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Hayes v. Administrator10/30/1997
PER CURIAM
JUDGMENT AFFIRMED
This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel.
Defendants-appellants, the Bureau of Workers' Compensation ( BWC ) and the Industrial Commission of Ohio, appeal the decision of the Cuyahoga County Common Pleas Court denying its motion in limine, which sought to exclude the testimony of James H. Fry, M.D., the treating physician of plaintiff-appellee, John Hayes ( appellee ). For the reasons that follow, we find no error and affirm the decision of the trial court.
The record reflects that appellee suffered a back injury in 1982 while employed by the City of Cleveland ( City ) as a police officer and that a claim was allowed for this injury from the BWC. Sometime thereafter, the Civil Service Commission requested that appellee undergo a psychiatric examination in order to determine appellee's fitness for continued employment by the City. This examination was conducted by Dr. Fry sometime in 1987, at which time Dr. Fry diagnosed, but did not treat, appellee for schizophrenia.
In February 1996, on his own initiative, appellee again consulted with Dr. Fry, who examined and treated appellee over a period of four months, totaling approximately six visits. It was during these visits that Dr. Fry concluded that his initial diagnosis of schizophrenia was incorrect and that appellee was more appropriately suffering from major depression secondary to his back injury . Dr. Fry then commenced treatment according to this diagnosis.
During this period, appellee sought an additional allowance for depression from BWC in connection with his original back injury . This claim was denied. After exhausting all administrative appeals, appellant appealed to the trial court. Prior to trial, the BWC filed a motion in limine seeking to exclude the testimony of Dr. Fry on the basis that his medical opinion was based on the opinions of other physicians not before the court. The trial court denied this motion. The jury ultimately returned a verdict finding that appellee was entitled to participate in the Workers' Compensation program for depression.
The BWC timely appeals and assigns the following error for our review:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE MOTION IN LIMINE TO EXCLUDE APPELLEE'S MEDICAL EXPERT'S OPINION AS SAID OPINION WAS BASED UPON THE OPINIONS OF OTHER MEDICAL DOCTORS NOT BEFORE THE COURT.
The BWC contends that Dr. Fry's testimony should have been excluded because an expert witness is not permitted to base his opinion on the opinion of another. In particular, the BWC relies on the following testimony in support of its argument:
THE BWC: All right. And in preparing that there were medical records which we had talked about in State's Exhibit 1. And these are portions, are they not, Doctor, or excerpts from various medical records?
DR. FRY: I'm sure they are.
THE BWC: They're just excerpts.
DR. FRY: Right.
THE BWC: And they contain opinions of other doctors who are not here today, isn't that correct?
DR. FRY: That would be correct.
THE BWC: And is it my understanding, Doctor, that like your 1987 (sic), that you relied upon the prior doctors' diagnosis to come to your diagnosis?
DR. FRY: To a degree, yes.
The facts or data upon which an expert bases an opinion or inference may be those perceived by the expert or admitted into evidence. See Evid.R. 703; see, also, State v. Solomon (199
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