COURT OF OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72958 DANIEL J. NICKS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ABB SERVICES INC., ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-301598 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: RACHEL B. JAFFY (#0063275) SHAPIRO, KENDIS & ASSOC. CO. 614 W. Superior Ave., #1500 Cleveland, Ohio 44113-1398 For Defendant-Appellant, Abb CE Services: MICHAEL J. BERTSCH (#0016619) ARTER & HADDEN 1100 Huntington Building Cleveland, Ohio 44113-1475 For Appellants, Administrator Bureau of Workers' Compensation and the Industrial Commission of Ohio: MARY ANN O. RINI (#0001811) Assistant Attorney General State Office Bldg.. 12th Fl. 615 West Superior Avenue Cleveland, Ohio 44113-1899 SPELLACY, J.: Defendants-appellants ABB CE Services, Inc., Administrator of the Bureau of Workers' Compensation, and the Industrial Commission of Ohio ( appellants ) appeal from the jury verdict finding that -2- plaintiff-appellee Daniel J. Nicks could participate in the Ohio Workers' Compensation Fund. Appellants assign the following error for review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO SUBMIT TO THE JURY WRITTEN INTERROGATORIES TIMELY PROFFERED BY THE DEFENDANT-EMPLOYER, DIRECTED TO DETERMINATIVE ISSUES IN THE INSTANT WORKERS' COMPENSATION COURT APPEAL, AS REQUIRED BY CIVIL RULE 49(B). Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On January 12, 1996, Nicks filed a notice of appeal in the court of common pleas from the denial of his claim for workers' compensation benefits by the Industrial Commission. At trial, Nicks testified that he is a boilermaker-welder. On March 18, 1995, Nicks was employed at ABB CE Services, Inc. in Ashtabula. On that night, Nicks ascended a ladder and stood with one leg on the ladder and the other extended as he attempted to lift an air hoist. Nicks heard and felt a crack in his back. Unable to complete his task, Nicks descended from the ladder while another employee finished the job. Nicks reported feeling a little discomfort after the incident. Nicks completed his shift at ABB and returned home without reporting the incident to anyone. Nicks felt no need to report an injury because he was not in pain. Nicks did not tell anyone at ABB that he hurt his back at work when he called in sick the Monday following the injury. Nicks replied in the negative or said he did not know when asked by someone at ABB if his back -3- problems were the result of something which occurred at work. The first anyone at ABB knew about Nicks' work-related injury was on March 24, 1995, when Nicks asked for a Workers' Compensation Application. Nicks did not experience any pain until awakening the following morning. He had difficulty moving. Nicks telephoned his physician, Dr. Morton, who prescribed medicine for the pain. Nicks saw Dr. Morton on March 22, 1995. Based on Nicks' description of the pain, Dr. Morton thought Nicks might have a herniated disc and ordered an MRI. The MRI showed Nicks had a back injury. Dr. Morton referred Nicks to an orthopedic surgeon. Nicks missed three months of work due to the injury. Nicks testified that, prior to the incident at ABB on March 18, 1995, he only had experienced aches and pains in his back but had never injured his back. On cross-examination, Nicks admitted he denied being in a car accident at his deposition although Nicks was struck by another automobile in 1991. Nicks may have complained of low back pain after that accident. However, Nicks maintained that the back pain he felt before the 1995 injury at ABB differed from the pain he experienced after that incident. Before March 18, 1995, Nicks' back infrequently hurt after he did a lot of bending at work. Other than the car accident, Nicks denied seeking medical treatment prior to 1995 specifically for back pain. Nicks admitted he was prescribed medication for frequent low back pain even before the automobile accident. However, Nicks maintained that the pain he experienced after the 1995 incident was different -4- from any back pain he previously had experienced. He had a tingling going down his leg and a numbness which Nicks never felt prior to the injury on March 18, 1995. Dr. J. Dennis Morton testified by way of video deposition. He stated that Nicks became his patient in January of 1995. During his medical history, Nicks did not mention any history of back problems. Dr. Morton saw Nicks again on February 22, 1995. At that visit, Nicks described periodic right lower back pain. Dr. Morton diagnosed the problem as musculoskeletal pain and prescribed an anti-inflammatory medication. Dr. Morton considered Nicks' condition to be common low back pain. Dr. Morton saw Nicks next on March 22, 1995, after the injury at work occurred. Nicks described a different sort of back pain which included pain radiating down his right leg and occasional numbness in his right toe. Dr. Morton considered these symptoms to be an indication that something new had occurred as numbness in the toe, foot or leg is caused by a nerve root compression. Dr. Morton ordered that a MRI test be performed on Nicks that day. The MRI showed Nicks suffered from an herniated L5 disc which pressed on the nerve leading to the right side. The herniated disc explained the pain