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Preston v. Lathrop Co.12/10/2004
DECISION AND JUDGMENT ENTRY
{ } This is a workers' compensation appeal. John Preston appeals the decision of the Lucas County Court of Commons Pleas that denied his right to participate in the Workers' Compensation Fund for an additional claimed condition involving his neck. He sought to include the condition of "broad-based central focal disc protrusion at C3-4 with effacement and indentation of the thecal sac" ("disc herniation at C3-4"). Because the trial court did not err in admitting the trial deposition of the defense expert, we affirm.
{ } On October 22, 1991, Preston was injured after being struck in the head by a falling 4x4 while working at a construction site for The Lathrop Company, Inc. He was taken to the hospital and released four to five hours later. Preston received workers' compensation benefits for a scalp contusion and cervical strain. Eight years later, in 1999, an additional claim of aggravation of pre-existing arthritis was allowed as a related injury. An additional claim for bilateral neuralgia and neurovascular headaches was allowed in 2000.
{ } In 2001, Preston underwent an MRI of his cervical spine. Results of the MRI showed "(1) Degenerative disc disease throughout the cervical spine, most pronounced at C3-4, C5-6, and C6-7, * * * with facet arthrosis and uncinate hypertrophy noted in the mid cervical spine and resultant foraminal encroachment at C4-5 and C5-6; (2) Broad-based central focal disc protrusion at C3-4 with effacement and indentation of the thecal sac; (3) Small diffuse annular disc bulge at C4-5 with slight to mild effacement and indentation of the thecal sac; (4) Posterior spur formation at C5-6 with resultant effacement and indentation of the thecal sac; and (5) Cerebellar atrophy commensurate with [Preston's] age."
{ } On May 7, 2001, Preston filed a claim for additional allowance for the disc herniation at C3-4. The Industrial Commission denied the claim, and Preston filed an appeal to the Lucas County Court of Common Pleas pursuant to R.C. 4123.512.
{ } On March 14, 2003, the matter was tried to the bench. Preston testified that as a result of his injury he suffers from head, neck, and shoulder pain and has headaches. He first saw Dr. Gregory Thomas, but was released by him after four to five months. Preston stated he was still in pain, so he started to see Dr. Williams until Dr. Williams retired. He then saw Dr. Paul Norden, who ordered the 2001 MRI. Preston testified that he has not treated with anyone since Dr. Norden died.
{ } After Preston testified, the trial court was informed that Preston had filed a motion in limine that morning regarding the deposition of the defense expert, Dr. Anthony Fiorini. During argument, Preston maintained that Dr. Fiorini's deposition should be excluded because the chiropractic physician had not examined him and because Dr. Fiorini's opinion was based on unauthenicated, inadmissible medical records from various treating physicians. The Bureau of Workers' Compensation ("BWC") responded that if Dr. Fiorini's deposition were excluded, so should the deposition of Dr. Jerome Dombeck, Preston's expert, be excluded. Dr. Dombeck's opinion was also based, in part, on medical records he had reviewed, which were not offered for admission. BWC then offered Preston's medical records for admission. The trial court denied both motions in limine and admitted the disputed medical records and depositions. The MRI report and Dr. Dombeck's report were admitted without objection as plaintiff's exhibit 1 and 2.
{ } In a judgment entry filed April 9, 2004, the trial court determined that Preston was not entitled to participate in the workers' compensation fund for t
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