Bradley v. Ohio Dept. of Transp.

[Cite as Bradley v. Ohio Dept. of Transp., 2014-Ohio-3205.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Laura M. Bradley, :

Plaintiff-Appellant, : No. 13AP-918

(C.P.C. No. 10CV-12275)

v. :

(REGULAR CALENDAR)

Ohio Department of Transportation et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on July 22, 2014

James C. Ayers Law Office and James C. Ayers, Sr.;

Larrimer & Larrimer LLC, and John Larrimer, for appellant.

Isaac Wiles Burkholder & Teetor, LLC, and Robert C.

Perryman, for appellee Ohio Department of Transportation.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Laura M. Bradley ("appellant"), appeals from the

October 1, 2013 judgment of the Franklin County Court of Common Pleas granting

summary judgment in favor of defendants-appellees, Ohio Department of Transportation

("ODOT") and Marsha P. Ryan, Administator of the Bureau of Workers' Compensation

("BWC"). For the following reasons, we affirm the judgment of the trial court.

I. Facts and Procedural History

{¶ 2} On March 10, 2005, appellant injured her right ankle during the course of

and arising out of her employment with ODOT. Appellant filed a claim with BWC for

benefits and compensation; BWC allowed her claim for the sprain of her right ankle.

No. 13AP-918 2

{¶ 3} Appellant subsequently filed a motion with BWC for an additional

allowance for a claim for reflex sympathetic dystrophy ("RSD")1 of the right foot. The

district hearing officer granted appellant's motion, finding the additional medical

condition to be causally related to her March 10, 2005 injury. ODOT appealed the district

hearing officer's order. Upon review, the staff hearing officer also allowed the claim for

RSD. ODOT appealed the staff hearing officer's order, but the Industrial Commission

refused to hear the appeal.

{¶ 4} On July 22, 2009, ODOT filed a notice of appeal with the Franklin County

Court of Common Pleas pursuant to R.C. 4123.512(A), challenging appellant's right to

participate in the workers' compensation fund for the RSD claim. Appellant filed a

complaint regarding the RSD claim. The trial court consolidated the actions. Following a

bench trial, on March 9, 2011, the court found that appellant did not establish that she has

RSD and, consequently, did not have a right to participate in the workers' compensation

fund for RSD. The court reflected its findings in a judgment entry on April 8, 2011. On

February 7, 2012, we affirmed the April 8, 2011 judgment of the Franklin County Court of

Common Pleas. Bradley v. Ohio Dept. of Transp., 10th Dist. No. 11AP-409, 2012-Ohio-

451, ¶ 2.

{¶ 5} During the pendency of the RSD-related case, appellant in October 2007

filed a motion with BWC for an additional allowance for major depressive disorder, single

episode, related to the March 10, 2005 injury. The district hearing officer granted

appellant's motion. ODOT appealed the additional allowance for major depressive

disorder. Following a hearing, the district hearing officer on March 11, 2008 terminated

appellant's temporary total disability compensation, finding that she had reached

"maximum medical improvement." The hearing officer found that appellant "has met her

burden of establishing that she has sustained the requested additional allowance of major

depressive disorder, single episode, as flow-through from her injury of 3/10/2005" and

that appellant "testified compellingly of the effect that her industrial injury, most

specifically the reflex sympathetic dystrophy of the right foot, has had on her life and

1Although irrelevant to our determination, we note the condition formerly known as RSD is now commonly

referred to as "complex regional pain syndrome type I." See Bradley v. Ohio Dept. of Transp., 10th Dist. No.

11AP-409, 2012-Ohio-451, ¶ 7, 36.

No. 13AP-918 3

activities of daily living." (Complaint, exhibit B.) ODOT appealed the March 11, 2008

district hearing officer's order. Following a hearing on April 28, 2008, the staff hearing

officer affirmed the order of the district hearing officer terminating appellant's temporary

total disability compensation and granting the additional allowance for major depressive

disorder. ODOT appealed the staff hearing officer's order, but the Industrial Commission

refused to hear the appeal.

{¶ 6} ODOT subsequently filed, pursuant to R.C. 4123.512(A), a notice of appeal

with the trial court, challenging appellant's right to participate in the workers'

compensation fund for the claim for major depressive disorder, single episode. Following

dismissal without prejudice pursuant to Civ.R. 41, appellant on August 19, 2010 filed in

the Franklin County Court of Common Pleas a complaint seeking the right to participate

in the workers' compensation fund for the condition of major depressive disorder, single

episode. ODOT filed an answer generally denying that appellant suffered from the

condition of major depressive disorder, RSD, or any other work injuries or conditions as a

result of the March 10, 2005 injury.