in Nicks' right leg and the numbness. There were no signs of any chronic arthritis elsewhere in Nicks' spine. Nicks' description of how he injured his back at work fit perfectly with his symptoms and the herniated disc revealed by the MRI. The report Dr. Morton received from the orthopedic surgeon also stated the L5 disc was being compressed. The symptoms Nicks -5- experienced resulted from the herniated disc and not from the simple musculoskeletal pain which caused Nicks previous back problems. Dr. Morton opined that the injury was related to the heavy lifting Nicks attempted at ABB on March 18, 1995. Appellants submitted two interrogatories to the trial court for the jury's consideration in accordance with Civ.R. 49(B). The first interrogatory stated: Do you find from the evidence, and by a preponderance thereof, that a March 18, 1995 work incident directly and proximately caused a lumbar disc displacement and herniated posterolateral L5-S1 disc with marked impingement on the L5 neural foramen. Appellants second interrogatory was as follows: If your answer to Jury Interrogatory No. 1 is yes, do you find that the primary cause of the plaintiff's injury was or was not the pre- existing degenerative disc disease in his lumbosacral spine? The trial court refused to give the two interrogatories to the jury. The jury found that Nicks could participate in the Ohio Workers' Compensation Fund. II. In their assignment of error, appellants contend the trial court erred by refusing to submit appellants' interrogatories to the jury. Appellants argue that the trial court's refusal was summary in nature; that the trial court did not even consider the issue of proximate cause in the first interrogatory; and that the trial court clearly was predisposed not to submit any interrogatories to the jury. -6- Civ.R. 49(B) provides: The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. If the interrogatories are in a form of which the trial court approves, then the trial court must submit the interrogatories to the jury. Cincinnati Riverfront Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St.3d 333. Even so, the trial court is not a mere conduit who must submit all interrogatories counsel may propose. Ragone v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St.2d 161, 165. The trial court has some discretion to pass upon the content of the interrogatories. However, the trial court may not summarily disregard proposed interrogatories without any consideration. Jurgens Real Estate Co. v. R.E.D. Constr. Corp. (1995), 103 Ohio App.3d 292. Interrogatories which are ambiguous, confusing, redundant, or otherwise legally objectionable may be rejected by the trial court. Proper jury interrogatories must address -7- determinative issues and be based upon the evidence admitted at trial. Ziegler v. Wendel Poultry Serv. Inc. (1993), 67 Ohio St.3d 10. Determinative issues are those issues which will ultimately settle the entire controversy between the parties. Miller v. McAllister(1959), 169 Ohio St. 487, 494. A trial court's decision whether or not to submit the proposed interrogatories to the jury will not be disturbed on appeal absent an abuse of discretion. Weidner v. Blazic (1994), 98 Ohio App.3d 321, 329. Although appellants argue the trial court did not consider their first proposed interrogatory, there was discussion between the trial court and counsel regarding the issue of proximate cause. Appellants' counsel argued the issue to the trial court when the interrogatories were being considered. Appellants' first interrogatory is unnecessarily technical in its wording and would have been confusing for the jury. The second interrogatory is not supported by the evidence admitted at trial. Appellants did not present any expert testimony of their own at trial to bolster or prove their contention that Nicks' injury was caused by natural or degenerative deterioration. Appellants mischaracterize the testimony of Nicks' expert, Dr. Morton, by arguing Dr. Morton testified Nicks' post-injury symptoms were caused by degenerative disc disease. Dr. Morton unequivocally stated that the symptoms Nicks felt after the March 18, 1995, injury differed from the common back pain he experienced prior to the injury at ABB. Nicks showed symptoms of a compressed disc which had not been present prior to March 18, 1995. The MRI -8- revealed one herniated disc which would be typical of a problem caused by the circumstances under which Nicks claimed the injury occurred. As the MRI showed only one disc was affected, Dr. Morton stated this an indication of an injury and not denerative disease which would usually affect other discs. Dr. Morton's opinion was that the herniated disc was caused by the incident which occurred at ABB on March 18, 1995. Appellants offered no evidence to dispute that conclusion. As no evidence was adduced at trial to support appellants' second interrogatory, the trial court did not abuse its discretion by excluding the interrogatory. Appellants' assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellants his costs herein taxed. The court finds there were reasonable grounds for this appeal. -9- 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. ANN DYKE, P.J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .