Means v. Smurfit-Stone Container Corp.11/18/2005
{ } Appellant, Smurfit Stone Container Corporation ("Smurfit"), appeals the judgment entries of the Ashtabula County Court of Common Pleas, that appellee, Clifton Means ("Means"), was entitled to receive workers' compensationbenefits, and denial of its motions for directed verdict, judgment notwithstanding the verdict, or new trial.
{ } On February 11, 2002, Means, a maintenance mechanic employee of Smurfit, injured his lower back when he was attempting to free up a starch pump pulley with a pipe wrench causing immediate pain in his lower back. Means filed a workers' compensation claim for an acute lumbosacral sprain, which was granted. On August 26, 2002, he filed an additional claim for workers' compensation for aggravation of a pre-existing lumbar degenerative disc disease, arising from the earlier injury. This claim, along with his subsequent appeals, wasdenied. Once his administrative remedies were exhausted, Means filed a complaint and appeal in the Ashtabula County Court of Common Pleas.
{ } A jury trial commenced on May 5, 2004, on the sole issue of whether the February 11, 2002 work related injury caused an aggravation of Means's pre-existing lumbar degenerative disc disease. At the trial, the jury was shown videotaped depositions from three physicians who rendered medical opinions as to whether Means's work related injury aggravated his pre-existing degenerative disc disease. Dr. Gregory Ray ("Dr. Ray") and Dr. Jeffrey Shall, ("Dr. Shall") testified for Means. Dr. Ray, a chiropractor, had treated Means for the past several years, for back, neck, and shoulder pain. He treated Means the day after he was injured and over the course of the next several months. When asked his opinion based upon a reasonable degree of chiropractic certainty, of the cause of Means's aggravation of his pre-existing degenerative disc disease, Dr. Ray testified that it was "definitely" aggravated by the injury. During the course of his treatment following the injury, Dr. Ray recommended that Means seek a medical evaluation by an orthopedic surgeon, Dr. Shall. On July 5, 2002, Dr. Shall performed a physical exam on Means and reviewed X-ray and MRI films taken of his spine. At trial, Dr. Shall testified that within a reasonable degree of medical certainty, that the injury "caused the aggravation of [Means's] pre-existing degenerative disc disease." At the conclusion of Means's case, Smurfit moved for a directed verdict, which was overruled.
{ } Smurfit presented the testimony of Dr. Dean Erickson ("Dr. Erickson"), who primarily practices in the specialty of occupational medicine. He examined Means on May 8, 2002, and October 24, 2002, and conducted a review of Means's medical history and records. Dr. Erickson testified that, within a reasonable degree of medical certainty, he did "not believe that [Means] sustained an aggravation of his pre-existing degenerative disk disease of the lumbar spine due to the injury[.]"
{ } On May 6, 2004, the jury returned a verdict in which seven of its eight members concurred by finding that Means was entitled to participate in the workers' compensation fund for the condition of aggravation of pre-existing degenerative disc disease of the lumbar spine. The trial court rendered judgment on the verdict on May 7, 2004. On May 21, 2004, Smurfit filed a motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial. On June 16, 2004, the trial court entered a judgment entry overruling Smurfit's motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial.
{ } Smurfit filed a timely appeal and asserts the following assignments of error:
{ } "[1.] The trial cou
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