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Jeff Holmes v. Crawford Machine

November 7, 2011

JEFF HOLMES, PLAINTIFF-APPELLANT,
v.
CRAWFORD MACHINE, INC., ET AL.,
DEFENDANTS-APPELLEES. JEFF HOLMES, PLAINTIFF-APPELLANT,
v.
CRAWFORD MACHINE, INC., ET AL.,
DEFENDANTS-APPELLEES. JEFF HOLMES, PLAINTIFF-APPELLEE,
v.
CRAWFORD MACHINE, INC., DEFENDANT-APPELLANT, -AND-
STATE OF OHIO, BWC, DEFENDANT-APPELLEE.



Appeals from Crawford County Common Pleas Court Trial Court Nos. 10 CV 0221 and 11 CV 0003 Judgment Affirmed in Case No. 3-11-09 Judgment Reversed and Cause Remanded in Appellate Case No. 3-11-10 Judgment Reversed and Cause Remanded in Appellate Case No. 3-11-12

The opinion of the court was delivered by: Preston, J.

Cite as Holmes v. Crawford Machine, Inc.,

OPINION

{¶1} We are presented with three cases stemming from an injury that plaintiff/employee, Jeff Holmes (hereinafter "Holmes"), suffered on July 27, 2009 while working for defendant/employer, Crawford Machine, Inc. (hereinafter "Crawford Machine"). We have elected to consolidate the cases for oral argument and opinion. Our discussion will be divided by appellate case number.

{¶2} In appellate case no. 3-11-09, plaintiff-appellant/employee, Holmes, appeals the Crawford County Court of Common Pleas' judgment entry finding him entitled to participate in the workers' compensation system for only one of six of his alleged conditions as found by the jury. For the reasons stated herein, we affirm the trial court's judgment in this case.

{¶3} On July 29, 2011, Holmes filed claim no. 09-835696 with the Ohio Bureau of Workers' Compensation (hereinafter "BWC"). (Doc. No. 1, Exs. A & B). The BWC Administrator originally allowed Holmes' claim for "electric current effects" and "sprain left shoulder/arm nos." (Id., Ex. A). However, on August 13, 2009, Crawford Machine appealed, and on October 14, 2009, the District Hearing Officer vacated the Administrator's order and denied the claim. (Id.).

{¶4} On October 19, 2009, Holmes appealed, and, on February 5, 2010, the Staff Hearing Officer vacated the District Hearing Officer's order and allowed Holmes' claim on the following conditions: (1) Left Shoulder Strain; (2) Electrical Shock; (3) Low Back Strain; (4) Left Rotator Cuff Tear; (5) Left Posterior Shoulder Dislocation; and (6) Abrasion Right Fifth Finger. (Id., Ex. B).

{¶5} On March 2, 2010, Crawford Machine appealed, but the Industrial Commission refused the appeal pursuant to R.C. 4123.511(E) on March 10, 2010. (Id., Ex. C).

{¶6} On April 30, 2010, Crawford Machine filed a notice of appeal to the Crawford County Court of Common Pleas pursuant to R.C. 4123.512, which was assigned trial court case no. 10 CV 0221. (Doc. No. 1).

{¶7} On May 26, 2010, Holmes filed his petition and complaint seeking a declaration that he was entitled to participate in the workers' compensation fund. (Doc. No. 4). On June 22, 2010, Crawford Machine filed its answer. (Doc. No. 7).

{¶8} The matter proceeded to jury trial on February 1-3, 2011. (Doc. No. 109). The jury rendered six verdicts, finding that Holmes was not entitled to participate in the workers' compensation fund for the following conditions: (1) electrical shock; (2) left shoulder strain; (3) left rotator cuff tear; (4) low back strain; and (5) left posterior shoulder dislocation. (Doc. Nos. 94, 96, 98, 100, 102). However, the jury found that Holmes was entitled to participate in the workers' compensation fund for the "abrasion right fifth finger" condition. (Doc. No. 104).

{¶9} On March 2, 2011, Holmes filed a notice of appeal, which was assigned appellate case no. 3-11-05. (Doc. No. 105). On March 21, 2011, however, this Court dismissed it for lack of a final, appealable order. (Doc. No. 108).

{¶10} On March 23, 2011, the trial court filed its judgment entry declaring that Holmes was not entitled to participate in the workers' compensation fund for the five conditions mentioned above but was allowed to participate in the fund for the condition of "abrasion right fifth finger," as determined by the jury. (Doc. No. 109).

{¶11} On April 19, 2011, Holmes filed a notice of appeal from the trial court's judgment entry, which was assigned appellate case no. 3-11-09. (Doc. No. 114).

{¶12} Holmes now appeals, raising three assignments of error for our review. We elect to discuss Holmes' first and third assignments of error together.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY ADMITTING THE REPORTS FROM DONAN ENGINEERING, CARTER ELECTRIC, DR. JONES AND DR. BARKETT INTO EVIDENCE SINCE THE REPORTS ARE HEARSAY AND DO NOT FALL WITHIN ANY HEARSAY EXCEPTION.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY ADMITTING THE REPORTS OF DONAN ENGINEERING, CARTER ELECTRIC, DR. JONES AND DR. BARKETT SINCE THE REPORTS WERE NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE.

{¶13} In his first assignment of error, Holmes argues that the trial court erred by admitting the reports of Donan Engineering, Carter Electric, Dr. Jones, and Dr. Barkett into evidence since those reports were inadmissible hearsay. Specifically, Holmes argues that the reports were not business records under Evid.R. 803(6) since they were letters addressed to either Crawford Machine or defense counsel and prepared for litigation. In his third assignment of error, Holmes argues that the trial court erred by admitting the aforementioned reports since opinion testimony was offered into evidence concerning the reports thereby rendering the reports cumulative evidence.

{¶14} We begin by acknowledging that a trial court has discretion to determine whether to admit or exclude evidence. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291. Therefore, an appellate court will not disturb a trial court's decision on the exclusion or admission of evidence absent an abuse of discretion. Id. An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶15} Hearsay evidence is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). The Ohio Rules of Evidence forbid the use of hearsay evidence at trial absent a recognized exception. Evid.R. 802. Evid.R. 803, however sets forth the following exception to the hearsay rule:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(1), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

"'Evid.R. 803(6) does not preclude the admissibility of opinions or diagnoses contained in medical records or reports as long as they satisfy the foundational authentication requirements of Evid.R. 803(6) and do not violate other evidentiary rules (e.g. R.C. 2317.02(B); Evid.R. 402 and Evid.R. 702).'" Wasinski v. PECO II, Inc., 3d Dist. Nos. 3-08-14, 3-08-16, 2009-Ohio-2615, ¶20, quoting Smith v. Dillard's Dept. Stores, Inc., 8th Dist. No. 75787, 2000-Ohio-2689.

{¶16} Pat Baker, an electrician with Carter Electric, testified that, on or about August 27, 2009, he inspected Acme Machine No. 28 at Crawford Machine. (Feb. 2, 2011 Tr., Vol. II at 306-08). Baker identified defendant's exhibit F as a true and accurate copy of the report he prepared afterwards. (Id. at 317). Baker testified that, based upon his examination of the machine and the statements he collected concerning how the accident allegedly happened, Holmes could not have sustained an electrical shock from the machine. (Id. at 318-19). Baker testified that Holmes could not have sustained an electrical shock "[b]ecause all the power coming into the machine was through [a] disconnect, and the disconnect was locked open and there was no other power source to the machine." (Id. at 319).

{¶17} Frank Miller, Jr., an electrical engineer with Donan Engineering, testified that, in August 2009, he inspected Acme Machine No. 28 at Crawford Machine at their request after an employee reported being shocked while working on the machine. (Feb. 3, 2011 Tr., Vol. III at 445-47). After examining the machine, Miller concluded that it was properly wired, and that Holmes was not electrically shocked from it. (Id. at 447-48, 479). Miller identified defendant's exhibit M1 as a true and accurate copy of his investigation report. (Id. at 458). Miller identified defendant's exhibit M as a true and accurate copy of the addendum to his earlier report (D's Ex. M1), which was kept in the ordinary course of his business. (Id. at 462). Miller testified that, as he stated in the addendum to his earlier report, Holmes could not have suffered an electrical shock from the machine. (Id. at 463). On cross-examination, Miller testified that

Crawford Machine requested that he prepare reports based upon his investigation. (Id. at 466). When asked whether Crawford Machine requested the reports for litigation, Miller responded, "[i]nitially, it was not for litigation purposes. They, basically, wanted to know what is wrong with this machine, if anything at all." (Id.).

{¶18} Dr. Jack Jones identified defendant's Exhibit S as a true and accurate copy of the report he prepared following his July 2010 examination of Holmes, which report was kept in the ordinary course of his business. (Feb. 2, 2011 Tr., Vol. II at 330, 332-33). Dr. Jones testified that, prior to his July 2010 examination of Holmes, he had an opportunity to review Holmes' treatment records, subsequent evaluations, surgical records, and physical therapy records. (Id. at 332). Dr. Jones testified that, after the July 2010 examination and his report, he had the opportunity to review: Holmes' medical records related to his two previous workers' compensation claims involving his lower back; a recent MRI of Holmes' lumbar spine; and the reports from Donan Engineering and Carter Electric. (Id. at 333-34). Dr. Jones identified defendant's exhibit T as a true and accurate copy of the addendum to his report, which was kept in the ordinary course of his business and made eleven days after he examined Holmes. (Id. at 334-35). Dr. Jones testified that Holmes did not suffer an electrical shock. (Id. at 360-61). When asked why he had that opinion, Dr. Jones testified:

First, the electrical journeyman I guess two days after the injury found no flaws or defects with the machine that could have caused it. The forensic engineer from Donan Engineering found no way or evidence that any kind of arcing or any kind of electrical shock could have been sustained. And the -- there was no elevation in the muscle enzymes a few hours after this injury occurred in the emergency room or for several days thereafter that would suggest that kind of a severe tonic clonic kind of muscle contraction injury.

On cross-examination, Dr. Jones testified that, in his first report, he did not have an opinion regarding Holmes' left shoulder sprain, electrical shock effects, low back strain, left rotator cuff tear, left posterior shoulder dislocation, or the abrasion, but he did have an opinion concerning those conditions in his second report. (Id. at 392). Dr. Jones testified that, between his first and second reports, he reviewed the reports of Donan Engineering and Carter Electric. (Id.). When asked if he based the opinion found in his second report on these reports, Dr. Jones testified "[t]hat was part of it, yes." (Id.). Dr. Jones testified that, if Holmes did sustain an electrical shock, it could have caused the aforementioned conditions. (Id. at 395).

{¶19} Dr. Robert Barkett, Jr. testified that he has been Holmes' family doctor for the past four years. (Id. at 411-12). Dr. Barkett identified defendant's exhibit X as a true and accurate copy of the report kept in the ordinary course of business, which he prepared after he had an opportunity to review the reports of Donan Engineering and Carter Electric. (Id. at 416-17). Dr. Barkett testified that the Donan Engineering and Carter Electric reports contradicted Holmes' version of how the injury occurred. (Id. at 417-18). Dr. Barkett testified that he rendered his first opinion after reading Dr. Zuesi's and Dr. Novak's reports and the emergency room records, but he had to "reevaluate the situation" after reading the Donan Engineering and Carter Electric reports. (Id. at 418). Dr. Barkett testified that, when he first saw Holmes, Holmes' "symptoms were absolutely consistent with an electrical injury"; however, his opinion changed after he read the Donan Engineering and Carter Electric reports indicating that Holmes could not have sustained an electrical shock. (Id. at 418-20). On cross-examination, Dr. Barkett testified that his opinion that Holmes did not sustain an electrical shock was based solely upon the Donan Engineering and Carter Electric reports. (Id. at 429). He further testified that his opinion would be that Holmes sustained his injuries as a result of the July 27, 2009 incident if it was discovered that those reports were inaccurate. (Id. at 430).

