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Gallagher v. Good Samaritan Hosp.9/9/2005
{ } This is an appeal from a judgment of the court of common pleas in an action for workers' compensation benefits brought pursuant to R.C. 4123.512, on appeal from a decision of the Industrial Commission's Staff Officer denying a claim for compensation. The judgment was entered on the verdict of a jury that compensation is due the claimant.
{ } Appellee, Kelley Gallagher, was employed by Good Samaritan Hospital in Dayton as a nurse. On November 16, 2001, she slipped and fell to the floor of an operating room, injuring her left hip. She followed a recommended course of therapy and continued working. On February 1, 2002, Gallagher tripped at her physical therapist's office, fracturing her left hip. Two surgeries were required to replace the injured joint.
{ } Gallagher filed a claim for Workers' Compensation benefits on November 24, 2002. The notice she filed identifies November 16, 2001, as the date of her injury. The injury is described as a "hip injury." The claim was assigned BWC Claim Number 01-884651.
{ } Gallagher's claim was heard by a District Hearing Officer, who on March 1, 2003, denied the claim. The officer found that Gallagher had suffered no injury on November 16, 2001, basing that finding on the lack of medical evidence in the form of a physician's report.
{ } Gallagher appealed from the District Hearing Officer's decision to a Staff Hearing Officer, who on May 8, 2003, affirmed the order of the District Hearing Officer. The Staff Hearing Officer's conclusion was based on the same finding, a lack of medical evidence with respect to the November 16, 2001 injury alleged. However, the Staff Hearing Officer's decision notes that "on 02/01/2002, the injured worker sustained an injury, a slip and fall, which resulted in a diagnosis of LEFT HIP FRACTURE, requiring surgery and time off work."
{ } Gallagher appealed from the Staff Hearing Officer's order to the Industrial Commission, which on June 18, 2003, refused the appeal pursuant to R.C. 4123.511(E).
{ } On August 15, 2003, Gallagher filed a notice of appeal to the court of common pleas from the order of the Staff Hearing Officer pursuant to R.C. 4123.512. Gallagher filed her Complaint and Demand For Jury Trial on the same date, reciting the foregoing facts and asking the court to find that her injuries are compensable, "be those injuries on a direct basis or any accelerated basis or a flow-through basis or an aggravation of a pre-existing condition."
{ } The matter proceeded to trial, in which the jury heard the testimony of the physician who performed the surgeries following Gallagher's February 1, 2002 injury. He testified that she had suffered a stress fracture on November 16, 2001 that became worse, and eventually caused her hip to fail when she tripped on February 1, 2002.
{ } At the conclusion of the evidence, the court indicated that it would instruct the jury that if it found Gallagher's November 16, 2001 injury was suffered in the course of employment, the jury should go on to consider whether her February 1, 2002 injury proximately resulted from her prior fall. Defendant, Good Samaritan Hospital, objected that the February 1, 2002 injury was an intervening injury that had never been made a part of Gallagher's workers' compensation claim, and therefore the jury should not be allowed to consider it. The court overruled the objection.
{ } The jury returned a verdict finding that Gallagher is entitled to participate in the workers' compensation fund for the condition of an occult displaced fracture of her left hip occurring on November 16, 2001. On October 13, 2003, the court journalized its judgment that Gallagher is
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