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Sturm v. City of Toledo

Court of Appeals of Ohio, Sixth District

July 19, 2013

Kelly J. Sturm Appellant
v.
City of Toledo, et al. Appellees

Trial Court No. CI0201101705

John W. Gold and Robert Zelvy, for appellant.

Adam Loukx, City of Toledo Law Director, and Michael A. Kyser, Assistant Law Director, for appellee, City of Toledo.

Michael DeWine, Ohio Attorney General, and Joshua W. Lanzinger, Assistant Attorney General, for appellee, Bureau of Workers' Compensation.

DECISION AND JUDGMENT

YARBROUGH, J.

I. Introduction

{¶1} Appellant, Kelly Sturm, appeals the judgment of the Lucas County Court of Common Pleas, which denied his request to participate in the Ohio workers' compensation fund. Specifically, appellant contends the trial court failed to give an adequate jury instruction regarding the definition of "injury" under R.C. 4123.01(C). We affirm.

A. Facts and Procedural Background

{¶2} Alleging he was injured in the course of his employment, appellant, a Toledo police officer, filed a claim with the Bureau of Workers' Compensation. On May 25, 2010, the bureau disallowed appellant's claim. After exhausting all of his administrative remedies, appellant appealed to the trial court pursuant to R.C. 4123.512. In his complaint, appellant alleged the injury he suffered was the result of a substantial aggravation of a pre-existing condition pursuant to R.C. 4123.01(C)(4). The statute states as follows:

(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:
(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.

{¶3} The matter proceeded to a jury trial. Testimony from the trial reveals the following facts.

{¶4} On July 11, 2008, appellant was involved in a police chase. The chase began in a vehicle pursuit and ended on foot. As appellant was chasing the suspect, the suspect hopped over a fence. Appellant attempted to follow him over the fence but could not due to a sudden feeling of weakness and heavy pressure on his chest. Six days later, on July 17, 2008, appellant suffered what he believed to be a heart attack, causing him to spend five days in the intensive care unit at Toledo Hospital. After a series of tests, including an electrocardiogram, a cardiograph, a stress test, and a catheterization, it was determined that appellant did indeed suffer a heart attack. His physician, Dr. Nizal Daboul, determined that appellant had a plaque rupture during the chase which caused his heart attack several days later.

{¶5} Appellant also received independent examinations from Dr. Allan Harris, Dr. Barry Deran, and Dr. Robert Kantor. Dr. Harris testified that the plaque rupture occurred while appellant was chasing the subject, and was the result of the degeneration of his chronic coronary artery disease. Dr. Harris testified that while the chase in itself did not cause the heart attack, it did cause the substantial aggravation of the artery which abruptly caused the artery to close off. He stated that, in his opinion, the artery would not have closed if not for the damage done to it on July 11th. Similarly, Dr. Deran testified that upon learning appellant had the symptoms of weakness and heaviness on the chest, he agreed it was probable that a plaque rupture had occurred. Furthermore, Dr. Deran testified that it was likely the heart attack was caused by the rupture. However, he admitted that there is no objective scientific evidence to support his conclusion. In contrast, Dr. Kantor testified he did not believe that a plaque rupture caused the heart attack because appellant's ...


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