COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70031 MARTON STILLER : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION LEASEWAY OF OHIO, INC., ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : SEPTEMBER 12, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 276395 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: CHRISTOPHER WINCEK, ESQ. ROBERT J. MAREK, ESQ. JOHN C. BUCALO, ESQ. Assistant Attorney General Wincek & Derosa Co., L.P.A. 615 Superior Avenue, West 1500 Standard Bldg. 12th Floor Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Plaintiff-appellant Marton Stiller (hereinafter "plaintiff") appeals the trial court's order denying him the right to participate in the workers' compensation fund. Defendant-appellee Leaseway of Ohio, Inc. (hereinafter "defendant") alleged plaintiff failed to establish by a preponderance of the evidence that he 1 suffers from the additional condition of dysthymic disorder . In May 1985, plaintiff injured his back while working for defendant. Plaintiff filed a claim with the Bureau of Worker's Compensation which was allowed for lumbosacral strain, thoracic strain, and sciatic neuralgia. After a rehabilitation period of two months, plaintiff attempted to return to work but was unable to perform his duties and was laid off. He has not worked since then. Plaintiff received temporary total workers' compensation disability benefits for six years, from 1985-1991. On June 26, 1991, after his benefits were terminated, plaintiff filed a motion requesting that the claim be additionally allowed for the conditions of dysthymic disorder with aggravation of previously existing stomach ulcer or gastrointestinal physiological disorder. Plaintiff's claim for additional allowance was denied by a district hearing officer, a staff hearing officer, and the 1 Dysthymia is defined as any disorder of mood. The criteria for dysthymia are the presence of two or more while depressed: (1) poor appetite or over-eating, (2) insomnia or hypersomnia, (3) low energy or fatigue, (4) low self-esteem, (5) poor concentration or difficulty making decisions, (6) feelings of hopelessness. - 3 - Industrial Commission. The trial court determined plaintiff failed to prove that he suffered the alleged conditions in the course of and arising out of his employment. Plaintiff's first assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT HE SUFFERS FROM DYSTHYMIC DISORDER WITH AGGRAVATION OF PREVIOUSLY EXISTING STOMACH ULCER OR GASTROINTESTINAL PHYSIOLOGICAL DISORDER AND THAT THE PROXIMATE CAUSE OF SUCH CONDITION WAS HIS MAY 1, 1985 INDUSTRIAL INJURY AND SUCH FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Plaintiff argues the testimony of two doctors clearly supports a finding not only that he has dysthymic disorder, but that it directly and proximately relates to his previously recognized industrial injury. Defendant counters by arguing there was conflicting medical testimony as to whether plaintiff suffered from a dysthymic disorder at the time he filed his claim for additional conditions. Also, defendant contends that plaintiff's medical condition was caused by the termination of his workers' compensation benefits and not by the work-related injury in 1985. Plaintiff needs to establish that his condition was proximately caused by his work-related injury. "Injury," for workers' compensation purposes, includes an aggravation of a pre- existing condition as well as a condition directly caused by the work related injury. Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1, 3. Proximate cause must be established by the - 4 - reasonable probability, not mere possibility of expert medical testimony. Schumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369. Therefore, plaintiff may establish that a causal connection exists by showing that his present medical condition was either an aggravation of a pre-existing condition caused by, or a direct result of, the work related injury. Thus, medical expert testimony regarding the causal connection based on a reasonable medical certainty is admissible if not essential. In the present case, plaintiff's medical expert testified with a reasonable degree of medical certainty that plaintiff's condition is dysthymic disorder with an aggravation of a previously existing psychophysiological gastrointestinal disorder and is the direct result of the May 1, 1985 industrial injury. Defendant's medical expert testified to the contrary. The court found plaintiff did not prove by a preponderance of the evidence that he suffers from dysthymic disorder and that the chain of causation between his alleged additional conditions and the May 1, 1985 industrial injury was severed by intervening causes. The court concluded by stating "[p]laintiff has failed to establish by a preponderance of the evidence that he is entitled to participate further in the workers' compensation fund." "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 - 5 - Ohio St.2d 279. Defendant's expert testified plaintiff's injury was not caused by his industrial injury and the trial court held there was an intervening cause between the time of the industrial injury and when plaintiff filed for the additional allowance. Since competent, credible evidence exists to establish plaintiff's present medical condition was not proximately caused by his 1985 industrial injury, the judgment of the trial court will not be reversed. Plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING THAT THE CHAIN OF CAUSATION BETWEEN PLAINTIFF'S ALLEGED ADDITIONAL CONDITIONS AND THE MAY 1, 1985 INDUSTRIAL INJURY HAS BEEN SEVERED BY INTERVENING CAUSES AND SUCH FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Plaintiff argues the alleged intervening cause of losing his workers' compensation benefits would not have occurred but for his industrial injury. Thereby, allowing the industrial injury to remain as the proximate cause of his dysthymic disorder. In addition, plaintiff maintains he developed the dysthymic disorder before his benefits were terminated. In support of his argument, plaintiff submits Bell v. Babcock & Wilcox Co. (September 1, 1993), Summit App. No. 15887, unreported, where the court found that it was not necessary for the claimant to prove that his industrial injury was the sole and proximate cause of his subsequent psychiatric problems. However, in Bell there was no intervening cause between the time of the - 6 - industrial injury and claimant's development of the additional medical condition as in the case before us. A reviewing court will not reverse a case as being against the manifest weight of the evidence where there is competent, credible evidence. C. E. Morris Co. v. Foley Construction Co., supra. In the findings of fact, the court specifically found "[t]he chain of causation between the plaintiff's alleged additional conditions and the May 1, 1985 industrial injury has been severed by intervening causes." A reasonable basis for this finding is plaintiff's own testimony where he states he was fine financially and not depressed before his benefits were terminated. Plaintiff did not file for the additional allowance until 1991, six years after his industrial injury which coincidentally was the same time his benefits were terminated. The trial court held the intervening cause severed the chain of causation and we will not reverse a trial court's decision where there is competent, credible evidence. Plaintiff's second assignment of error is overruled. Judgment affirmed. - 7 - 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 Court of Common Pleas 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. DAVID T. MATIA, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .