COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73092 ALEXANDER YOUNG : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ADMIN. BUREAU OF WORKERS : COMP.,et al : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 6, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 313,383 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: TERRY JENNRICH Attorney at Law Geraci & LaPerna 1305 S.O.M. Center Road, #204 Mayfield Heights, Ohio 44124 For defendant-appellee MARY ANN RINI Administrator, Bureau Assistant Attorney General of Workers' Comp. : State Office Building, 12th Floor 615 W. Superior Avenue Cleveland, Ohio 44113-1899 For defendant-appellee JUANITA BRYANT Cleveland Board of Attorney at Law Education : 1380 East Sixth Street, Room 152 Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's decision upholding the administrative denial of appellant's request to amend his 1988 Workers' Compensation claim. He also appeals the lower court's admission of appellees' exhibits and denial of appellant's motion for attorney's fees. Since the trial court's decision upholding the denial of appellant's request to amend his claim was not against the manifest weight of the evidence and its decisions regarding the exhibits and attorney's fees did not amount to an abuse of discretion, we affirm. I. Appellant Alexander Young injured his back on October 19, 1988, in the course and scope of his employment. Appellant's claim was allowed by the Bureau of Workers' Compensation and the Industrial Commission of Ohio for an injury of low back. The parties agree that the allowed condition is more accurately labeled a lower back strain. In 1995, a doctor opined that appellant's current back condition was causally related to the 1988 injury. Appellant thereafter sought to amend the original claim, seeking an additional allowance for low back strain, disc protrusion L3-4, and disc protrusion at L5-S1. Appellant's claim was denied by the Staff Hearing Officer on June 10, 1996, and his appeal of this decision was denied by the Industrial Commission of Ohio on July 24, 1996. Appellant thereafter filed an appeal with the Cuyahoga County Common Pleas Court pursuant to R.C. 4123.512. -3- The trial court heard the matter without a jury. Appellant testified that he was employed as a carpenter by the Cleveland Board of Education from 1984 until 1992. On October 30, 1992, appellant received notice that he was being laid off from his position, effective November 6, 1992. The accident that gave rise to the instant appeal occurred on October 10, 1988. Appellant had been working at East Technical High School. He was injured when he lifted a cart and attempted to descend a staircase. At the time of the incident, appellant was fifty-one years old. After the accident, appellant sought the medical attention of Dr. Affeldt, a doctor of mechanotherapy. Appellant testified that shortly after the incident, the pain was immobilizing, a very, very sharp severe pain. Furthermore, during the first year after the injury occurred, his back pain was real bad. Since his injury, his back has continued to periodically just go out. Appellant further testified that he has not suffered any additional injuries to his back since the 1988 incident and had suffered no injury to his back prior to the incident. Appellant stated that he has been unable to find employment that would permit him to work with his disability. In 1996, the Cleveland School Board notified appellant that a vacancy existed for a carpenter's position. Appellant interviewed for the position but was not hired. He reported that they informed him that he was not selected because they found someone else that had better qualifications. -4- According to Dr. Affeldt's medical records, Dr. Affeldt first saw appellant on October 20, 1988, and saw him an additional eleven times before the end of the year. Appellant then returned to Dr. Affeldt on March 4, 1989, April 13, 1989, October 14, 1989, October 21, 1989, and October 28, 1989. After his treatment in October 1989, appellant did not return to Dr. Affeldt until November 5, 1992. Dr. Affeldt's notes for this date read: Mr. Young did very well for these months but was always conscious of his low back sometimes catches then eases uses heat at home - feels better then. Similar tr. Appellant thereafter received treatments on November 6, 7, and 9, 1992. He was subsequently treated on January 19, 1993, May 16, 1993, and October 12, 1993, and received six additional treatments in January, 1994 before ceasing his visits to Dr. Affeldt. The deposition of Dr. Patil was submitted in lieu of his trial testimony. Dr. Patil is board-certified in occupational medicine. He first saw appellant on April 14, 1994, because appellant com- plained of stiffness in his lower back with pain that radiated into his right leg. Appellant gave Dr. Patil his history, informing him about his 1988 injury and subsequent treatment with Dr. Affeldt. Dr. Patil conducted a physical examination of appellant and also conducted a neurodiagnostic test and an MRI. He diagnosed appellant with a left lateral disc protrusion at L3-4" and a broad based disc protrusion at L5-S1 with effacement of epidural fat but no distortion of dural sac. Dr. Patil opined that his -5- diagnosis of appellant's back pain was related to the original 1988 injury. n that there was no previous diagnostic testing; appellant's 1988 injury had been allowed for low back, and the areas that Dr. Patil diagnosed with disc protrusions were in the lower back. Dr. Patil also testified that appellant had restrictions on what he could and could not do due to the condition of his back. Following the trial, the lower court issued Findings of Fact and Conclusions of Law.1 The court considered appellant's testimony and the deposition of Dr. Patil and concluded that the tDr. Patil testified that he reached his conclusion based othe information appe that appellant received treatment from Dr. Patil was too long to permit a finding that appellant's condition as diagnosed by Dr. Patil was caused by his 1988 injury. The court thus found that appellant was not entitled to participate in the Workers' Compensa- tion Fund for the condition of disc protrusion at L5-S1.2 1 The lower court found in favor of appellees and adopted the proposed Findings of Fact and Conclusions of Law submitted by appellee. Although the trial court's ultimate conclusion may be the same as the conclusion reached by appellees, the trial judge unfortunately adopted appellees' proposed entry entirely in spite of the presence of several glaring errors. For example, at page 7, the entry read we expect (emphasis added.) Moreover, this paragraph also reads that to Stutzman Bi-Rite, et al., will be entitled to a directed verdict *** . Stutzman Bi-Rite has no connection to the matter sub judice. Additionally, the entry, at times, refers to appellant as she. 2 The trial court acknowledged that, pursuant to R.C. 4123.512, its jurisdiction was limited to only those issues decided adversely to the claimant. It therefore concluded that the scope -6- Appellant timely filed his notice of appeal. II. Appellant's first two assignments of error are interrelated. Appellant's second assignment of error will be addressed first. It states: DID THE TRIAL COURT ERR IN RENDERING A JUDG- MENT IN FAVOR OF THE DEFENDANT, OHIO BUREAU OF WORKERS COMPENSATION AND DEFENDANT INDUSTRIAL COMMISSION AND DEFENDANT, CLEVELAND BOARD OF EDUCATION AND AGAINST THE PLAINTIFF-APPELLANT FOR HIS RIGHT TO PARTICIPATE IN THE OHIO WORKERS COMPENSATION FUND IN ORDER TO RECEIVE BENEFITS PROVIDED BY SAID FUND FOR A NEW DIAGNOSIS OF: (1) LOW BACK STRAIN; (2) DISC PROTRUSION AT L3-L4; AND (3) DISC PROTRUSION AT L5-S1 WHICH WAS THE PROXIMATE RESULT OF HIS PREVIOUSLY ALLOWED INJURY CLAIM OF LOW BACK WHICH OCCURRED ON 10-19-88 ON THE GROUND THE COURT'S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OF RECORD AND WAS ALSO CONTRARY TO LAW? Appellant maintains that the trial court's decision was against the manifest weight of the evidence. It is well settled that [j]udgments supported by some com- petent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against of this action was limited to whether the additional condition of disc protrusion L5-S1 should be allowed; neither the conditions of low back strain nor disc protrusion at L3-L4" was addressed. The administrative record was not a part of the record before us, and appellant failed to raise this issue as error. We will there- fore presume regularity in the trial court's proceedings and accept the trial court's determination that the disallowed claim was whether or not claimant was entitled to participate in the workers' compensation fund for the additional condition of disc protrusion L5-S1. See, e.g., Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. -7- the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, at the syllabus; see, also, Kuempel Serv., Inc. v. Zofko (1996), 109 Ohio App.3d 591, 598. The Ohio Supreme Court noted that: The claimant's burden is to persuade the commission that there is a proximate causal relationship between his work-connected inju- ries and disability, and to produce medical evidence to this effect. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 575 N.E.2d 828; State ex rel. Basham v. Consolidation Coal Co. (1989), 43 Ohio St.3d 151, 541 N.E.2d 47; Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1; Aiken v. Indus. Comm. (1944), 143 Ohio St. 113, 28 O.O. 50, 53 N.E.2d 1018. State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 83. Moreover, "[w]hen 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." Randall v. Mihm (1992), 84 Ohio App.3d 402, 406 citing Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205. Appellant alleges that the condition of his back as diagnosed by Dr. Patil is a flow through injury that resulted from his initially-allowed condition in 1988. Thus, it is appellant's burden to submit medical validation to support his contention that it is probable that his current condition is proximately related to the incident that occurred in 1988. Dr. Affeldt's medical records indicate that appellant was apparently not seriously bothered by his back for a three-year -8- period after the incident. Appellant began treatment with Dr. Affeldt immediately after the accident and consistently until the end of that year. He then had five treatments from March 4, 1988 through October 28, 1988; however, appellant did not resume treatment until November 1992. The trial court noted that appel- lant returned to Dr. Affeldt after receiving notice that he was to be laid off from his employment. Furthermore, although Dr. Patil had concluded that appellant's disc protrusion was caused by appellant's 1988 back injury, the doctor acknowledged that his opinion was based on the information that appellant had given him and the fact that no prior diagnostic testing had been conducted. Dr. Patil admitted that there is no previous diagnostic testing. I do not know or I do not have copy (sic) of any previous MRI on him to say this was not there before. There is no dispute that appellant failed to seek any treat- ment for a period of three years. When considering the doctor's complete testimony, the trial court could have concluded that Dr. Patil's testimony established only a mere possibility, not a proba- bility, that appellant's 1988 injury caused his current disc protrusion. See Randall, supra. Although appellant submitted medical testimony and appellees failed to do so, appellant did not sustain his burden of proof to sufficiently demonstrate the necessary proximate causal relationship between his current con- dition and the 1988 incident. See, e.g., State ex rel. Quarto Mining Co. v. Foreman, supra. -9- There is competent, credible evidence in the record to support the trial court's determination that appellant's current back condition did not proximately result from his 1988 injury. Our review of the entire record indicates that the trial court's decision was not against the manifest weight of the evidence. Appellant's second assignment of error is overruled. Appellant's first assignment of error contends: DID THE TRIAL COURT ERR IN MAKING ITS CONCLU- SIONSONE THROUGH SIX STATED ON PAGES 10-11 OF ITS JOURNAL ENTRY DATED AUGUST 1, 1997 ON THE GROUND SAID CONCLUSIONS ARE ILLOGICAL BECAUSE THEY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OF RECORD? Conclusions one through six made by the trial court state: 1. The claimant returned to work - apparently without no (sic) problems. 2. His lack of treatment and failure to voice complaints for three years, bespeaks evi- dence that he had no medical problems fol- lowing the initial back injury. 3. If the claimant had experienced severe pain, he would have sought appropriate medical treatment. Since he did not see (sic)treatment, it is reasonable to con- clude that he had no consistent or serious pain for three years. 4. Even when pain would occasionally return, the claimant never sought medical care. His only care was sporadic treatment with a massotherapist. 5. The six years between the date of injury and the treatment by Dr. Patil is too long to conclude that other life experiences are not responsible for the additional injury. 6. Seven years between the date of injury and the diagnosis is too long to conclude that -10- other life experiences are not responsible for the additional injury. The trial court was incorrect when it referred to Dr. Affeldt as a massotherapist when he was actually a mechanotherapist.3 Further- more, appellant did testify that his back continued to go out. 4 However, the trial court ultimately concluded that appellant's current injury was not causally related to the 1988 incident. A review of the entire record supports this decision. Any error made in the aforementioned conclusions did not ultimately result in an improper decision and is, therefore, harmless error. Appellant's first assignment of error is overruled. Appellant's third assignment of error contends: DID THE TRIAL COURT ERR IN ADMITTING ALL OF DEFENDANT'S EXHIBITS (EXCEPT EXHIBIT 1) OVER PLAINTIFFS' OBJECTION (TRIAL TR. PG. 53) ON THE GROUND THAT SAID DOCUMENTS WERE IRRELEVANT TO THE ISSUE PLAINTIFFS WERE REQUIRED TO PROVE, AND IN FACT WERE PREJUDICIAL IN NATURE ACCORD- ING TO THE RULE OF HUNT V. MAYFIELD 65 OHIO St. (SIC) App. 3d 349 (1989 MONTY CO.); (SEE ALSO RULES OF EVIDENCE 401, 402, AND 409)? Appellant next contends that the trial court erred when it admitted appellees' exhibits. 3 Webster's Third New International Dictionary (1993) defines mechanotherapy as the treatment of disease by manual, physical or mechanical means and massotherapy as the practice of massage for remedial or hygienic purposes. 4 These errors by the trial court are apparently also the result of the trial judge's adoption of appellees' proposed entry as discussed by this court in footnote one. -11- At trial, appellant objected to the admission of exhibits two through six.5 Appellees' exhibits two, three, and five are commu- nications from the School Employees Retirement System. These let- ters reflect that the Retirement Board, upon the recommendation of the Medical Advisory Committee, denied appellant's application for disability retirement benefits. Appellees' exhibit six was a letter from the Cleveland Public Schools inviting appellant to submit an application to the Cleveland City School District for a vacant car- penter's position. Appellant argues that these exhibits are not relevant because they do not go to the ultimate issue of whether the amendment to appellant's 1988 claim should be allowed. Evid.R. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 402 and 403 provide that all relevant evidence is admissible, but relevant evidence is not admissible if its probative value is substantially out- weighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. [M]any forms of tenuously relevant evidence are nevertheless admissible if they make the existence of any fact in question or at issue more or less proba- ble. Hunt v. Mayfield (1989), 65 Ohio App.3d 349, 354. This court agrees that the exhibits at issue were not relevant to a determination of whether appellant's current diagnosis is caus- 5 Appellee withdrew exhibit number four. -12- ally related to his 1988 injury; however, the testimony of appellant and the deposition of Dr. Patil, on their own, constitute sufficient evidence upon which the lower court could have based its decision. Thus, any error in this regard is harmless error. Moreover, as the matter was heard by the court without a jury, any possibility that the danger of unfair prejudice would outweigh the probative value of the evidence is abolished. Appellant's third assignment of error is overruled. Appellant's final assignment of error alleges: DID THE TRIAL COURT ERR IN FAILING TO AWARD PLAINTIFF THE SUM OF $2,500.00 IN ATTORNEY FEES AS REQUIRED BY ORC SECTION 4123.519(F) (SIC) OR AT LEAST SET A HEARING ON THE ISSUE? R.C. 4123.512(F) provides: The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the effort expended, in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the admin- istrator rather than the employer contested the right of the claimant to participate in the fund. The attorney's fee shall not exceed twenty-five hundred dollars. (Emphasis added.)Since appellant failed to establish his right to amend his claim and further participate in the fund upon his appeal to the trial court, the trial court correctly denied appellant's motion for attorney's fees. Appellant's final assignment of error is overruled. Judgment affirmed. -13- 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 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. JAMES M. PORTER, P.J. and JAMES D. SWEENEY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .