Tepe v. Tepe , 2012 Ohio 1482 ( 2012 )

[Cite as Tepe v. Tepe, 2012-Ohio-1482.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
THOMAS M. TEPE, :
:
Plaintiff-Appellant, : Case No. 11CA13
:
vs. : Released: March 20, 2012
:
THOMAS M. TEPE, et al., : DECISION AND JUDGMENT
: ENTRY
Defendants-Appellees. :
APPEARANCES:
Dennis A. Becker, Becker & Cade, Cincinnati, Ohio, for Appellant.
Michael DeWine, Ohio Attorney General, and Derrick Knapp, Assistant Attorney
General, Columbus, Ohio, for Appellee Administrator of Bureau of Workers’
Compensation.
McFarland, J.:
{¶1} Appellant Thomas M. Tepe appeals the decision of the Highland
County Court of Common Pleas denying his workers’ compensation claims. Tepe
argues the trial court erred in finding he failed to meet his burden of proof. Having
reviewed the record, we find the trial court’s decision was not against the manifest
weight of the evidence and we affirm its judgment.
FACTS
{¶2} Tepe is a self-employed attorney whose business voluntarily
participates in the workers’ compensation fund. Tepe is a non-insulin dependent
Highland App. No. 11CA13 2
diabetic, and in March 2009, he sought medical treatment for an ulceration of his
right foot. The ulcer progressed and was not healing. On April 16, 2009, Tepe’s
physician referred him to a wound care center because normal treatments had
failed to heal the ulcer.
{¶3} At that point the ulcer was described as a Wagner Grade 1.1 Tepe
received an air-cast to wear to offload the pressure from the ulcer and he restricted
himself to working from home and attempted to remain off of his foot as much as
possible. However, on April 20, 2009, Tepe began a two-day civil trial where he
was trial counsel. Tepe maintained he had to be on his foot more than usual and
had to carry a large amount of case files, adding to the pressure on his feet. Even
with the air-cast, Tepe experienced great discomfort in his foot.
{¶4} On April 22, 2009, Tepe visited Dr. Brad Wenstrup at the wound care
center. Dr. Wenstrup noted the ulcer was a Wagner Grade 3 because it was a deep
ulceration with a possible infection. There was necrotic tissue around the wound,
which Dr. Wenstrup debrided. Dr. Wenstrup also noted he could see the bone of
the fifth metatarsal and due to the redness and sensitivity around the ulcer,
suspected the bone may have become infected. Dr. Wenstrup ordered x-rays, an
1
The Wagner Grades range from 1 through 5, with Grade 1 being a superficial diabetic ulcer and only
slight penetration of the skin, and Grade 5 being an extensive wound that has caused severe gangrene and has very
little chance of healing. (Wenstrup Depo. at 26-27.)
Highland App. No. 11CA13 3
MRI, and blood work. These tests revealed Tepe had osteomyelitis – a bone
infection – due to the bacterium enterococcus.
{¶5} The x-rays and MRI revealed the bone was rarefied, or degraded due to
the infection. Thus, Dr. Wenstrup scheduled a surgery and removed the head of
the infected bone, as well as portions of other nearby bones, to prevent further
infection and to permit the ulcer to heal. After some time, Tepe’s ulcer did
eventually heal.
{¶6} Tepe then filed a claim to participate in the workers’ compensation
fund for his diabetic ulcer, and the substantial aggravation of the ulcer and
osteomyelitis. The Bureau of Workers’ Compensation (“BWC”) denied Tepe’s
claims. After exhausting his administrative remedies, Tepe filed an appeal with
the Highland County Court of Common Pleas, pursuant to R.C. 4123.512.
{¶7} The trial court conducted a de novo bench trial regarding Tepe’s
claims. Tepe testified and presented the video deposition of Dr. Wenstrup. The
BWC presented the video deposition of Dr. Deborah Middaugh, who had
performed an independent medical examination of Tepe. The trial court then
issued its findings of fact and conclusions of law, denying all of Tepe’s claims.
The trial court reasoned Tepe failed to prove causation on any of his claims. Tepe
now appeals.
Highland App. No. 11CA13 4
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN CONCLUDING PLAINTIFF’S
EVIDENCE OF CAUSATION DID NOT MEET THE REQUISITE
BURDEN OF PROOF TO PARTICIPATE FOR THE CONDITIONS OF
SUBSTANTIAL AGGRAVATION OF A DIABETIC FOOT ULCER ON
THE LATERAL PART OF THE RIGHT FOOT AND THE FIFTH
METATARSAL WITH RESULTANT OSTEOMYELITIS AND/OR
SUBSTANTIAL AGGRAVATION OF OSTEOMYELITIS.”
A. Standard of Review
{¶8} In his sole assignment of error, Tepe argues the trial court erred by
denying his claims and preventing him from participating in the workers’
compensation fund. While Tepe argues specific points, he is essentially arguing
the trial court’s judgment was against the manifest weight of the evidence.
{¶9} “We will not reverse a trial court’s judgment in a civil action unless it
is against the manifest weight of the evidence. A trial court’s judgment is not
against the manifest weight of the evidence so long as some competent and
credible evidence supports it. See, e.g., C.E. Morris Co. v. Foley Construction Co.
(1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus. In determining whether a
trial court’s judgment is against the manifest weight of the evidence, a reviewing
court must not re-weigh the evidence. Seasons Coal Co. v. Cleveland (1984), 10
Highland App. No. 11CA13 5
Ohio St.3d 77, 79-80, 461 N.E.2d 1273. Under this highly deferential standard of
review, we do not decide whether we would have come to the same conclusion as
the trial court. Amsbary v. Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894
N.E.2d 71, at ¶ 11. Instead, we must uphold the judgment so long as the record
contains ‘some evidence from which the trier of fact could have reached its
ultimate factual conclusions.’ Id., citing Bugg v. Fancher, [4th Dist.] No. 06CA12,
2007-Ohio-2019, at ¶ 9. Moreover, we presume the trial court’s findings are
correct because the trial court is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections and to use those observations in
weighing the credibility of the testimony. See, e.g., Seasons Coal, 10 Ohio St.3d at
80; Jones v. Jones, [4th Dist.] No. 07CA25, 2008-Ohio-2476, at ¶ 18.” Woody v.
Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at ¶ 17. “However, to the extent
that the judgment involves a question of law, we review the question of law
independently and without any deference.” Id., citing Cooper v. Smith, 155 Ohio
App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 10.
B. Legal Analysis
R.C. 4123.01(C) provides:
{¶10} “(C) ‘Injury’ includes any injury, whether caused by external
accidental means or accidental in character and result, received in the course of,
and arising out of, the injured employee’s employment. ‘Injury’ does not include:
Highland App. No. 11CA13 6
***
{¶11} “(4) A condition that pre-existed an injury unless that pre-existing
condition is substantially aggravated by the injury. Such a substantial aggravation
must be documented by objective diagnostic findings, objective clinical findings,
or objective test results. Subjective complaints may be evidence of such a
substantial aggravation. However, subjective complaints without objective
diagnostic findings, objective clinical findings, or objective test results are
insufficient to substantiate a substantial aggravation.”
{¶12} “The Supreme Court has held that in order for such an aggravation of
a pre-existing condition to be compensable, ‘there must be a substantial causal
relationship between the [aggravating occurrence] and the [claimed disability], and
such relationship [cannot] be proved by mere magic words of direct causation
without evidence to definitely support it.’” Trent v. Barry (Mar. 11, 1992), 4th
Dist. No. 1885, quoting McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77,
82, 151 N.E.2d 540. Thus, when using medical expert testimony to establish the
causal relationship between the employment activity and the alleged substantial
aggravation, “the establishment of proximate cause through medical expert
testimony must be by probability.” Shumaker v. Oliver B. Cannon & Sons, Inc.
(1986), 28 Ohio St.3d 367, 369, 504 N.E.2d 44 (abrogated on other grounds).
“[A]n event is probable if there is a greater than fifty percent likelihood that it
Highland App. No. 11CA13 7
produced the occurrence at issue.” Stinson v. England (1994), 69 Ohio St.3d 451,
455, 633 N.E.2d 532, citing Cooper v. Sisters of Charity of Cincinnati, Inc. (1971),
27 Ohio St.2d 242, 253, 272 N.E.2d 97 and Albain v. Flower Hosp. (1990), 50
Ohio St.3d 251, 265, 553 N.E.2d 1038. “At a minimum, the trier of fact must be
provided with evidence that the injury was more likely than not caused by [the
employment activity].” Shumaker at 369, citing Cooper v. Sisters of Charity
(1971), 27 Ohio St.2d 242, 252, 272 N.E.2d 97. “Opinions expressed with a lesser
degree of certainty must be excluded as speculative.” Id.2
{¶13} Preliminarily, Tepe’s claims for compensation for the diabetic ulcer
itself and the substantial aggravation of the osteomyelitis were properly denied.
The evidence adduced established Tepe already had the diabetic ulcer prior to
April 20, 2009; thus, his employment activity had not caused it.
{¶14} Regarding the osteomyelitis, Dr. Middaugh testified the infection was
present prior to Tepe’s trial because the x-rays and MRI of April 22, 2009 showed
rarefaction – a degradation of the bone – which would take weeks or months to
occur. (Middaugh Depo. at 23.) Although there were no clinical signs of the
osteomyelitis on April 16, 2009, and there were signs of it on April 22, 2009, Dr.
Wenstrup was unable to establish a date for the onset of the osteomyelitis.
(Wenstrup Depo. at 98-99.) Thus, there was no evidence establishing Tepe’s
2
Despite Tepe’s argument to the contrary, the trial court did apply the correct standard in this regard.
Highland App. No. 11CA13 8
employment activities had caused the osteomyelitis. Furthermore, neither expert
testified concerning a substantial aggravation of the osteomyelitis. Therefore, the
trial court properly rejected Tepe’s first two claims.
{¶15} Tepe’s remaining claim was for the substantial aggravation of the
diabetic ulcer on his right foot. Here, the trial court correctly refused to consider
Dr. Middaugh’s testimony as to whether Tepe’s employment activities
substantially aggravated the diabetic ulcer because she had an extraordinarily high
standard of what constituted “substantially aggravated.” Dr. Middaugh believed
only injuries made permanently worse were “aggravated.” (Middaugh Depo. at
30.)
{¶16} Likewise, the trial court’s finding that Dr. Wenstrup’s testimony was
too equivocal to establish causation was supported by the evidence. Dr.
Wenstrup’s testimony was lacking in two ways: first, he refused to accept Tepe’s
recount of his activities during the civil trial as true; second, he refused to state an
opinion on causation with any degree of probability.
{¶17} Dr. Wenstrup refused to render an opinion based on Tepe’s
representation that he was on his foot more than usual during the trial. Rather, Dr.
Wenstrup gave conditional statements that if it was proven Tepe was actually on
his foot more than usual and wore a normal, closed shoe, then that could have
aggravated his diabetic ulcer. “I can say with a medical degree of probability, if
Highland App. No. 11CA13 9
indeed, that’s the type of activity that took place, at 51 percent, I would say it made
it worse.” (Depo. at 113.) But Dr. Wenstrup immediately qualified his statement
by adding he assumed Tepe was in “a normal shoe, a closed shoe.” (Depo. at 114.)
{¶18} Not only are these statements conditioned upon an erroneous fact –
that Tepe wore a normal, closed shoe, when he was actually wearing an air-cast –
but they are also expressed as a possibility, not probability. According to Dr.
Wenstrup, the alleged activities during the trial could have substantially aggravated
the ulcer, but he gave no opinion that they probably did, or that they more than
likely substantially aggravated the ulcer.
{¶19} Overall, Dr. Wenstrup testified it was impossible to place a percentage
on the probability that Tepe’s employment activities substantially aggravated the
preexisting diabetic ulcer. (Depo. at 162.) In Dr. Wenstrup’s opinion, “there’s a
lot of things missing for me to render a legitimate opinion * * *.” (Depo. at 116.)
Dr. Wenstrup’s testimony was summarized as follows:
{¶20} “Q. -- it’s fair to say we just don’t know if that -- what effect those
days [during the trial] had on his condition?
{¶21} “A. Well, I can’t.”
(Depo. at 164.) Thus, Dr. Wenstrup’s testimony fell short of establishing Tepe’s
employment activities substantially aggravated his diabetic ulcer. With Tepe
having failed to establish causation, the trial court properly rejected this claim, too.
Highland App. No. 11CA13 10
{¶22} Accordingly, the trial court’s judgment was not against the manifest
weight of the evidence and we overrule Tepe’s first assignment of error.
JUDGMENT AFFIRMED.
Highland App. No. 11CA13 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant 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
Highland County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J., and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.