{¶ 7} On July 23, 2013, ODOT filed a motion for summary judgment. On

August 14, 2013, appellant filed a memorandum contra ODOT's motion for summary

judgment. ODOT filed on August 21, 2013 a motion to strike appellant's memorandum

contra because it was not timely filed pursuant to Loc.R. 21.01 of the Court of Common

Please of Franklin County, General Division. On September 9, 2013, the trial court

granted ODOT's August 21, 2013 motion to strike, finding that appellant's memorandum

contra failed to comply with Loc.R. 21.01. On October 1, 2013, the trial court granted

ODOT's motion for summary judgment.

II. Assignments of Error

{¶ 8} Appellant timely appeals, assigning the following three errors:

I. The trial Court committed error prejudicial to the Plaintiff-

Appellant and abused its discretion when it considered and

granted a summary judgment motion devoid of sworn

testimony or acceptable evidence pursuant to Civ.R. 56(C).

II. The trial Court committed error prejudicial to the Plaintiff-

Appellant and abused its discretion when it determined, as

the prime basis for its summary judgment, that Appellant has

No. 13AP-918 4

RSD and that RSD is the proximate cause of her major

depression when a prior common pleas court order, sustained

by this Appellate Court, determined that Appellant does not

have the condition of RSD thereby the trial Court's judgment

order violates the physical facts rule.

III. The trial Court committed error prejudicial to the

Plaintiff-Appellant and abused its discretion when it granted

summary judgment to Defendant-Appellee when Plaintiff-

Appellant had filed two affidavits and two depositions, prior

to the hearing on the matter and pursuant to Civ.R. 56(C),

setting forth sufficient facts to present a question of fact for

the jury.

For ease of discussion, we consider appellant's assignments of error out of order.

B. Third Assignment of Error—No Genuine Issue of Material Fact

Remained

{¶ 9} In her third assignment of error, appellant asserts that the trial court erred

in granting summary judgment because a genuine issue of material fact remained for the

jury. In support of this assertion, appellant contends the trial court failed to consider

evidentiary materials filed by appellant prior to the hearing, pursuant to Civ.R. 56(C).

ODOT responds that the trial court did not err because it properly struck appellant's

evidence pursuant to Civ.R. 56(C) and Loc.R. 21.01.

{¶ 10} An appellate court reviews summary judgment under a de novo standard.

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio

Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is

appropriate only when the moving party demonstrates: (1) no genuine issue of material

fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3)

reasonable minds could come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady

v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).

{¶ 11} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of

informing the trial court of the basis for the motion and of identifying those portions of

the record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d

No. 13AP-918 5

280, 293 (1996). If the moving party fails to satisfy its initial burden, the court must deny

the motion for summary judgment; however, if the moving party satisfies its initial

burden, summary judgment is appropriate unless the nonmoving party responds, by

affidavit or as otherwise provided under Civ.R. 56, with specific facts demonstrating a

genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th

Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732,

735 (12th Dist.1991).

{¶ 12} First, we must consider whether ODOT met its initial burden of identifying

those portions of the record demonstrating the absence of a material fact. In its motion,

ODOT argued that appellant's claim for depression did not stem from her March 10, 2005

injury and, therefore, was not a compensable injury for purposes of participating in the

workers' compensation fund. Further, ODOT argued that, insofar as appellant's claim for

depression stemmed from her RSD, it was not a compensable claim since appellant's

claim for RSD was disallowed.

{¶ 13} R.C. 4123.01(C) defines the term "injury" for purposes of Ohio's workers'

compensation law. At the time appellant suffered her injury, R.C. 4123.01(C) as amended

in 1986 provided that an " '[i]njury' includes any injury, whether caused by external

accidental means or accidental in character and result, received in the course of, and

arising out of, the injured employee's employment," but does not include "[p]sychiatric

conditions except where the conditions have arisen from an injury or occupational

disease." See McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 13-17;

Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 63, 2013-Ohio-2237, ¶ 19-25.

Thus, appellant's claim for major depression must stem from an injury arising out of the

course of her employment. As appellant's claim for RSD was disallowed, appellant's claim

for major depression must arise out of her March 10, 2005 injury.

{¶ 14} To support its contentions, ODOT pointed to deposition testimony,

including appellant's own deposition, along with other evidentiary materials timely filed

with the trial court. In her deposition, appellant identified personal trauma associated

with RSD as a source of depression and anxiety following her March 10, 2005 injury.

