COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73612 ERIKA SIMMONS : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : IMPERIAL SERVICE SYSTEMS : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-310877 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DAVID I. POMERANTZ, ESQ. POMERANTZ & POMERANTZ 20676 Southgate Park Blvd. Suite 103 Maple Hts., Ohio 44137 For Defendant-Appellee: JAY BLACKSTONE, ESQ. 320 The Commerce Building 201 East Commerce Street Youngstown, Ohio 44503 For Bureau of Workers Comp: STEVE P. D'LOTT, ESQ. ASST. ATTORNEY GENERAL 1200 State Office Building 615 West Superior Ave. Cleveland, Ohio 44113-1899 DYKE, P.J.: Appellant Erika Simmons appeals the trial court's order adopt- ing the jury's verdict that appellant was not entitled to -2- participate in the Worker's Compensation Fund. For the following reasons, we affirm. Appellant filed a claim with appellee, the Industrial Commission. The claim stated that on October 27, 1995, appellant was injured lifting a bag of garbage at work. Appellant asserted that as a result of this work incident, she suffered a sprain and herniated disc of her lumbosacral spine and sprain of her right shoulder. The claim was denied and appellant filed an appeal de novo with the trial court. A partial transcript of the trial was filed with this court, containing only the testimony of Dr. Dan Shamir, the defendant- appellee's expert. Dr. Shamir testified that he examined the plaintiff and reviewed her medical records. Plaintiff told Dr. Shamir that she was injured in a car accident on June 29, 1995. The plaintiff said she did not sustain any back injury in the car accident. The medical records indicated that the plaintiff had pain, spasms and tenderness in the right side of her back, follow- ing the car accident. Dr. Shamir concluded that the herniated disk was caused by the car accident. On cross-examination, Dr. Shamir was asked if the plaintiff, did . . . suffer from some sort of injury to her lower back as a result of the lifting incident at work . . .? Dr. Shamir responded that the emergency room report dated October 27, 1995 did not state that the injury occurred at work. Appellant's attorney read the following from the deposition of Dr. Shamir: -3- Question: Do you agree that Miss Simmons suffered some injury to her lower back as a result of the lifting incident at work on October 20th, 1995? And your answer was: In my medical opinion she suffered some sort of injury. Then, Dr. Shamir testified: Can you go to line 22 where I answered it again and stated: In response to the previous question, I think it would be more fair with regards to the injury to say that on or about 10-27-95 she had a back injury. I cannot ascertain whether or not it was related to anything at work. I did testify to that. Dr. Shamir conceded that hospital records dated October 31, 1995 mentioned an injury at work. Appellant moved to call Anthony Shealy, appellant's husband, as a rebuttal witness. Appellant asserted that Dr. Shamir changed his deposition testimony concerning whether the injury occurred at work. Mr. Shealy would testify that he observed the injury happen at work, and that the injury did not occur at home. The trial court denied the appellant's request to call the rebuttal witness. Appellant's two assignments of error are interrelated. They state: THE TRIAL COURT ERRED IN REFUSING TO ALLOW APPELLANT TO REBUT A NEW DEFENSE FIRST RAISED BY APPELLEE IN ITS CASE IN CHIEF. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ALLOWING APPELLANT TO OFFER A REBUTTAL WITNESS. A party who has the burden of proof on an issue must present such proof in that party's case-in-chief, and can only present such evidence in rebuttal as to answer the new matter introduced by his adversary. Cities Service Oil Co. v. Burkett (1964), 176 Ohio St. 449, O.F. Mehurin & Son v. Stone (1881), 37 Ohio St. 49, See also -4- R.C. 2315.01, Phung v. Waste Management (1994), 71 Ohio St.3d 408, 410. Any relaxation of this rule is in the discretion of the trial court. R.C. 2315.01(A)(4), Cities Service, O. F. Mehurin, supra. An appellate court will not interfere with the discretion of the trial court in refusing to permit a plaintiff to offer as rebuttal evidence what should have been offered as evidence in chief. Cook v. Williams (1952), 92 Ohio App. 277. A party has an unconditional right to present rebuttal evidence on matters which are first addressed in the opponent's case-in-chief and should not be brought in the rebutting party's case-in-chief. Phung v. Waste Management, Inc. (1994), 71 Ohio St.3d 408, 410 citing Katz v. Enzer (1985), 29 Ohio App.3d 118, 123. The claimant in a workers' compensation action has the burden to show that the injury was work-related. See Waller v. Mayfield (1988), 37 Ohio St.3d 118. Evidence concerning whether the injury was work-related should have been presented in appellant's case in chief. See Phung, Cities Service, Mehurin, supra. The issue of whether the injury occurred at work first arose when appellant testified in her case-in-chief. Appellant claims she was surprised by the testimony of appellee's witness, Dr. Shamir, that appellant was not injured at work. Dr. Shamir did not testify that no injury occurred at work, only that he could not ascertain whether the October 27 injury occurred at work. This testimony was consistent with the doctor's deposition. Additionally, the defendant's trial brief noted that the emergency room report of October 27 did not state that the injury occurred at work. The defendant's trial brief argued that -5- no injury occurred at work. Appellant can not claim she was surprised by appellee's argument that the injury did not occur at work. The trial court did not abuse its discretion in denying appellant's request to present a rebuttal witness. Accordingly, appellant's first and second assignments of error are overruled. The decision of the trial court is affirmed. It is ordered that appellee recover of appellant its 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. SPELLACY, J., AND CORRIGAN, J., CONCUR. ANN DYKE PRESIDING 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 -6- 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 .