Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 15-CV-6758
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
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.
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'
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
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, " 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
8} Five Rivers and the BWC appeal from the trial
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,
¶ 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 ...