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Hollar v. Pleasant Township12/16/2003
DECISION
(REGULAR CALENDAR)
. Plaintiff-appellee, Mark D. Hollar, was employed as a fire fighter for appellant, Pleasant Township, when he sustained a low back injury while lifting an 80 pound bag of salt for the water softener on February 15, 1998. On February 17, 1998, he was treated by his family doctor, Dr. Matthew Cook. Appellee filed a workers' compensation claim that was allowed for lumbar strain by the Bureau of Workers' Compensation ("BWC"). On March 18, 1999, appellee filed a motion with the BWC/Industrial Commission of Ohio requesting that his claim be additionally allowed for the conditions of "herniated disc at L5-S1 and aggravation of pre-existing degenerative disc disease at L5-S1." A district hearing officer of the Industrial Commission of Ohio allowed the claim and the order was affirmed by a staff hearing officer and the Industrial Commission of Ohio ("commission"). Appellant appealed from the commission order and the jury found that appellee was entitled to participate in the Workers' Compensation fund for the condition of "aggravation of pre-existing degenerative disc disease at L5-S1" as a direct result of his February 15, 1998 injury, and also found that he was not entitled to participate for the condition of "herniated disc at L5-S1." The trial court awarded appellee costs in the amount of $2,260.50 and attorney fees in the amount of $2,500. Appellant filed a notice of appeal and raises the following assignments of error:
I. The trial court erred by failing to exclude the testimony of plaintiff-appellee's expert, Dr. Matthew Cook, based on his testimony that he was not qualified to testify and that he had not provided his opinions prior to his trial testimony.
II. The trial court erred by overruling defendant's objections to Dr. Cook's opinion testimony.
III. The trial court erred by overruling defendant-appellant's motion for directed verdict.
IV. The trial court erred by awarding costs and fees to plaintiff that are improper under R.C. 4123.512.
. By the first assignment of error, appellant contends that the trial court erred by failing to exclude the testimony of appellee's expert, Dr. Cook. Appellant argues that, based on Dr. Cook's own testimony, he was not qualified to testify as an expert and that he had not provided his opinions prior to his trial testimony. The trial court has broad discretion in the admission or exclusion of evidence and, in the absence of an abuse of discretion which results in material prejudice to a defendant, an appellate court should be slow to reverse evidentiary rulings. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66.
An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
. In order to participate in the workers' compensation fund, a plaintiff must demonstrate, by a preponderance of the evidence, that his or her alleged injury arose in the course of his or her employment. Fox v. Indus. Comm. of Ohio (1955), 162 Ohio St. 569, paragraph one of the syllabus. In cases where injury is outside the realm of common knowledge, expert medical testimony is required. Darnell v. Eastman (1970), 23 Ohio St.2d 13, syllabus.
. During his discovery deposition, Dr. Cook testified as follows:
Q. The findings under impression -the pain and the radiating pain into his legs, is that explained by the posterolateral L5-S1 disc pr
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