ODOT also provided a letter from a physician who performed a 90-minute psychiatric

evaluation upon the appellant and found that appellant does not suffer from major

No. 13AP-918 6

depressive disorder as a result of her March 10, 2005 injury. Finally, ODOT submitted a

record of a comprehensive psychological examination conducted by a licensed

psychologist which found that there was "clearly insufficient evidence to diagnose major

depressive disorder, single episode." (Feb. 21, 2008 Comprehensive Psychological

Examination, 17.) Based upon our independent review of the record, we find that ODOT

met its initial burden of identifying those portions of the record demonstrating an absence

of material fact regarding whether appellant's claim for depression arose from her March

10, 2005 injury.

{¶ 15} Next we consider whether appellant responded, by affidavit or as otherwise

provided under Civ.R. 56, with specific facts demonstrating a genuine issue remained for

trial. Here, appellant filed her response 22 days after service of the motion for summary

judgment. Appellant contends that, although she did not timely file her memorandum

contra, the trial court should nonetheless have considered the affidavits attached to the

memorandum since they were submitted prior to the non-oral hearing.

{¶ 16} Civ.R. 56(C) provides that "[t]he adverse party, prior to the day of hearing,

may serve and file opposing affidavits" and "[n]o evidence or stipulation may be

considered except as stated in this rule." "The 'hearing' contemplated by Civ.R. 56(C) may

be either a formal, oral hearing * * * or a 'nonoral,' informal one." Hooten v. Safe Auto

Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, ¶ 14. "A trial court need not notify the parties

of a non-oral hearing date, i.e., the date on which a motion for summary judgment is

submitted for consideration, if a local rule of court provides sufficient notice of that date."

Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 17,

citing Hooten at syllabus.

{¶ 17} Loc.R. 21.01 provides in pertinent part:

All motions shall be accompanied by a brief stating the

grounds and citing the authorities relied upon. The opposing

counsel or a party shall serve any answer brief on or before the

14th day after the date of service as set forth on the certificate

of service attached to the served copy of the motion. The

moving party shall serve any reply brief on or before the 7th

day after the date of service as set forth on the certificate of

service attached to the served copy of the answer brief. On the

28th day after the motion is filed, the motion shall be deemed

submitted to the Trial Judge. Oral hearings on motions are

No. 13AP-918 7

not permitted except upon leave of the Trial Judge upon

written request by a party. The time and length of any oral

hearing shall be fixed by the Trial Judge. Except as otherwise

provided, this Rule shall apply to all motions.

Loc R. 57.02 provides as follows:

All affidavits, depositions, and other evidentiary material

permitted by Civ. R. 56(C) in support of or in opposition to the

motion for summary judgment shall be filed with the motion

or responsive pleading. This section does not extend the time

limits for filing a brief in opposition or a reply brief as

provided in Loc. R. 21.01.

Thus, the rules provide a party 14 days to file a brief in opposition to a motion, including

filing of all evidentiary materials in support of the responsive pleading. The rules also

provide that, absent a written motion for an oral hearing, a non-oral hearing takes place

on the 28th day after the filing of the motion.

{¶ 18} Here, regardless of whether Civ.R. 56(C) would have required consideration

of the affidavits had appellant separately filed them prior to the date of the non-oral

hearing, the trial court properly struck appellant's memorandum contra, including the

attached affidavits, for failing to comply with Loc.R. 21.01. Pursuant to Hooten, Loc.R.

21.01 provided appellant with notice of the deadlines for filing responsive pleadings and

evidentiary materials. Id. at ¶ 33 ("[A] local rule of court may notify parties of a summary

judgment hearing or of deadlines for submission of memoranda and Civ.R. 56

materials."). Appellant did not seek leave to file an untimely response pursuant to Civ.R.

56(F), demonstrate good cause for untimely filing the response or respond to the motion

to strike. In light of appellant's failure to comply with local rules or even to object to the

motion to strike, we cannot find that the trial court failed to afford appellant procedural

due process by striking her untimely filed memorandum contra and attached evidentiary

materials. See Hooten at ¶ 34; TPI Asset Mgt., L.L.C. v. McGregor, 10th Dist. No. 10AP-

368, 2011-Ohio-4052, ¶ 16, quoting Dedie v. FYDA Truck & Equip., 7th Dist. No. 96 C.A.

222 (Dec. 9, 1999) (" 'The essence of procedural due process is the right to receive

reasonable notice and a reasonable opportunity to be heard.' "); O'Brien v. Sutherland

Bldg. Prods., Inc., 10th Dist. No. 93AP-948 (Mar. 24, 1994) (finding it was not error for

No. 13AP-918 8

trial court to rule on defendant's motion for summary judgment without considering

plaintiffs' untimely filed request for an extension or memorandum contra).

