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Booher v. Honda of Am. Mfg.8/19/1996
EVANS, Judge.
This is a consolidated appeal brought by Ramona Booher, appellant, from two related judgment entries issued by the Court of Common Pleas of Union County. First, appellant appeals a judgment rendered after a jury found her entitled to participate in Ohio's Workers' Compensation Fund for a lower back sprain, but denied her claim for benefits related to a herniated disc. Second, appellant challenges the trial court's denial of her claim against Honda of AmericsManufacturing, Inc. ("Honda"), for witness fees and stenographic and reproduction costs for medical depositions.
This case began when appellant applied for workers' compensation due to injuries she allegedly sustained while working at Honda on April 18, 1990. Appellant initially complained of pain and injury to her neck, back, shoulders, hip sockets and left leg as a result of lifting during her daily work at Honda. In her application to the Dayton Regional Board of Review and in her appeal to the Industrial Commission, appellant was denied participation in the Workers' Compensation Fund. Pursuant to R.C. 4128.512, appellant appealed the decision of the Industrial Commission to the Union County Court of Common Pleas. A jury trial followed, and appellant presented medical records and testimony concerning her injuries. The sole issue before the jury was whether appellant had sustained injury as a result of her employment, thereby entitling her to receive the compensation and benefits provided by the Workers' Compensation Act. The jury returned a verdict in favor of appellant's entitlement to benefits for a lumbar sprain injury but denied her claim in relation to a herniated disc. After trial, appellant moved for payment of attorney fees, deposition costs and witness fees by Honda. This motion was granted in part and denied in part by the trial court.
Appellant now appeals both the decision of the trial court journalizing the jury verdict and the trial court's entry relating to costs, averring three assignments of error.
"The trial court abused its discretion in permitting a new and independent claim for a herniated disc for the flat time in the common pleas court."
Appellant contends that the injury of a herniated disc was not considered by the Industrial Commission, and, therefore, a claim to receive benefits for this injury was not properly brought under the jurisdiction of the common pleas court. Since filing this appeal, appellant has reportedly brought another claim to the Industrial Commission specifically relating to the herniated disc injury. Apparently, appellant seeks a new trial on the herniated-disc claim (assuming the commission refuses her latest claim) after receiving an unfavorable verdict in the trial court in the present case.
Initially, we note that the trial to the Court of Common Pleas of Union County, on appeal from the Industrial Commission, is a trial de now, which carries with it a right to a trial on wholly new evidence. Smith v. Young (1963), 119 Ohio App. 176, 179, 26 O.O.2d 406, 407, 197 N.E.2d 836, 837-838. As the court in Grant v. Ohio Dept. of Liquor Control (1993), 86 Ohio App.3d 76, 82, 619 N.E.2d 1165, 1170, explained:
"In a trial de novo the issues `arise on the pleadings.' R.C. 2311-01. The t,s right to participate in the fund has no limitation under R.C. 4123.619. * * * In determining the claimant's right to participate, any issues can be raised in the trial court except issues of extent of disability."
The record in this case shows that appellant failed to submit a copy of the Industrial Commission's decision to the common pleas court. However, based on the facts p
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