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Gregory P. Hippely v. Lincoln Electric Holdings

October 13, 2011

GREGORY P. HIPPELY PLAINTIFF-APPELLANT
v.
LINCOLN ELECTRIC HOLDINGS, INC., ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-720689

The opinion of the court was delivered by: Eileen A. Gallagher, J.:

Cite as Hippely v. Lincoln Elec. Holdings, Inc.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.

{¶1} Appellant Gregory Hippely appeals from a jury verdict in favor of appellee Lincoln Electric Holdings, Inc. ("Lincoln Electric") entered in the Cuyahoga County Court of Common Pleas on December 9, 2010 and the trial court's January 25, 2011 denial of his motion for a judgment notwithstanding the verdict and motion for a new trial. For the following reasons we affirm.

{¶2} Appellant began working at Lincoln Electric on June 8, 1970. Appellant's employment at Lincoln Electric included positions as welder, lathe operator, and gang leader. (Tr. 142-144.) On October 4, 2001, appellant was injured while in the course of, and arising out of, his employment with Lincoln Electric. Appellant suffered injury while repeatedly moving an I-beam. Appellant's worker's compensation claim was allowed for the conditions of "sprain lumbar region, sprained right shoulder, tear of right rotator cuff and displacement at L2-3 and L5-S1." (Tr. 9.)

{¶3} Appellant was treated by Dr. Jeffrey Shall, M.D., an orthopedic surgeon, who recommended that appellant have back surgery. (Tr. 150-151.) Due to his concerns about the potential risks and side effects of such surgery and his concern that he would be unable to return to work, the appellant refused the procedure. (Tr. 152.)

{¶4} Appellant returned to work after one month but was limited to light duty. Lincoln Electric accommodated the restrictions that appellant's physician placed upon his work and appellant was given a job in the cafeteria. Appellant worked in the cafeteria from January 16, 2002, until January 18, 2008, when appellant testified that he was unable to continue working due to back pain. (Tr. 157-158.) Appellant was awarded temporary total disability at that time and was continuing to receive those benefits at the time of trial. (Tr. 175-176.) Lincoln Electric terminated appellant's employment on June 15, 2009, and placed him in "retiree" status.

{¶5} On July 10, 2009, appellant moved the Bureau of Workers' Compensation ("Bureau") for an additional allowance for the condition of major depressive disorder, single episode, mild. Appellant's claim was allowed by the Bureau and Lincoln Electric filed a notice of appeal of the Industrial Commission's order in the Cuyahoga County Court of Common Pleas on March 9, 2010. The case proceeded to trial and the jury returned a verdict in favor of Lincoln Electric. Appellant did file a motion for judgment notwithstanding the verdict, as well as a motion for a new trial, both of which the trial court denied. Appellant appealed from the judgment of the trial court and the denial of his motions, asserting the three assignments of error contained in the appendix to this opinion.

{¶6} Appellant argues in his first assignment of error that the jury's verdict was against the manifest weight of the evidence.

{¶7} It is a basic principle of appellate review that judgments supported by competent, credible evidence going to all the material elements of a case must not be reversed as against the manifest weight of the evidence. Berry v. Lupica, Cuyahoga App. No. 95393, 2011-Ohio-3464, at ¶21, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus; Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533. "We therefore indulge every reasonable presumption in favor of the trial court's judgment, and to the extent that the evidence is susceptible to more than one interpretation, we construe it consistently with the jury's verdict." Id. (Internal citations omitted.)

{¶8} "[I]t is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses." Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178, 180. That is, an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial judge. Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

{ΒΆ9} In the case sub judice, both parties' experts agreed that appellant suffered from Major Depressive Disorder but disagreed at trial as to whether appellant's 2001 injury was a proximate cause of his depression. The sole question before the jury was whether ...


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