally filed on January 26, 1993. The parties dispute when the disease herein began. Appellant argues that summary judgment or - 14 - directed verdict should have been granted on the statute of limitations issue. We disagree. The benchmark case in Ohio on the issue of when a disability due to an occupational disease begins is White v. Mayfield (1988), 37 Ohio St.3d 11, wherein the syllabus provides the following tripartite test: Pursuant to R.C. 4123.85, disability due to an occupational disease shall be deemed to have begun on the date on which the claimant first became aware through medical diagnosis that he or she was suffering from such disease, or the date on which claimant first received medical treatment for such disease, or the date claimant first quit work on account of such disease, whichever date is the latest. (Emphasis added.) Appellant argues that Corbett's condition began, for statute of limitations purposes, no later than March 9, 1989, when Dr. Pandrangi diagnosed and treated Corbett's left wrist, thereby completing the diagnosis and treatment for bilateral carpal tunnel 4 syndrome. If this date is applied, the claims had to be filed no later than March 9, 1991. Appellee Corbett argues that his carpal tunnel syndrome in 1989 is separate and distinct from the recurrence of that condition in 1991, in effect making the 1991 condition a new occurrence subject to its own claim, thereby distinguishing appellant's reliance on McCurdy v. Mihm (Montgomery, 1993), 89 Ohio App.3d 363 and Forster v. Ohio Bur. of Workers' 4 Of the several dates appellant relies upon to demonstrate the three standards of White, the date of March 9, 1989 is the "latest" of those several dates. Thus, pursuant to the final clause of White's syllabus, that date is controlling. - 15 - Comp. (Cuyahoga, 1995), 102 Ohio App.3d 744 (for purposes of R.C. 4123.84, a claim for aggravation/residual injuries from an originally allowed claim must be filed within two years of when the claimant knew or should have known of this aggravation). Accordingly, Corbett argues that the condition at issue began on June 11, 1991, when he received surgery on the right hand by Dr. Marfori. If Corbett's date is applied, the claims herein would be deemed to have been timely filed as they had to be filed no later than June 11, 1993. The testimony given in this case demonstrates that carpal tunnel syndrome can, in theory, return following a successful surgery if pressure, from whatever source, is applied to the median nerve. Based on the evidence presented, and construing same in a light most favorable to Corbett as required by Civ.R. 50(A) or 56(C), reasonable minds could conclude that Corbett's condition of bilateral carpal tunnel syndrome was successfully treated in 1989, that the symptoms abated for a time subsequent to Dr. Pandrangi's surgery, then gradually recurred starting in 1990 prior to a second surgery for that condition in 1991 by Dr. Marfori. Accordingly, we find no error in the trial court's denial of FOMOCO's motions for summary judgment or directed verdict. The first assignment of error is overruled. The second and third assignments of error will be discussed jointly since they both argue manifest weight of the evidence. - 16 - II THE VERDICT OF THE JURY ALLOWING THE CLAIM FOR BILATERAL CARPAL TUNNEL SYNDROME IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III THE JURY VERDICT ALLOWING THE PLAINTIFF'S CLAIM FOR RIGHT PRONATOR TERES SYNDROME IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Judgments supported by some competent, credible evidence going to all the essential elements of a 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, 376 N.E.2d 578. In the present case, there was some competent and credible evidence upon which the fact finder could conclude that Corbett's 1991 bilateral carpal tunnel syndrome was work related given the testimony that the assembly line tasks involved repetitive motions with the use of power tools, and that repetitive motions and the use of power tools in the industrial workplace can cause carpal tunnel syndrome. Appellant makes much of the fact that scar tissue developed at the site of the 1989 surgery. However, the jury, based on the testimony of Dr. Marfori, could reasonably conclude that this scar tissue, while "probably a factor" for the 1991 symptoms, was not the only factor. These other factors were the continued use of the affected appendage by Corbett on the workplace floor under conditions which could cause the disease. Also, even Dr. Katz, the defense expert, would not disagree with the - 17 - conclusion that Corbett had the diseases indicated at the time of his medical treatments in 1989 or 1991. As to the condition involving the pronator teres, there was some competent, credible evidence upon which the fact-finder could rely to support the conclusion that Corbett contracted this condition as a result of his work. Dr. Marfori testified that he used a subjective pressure test to diagnose this condition. The appellant argues that the use of an EMG test, which was not done for this condition, is the definitive objective test for diagnosing this condition. However, Dr. Katz testified that the EMG test can render false results. We cannot conclude that the jury, weighing the credibility of the testimony, lost its way in finding that the pronator teres condition was a valid claim. The second and third assignments of error are overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellants 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 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. Exceptions. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING 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. .