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White v. Buehrer

Court of Appeals of Ohio, Second District, Montgomery

October 20, 2017

ANN WHITE Plaintiff-Appellee

         Civil Appeal from Common Pleas Court T.C. NO. 15-CV-6758

          GARY D. PLUNKETT, Atty. Reg. No. 0046805 and RACHEL D. SIEKMAN, Atty. Reg. No. 0091012, Attorneys for Plaintiff-Appellee

          THERESA M. MUHIC, Atty. Reg. No. 0040649 and ANTHONY V. JAGODITZ, Atty. Reg. No. 0083717, Attorneys for Defendant-Appellant, Five Rivers Health Center

          NATALIE J. TACKETT, Atty. Reg. No. 0040221, Assistant Attorney General, Workers' Compensation Section, Attorney for Defendant-Appellant, Bureau of Workers' Compensation


          FROELICH, J.

         {¶ 1} The Five Rivers Health Center and the Bureau of Workers' Compensation (BWC) appeal from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Ann White, a Five Rivers' employee, in her administrative appeal from a determination that she was not eligible for workers' compensation. In granting summary judgment, the trial court found that White was eligible to receive workers' compensation.

         {¶ 2} For the following reasons, the judgment of the trial court will be reversed, and the matter will be remanded for further proceedings.

         Facts and Procedural History

         {¶ 3} White was injured at work on June 15, 2015. She fell as she walked through an exam room to deliver mail and broke her right hip. She filed a claim for workers' compensation.

         {¶ 4} In the administrative proceedings, White presented her own testimony that the exam room floor had been "tacky, " causing her to fall. She also presented an expert report from someone who examined the floor two weeks after the accident; the expert opined that the floor may have been stripped but not yet rewaxed at the time of White's fall. Five Rivers presented the testimony of a senior nurse who worked in the exam room the day of White's fall, the day before, and the day after; the nurse testified that the floor had not been "tacky" or otherwise hazardous. Five Rivers also presented the testimony of its human resources manager and documentary evidence from Miami Valley Hospital, which maintained the floors in Five Rivers' offices, that the floor had not been stripped and rewaxed for more than a year prior to White's fall.

         {¶ 5} On October 2015, a district hearing officer and a staff hearing officer of the Ohio Industrial Commission each denied White's claim and disallowed workers' compensation benefits. White appealed, and the Industrial Commission "refused" the appeal.

         {¶ 6} On December 29, 2015, White filed a complaint in the Montgomery County Court of Common Pleas, appealing from the denial of her claim for workers' compensation. On June 2, 2016, White filed a motion for summary judgment; she attached her own affidavit asserting that the floor in the room where she fell had been "very tacky" and "duller in appearance * * * than normal, " that she had injured her hip in her fall, and that she had had no prior problems with her hip. She argued in the motion that 1) there were no genuine issues of material fact that her injury occurred in the course of her work and arose from her work; 2) the injury was "explained" by a workplace condition, citing her affidavit that her foot "caught on the floor, "[1] and therefore she was entitled to compensation; and 3) none of the exceptions to compensation for an "on-premises, explained injury" (horseplay, intoxication, and idiopathic conditions) applied. Five Rivers and the BWC each filed memoranda contra White's motion for summary judgment, to which they attached White's medical records, reports related to the fall, and a letter from White's expert to White's attorney.

         {¶ 7} On September 13, 2016, the trial court granted White's motion for summary judgment, finding that she was entitled to participate in the workers' compensation program. Subsequently, the trial court also granted White's motion for reimbursement of costs and attorney fees and ordered that the BWC pay her an agreed-upon amount ($3, 303.68).[2]

         {¶ 8} Five Rivers and the BWC appeal from the trial court's judgment.

         Summary Judgment Standard

         {¶ 9} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

         {¶ 10} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id.

         {¶ 11} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ΒΆ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no ...

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