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Swogger v. Hopkins Construction12/29/2004
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, Christopher Swogger, has appealed from a judgment of the Medina County Court of Common Pleas that entered judgment on a jury verdict that found he had established the right to participate in the worker's compensation fund for a lumbar sprain but that he had not established his other claims, including claims for aggravation of pre-existing conditions. Because the trial court improperly instructed the jury on whether Swogger could be compensated for the aggravation of pre-existing conditions, this Court reverses and remands.
II.
{ } Swogger was employed by Appellee Hopkins Construction Company ("Hopkins") for almost two years. During September 2002, Swogger was working for Hopkins at the Medina County Recovery Facility construction site. Part of the process required the soil to be compacted prior to construction. Swogger's job was to check the level of soil compaction by pounding a metal rod into the soil, removing the rod, and inserting a nuclear probe to measure the density of the soil. Removing the rod from the soil was sometimes difficult, particularly when the soil was highly compacted. According to Swogger, on September 4, 2002, one of the times that he attempted to pull a rod out of highly-compacted soil, he felt a "horrendous sharp pain" in his lower back that was so severe that he dropped to the ground in agony.
{ } Swogger initially believed that the pain was due to his arthritis and would eventually subside, so he continued to report to work until September 19, 2002. Others on the job site helped him pull rods from the ground. The pain was unlike anything Swogger had experienced before, however, and it eventually became so severe that he could no longer work. Swogger sought medical treatment the next day and was eventually diagnosed with several back injuries.
{ } Swogger filed a claim for worker's compensation benefits, seeking to participate in the fund for the following injuries: sprain lumbar region, lumbar/lumbosacral disc degeneration, spondylolisthesis, lumbosacral neuritis, and other back injuries. The administrator of the bureau of worker's compensation allowed the claim only for the lumbar sprain and granted temporary total disability payments commencing September 20, 2002.
{ } Swogger and Hopkins each appealed the administrator's decision to the industrial commission. Through two separate orders, the industrial commission determined that Swogger had not sustained an injury in the course of his employment. Thus, it affirmed that portion of the administrator's decision that disallowed four of Swogger's claims and vacated that portion of the decision that had allowed his claim for lumbar sprain.
{ } Swogger appealed to the Medina County Court of Common Pleas pursuant to R.C. 4123.512, which provides for de novo review. See Robinson v. B.O.C. Group, Gen. Motors Corp. (1998), 81 Ohio St.3d 361, 368. The matter was tried to a jury. All five claims were presented to the jury: sprain lumbar region, lumbar/lumbosacral disc degeneration, spondylolisthesis, lumbosacral neuritis, and other back injuries. The parties did not dispute that two of the alleged injuries, lumbar/lumbosacral disc degeneration and spondylolisthesis, were conditions that had existed prior to Swogger's alleged injury on September 4, 2002. Swogger's position was that the September 4 injury had aggravated those pre-existing conditions and that he was entitled to worker's compensation recovery for the aggravation. Those injuries were therefore specified to th
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