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Simmons v. Imperial Service Systems8/20/1998
JUDGMENT: AFFIRMED.
Appellant Erika Simmons appeals the trial court's order adopting the jury's verdict that appellant was not entitled to participate in the Worker's Compensation Fund. For the following reasons, we affirm.
Appellant filed a claim with appellee, the Industrial Commission. The claim stated that on October 27, 1995, appellant was injured lifting a bag of garbage at work. Appellant asserted that as a result of this work incident, she suffered a sprain and herniated disc of her lumbosacral spine and sprain of her right shoulder. The claim was denied and appellant filed an appeal de novo with the trial court.
A partial transcript of the trial was filed with this court, containing only the testimony of Dr. Dan Shamir, the defendant- appellee's expert. Dr. Shamir testified that he examined the plaintiff and reviewed her medical records. Plaintiff told Dr. Shamir that she was injured in a car accident on June 29, 1995. The plaintiff said she did not sustain any back injury in the car accident. The medical records indicated that the plaintiff had pain, spasms and tenderness in the right side of her back, following the car accident. Dr. Shamir concluded that the herniated disk was caused by the car accident.
On cross-examination, Dr. Shamir was asked if the plaintiff, did . . . suffer from some sort of injury to her lower back as a result of the lifting incident at work . . .? Dr. Shamir responded that the emergency room report dated October 27, 1995 did not state that the injury occurred at work. Appellant's attorney read the following from the deposition of Dr. Shamir:
Question: Do you agree that Miss Simmons suffered some injury to her lower back as a result of the lifting incident at work on October 20th, 1995? And your answer was: In my medical opinion she suffered some sort of injury.
Then, Dr. Shamir testified:
Can you go to line 22 where I answered it again and stated: In response to the previous question, I think it would be more fair with regards to the injury to say that on or about 10-27-95 she had a back injury. I cannot ascertain whether or not it was related to anything at work. I did testify to that.
Dr. Shamir conceded that hospital records dated October 31, 1995 mentioned an injury at work.
Appellant moved to call Anthony Shealy, appellant's husband, as a rebuttal witness. Appellant asserted that Dr. Shamir changed his deposition testimony concerning whether the injury occurred at work. Mr. Shealy would testify that he observed the injury happen at work, and that the injury did not occur at home. The trial court denied the appellant's request to call the rebuttal witness.
Appellant's two assignments of error are interrelated. They state:
THE TRIAL COURT ERRED IN REFUSING TO ALLOW APPELLANT TO REBUT A NEW DEFENSE FIRST RAISED BY APPELLEE IN ITS CASE IN CHIEF.
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ALLOWING APPELLANT TO OFFER A REBUTTAL WITNESS.
A party who has the burden of proof on an issue must present such proof in that party's case-in-chief, and can only present such evidence in rebuttal as to answer the new matter introduced by his adversary. Cities Service Oil Co. v. Burkett (1964), 176 Ohio St. 449, O.F. Mehurin & Son v. Stone (1881), 37 Ohio St. 49, See also R.C. 2315.01, Phung v. Waste Management (1994), 71 Ohio St.3d 408, 410. Any relaxation of this rule is in the discretion of the trial court. R.C. 2315.01(A)(4), Cities Service, O. F. Mehurin, supra. An appellate court will not interfere with the discretion of the trial court in refusing to permit a plaintiff to offer as rebuttal evi
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