Fowler v. Indian River Juvenile Corr. Facility

[Cite as Fowler v. Indian River Juvenile Corr. Facility, 2021-Ohio-4422.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CANDIACE L. FOWLER, : JUDGES:

: Hon. Craig R. Baldwin, P.J.

Plaintiff - Appellant : Hon. William B. Hoffman, J.

: Hon. Earle E. Wise, J.

-vs- :

:

INDIAN RIVER JUVENILE : Case No. 2021CA00021

CORRECTIONAL FACILITY, et al., :

:

Defendants - Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court

of Common Pleas, Case

No. 2020CV00584

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: December 16, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

MITCHELL A. STERN DAVID YOST

SHANNON E. KREUER Ohio Attorney General

CHRISTOPHER D. CASPARY

Law Offices of Mitchell A. Stern By: SARAH E. THOMAS

27730 Euclid Avenue Assistant Attorney General

Cleveland, Ohio 44132 Workers’ Compensation Section

State Office Building – 11th Floor

For Defendant-Appellee Indian River 615 West Superior Avenue

Cleveland, Ohio 44113-1899

THOMAS M. SAXER

Amer Cunningham Co. L.P.A.

One Cascade Plaza

Suite 1510

Akron, Ohio 44308-1322

Stark County, Case No. 2021CA00021 2

Baldwin, P.J.

{¶1} Appellee, Candiace Fowler, appeals the decision of the Stark County Court

of Common Pleas granting Indian River Juvenile Correctional Facility’s motion for

summary judgment thus preventing Fowler from participating in the Workers’

Compensation Fund for a claim of substantial aggravation of pre-existing major

depressive disorder, single episode, moderate. Indian River and the Bureau of Workers’

Compensation are appellees.

STATEMENT OF FACTS AND THE CASE

{¶2} Appellant, Candiace Fowler, is an employee of appellee, Indian River

Correctional Facility, first hired in 2001 as a correctional officer. In April 2016, while

supervising facility residents, she intervened in a physical conflict. While attempting to

end the fight, she was taken to the floor, struck and injured her right knee. She filed a

workers’ compensation claim and was permitted to participate in the Workers’

Compensation Fund for a contusion and substantial aggravation of pre-existing

osteoarthritis in her right knee. After conservative treatment of the injury, Fowler

underwent a surgical repair in March 2018.

{¶3} On January 10, 2018 Fowler filed a motion with the Bureau of Workers’

Compensation (BWC) to amend her claim to include substantial aggravation of pre-

existing major depressive disorder, single episode, moderate, allegedly caused by the

injury to her knee in April 2016. Her request was ultimately rejected on June 7, 2018 and

she filed an appeal with the Stark County Court of Common Pleas including the BWC and

Indian River Correctional Institute as parties to the action. 1

11

Fowler dismissed this matter without prejudice in April 2019 and refiled a complaint in March 2020.

Stark County, Case No. 2021CA00021 3

{¶4} Indian River and the BWC responded, contending that Fowler's claim

should not be granted. In support of its position, Indian River offered the February 9, 2018

opinion of Nicole Leisgang, Psy.D. who concluded that "* * * her comments during this

evaluation suggest that her depressed symptomatology is a product of a stressful work

environment. For example, she noted ‘I've seen a lot of trauma there . . . my guard's up.’

Further, there is no objective evidence (e.g., medication change) which would be

indicative of a substantial aggravation." (Notice of Expert Disclosure, Apr. 16, 2020,

Exhibit A, p. 8-9) That same report contains the following question and response:

3. Does the medical evidence in the file, your evaluation, and the

subjective and/or objective findings support the diagnosis of the

requested condition(s) according to the DSM-IV criteria?

Examination findings are supportive of the requested condition. The injured

worker's clinical presentation was indicative of emotional difficulty. She

produced a valid MMPI-2 profile which was also indicative of significant

nervous and depressed symptomatology. There was no indication of

symptom magnification.

(Notice of Expert Disclosure, Apr. 16, 2020, Exhibit A, p. 8).

{¶5} Fowler submitted the August 23, 2017 opinion of Cheryl Benson-

Blankenship, Ph,D. who concluded that Fowler was suffering from a substantial

aggravation of pre-existing major depressive disorder, single episode, moderate based

upon her analysis of the information provided and her clinical examination of Fowler.

{¶6} Indian River conducted a deposition of Fowler and questioned her regarding

treatment provided by her physicians prior to and after the 2016 work-related injury.

