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Swogger v. Hopkins Construction12/29/2004
redibility of the witnesses and whether they believed that Swogger sustained an injury on September 4, 2002. Ultimately, the jury found, according to its answers to special interrogatories, that Swogger did prove by a preponderance of the evidence that he was injured in the course and scope of his employment on or about September 4, 2004 and that he did not prove that he suffered an injury gradually over time as the result of his job-related duties. Had the trial court correctly instructed the jury on the issue of aggravation of pre-existing conditions, the jury may well have also found that Swogger was entitled to participate in the worker's compensation fund for the aggravation of his pre-existing conditions.
{ } There was sufficient evidence presented at trial to support a finding that Swogger's pre-existing conditions had been aggravated by his injury on September 4, 2002. The trial court committed reversible error by failing to properly instruct the jury and Swogger is entitled to a new trial on whether he has a right to participate in the worker's compensation system for the following injuries: aggravation of lumbar/lumbosacral disc degeneration and aggravation of pre-existing spondylolisthesis. The assignment of error is sustained.
III.
{ } The assignment of error is sustained and the judgment of the trial court is reversed only insofar as it found that Swogger has no right to participate in the worker's compensation fund for his alleged aggravation injuries (aggravation of lumbar/lumbosacral disc degeneration and aggravation of pre-existing spondylolisthesis). All other aspects of the trial court's judgment remain in full force and effect. The cause is remanded for a new trial on the sole issue of whether Swogger is entitled to participate in the worker's compensation fund for the alleged aggravation of his pre-existing conditions.
Judgment reversed and the cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to Appellees.
Exceptions.
BETH WHITMORE
CARR, P. J. BOYLE, J. CONCUR
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