Starkey v. Builders FirstSource Ohio Valley, L.L.C. , 130 Ohio St. 3d 114 ( 2011 )

[Cite as Starkey v. Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-
3278.]
STARKEY, APPELLEE, v. BUILDERS FIRSTSOURCE OHIO VALLEY, L.L.C.,
APPELLANT; BUEHRER, ADMR., APPELLEE.
[Cite as Starkey v. Builders FirstSource Ohio Valley, L.L.C.,
130 Ohio St.3d 114, 2011-Ohio-3278.]
Workers’ Compensation—Appeal to common pleas court under R.C. 4123.512—
Scope of appeal—Issues considered at administrative level—Aggravation
of preexisting condition.
(No. 2010-0924—Submitted March 2, 2011—Decided July 7, 2011.)
APPEAL from the Court of Appeals for Hamilton County, No. C-081279,
187 Ohio App.3d 199, 2010-Ohio-1571.
__________________
SYLLABUS OF THE COURT
1. Because aggravation of a preexisting medical condition is a type of causation, it
is not a separate condition or distinct injury as defined in R.C. 4123.01.
2. An appeal taken pursuant to R.C. 4123.512 allows the claimant to present
evidence on any theory of causation pertinent to a claim for a medical
condition that already has been addressed administratively.
__________________
LANZINGER, J.
{¶ 1} In this discretionary appeal, we address an issue left open in an
earlier case: “whether a claim for a certain condition by way of direct causation
must necessarily include a claim for aggravation of that condition for purposes of
either R.C. 4123.512 or res judicata.” Ward v. Kroger Co., 106 Ohio St.3d 35,
2005-Ohio-3560, 830 N.E.2d 1155, ¶ 15, fn. 1 (the claimant in an R.C. 4123.512
appeal may seek to participate in the workers' compensation fund only for those
SUPREME COURT OF OHIO
conditions that were addressed in the administrative order from which the appeal
is taken).
{¶ 2} For the reasons that follow, we hold that (1) because aggravation
of a preexisting medical condition is a type of causation, it is not a separate
condition or distinct injury as defined in R.C. 4123.01 and (2) an appeal taken
pursuant to R.C. 4123.512 allows the claimant to present evidence on any theory
of causation pertinent to a claim for a medical condition that already has been
addressed administratively.
Facts and Procedural History
{¶ 3} On September 11, 2003, Joseph A. Starkey, while working as a
service technician for Builders FirstSource Ohio Valley, L.L.C. (“Builders”), felt
pain in his left hip as he leaned back and turned to his right to avoid being
knocked off a ladder while installing a window. He filed a claim with the Bureau
of Workers’ Compensation (“BWC”), which allowed his claim for “sprain hip &
thigh, left; sprain lumbosacral; enthesopathy of left hip; tear left hamstring;
glenoid labrum tear of left hip; venous embolism deep vein thrombosis left leg;
and degenerative joint disease left hip.”
{¶ 4} On December 9, 2005, he moved to amend his claim to include
“degenerative osteoarthritis of the left hip.” A district hearing officer allowed the
amended claim, stating, “ ‘[D]egenerative osteoarthritis of the left hip’ is causally
related to and the result of the injury of record.” A staff hearing officer affirmed
the allowance, and the Industrial Commission declined further review.
{¶ 5} Builders then appealed to the Hamilton County Common Pleas
Court, challenging Starkey’s right to participate in the workers’ compensation
fund for “degenerative osteoarthritis of the left hip,” and pursuant to R.C.
4123.512, Starkey filed a corresponding complaint. In preparation for trial,
Builders deposed Starkey’s treating physician, Dr. John Gallagher, who testified
that Starkey suffered from degenerative osteoarthritis of the left hip and that his
2
January Term, 2011
work-related injury “directly aggravated” his preexisting osteoarthritis. Builders’
medical expert, Dr. Thomas Bender, also concluded that Starkey had aggravated a
preexisting condition.
{¶ 6} When Starkey rested his case, Builders moved for dismissal,
arguing that because a claimant may seek to participate in the workers’
compensation fund in the common pleas court only for those conditions addressed
in the administrative order, and because Starkey asserted a new condition on
appeal—aggravation of degenerative osteoarthritis of the left hip—he could not
participate in the fund for that condition. The trial court agreed and entered
judgment for Builders, stating that “a claim for aggravation of a preexisting
condition is a claim separate and distinct from a claim for that underlying
condition itself, and administrative action on one such claim does not without
more trigger Common Pleas Court jurisdiction to consider the other.”
{¶ 7} The First District Court of Appeals reversed the order of the
common pleas court, observing that Starkey had presented claims for the same
medical condition—degenerative osteoarthritis—both administratively and in
common pleas court and that by arguing aggravation of degenerative osteoarthritis
in the common pleas court, he merely changed the type of causation. The court
further determined that because Builders’ expert, Dr. Bender, also diagnosed
preexisting degenerative osteoarthritis, “there was no ambush by Starkey’s
counsel.” 187 Ohio App.3d 199, 2010-Ohio-1571, 931 N.E.2d 633, ¶ 31.
Accordingly, the appellate court concluded that Starkey could participate in the
fund for degenerative osteoarthritis based on evidence that his work-related injury
had aggravated his preexisting medical condition.
{¶ 8} On appeal to this court, Builders, citing Plotner v. Family Dollar
Stores, 6th Dist. No. L-07-1287, 2008-Ohio-4035, 2008 WL 3198710, argues that
a claim that a work-related injury caused a medical condition does not include a
claim that an injury aggravated a preexisting medical condition, because they
3
SUPREME COURT OF OHIO
involve separate conditions “with differing medical and legal criteria” and thus
constitute different claims. Builders further argues that because a claimant cannot
seek to participate in the fund on appeal for a condition that has not been
presented to the Industrial Commission, Starkey’s aggravation claim should not
have been raised for the first time in the common pleas court. Thus, Builders
maintains that the dismissal was proper.
{¶ 9} Starkey and the BWC do not dispute that a common pleas court
may consider only those medical conditions that have first been considered at the
administrative level, but assert that “aggravation” refers to the manner in which a
medical condition is causally connected to a work-related injury and does not
refer to a separate medical condition. Accordingly, they argue that even if a
claimant alleges aggravation of a preexisting medical condition for the first time
in common pleas court, the condition remains the same, and thus the common
pleas court is authorized to consider the new theory of causation on appeal.
Starkey and the BWC also contend that a claimant need not raise a specific theory
of causation at the administrative level, because the parties have an opportunity to
present new evidence of causation in the common pleas court to the extent that it
pertains to the medical condition considered administratively. Accordingly,
Starkey and the BWC contend that the court of appeals properly reversed the
judgment in favor of Builders.
{¶ 10} Thus, the issue presented for our review is whether a workers’
compensation claim alleging that a work-related injury caused a medical
condition encompasses a claim that the same injury aggravated a preexisting
medical condition or whether each theory of causation presents a separate claim
that must first be considered at the administrative level.
Law and Analysis
{¶ 11} This case allows us to consider an issue left open in Ward v.
Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155. In Ward, we
4
January Term, 2011
considered whether an R.C. 4123.512 appeal “is limited to the medical conditions
addressed in the order from which the appeal is taken.” Id. at ¶ 6. We held that a
“claimant in an R.C. 4123.512 appeal may seek to participate in the Workers’
Compensation Fund only for those conditions that were addressed in the
administrative order from which the appeal is taken.” Id. at syllabus. We resolved
Ward on the basis that the claimant had raised new conditions on appeal that had
not been raised administratively and therefore were not subject to judicial review.
{¶ 12} However, in a footnote in Ward, we declined to address “whether a
claim for a certain condition by way of direct causation must necessarily include a
claim for aggravation of that condition for purposes of either R.C. 4123.512 or res
judicata.” Id. at ¶ 15, fn. 1. This case allows us to resolve that issue.
{¶ 13} Builders relies on the argument that because the proof necessary to
demonstrate direct causation differs from that needed to establish aggravation of a
preexisting medical condition, each theory of causation presents a separate claim
that must first be considered at the administrative level. See Davidson v. Bur. of
Workers’ Comp., 2d Dist. No. 21731, 2007-Ohio-792, at ¶ 27. In other words, a
common pleas court may not consider evidence of aggravation of preexisting
degenerative osteoarthritis in an R.C. 4123.512 appeal even though the condition
of degenerative osteoarthritis as a work-related injury was heard by the staff
hearing officer at the Industrial Commission.
{¶ 14} The workers’ compensation statutes do not define the term
“condition,” although we stated in Ward at ¶ 10: “A workers' compensation claim
is simply the recognition of the employee's right to participate in the fund for a
specific injury or medical condition, which is defined narrowly, and it is only for
that condition, as set forth in the claim, that compensation and benefits provided
under the act may be payable.” (Emphasis added.) The word “injury,” however,
is defined in R.C. 4123.01(C) as “any injury, whether caused by external
accidental means or accidental in character and result, received in the course of,
5
SUPREME COURT OF OHIO
and arising out of, the injured employee's employment.” An injury requires
physical harm or a medical condition documented by the evidence. Malone v.
Indus. Comm. (1942), 140 Ohio St. 292, 23 O.O. 496, 43 N.E.2d 266,
overruled on other grounds, Village v. Gen. Motors Corp. (1984), 15 Ohio
St.3d 129, 15 OBR 279, 472 N.E.2d 1079 (“injury” encompasses physical or
traumatic damage or harm).
{¶ 15} Claimants, therefore, must submit a medical diagnosis of an injury
at the administrative level to prevail. In this case, Starkey provided evidence of
his injury, degenerative osteoarthritis. He also was required to establish a causal
connection between the documented physical harm and the industrial injury for
it to be compensable. Among the types of causation, Ohio law recognizes
direct causation, aggravation of a preexisting condition, repetitive trauma, and
flow-through. Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472,
125 N.E.2d 1; Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1, 548
N.E.2d 920; Lewis v. Trimble (1997), 79 Ohio St.3d 231, 680 N.E.2d 1207;
Village v. Gen. Motors, 15 Ohio St.3d 129, 15 OBR 279, 472 N.E.2d 1079.
{¶ 16} At the administrative level, the hearing officer is not limited to the
type of causation a claimant argues. The Industrial Commission Hearing
Officer's Manual (2010), Section S-11, specifically requires the hearing officer to
consider evidence of both direct causation and aggravation as potential causes for
a condition.1 http://www.ohioic.com/policies/hearofficermanual/hom.pdf.
1. Section S-11 provides: “If there is evidence on file or presented at hearing to support both the
theories of direct causation, or aggravation (date of injury or disability prior to August 25,
2006)/substantial aggravation (date of injury or disability on or after August 25, 2006), a request
to allow a condition in a claim is to be broadly construed to cover either theory of causation (i.e.
direct vs. aggravation/substantial aggravation). The Hearing Officer must address the origin of the
condition under both theories of causation without referring the claim back to the prior hearing
level or the BWC. Where new evidence regarding an alternative theory of causation is submitted
by any party, Hearing Officers and/or Hearing Administrators shall ensure that all parties are
given adequate opportunity to obtain evidence in support of their position by continuing the
hearing for a period of at least thirty (30) days, unless the parties agree that less time is sufficient
for obtaining the necessary evidence. The Hearing Officers and/or Hearing Administrators shall
6
January Term, 2011
{¶ 17} In applying the statutory requirements, we remain mindful that the
workers' compensation statutes should be liberally construed in favor of
employees. R.C. 4123.95. The ultimate question in a workers’ compensation
appeal is the claimant’s right to participate in the fund for an injury received in
the course of, and arising out of, the claimant’s employment. As long as the
injury has a causal connection—whether direct or aggravated—to the claimant’s
employment, the claimant is entitled to benefits.
{¶ 18} We therefore agree with the courts that have held that a claimant
is not required to advance a specific theory of causation at the administrative
level if he or she wishes to use that theory in the trial court, because R.C.
4123.512 allows for introduction of new evidence, provided that it relates to the
same medical condition or injury. McManus v. Eaton Corp. (May 16, 1988), 5th
Dist. No. CA-7346, 1988 WL 48598 (aggravation of a previously ruptured disc
is not a different injury from a ruptured disc); Plaster v. Elbeco, Inc., 3d Dist.
No. 3-07-06, 2007-Ohio- 5623, 2007 WL 3052773 (causation of disc herniation
was not a new condition); Bright v. E. & C. Lyons (Sept. 30, 1993), 11th Dist. No.
93-G-1753, 1993 WL 407361 (the evidence is admissible when new theory of
recovery is offered to advance new theory of causation, not new injury); Torres v.
Gen. Motors Corp., C.P.C. Group (Nov. 21, 1991), 8th Dist. No. 59122, 1991
WL 243632 (consideration of aggravation was proper when a single disc injury
was claimed); Robinson v. AT & T Network Sys., 10th Dist. No. 02AP-807, 2003-
Ohio-1513, 2003 WL 1563856, ¶ 16 (“advancing a new theory of causation is not
tantamount to trying to prove a new injury”).
{¶ 19} On an R.C. 4123.512 appeal from the Industrial Commission’s
order, although the proceeding is de novo, the decision for the common pleas
court is the claimant’s right to participate in the fund for a specific injury, not for
state in their compliance letter or order the period of time required to obtain the necessary
evidence.”
7
SUPREME COURT OF OHIO
a specific type of causation. As we explained in Ward, “Under R.C. 4123.512(A),
‘[t]he claimant or the employer may appeal an order of the industrial commission
made under division (E) of section 4123.511 of the Revised Code in any injury or
occupational disease case, other than a decision as to the extent of disability to the
court of common pleas * * *.’ ” 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d
1155, ¶ 9.
Conclusion
{¶ 20} In Ward, we did not answer whether a claim for a certain condition
by way of direct causation must necessarily include a claim for aggravation of
that condition. To comply with R.C. 4123.95’s mandate to construe the workers’
compensation statutes liberally in favor of employees, we now answer
affirmatively.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE
BROWN, JJ., concur.
O’DONNELL, J., dissents.
__________________
O’DONNELL, J., dissenting.
{¶ 21} I respectfully dissent.
{¶ 22} In this case, the majority has determined that a workers’
compensation claim alleging that a work-related injury caused a medical
condition also includes a claim that the injury aggravated the same preexisting
medical condition, thereby permitting the common pleas court to consider
aggravation of a preexisting condition on appeal if the Bureau of Workers’
Compensation allowed the condition as directly caused by the employment.
{¶ 23} A workers’ compensation claim alleging that a work-related injury
caused a medical condition is different from a workers’ compensation claim
alleging that a work-related injury aggravated the same preexisting medical
8
January Term, 2011
condition because each of these claims requires different elements of proof.
Moreover, the workers’ compensation system is predicated upon administrative
processing of claims with an opportunity for de novo judicial review; but de novo
review does not permit a claimant to assert a different claim on appeal by
changing the theory of causation. Accordingly, I would assert that the common
pleas court is precluded from adjudicating an aggravation claim on appeal that has
not first been presented administratively. Here, Starkey did not raise the
aggravation claim administratively, but rather asserted it only on appeal. Thus, I
would reverse the judgment of the court of appeals.
Facts and Procedural History
{¶ 24} After sustaining an injury to his left hip while working for Builders
FirstSource Ohio Valley, L.L.C., Joseph A. Starkey filed a workers’
compensation benefits claim for “degenerative osteoarthritis of the left hip.” The
Bureau of Workers’ Compensation ultimately granted his request, and Builders
appealed this determination to common pleas court. After Starkey provided
evidence at trial that his work-related injury aggravated his preexisting
degenerative osteoarthritis, Builders moved for dismissal, arguing that Starkey
had asserted only a direct-causation claim administratively and that the trial court
could not consider a new theory of causation—aggravation of preexisting
osteoarthritis—for the first time on appeal. The court agreed and dismissed the
action.
{¶ 25} The court of appeals reversed, holding that the court could
consider Starkey’s appeal regardless of the theory of causation presented because
he had presented claims for the same medical condition—degenerative
osteoarthritis—both administratively and in common pleas court.
{¶ 26} Builders appealed, and we are now asked to consider whether a
workers’ compensation claim alleging that a work-related injury caused a medical
condition encompasses a claim that the same injury aggravated a preexisting
9
SUPREME COURT OF OHIO
medical condition, thereby allowing a claimant to assert aggravation of a
preexisting medical condition on appeal in the common pleas court without
consideration of the aggravation claim at the administrative level. The majority
has determined that it does. For the following reasons, I dissent.
Law and Analysis
{¶ 27} We considered a similar issue in Ward v. Kroger Co., 106 Ohio
St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155. There, we recognized that in
enacting the workers’ compensation statutes, the General Assembly divided the
responsibilities of claims processing and review between the executive and
judicial branches of government. We explained that the Workers’ Compensation
Act provides the Industrial Commission with the exclusive authority to perform
an initial review of claims pursuant to R.C. 4123.511 and also affords the
common pleas court a limited right to conduct a de novo review of those claims
pursuant to R.C. 4123.512 after the Industrial Commission completes its
evaluation.
Medical condition similar to causation
{¶ 28} In Ward, we considered whether an R.C. 4123.512 appeal “is
limited to the medical conditions addressed in the order from which the appeal is
taken.” Id. at ¶ 6. We observed that appellate courts had split on this issue, with
some courts holding that because the common pleas court performs a de novo
review, a claimant could supplement the claim to add conditions that had not been
addressed by the commission, and other courts holding that a claimant may not
litigate different conditions in common pleas court, because they had not been
considered administratively. We concluded the latter analysis to be more
persuasive. Id. at ¶ 7-9.
{¶ 29} This court determined that the General Assembly intended that
claims be presented in the first instance at the administrative level as a “necessary
and inherent part of the overall adjudicative framework of the Workers’
10
January Term, 2011
Compensation Act,” id. at ¶ 9, and determined that “each injury or condition that
is alleged to give the claimant a right to participate in the Workers’ Compensation
Fund must be considered as a separate claim for purposes of R.C. 4123.511 and
4123.512, and each such claim must proceed through the administrative process
in order to be subject to judicial review.” Id. at ¶ 11. We reasoned that
“[a]llowing consideration of the right to participate for additional conditions to
originate at the judicial level is inconsistent with this statutory scheme.” Id. at
¶ 10. In doing so, we stressed that we were not willing to “usurp[ ] the
commission’s authority as the initial adjudicator of claims and cast[ ] the common
pleas court in the role of a claims processor.” Id. Thus, we limited the scope of
an R.C. 4123.512 appeal to “those conditions that were addressed in the
administrative order from which the appeal is taken.” Id. at syllabus. We resolved
Ward on the basis that the claimant had raised new conditions on appeal that had
not been raised administratively and therefore were not subject to judicial review.
{¶ 30} However, in a footnote in Ward, we declined to address “whether a
claim for a certain condition by way of direct causation must necessarily include a
claim for aggravation of that condition for purposes of either R.C. 4123.512 or res
judicata.” Id. at ¶ 15, fn. 1. The facts in the instant case provide this court with an
opportunity to address the unresolved issue in Ward.
{¶ 31} A split of authority exists among appellate courts in Ohio on this
question. The Eighth, Tenth, and Eleventh Districts have held that a workers’
compensation claim alleging that an injury has directly caused a condition
includes a claim alleging that a work-related injury has aggravated the same
preexisting condition and, therefore, a claim for aggravation can be considered for
the first time on appeal. Bright v. E. & C. Lyons (Sept. 30, 1993), 11th Dist. No.
93-G-1753, 1993 WL 407361, at *2 (emphasizing that “in a case where a new
theory of recovery is first presented at the trial level, the evidence is admissible
since the claimant * * * is not attempting to prove a new injury, but rather, merely
11
SUPREME COURT OF OHIO
advances a new theory of causation”); Torres v. Gen. Motors Corp. (Nov. 21,
1991), 8th Dist. No. 59122, 1991 WL 243632, *3 (concluding that by seeking an
instruction on aggravation, Torres “ha[d] not asserted a new injury, for the first
time, at the trial level”). The court in Robinson v. AT & T Network Sys., 10th
Dist. No. 02AP-807, 2003-Ohio-1513, 2003 WL 1563856, at ¶ 16, similarly
concluded that “advancing a new theory of causation is not tantamount to trying
to prove a new injury,” but that case is factually distinguishable in that it arose
from a claim for aggravation of a preexisting condition filed after Robinson did
not appeal from a direct-causation claim for the same medical condition. The
court determined that because Robinson could have raised his aggravation claim
on appeal from the denial of his directly caused condition, res judicata barred him
from raising the aggravation claim in the subsequent administrative appeal.
Nonetheless, the appellate court concluded that Robinson would have been able to
change his theory of causation on appeal.
{¶ 32} Conversely, the First and Second Districts have a different view
and have concluded that a claim alleging that a work-related injury has caused a
medical condition is different from a claim alleging that the injury has aggravated
a preexisting condition, because each involves a distinct medical condition that
requires different elements of proof. Thus, those courts are persuaded that
pursuant to Ward, a claimant must present an aggravation claim at the
administrative level before the common pleas court can consider it on appeal.
Collins v. Conrad (Nov. 15, 2006), 1st Dist. Nos. C-050829 and C-050865, at *5-
6 (holding that direct and aggravation claims “involve[ ] separate injuries with
different elements of proof,” giving “rise to separate claims” that “need to be
presented to the Industrial Commission in the first instance”); Davidson v. Bur. of
Workers’ Comp., 2d Dist. No. 21731, 2007-Ohio-792, 2007 WL 585774, at ¶ 27
(finding that because the claims are for intrinsically separate conditions, requiring
different proof, “a claim for an aggravation of a preexisting condition not
12
January Term, 2011
previously adjudicated by the commission is not appealable at the trial court
level”).
{¶ 33} These courts rely on Ward to distinguish direct-causation claims
from aggravation claims. In Ward, we recognized that the General Assembly has
manifested its intent to give the Industrial Commission and common pleas court
different roles in processing and reviewing workers’ compensation claims,
expressly limiting the authority of the common pleas court to reviewing claims
already considered at the administrative level. Ward precluded the presentation of
new medical conditions on appeal but did not address the presentation of new
theories of causation on appeal; nonetheless, our observations there are
instructive regarding the issue confronted here.
{¶ 34} Ward sought to participate in the fund for a new medical condition
on appeal and had the burden to establish different elements of proof in the
common pleas court from what he had presented administratively. Similarly, a
claimant who presents a new theory of causation on appeal is required to establish
different elements of proof in the common pleas court from what would have
been presented at the administrative level. Judge Brogan aptly observed this
distinction in Davidson. He noted that “[t]o demonstrate that a direct injury is the
result of the accident raising the need to participate in the Workers’ Compensation
Fund, the evidence must show that a direct or proximate causal relationship
existed between the claimant’s accidental injury and his or her harm.” Davidson,
2007-Ohio-792, at ¶ 28. He further explained that “[t]his is different from the
evidence showing that a preexisting condition has been aggravated” because in
that case the “ ‘ “key is whether the aggravation [* * *] had an impact on a
person’s bodily functions or affected an individual’s ability to function or
work.” ’ ” Id. at ¶ 28, quoting Gower v. Conrad (2001), 146 Ohio App.3d 200,
204, 765 N.E.2d 905, quoting Boroff v. McDonald’s Restaurants of Ohio, Inc.
(1988), 46 Ohio App.3d 178, 191, 546 N.E.2d 457.
13
SUPREME COURT OF OHIO
{¶ 35} I appreciate this distinction as well, and would assert that because
the proof necessary to demonstrate direct causation differs from that needed to
establish aggravation of a preexisting medical condition, each theory of causation
presents a separate claim, such that these claims are properly considered in the
first instance at the administrative level.
De novo review in an R.C. 4123.512 appeal
{¶ 36} The de novo nature of an R.C. 4123.512 appeal does not change
this analysis. A de novo review contemplates the consideration of new evidence.
In Ward, we recognized that some appellate courts had found that R.C.
4123.512’s authorization of additional discovery suggested that “the General
Assembly contemplated that additional evidence might surface in the court of
common pleas and intended, in the interest of judicial economy, to allow for the
litigation of new conditions.” Id., 106 Ohio St.3d 35, 2005-Ohio-3560, 830
N.E.2d 1155, at ¶ 7, citing Grant v. Ohio Dept. of Liquor Control (1993), 86 Ohio
App.3d 76, 81-83, 619 N.E.2d 1165; Williams v. Harsco Corp. (1994), 94 Ohio
App.3d 441, 446-447, 640 N.E.2d 1193; Reed v. MTD Prod., Inc. (1996), 111
Ohio App.3d 451, 458-460, 676 N.E.2d 576.
{¶ 37} However, we observed that other appellate courts “reason that the
character of the trial as de novo means only that new evidence may be presented
with regard to the appealed condition, not that evidence of a new condition may
be presented for the first time on appeal.” (Emphasis added.) Id. at ¶ 8-9, citing
Mims v. Lennox-Haldeman Co. (1964), 8 Ohio App.2d 226, 228-229, 31 O.O.2d
357, 199 N.E.2d 20; Williams v. Timken Co. (Oct. 1, 1984), 5th Dist. No. CA-
6346, 1984 WL 3906; Dunn v. Mayfield (1990), 66 Ohio App.3d 336, 340, 584
N.E.2d 37; Blake v. Mihm (Aug. 23, 1995), 9th Dist. No. 17043, 1995 WL
499782; Hausch v. Alside (1998), 129 Ohio App.3d 362, 717 N.E.2d 1121.
{¶ 38} In Ward, we found that “the latter courts come closer to the mark,”
and we added some explanation: requiring administrative determination of claims
14
January Term, 2011
in the first instance “is a necessary and inherent part of the overall adjudicative
framework of the Workers’ Compensation Act,” and we stated, “Allowing
consideration of the right to participate for additional conditions to originate at the
judicial level * * * usurps the commission’s authority * * * and casts the common
pleas court in the role of a claims processor.” Id. at ¶ 9-10.
{¶ 39} I would assert that the analysis is the same for new theories of
causation. Although the majority determines that aggravation can be raised as a
theory of causation for the first time in common pleas court because R.C.
4123.512 contemplates the introduction of new evidence on appeal, the de novo
character of an R.C. 4123.512 appeal means only that new evidence may be
presented with regard to the appealed theory of causation, not that evidence of a
new theory of causation may be presented for the first time on appeal. The
presentation of a new theory of causation raises a new claim, and allowing a
claimant to present new evidence to support a new theory of causation on appeal
overrides the General Assembly’s direction that claims be subjected to
administrative consideration before judicial review.
{¶ 40} In this case, Starkey neither argued nor presented any evidence at
the administrative level that his work-related injury aggravated a preexisting
medical condition. Thus, the Industrial Commission never considered that claim.
I respectfully dissent from the majority holding that a claimant may nonetheless
raise an aggravation claim for the first time on appeal.
__________________
Fox & Fox Co., L.P.A., M. Christopher Kneflin, and Bernard C. Fox Jr.,
for appellee Joseph Starkey.
Becker & Cade and Howard D. Cade III, for appellant.
Michael Dewine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Stephen P. Carney, Deputy Solicitor, Elise W. Porter, Assistant Solicitor,
15
SUPREME COURT OF OHIO
and Thomas J. Straus, Assistant Attorney General, for appellee Stephen Buehrer,
Administrator of Workers’ Compensation.
Philip J. Fulton, urging affirmance for amici curiae Ohio Association of
Claimants’ Counsel and Ohio Association for Justice.
______________________
16