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Nicks v. ABB Services Inc.7/30/1998
JUDGMENT: AFFIRMED
Defendants-appellants ABB CE Services, Inc., Administrator of the Bureau of Workers' Compensation, and the Industrial Commission of Ohio ( appellants ) appeal from the jury verdict finding that plaintiff-appellee Daniel J. Nicks could participate in the Ohio Workers' Compensation Fund.
Appellants assign the following error for review:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO SUBMIT TO THE JURY WRITTEN INTERROGATORIES TIMELY PROFFERED BY THE DEFENDANT-EMPLOYER, DIRECTED TO DETERMINATIVE ISSUES IN THE INSTANT WORKERS' COMPENSATION COURT APPEAL, AS REQUIRED BY CIVIL RULE 49(B).
Finding the appeal to lack merit, the judgment of the trial court is affirmed.
I.
On January 12, 1996, Nicks filed a notice of appeal in the court of common pleas from the denial of his claim for workers' compensation benefits by the Industrial Commission. At trial, Nicks testified that he is a boilermaker-welder. On March 18, 1995, Nicks was employed at ABB CE Services, Inc. in Ashtabula. On that night, Nicks ascended a ladder and stood with one leg on the ladder and the other extended as he attempted to lift an air hoist. Nicks heard and felt a crack in his back. Unable to complete his task, Nicks descended from the ladder while another employee finished the job . Nicks reported feeling a little discomfort after the incident. Nicks completed his shift at ABB and returned home without reporting the incident to anyone. Nicks felt no need to report an injury because he was not in pain. Nicks did not tell anyone at ABB that he hurt his back at work when he called in sick the Monday following the injury. Nicks replied in the negative or said he did not know when asked by someone at ABB if his back problems were the result of something which occurred at work. The first anyone at ABB knew about Nicks' work-related injury was on March 24, 1995, when Nicks asked for a Workers' Compensation Application.
Nicks did not experience any pain until awakening the following morning. He had difficulty moving. Nicks telephoned his physician, Dr. Morton, who prescribed medicine for the pain. Nicks saw Dr. Morton on March 22, 1995. Based on Nicks' description of the pain, Dr. Morton thought Nicks might have a herniated disc and ordered an MRI. The MRI showed Nicks had a back injury . Dr. Morton referred Nicks to an orthopedic surgeon. Nicks missed three months of work due to the injury.
Nicks testified that, prior to the incident at ABB on March 18, 1995, he only had experienced aches and pains in his back but had never injured his back. On cross-examination, Nicks admitted he denied being in a car accident at his deposition although Nicks was struck by another automobile in 1991. Nicks may have complained of low back pain after that accident. However, Nicks maintained that the back pain he felt before the 1995 injury at ABB differed from the pain he experienced after that incident. Before March 18, 1995, Nicks' back infrequently hurt after he did a lot of bending at work. Other than the car accident, Nicks denied seeking medical treatment prior to 1995 specifically for back pain. Nicks admitted he was prescribed medication for frequent low back pain even before the automobile accident. However, Nicks maintained that the pain he experienced after the 1995 incident was different from any back pain he previously had experienced. He had a tingling going down his leg and a numbness which Nicks never felt prior to the injury on March 18, 1995.
Dr. J. Dennis Morton testified by way of video deposition. He stated that Nicks became his patient in January of 1995. During his medical history, Nicks did no
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