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Hess v. Ford Motor Company8/18/2000
. Gainsburg, a neurological surgeon who had previously treated Hess for her carpal tunnel syndrome.
Hess first saw Dr. Gainsburg on July 12, 1996. Dr. Gainsburg determined that Hess had a large hernia of the C6-7 disc and ultimately recommended surgery. Dr. Gainsburg performed that surgery on July 24, 1996 after which Hess underwent approximately one year of post-surgical treatment. During that time, Hess was unable to work. Hess finally returned to work for Ford in August 1997.
Shortly after her injury, Hess filed a claim for workers' compensation benefits for an injury sustained in the course of and arising out of her employment. That claim was allowed at all administrative levels for the injury of a herniated disc at C6-7. The cause of the injury was determined to be: "Repetitive lifting of parts; work load had increased from 1800 parts per day to 2200 parts per day." Subsequently, Ford appealed the final decision of the Industrial Commission to the Lucas County Court of Common Pleas. Thereafter, the parties dismissed that case by stipulation and on July 10, 1998, Hess filed a complaint in that same court seeking a determination of her right to participate in the Workers' Compensation Fund for the conditions of "cervical strain" and "herniated disc C6-7."
The case proceeded to a jury trial at which Hess, Dr. Gainsburg and Dr. Prezzia testified. At the conclusion of the trial, the jury returned a verdict in favor of Hess. In answering an interrogatory, the jury specifically determined that the herniation of Hess's C6-7 disc was not primarily caused by the natural deterioration of tissue in her neck. Ford now appeals that verdict and the trial court's denial of its motion for a directed verdict.
In its first assignment of error, Ford contends that the trial court erred in denying its motion for a directed verdict which Ford made at the conclusion of appellee's case and renewed at the conclusion of the evidence portion of the trial. Ford asserts that it was entitled to a directed verdict because Dr. Gainsburg's testimony failed to establish a causal connection between appellee's injury and her work activities.
"A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party." The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73, citing Civ.R. 50(A)(4). "Rulings on motions for directed verdict are subject to de novo review on appeal." Titanium Industries v. S.E.A., Inc. (1997), 118 Ohio App.3d 39, 47-48.
In order to be entitled to workers' compensation benefits, appellee needed to establish by a preponderance of the evidence in the trial below that her disc herniation was a work-related injury as that term is defined in R.C. 4123.01(C). That statute reads in relevant part:
"'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:
" *
"(2) Injury or disability caused primarily by the natural deterioration of tissue, an organ, or part of the body[.]"
The establishment of proximate cause through medical expert testimony must be by probability, not mere possibility. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369; Galletti v. Burns Internatl. (1991), 74 Ohio App.3d 680, 683. That is, the claimant must establish that her injury more likely than not was caused by her work ac
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