Opinion
Accelerated Case No. 2000-G-2275.
July 20, 2001.
Appeal from the Court of Common Pleas Case No. 99 W 000371.
ATTY. DONALD M. LEVY, 55 Public Square, #2240, Cleveland, OH 44113, (For Appellant).
ATTY. DAVID R. COOK, 21851 Center Ridge Road, #410, Rocky River, OH 44116, (For Appellee, Carlisle Engineered Products).
BETTY D. MONTGOMERY, ATTORNEY GENERAL, JAMES P. MANCINO, ASSISTANT ATTORNEY GENERAL, State Office Building, 12th Floor, 615 West Superior Avenue, Cleveland, OH 44113-1899, (For Appellees, Bureau of Workers' Compensation Industrial Commission of Ohio).
HON. WILLIAM M. O'NEILL, P.J., HON. JUDITH A. CHRISTLEY, J., HON. ROBERT A. NADER, J.
OPINION
On May 14, 1999, appellant, Joann Mitchell, filed an administrative appeal and a complaint in the Geauga County Court of Common Pleas, contesting the denial of her claim for worker's compensation. In her complaint, appellant alleged that she injured her right knee, on June 6, 1998, while employed by appellee, Carlisle Engineering Products ("Carlisle"), in Chardon, Ohio.
A jury trial was held on March 20 and 21, 2000. At the trial, the evidence revealed that appellant's job at Carlisle required her to cut, inspect, and pack drain hoses for automobiles. The hoses are about four feet long, but it is unclear how heavy they are. Appellant's job required her to cut the hoses using an electrical saw and put them on a rack over the machine. When she had a bundle of at least twenty cut hoses, she would turn and put it in a container on the floor to her right. Appellant testified that her injury occurred as she was turning to put a bundle of hoses in a container. Two of appellant's coworkers testified that on the day of the injury, they heard a pop and appellant screaming in pain, but did not see how her injury occurred. After the injury occurred, appellant asked her supervisor if she could go home because her knee hurt, but did not tell him about the incident. She did not fill out an accident report until a few days after the incident.
Appellant was treated by Dr. Michael J. Jurenovich, who diagnosed her as having a torn meniscus in her right knee. Appellant had three surgeries on her knee within a year of her injury, the last one being a complete knee replacement. Dr. Jurenovich testified by videotaped deposition. The trial court sustained numerous objections to his testimony that it was his opinion that appellant's injury occurred at work. His basis for that opinion was that appellant told him that she had injured her knee at work. On cross-examination, Dr. Jurenovich testified that he did not know the nature of appellant's employment and that appellant had not described for him the exact cause of her injury, twisting of the knee. Dr. Jurenovich testified that he had not seen and did not rely on the emergency room report. He also testified that because appellant was overweight, she was at a higher risk of suffering a torn meniscus without a traumatic injury.
Dr. Daniel Mazanec testified that he examined appellant at the request of appellee. He testified that appellant had osteoarthritis in her knees and synovitis, an abnormally inflamed lining of the joint. His opinion was that appellant's knee problems were caused by a degenerative knee condition, not from a work injury. Dr. Mazanec based his opinion on his examination of appellant and a review of her past medical records, which revealed that her arthritis was apparent in December 1996. Dr. Mazanec testified that an MRI report showed that her right meniscus was intact shortly after the injury.
On March 22, 2000, the jury returned a verdict in favor of appellee. Appellant assigns the following error on appeal:
"The trial court improperly excluded testimony of Plaintiff's treating doctor."
Appellant asserts that she had the right to have her treating doctor give his opinion on the causal relationship between her employment and her injury. She argues that the trial court erred by refusing to admit Dr. Jurenovich's testimony that was based on a direct personal examination. In support of her argument, appellant cites Evid.R. 703, Evid. R. 705 , and Lambert v. Goodyear Tire Rubber Co . (1992), 79 Ohio App.3d 15, 606 N.E.2d 983 (holding that physicians may base their expert opinions on direct personal examinations).The standard to be applied with respect to the trial court's decision to admit or exclude evidence rests within the sound discretion of the trial court. Id . To obtain a reversal of that decision, the appellant must demonstrate an attitude that is unreasonable, arbitrary or unconscionable. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp . (1990), 50 Ohio St.3d 157, 161.
Evid.R. 703 states:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing."
Evid.R. 705 states:
"The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise."
The trial judge admitted Dr. Jurenovich's entire deposition with the sole exception of his opinion on causation. He was qualified as an expert witness, but he did not qualify his opinion on the issue of causation by complying with the terms of Evid.R. 703 and Evid.R. 705.
Under Evid.R. 705, an expert can give an opinion only after disclosing the underlying facts or data upon which the opinion was based.
Under Evid.R. 703, those facts or data can be either observed by the expert personally or admitted in evidence at the hearing.
Appellant's emergency room medical records were properly admitted into evidence at trial. These records described how appellant began to have pain in her knee as she moved side to side on the assembly line. Dr. Jurenovich was asked directly in his deposition whether he had relied on the emergency room records in forming his opinion. He flatly denied relying on the emergency room records, or even having seen the records. Dr. Jurenovich also testified that he had not heard about appellant's statement to the emergency room doctors, that she hurt her knee while moving side-to-side on the assembly line, until appellee's counsel cross examined him about it during the deposition — after he had given his opinion.
At his deposition, Dr. Jurenovich testified that he based his opinion on appellant's statement that she injured herself at work. He did not know what appellant did at work to cause the injury or explain in his testimony how the type of work in which appellant was engaged could cause such an injury. Thus, his opinion was essentially a recitation of appellant's hearsay statement, and not an opinion that would be helpful to the jury.
While the hearsay statement was admissible, under Evid.R. 803(4), Dr. Jurenovich's mere recitation of appellant's statement that she hurt her knee at work does not constitute testimony relating to matters beyond the knowledge or experience of the average lay person. Evid.R. 803(4); Evid.R. 702(A). The jury had before it the testimony of appellant and two of her co-workers concerning the circumstances surrounding the day she claimed to have injured her leg. Dr. Jurneovich's non-expert testimony that appellant told him she injured her leg at work would do nothing to strengthen her claim and could prejudice appellee, by giving that statement the appearance of an expert opinion. Appellant's sole assignment of error is without merit.
Based on the foregoing reasoning, the judgment of the Geauga County Court of Common Pleas is affirmed.
____________________________ JUDGE ROBERT A. NADER
O'NEILL, P.J., dissents with dissenting opinion, CHRISTLEY, J., concurs.
For the reasons that follow, I must respectfully dissent in this matter. The record in this matter is perfectly clear that on June 6, 1998, appellant was at work cutting, inspecting and packing drain hoses for automobiles. The work required her to cut the hoses using an electrical saw, and when she had completed a bundle of twenty hoses, she would "turn and put it in a container on the floor * * *." At trial appellant testified, under oath, that she injured her knee when she was turning to put a bundle of hoses in a container. Two of her co-workers testified, under oath, that they heard a loud "pop" at the time of the incident, but that they did not actually see the injury.
Appellant did not finish her shift and was permitted to go home early after telling her supervisor that her knee hurt. The following day, June 7, 1998, appellant was treated at the Emergency Department of Trumbull Memorial Hospital, where her "Chief Medical Complaint" indicates that a "46 year-old white female who presents to the Emergency Department complaining of right knee pain. Pt states while working yesterday, she began to have pain in her right knee. She states that ` as she would move sideways along the assembly line she could hear pops on both sides of her knees, causing her knee to give out * * *.'" (Emphasis added)
Appellant was seen by an Orthopedic Surgeon, Doctor Michael Jurenovich, who stated under oath that "she was sent to me from the ER with an injured right knee on 6-8-98." The doctor stated that "she was referred to me by the emergency room physician the previous weekend for a twisted knee. I saw her, I offered her a cortisone injection; she deferred that idea. I thought she had torn cartilage in her knee * * *." In taking her history and performing his initial examination, Doctor Jurenovich found that "she said that she hurt her knee at work" and that "she denied any previous history of trauma other than her injury two days earlier." His physical findings indicated painful range of motion in the right knee with some swelling, pain along the medial joint line with hyperflexion.
In his trial deposition, Doctor Jurenovich indicated that approximately one month later, on July 11, 1998, "Joanne still has ongoing right knee pain with problems and swelling. I reviewed the MRI report with her from last week. Patient now likes to proceed with arthroscopic surgery of her knee sometime next month at the hospital." Ultimately the doctor performed a total knee replacement on April 22, 1999.
In answer to the question of appellant's counsel, the doctor expressed the opinion, based upon "your education, your experience, the examination of Joanne Mitchell, the history you took, your review of the diagnostic studies previously discussed, the operative notes and your many treatments * * *" that "she was hurt at work in the summer of '98." The trial court sustained appellee's objection and, thus, the jury was not permitted to hear the doctor's opinion. A defense verdict was returned for the employer.
In order to participate in the Workers' Compensation Fund, an employee must demonstrate that they have been injured in the course and scope of their employment. In matters which are outside the realm of common knowledge, the standard of proof is by competent medical evidence. It is well settled that an expert testifying on the issue of proximate cause must state an opinion with respect to the causative event in terms of probability. Stinson v. England (1994), 69 Ohio St.3d 451, paragraph one of syllabus. An expert is not required to recite any particular "magic words," but his testimony, when considered in its entirety, must be equivalent to an expression of probability. Hampton v. Eckhart (Nov. 19, 1991), Montgomery App. No. 11976, unreported, 1991 Ohio App. LEXIS 5590.
The purpose of having an expert testify is to assist the jury in understanding matters which are within the expertise of the witness. Rarely, if ever, are the experts present at the place of injury. Thus, their testimony is going to be based almost exclusively on evidence which is properly before the jury. In the case of Blakeman v. Condorodis (1991), 75 Ohio App.3d 393, the court found it be error to exclude the testimony of a physician which relied upon x-rays which he did not personally view. The court held, properly I believe, that the basis of an expert's testimony, flawed or perfect, goes only to its weight, and not its admissibility. Id. at 396
In the instant matter, the doctor saw the patient two days after her injury at work, took a history and performed a physical examination. The trial court and my distinguished colleagues take great issue with the lack of thoroughness of the doctor in questioning the patient on the precise mechanism of injury. Such an inquiry is clearly within the realm of cross-examination and the record is replete with counsel's attempts to demonstrate to the jury that the doctor simply did not have a sufficient basis to render his opinion. They may be right. However, as a matter of law, that is a question for the jury to decide.
Evid.R. 703 requires that opinion testimony by an expert witness be based upon facts within that witness's own personal knowledge or upon facts shown by the evidence. Mahan v. Bethesda Hosp., Inc. (1992), 84 Ohio App.3d 520, 525. There is no question that the issue of "sliding" and "turning" on the assembly line, followed by the "popping" noise were in evidence before the jury. It was wholly improper for the trial judge to not permit the treating physician to render an opinion based upon those admitted facts.
In Hampton the Second District Court of Appeals stated the following:
"[i]t is not necessary that medical experts give boilerplate `legal jargon' answers to every question asked by counsel. They are not computers capable of precisely stating their opinion in legal terms. Physicians should be afforded some leeway to put forth their opinion in their own style and manner befitting their personality and keeping with their own thought process. A recitation of the appropriate legal standard is not required. What is required is that the physician's testimony when considered in its entirety, is equivalent to the legal requirements of probability. Words and phrases that connote or are equivalent to probability are sufficient." Hampton at 6-7.
To be admissible, an expert's opinion regarding the proximate cause of an event must be expressed in terms of "probability." Stinson. "An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue." Id. The expert's testimony need not include the magic words "probability" or "certainty" but, when reviewed in its entirety, it "must be equivalent to an expression of probability." Schroeder v. Parker (Dec. 10, 1998), Cuyahoga App. No. 73907, unreported, 1998 Ohio App. LEXIS 5919.
Finally, I must respectfully take issue with the legal analysis in the majority opinion with respect to the history given by the patient to her physician. The majority suggests that when the patient stated she was injured at work, this was a hearsay statement. This is true. However, Evid. R. 803(4) clearly grants an exception to the hearsay rule for:
"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
In a workers' compensation trial, the statements given to physicians, along with the conclusions as to their veracity made by the physicians, are at the heart and soul of the matter.
The jury had every right to know what the treating physician knew and thought. Without his opinion, their verdict is speculative at best. I am not saying that the doctor needed to be believed. But he had to be heard.
____________________________ JUDGE WILLIAM M. O'NEILL