{¶20} Upon review of the foregoing testimony, we cannot conclude that the trial court abused its discretion by admitting the reports of Donan Engineering (D's Exs. M & M1), Carter Electric (D's Ex. F), Dr. Jones (D's Exs. S & T), and Dr. Barkett (D's Ex. X). With respect to the Donan Engineering reports, Miller, who conducted the forensic analysis of Acme Machine No. 28, authenticated defendant's exhibits M and M1 as true and accurate copies of his reports made shortly after his examination of the machine in question. Miller further testified that the reports were kept in the ordinary course of the business. Nevertheless, Holmes argues that these records were not trustworthy because they were made for the purposes of litigation, citing Johnson v. Cassens Transport Co., 158 Ohio App.3d 193, 2004-Ohio-4011, 814 N.E.2d 545. In Johnson, we determined that a trial court's decision to exclude from evidence letters written by the claimant's attending physician to the claimant's counsel in response to counsel's inquiry after litigation had begun was not unreasonable. 2004-Ohio-4011, at ¶19. Johnson does not set forth a rule of mandatory exclusion as Holmes would have; rather, it merely affirmed the trial court's discretion in determining that the letters in that case were not admissible under Evid.R. 803(6) because either "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Furthermore, in this case the reports were not sent to counsel in response to counsel's inquiry after litigation had begun as in Johnson; rather, the reports were sent to the employer after the employer hired Donan Engineering to inspect the suspect machine. Even if the trial court erred in admitting the reports, the trial court's error was harmless since the reports were merely cumulative of Miller's testimony at trial. See Johnson, 2004-Ohio-4011, at ¶23; State v.

Tomlinson (1986), 33 Ohio App.3d 278, 281, 515 N.E.2d 963 ("where a declarant is examined on the same matters as contained in impermissible hearsay statements and where admission is essentially cumulative, such admission is harmless."). For all these reasons, we cannot conclude that the trial court erred by admitting the Donan Engineering reports into evidence.

{¶21} With respect to the Carter Electric report, the trial court's admission of this evidence was harmless error. Although Baker testified that the report was a true and accurate copy of his prepared report, he never actually testified that the report was prepared in the ordinary course of the business as required under Evid.R. 803(6). Lingo v. Leeper, 2nd Dist. No. 18865, 2002-Ohio-1205, at *2 ("Although Dr. Shear authenticated the report and its contents, he did not testify that this report is an ordinary part of his business. Thus, the trial court could reasonably conclude that this report is hearsay and it may be excluded."). Nevertheless, the trial court's error in admitting the Carter Electric report was harmless because the report was merely cumulative of Baker's testimony at trial. See Johnson, 2004-Ohio-4011, at ¶23; Tomlinson, 33 Ohio App.3d at 281.

{¶22} We also cannot conclude that the trial court abused its discretion by admitting Dr. Jones' and Dr. Barkett's reports into evidence. Holmes argues that the physician reports were inadmissible under Evid.R. 803(6) because they were essentially letters sent to defense counsel after legal proceedings began. Although the trustworthiness of these reports is more questionable since they were submitted to defense counsel after legal proceedings began similar to the reports in Johnson, supra, it was still within the trial court's discretion to allow the reports into evidence. Regardless, any error in the admission of these reports would also be harmless error because the reports were cumulative of Dr. Jones' and Dr. Barkett's testimony at trial. See Johnson, 2004-Ohio-4011, at ¶23; Tomlinson, 33 Ohio App.3d at 281.

{¶23} In his third assignment of error, Holmes' argues that the trial court erred by admitting the aforementioned reports because they were cumulative of the testimony presented at trial.

{¶24} Holmes did not object to the admission of the aforementioned reports on the basis that they constituted cumulative evidence; and therefore, Holmes has waived all but plan error on this issue. (Feb. 3, 2011 Tr., Vol. III at 483, 487, 490- 91). Proctor v. Wolber, 3d Dist. No. 5-01-38, 2002-Ohio-2593, ¶51. In civil appeals, "the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus. Holmes has failed to demonstrate that the trial court's admission of the cumulative evidence in this case constitutes civil plain error.

{ΒΆ25} Holmes' first and third assignments of error are, ...


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