COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72667 JOHN HAYES : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ADMINISTRATOR, BUREAU OF : WORKERS' COMPENSATION, et al. : : PER CURIAM Defendant-appellants: : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 30, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 310,183 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: JEFFREY LOJEWSKY Attorney at Law Berger & Kirschenbaum Co., L.P.A. 1919 East 13th Street Cleveland, Ohio 44114-3596 For defendant-appellants: BETTY D. MONTGOMERY Attorney General of Ohio JAMES P. MANCINO, Assistant State Office Building, 12th Floor 615 West Superior Avenue Cleveland, Ohio 44113-1899 PER CURIAM: 2 This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Defendants-appellants, the Bureau of Workers' Compensation ( BWC ) and the Industrial Commission of Ohio, appeal the decision of the Cuyahoga County Common Pleas Court denying its motion in limine, which sought to exclude the testimony of James H. Fry, M.D., the treating physician of plaintiff-appellee, John Hayes ( appellee ). For the reasons that follow, we find no error and affirm the decision of the trial court. The record reflects that appellee suffered a back injury in 1982 while employed by the City of Cleveland ( City ) as a police officer and that a claim was allowed for this injury from the BWC. Sometime thereafter, the Civil Service Commission requested that appellee undergo a psychiatric examination in order to determine appellee's fitness for continued employment by the City. This examination was conducted by Dr. Fry sometime in 1987, at which time Dr. Fry diagnosed, but did not treat, appellee for schizophrenia. In February 1996, on his own initiative, appellee again consulted with Dr. Fry, who examined and treated appellee over a period of four months, totaling approximately six visits. It was during these visits that Dr. Fry concluded that his initial diagnosis of schizophrenia was incorrect and that appellee was more appropriately suffering from major depression secondary to his back 3 injury. Dr. Fry then commenced treatment according to this diagnosis. During this period, appellee sought an additional allowance for depression from BWC in connection with his original back injury. This claim was denied. After exhausting all administrative appeals, appellant appealed to the trial court. Prior to trial, the BWC filed a motion in limine seeking to exclude the testimony of Dr. Fry on the basis that his medical opinion was based on the opinions of other physicians not before the court. The trial court denied this motion. The jury ultimately returned a verdict finding that appellee was entitled to participate in the Workers' Compensation program for depression. The BWC timely appeals and assigns the following error for our review: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE MOTION IN LIMINE TO EXCLUDE APPELLEE'S MEDICAL EXPERT'S OPINION AS SAID OPINION WAS BASED UPON THE OPINIONS OF OTHER MEDICAL DOCTORS NOT BEFORE THE COURT. The BWC contends that Dr. Fry's testimony should have been excluded because an expert witness is not permitted to base his opinion on the opinion of another. In particular, the BWC relies on the following testimony in support of its argument: THE BWC: All right. And in preparing that there were medical records which we had talked about in State's Exhibit 1. And these are portions, are they not, Doctor, or excerpts from various medical records? DR. FRY: I'm sure they are. THE BWC: They're just excerpts. 4 DR. FRY: Right. THE BWC: And they contain opinions of other doctors who are not here today, isn't that correct? DR. FRY: That would be correct. THE BWC: And is it my understanding, Doctor, that like your 1987 (sic), that you relied upon the prior doctors' diagnosis to come to your diagnosis? DR. FRY: To a degree, yes. The facts or data upon which an expert bases an opinion or inference may be those perceived by the expert or admitted into evidence. See Evid.R. 703; see, also, State v. Solomon (1991), 59 Ohio St.3d 124, syllabus. As appellee's treating physician, Dr. Fry's medical opinion was based on facts derived from his treatment of appellee, including a review of his medical records and past medical history. In formulating a diagnosis from which to treat his patient, Dr. Fry would be remiss if he did not review appellee's entire record, including the medical records of other treating physicians.1This does not mean that Dr. Fry's conclusion as to the cause of appellee's injury was drawn from the opinion of another not presently before the court. On the contrary, Dr. Fry's examination of appellee, supplemented by his medical history, provided Dr. Fry, as his treating physician, the bases from which to formulate his diagnosis and to plan his treatment of appellee. 1It should be noted that appellant's argument is inconsistent. Initially, the BWC argues that Dr. Fry inappropriately based his medical opinion on the opinions of other physicians, yet later it criticizes Dr. Fry for failing to consider the medical records of other treating physicians. 5 This conclusion is reinforced by defense counsel's later questioning of Dr. Fry during cross-examination: THE BWC: *** Now, but you did have, and it was your testimony you did have some excerpts in your office chart, State's Exhibit 1, regarding a diagnosis of depression from other doctors, and you relied on that diagnosis to come to your opinion? *** DR. FRY: No. I relied upon the six, six times that I saw John. I think it was six visits in 1996. That's what I've relied upon. The content of his conversations and his appearance and his despondent, hopeless, helpless mood that he was showing and feeling, that he should, that he was worthless and that he might as well, you know, kill himself. As can be ascertained by the excerpted testimony, any opinion regarding causation was based on facts or data perceived by Dr. Fry and was not, as the BWC argues, based upon the opinions of experts not before the court. The BWC's sole assignment of error is not well taken and is hereby overruled. Judgment affirmed. 6 This cause is affirmed. 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 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. __________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE __________________________________ TIMOTHY E. McMONAGLE, JUDGE __________________________________ LEO M. SPELLACY, JUDGE 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 .