{¶ 19} By failing to respond to ODOT's motion for summary judgment, appellant

did not demonstrate where a genuine issue of material fact remained in the record. Civ.R.

56(E). See Hoyt v. Nationwide Mut. Ins. Co., 10th Dist. No. 04AP-941, 2005-Ohio-6367,

¶ 23 ("When a properly supported motion for summary judgment is made, an adverse

party may not rest on mere allegations or denials in the pleading, but must respond with

specific facts showing that there is a genuine issue of material fact."); Riley v.

Montgomery, 11 Ohio St.3d 75, 79 (1984). Because ODOT satisfied its initial burden and

appellant failed to meet her reciprocal burden, we find the trial court did not err in

granting summary judgment to ODOT. Dresher at 293; Hall at ¶ 12.

{¶ 20} Accordingly, we overrule appellant's third assignment of error.

B. First Assignment of Error—Appellant Waived Objections to Evidence

in Support of Motion for Summary Judgment

{¶ 21} In her first assignment of error, appellant asserts it was error to grant

summary judgment based upon the evidentiary materials submitted by ODOT in its

motion for summary judgment because ODOT's materials fail to comply with Civ.R.

56(C). However, as appellant failed to timely file a responsive pleading with the trial

court, she cannot now upon appeal object to the introduction of evidence in support of the

motion for summary judgment. Timberlake v. Jennings, 10th Dist. No. 04AP-462, 2005-

Ohio-2634, ¶ 14 ("If a party does not object in the trial court to the introduction of

evidence submitted in support of, or in opposition to, a motion for summary judgment,

that party waives any error and, thus, cannot raise such error on appeal."); Churchwell v.

Red Roof Inns, Inc., 10th Dist. No. 97APE08-1125 (Mar. 24, 1998) ("Failure to move to

strike or otherwise object to documentary evidence submitted by a party in support of, or

in opposition to, a motion for summary judgment, waives any error in considering that

evidence under Civ.R. 56(C)."); Haas v. Indus. Comm., 10th Dist. No. 99AP-475 (Dec. 21,

1999) ("[B]ecause appellant failed to file any response to appellee's motion for summary

judgment in the trial court, any arguments that could have been raised at that time should

be considered waived upon appeal to this court."). Therefore, we will not consider

No. 13AP-918 9

appellant's objections to the acceptability of evidence supporting ODOT's motion for

summary judgment for the first time on appeal.2

{¶ 22} Accordingly, we overrule appellant's first assignment of error.

C. Second Assignment of Error

{¶ 23} In her second assignment of error, appellant asserts it was error for the trial

court to grant summary judgment in violation of the physical-facts rule. In support of this

argument, appellant contends that the trial court determined that appellant has RSD and

that RSD is the proximate cause of her major depression, despite a previous

determination that appellant does not have RSD.

{¶ 24} Under the physical-facts rule, "neither a court nor jury can give probative

value to any testimony positively contradicted by the physical facts." Ellinger v. Ho, 10th

Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 75, citing McDonald v. Ford Motor Co., 42 Ohio

St.2d 8, 12 (1975). Contrary to appellant's contentions, the trial court in this case did not

determine that appellant has RSD. Rather, the trial court found that the allowance for a

major depressive disorder, single episode, was predicated on the existence of appellant's

RSD and that there was "no evidence in the record to link her psychological claim to the

allowed claim for a sprained ankle." (Oct. 1, 2013 Trial Court Decision, 4.) As appellant's

claim for RSD was previously disallowed, and appellant failed to rebut appellees' evidence

that her psychological claim did not arise from her March 10, 2005 injury, appellant no

longer had a compensable physical injury on which to base her claim for depression.

McCrone at ¶ 16. Thus, the trial court's judgment order is not "positively contradicted by

the physical facts," and, therefore, it was not error to grant summary judgment. Ellinger

at ¶ 75.

{¶ 25} Accordingly, we overrule appellant's second assignment of error.

2 We note ODOT's argument in its brief that the reports of the medical examinations submitted in support of

summary judgment qualify under Evid.R. 803(6) as an exception to the hearsay rule because they were

business records kept in the normal course of business activity. We decline to address this contention

further as it is not dispositive for purposes of the present appeal, and ODOT's counsel conceded such point

at oral argument. See Jefferson v. CareWorks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-1940, ¶ 9-13

(10th Dist.).

No. 13AP-918 10

III. Disposition

{¶ 26} Having overruled appellant's three assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and O'GRADY, JJ., concur.