Holmes v. Crawford Mach. Inc.

2011 Ohio 5741

JEFF HOLMES, PLAINTIFF-APPELLANT,

v.CRAWFORD MACHINE, INC., ET AL., DEFENDANTS-APPELLEES.

JEFF HOLMES, PLAINTIFF-APPELLANT,

v.CRAWFORD MACHINE, INC., ET AL., DEFENDANTS-APPELLEES.

JEFF HOLMES, PLAINTIFF-APPELLEE,

v.CRAWFORD MACHINE, INC., DEFENDANT-APPELLANT,

-and-

STATE OF OHIO, BWC, DEFENDANT-APPELLEE.

CASE NO. 3-11-09

CASE NO. 3-11-10

CASE NO. 3-11-12

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

Date of Decision: November 7, 2011

OPINION

Appeals from Crawford County Common Pleas Court

Trial Court Nos. 10 CV 0221 and 11 CV 0003

Judgment Affirmed in Case No. 3-11-09

Judgment Reversed and Cause Remanded

in Appellate Case No. 3-11-10

Judgment Reversed and Cause Remanded

in Appellate Case No. 3-11-12

APPEARANCES:

Barbara A. Knapic and Denise A. Gary for Crawford Machine, Inc.

Jerald A. Schneiberg and Jennifer L. Lawther for Jeff Holmes

Kevin Reis for Industrial Commission of Ohio

PRESTON, J.

{¶1} We are presented with three cases stemming from an injury that plaintiff/employee, Jeff Holmes (hereinafter "Holmes"), suffered on July 27, 2009 while working for defendant/employer, Crawford Machine, Inc. (hereinafter "Crawford Machine"). We have elected to consolidate the cases for oral argument and opinion. Our discussion will be divided by appellate case number.

Appellate Case No. 3-11-09

{¶2} In appellate case no. 3-11-09, plaintiff-appellant/employee, Holmes, appeals the Crawford County Court of Common Pleas' judgment entry finding him entitled to participate in the workers' compensation system for only one of six of his alleged conditions as found by the jury. For the reasons stated herein, we affirm the trial court's judgment in this case.

{¶3} On July 29, 2011, Holmes filed claim no. 09-835696 with the Ohio Bureau of Workers' Compensation (hereinafter "BWC"). (Doc. No. 1, Exs. A & B). The BWC Administrator originally allowed Holmes' claim for "electric current effects" and "sprain left shoulder/arm nos." (Id., Ex. A). However, on August 13, 2009, Crawford Machine appealed, and on October 14, 2009, the District Hearing Officer vacated the Administrator's order and denied the claim. (Id.).

{¶4} On October 19, 2009, Holmes appealed, and, on February 5, 2010, the Staff Hearing Officer vacated the District Hearing Officer's order and allowed Holmes' claim on the following conditions: (1) Left Shoulder Strain; (2) Electrical Shock; (3) Low Back Strain; (4) Left Rotator Cuff Tear; (5) Left Posterior Shoulder Dislocation; and (6) Abrasion Right Fifth Finger. (Id., Ex. B).

{¶5} On March 2, 2010, Crawford Machine appealed, but the Industrial Commission refused the appeal pursuant to R.C. 4123.511(E) on March 10, 2010. (Id., Ex. C).

{¶6} On April 30, 2010, Crawford Machine filed a notice of appeal to the Crawford County Court of Common Pleas pursuant to R.C. 4123.512, which was assigned trial court case no. 10 CV 0221. (Doc. No. 1).

{¶7} On May 26, 2010, Holmes filed his petition and complaint seeking a declaration that he was entitled to participate in the workers' compensation fund. (Doc. No. 4). On June 22, 2010, Crawford Machine filed its answer. (Doc. No. 7).

{¶8} The matter proceeded to jury trial on February 1-3, 2011. (Doc. No. 109). The jury rendered six verdicts, finding that Holmes was not entitled to participate in the workers' compensation fund for the following conditions: (1) electrical shock; (2) left shoulder strain; (3) left rotator cuff tear; (4) low back strain; and (5) left posterior shoulder dislocation. (Doc. Nos. 94, 96, 98, 100, 102). However, the jury found that Holmes was entitled to participate in the workers' compensation fund for the "abrasion right fifth finger" condition. (Doc. No. 104).

{¶9} On March 2, 2011, Holmes filed a notice of appeal, which was assigned appellate case no. 3-11-05. (Doc. No. 105). On March 21, 2011, however, this Court dismissed it for lack of a final, appealable order. (Doc. No. 108).

