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McKenney v. Hillside Dairy Co.11/30/1995
This is an appeal from a final judgment of the Cuyahoga County Court of Common Pleas entered upon a jury verdict and the jury's answers to interrogatories in a workers' compensation matter on November 2, 1994, as well as on January 11, 1995.
For the reasons set forth below, we affirm in part and reverse in part the decision of the lower court.
The pleadings, transcripts and exhibits reveal the following facts relevant to the issues in this appeal. Plaintiff-appellant Freddie Richard McKenney was employed as a truck driver and delivery man by defendant-appellee Hillside Dairy, a self-insured employer under the workers' compensation statute. On September 8, 1989, while in the course and scope of his employment, the plain- tiff sustained a compensable injury when he was struck in the head by an overhead garage door at a customer location. Plaintiff was taken from the scene to the emergency room of St. Vincent Charity Hospital, where he was first seen by a nurse who recorded the history and his complaints and then by a physician who examined, diagnosed and treated the plaintiff's injuries. Hospital records indicated that the plaintiff was treated for "laceration of the left lateral orbit," "abrasion to scalp," "traumatic iritis left eye," and "contusion of the skull." Plaintiff retained counsel and was referred to William Kay, M.D., who saw plaintiff on Sep-tember 12, 1989 and diagnosed the plaintiff with further injuries; viz., laceration to the left eye, strained neck muscles, strained lower back muscles and post-traumatic headaches.
Administratively, on October 17, 1989, the defendant/em- ployer, Hillside Dairy Co., certified the validity of the plain- tiff's claim on the back of the initial C-50 with the words: "The employer recognizes the claim for laceration of left orbit, abra- sion to scalp per hospital records." This partial certification placed in dispute the plaintiff's further allegations of injuries to the left eye, lower back, neck, shoulder and "headaches."
On November 14, 1989, the Bureau formally acknowledged the dispute regarding the further injuries and referred the claim to the Industrial Commission for formal hearing. Thereafter, defen- dant/employer, by its actuarial service company Robinson-Conner, filed four separate "Self-Insured Semi-Annual Reports of Claim Payments" (Form C-174) with the administrative body as follows:
1) The C-174 dated May 8, 1990 noted the claim was allowed for: "Contusion to skull, laceration left eye, strain neck/low back/headaches left."
2) The C-174 dated July 12, 1990 noted the claim was allowed for: "Contusion skull/laceration left eye/strain neck and low back."
3) The C-174 dated November 16, 1990 noted the claim was allowed for: "Contusion skull/laceration left eye/strain neck and low back."
4) The C-174 dated April 2, 1991 noted the claim was allowed for: "Contusion skull/laceration left eye/strain neck and low back."
Despite certain injuries within the claim having been in dispute, the record does not indicate that the defendant/employer made any attempt to invoke the jurisdiction of the Bureau or Commission in order to seek an order of modification of the C-174 reports.
Employer Hillside stopped paying temporary total disability benefits in September 1990 due to the lack of medical reports to support the March-August 1990 benefit period.
The disputed claim had been reviewed by the Administrator, Bureau of Workers' Compensation, through the SIEEB, the Industrial Commission, the Cleveland Regional Board of Review and the Indus- trial Commission's staff hearing officers. Administratively, on May 11, 1992, t
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