{¶10} On March 23, 2011, the trial court filed its judgment entry declaring that Holmes was not entitled to participate in the workers' compensation fund for the five conditions mentioned above but was allowed to participate in the fund for the condition of "abrasion right fifth finger," as determined by the jury. (Doc. No. 109).

{¶11} On April 19, 2011, Holmes filed a notice of appeal from the trial court's judgment entry, which was assigned appellate case no. 3-11-09. (Doc. No. 114).

{¶12} Holmes now appeals, raising three assignments of error for our review. We elect to discuss Holmes' first and third assignments of error together.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY ADMITTING THE REPORTS FROM DONAN ENGINEERING, CARTER ELECTRIC, DR. JONES AND DR. BARKETT INTO EVIDENCE SINCE THE REPORTS ARE HEARSAY AND DO NOT FALL WITHIN ANY HEARSAY EXCEPTION.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY ADMITTING THE REPORTS OF DONAN ENGINEERING, CARTER ELECTRIC, DR. JONES AND DR. BARKETT SINCE THE REPORTS WERE NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE.

{¶13} In his first assignment of error, Holmes argues that the trial court erred by admitting the reports of Donan Engineering, Carter Electric, Dr. Jones,and Dr. Barkett into evidence since those reports were inadmissible hearsay. Specifically, Holmes argues that the reports were not business records under Evid.R. 803(6) since they were letters addressed to either Crawford Machine or defense counsel and prepared for litigation. In his third assignment of error, Holmes argues that the trial court erred by admitting the aforementioned reports since opinion testimony was offered into evidence concerning the reports thereby rendering the reports cumulative evidence.

{¶14} We begin by acknowledging that a trial court has discretion to determine whether to admit or exclude evidence. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291. Therefore, an appellate court will not disturb a trial court's decision on the exclusion or admission of evidence absent an abuse of discretion. Id. An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶15} Hearsay evidence is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). The Ohio Rules of Evidence forbid the use of hearsay evidence at trial absent a recognized exception. Evid.R. 802. Evid.R. 803, however sets forth the following exception to the hearsay rule:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(1), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

"'Evid.R. 803(6) does not preclude the admissibility of opinions or diagnoses contained in medical records or reports as long as they satisfy the foundational authentication requirements of Evid.R. 803(6) and do not violate other evidentiary rules (e.g. R.C. 2317.02(B); Evid.R. 402 and Evid.R. 702).'" Wasinski v. PECO II, Inc., 3d Dist. Nos. 3-08-14, 3-08-16, 2009-Ohio-2615, ¶20, quoting Smith v. Dillard's Dept. Stores, Inc., 8th Dist. No. 75787, 2000-Ohio-2689.

{¶16} Pat Baker, an electrician with Carter Electric, testified that, on or about August 27, 2009, he inspected Acme Machine No. 28 at Crawford Machine. (Feb. 2, 2011 Tr., Vol. II at 306-08). Baker identified defendant's exhibit F as a true and accurate copy of the report he prepared afterwards. (Id. at 317). Baker testified that, based upon his examination of the machine and the statements he collected concerning how the accident allegedly happened, Holmes could not have sustained an electrical shock from the machine. (Id. at 318-19). Baker testifiedthat Holmes could not have sustained an electrical shock "[b]ecause all the power coming into the machine was through [a] disconnect, and the disconnect was locked open and there was no other power source to the machine." (Id. at 319).

{¶17} Frank Miller, Jr., an electrical engineer with Donan Engineering, testified that, in August 2009, he inspected Acme Machine No. 28 at Crawford Machine at their request after an employee reported being shocked while working on the machine. (Feb. 3, 2011 Tr., Vol. III at 445-47). After examining the machine, Miller concluded that it was properly wired, and that Holmes was not electrically shocked from it. (Id. at 447-48, 479). Miller identified defendant's exhibit M1 as a true and accurate copy of his investigation report. (Id. at 458). Miller identified defendant's exhibit M as a true and accurate copy of the addendum to his earlier report (D's Ex. M1), which was kept in the ordinary course of his business. (Id. at 462). Miller testified that, as he stated in the addendum to his earlier report, Holmes could not have suffered an electrical shock from the machine. (Id. at 463). On cross-examination, Miller testified that Crawford Machine requested that he prepare reports based upon his investigation. (Id. at 466). When asked whether Crawford Machine requested the reports for litigation, Miller responded, "[i]nitially, it was not for litigation purposes. They, basically, wanted to know what is wrong with this machine, if anything at all." (Id.).

{¶18} Dr. Jack Jones identified defendant's Exhibit S as a true and...