Stark County, Case No. 2021CA00021 4

During the deposition, Fowler stated that the first time she was aware of her diagnosis of

major depressive disorder was after the work-related injury. When questioned regarding

the list of doctors that treated her prior to the injury, she related that treatment to the

passing of her mother in 2008. Phoenix Rising, Dr. Samina Zaidi and Dr. Ish Rawal

provided treatment, but neither Phoenix Rising nor Dr. Zaidi prescribed medication or

provided a diagnosis. The nature of the treatment provided was not explored during the

deposition. Fowler admitted during the deposition that she did not have any medical

records from her prior treatment in her possession.

{¶7} Fowler also recalled receiving Lexapro when she was dealing with the

impact of losing her mother.

{¶8} Dr. Rawal, Fowler's family physician prescribed Xanax to control her anxiety

prior to the work injury. After the injury, Dr. Rawal substituted Cymbalta for the Xanax for

her anxiety and to take advantage of its pain relieving qualities. Fowler has not sought

additional psychological treatment due to cost, but she expressed a desire to obtain

treatment for depression. She claimed that her psychological symptoms have worsened

over the past three years as a result of the work-related injury.

{¶9} Indian River moved for summary judgment on September 14, 2020 arguing

that it was entitled to summary judgment because Fowler:

has produced no objective diagnostic findings, objective clinical findings,

objective test results, as required by O.R.C. §4123.01(C)(4), to establish

the extent of the Psychological Condition prior to the Incident. Without this

objective evidence, it cannot be determined that an aggravation, let alone a

Stark County, Case No. 2021CA00021 5

substantial aggravation, of the Psychological Condition occurred as a result

of the Incident."

(Indian River Motion for Summary Judgment, Sept. 14, 2020, p. 7).

{¶10} Fowler opposed the motion for summary judgment, relying on her own

affidavit and the affidavit of her expert. Dr. Blankenship. In her affidavit, Fowler addressed

her pre-existing psychological condition:

11) I have also received prior mental health treatment, including treatment

in 2008 regarding my mother's passing.

12) Specifically, I treated with Phoenix Rising Behavioral Healthcare and

Recovery, Inc. and with Dr. Samina Zaida, a psychiatrist prior to my 2016

work injury.

13) I met with a therapist for approximately one year following my mother's

death in 2008 because I had withdrawn from friends and family and felt

depressed, upset and irritable.

14) I have also received mental health treatment from Dr. Ish Rawal, my

primary care provider, for many years, who has prescribed Xanax, and more

recently, Cymbalta.

(Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, Exhibit 1, p.

2, paragraphs 11-14).

{¶11} Dr. Blankenship concluded in her affidavit that she "made a clinical finding

that Fowler already suffered from major depressive disorder, single episode based upon

her reported prior symptoms and mental health treatment, including in 2008, regarding

her mother's passing" and that:

Stark County, Case No. 2021CA00021 6

Based upon my examination of Ms. Fowler, review of her medical

records, and my years of experience as a practicing psychologist, it is my

opinion, to a reasonable degree of psychological certainty, that the physical

injuries that Ms. Fowler sustained in her April 15, 2016 work-related

accident are the direct and proximate cause of her substantial aggravation

of preexisting major depressive disorder, single episode.

(Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, Exhibit 2, p.

2, paragraphs 8,10).

{¶12} The trial court granted the motion denying Fowler "the right to participate in

the Ohio Workers' Compensation Fund for a substantial aggravation of pre-existing major

depressive disorder, single episode, moderate" stating that “[i]n the present case, Plaintiff

has not produced objective evidence of a pre-injury reference point. Plaintiff has only

produced subjective complaint(SIC) of her pre-existing condition, specifically disallowed

by R.C. 4123.01 (C)(4) which states that "subjective complaint without objective

diagnostic findings, objective clinical findings, or objective test results are insufficient to

substantiate a substantial aggravation.” (Judgment Entry, Feb. 19, 2021, p. 1, 2, 3).

{¶13} The trial court also found that Fowler's attempt to argue a theory of direct

causation was barred as she failed to make that allegation in her complaint and had

conceded that she has a history of major depressive order pre-dating the injury.

{¶14} Fowler filed a timely notice of appeal and submitted six assignments of

error:

Stark County, Case No. 2021CA00021 7

{¶15} “I. THE TRIAL COURT ERRED IN DETERMINING THAT INDIAN RIVER

HAS MET ITS BURDEN OF DEMONSTRATING THAT THERE IS NO GENUINE ISSUE

AS TO ANY MATERIAL FACT.”

{¶16} “II. THE TRIAL COURT ERRED IN DETERMINING THAT FOWLER HAS

NOT MET HER BURDEN OF PRODUCTION UNDER CIV. R. 56(E) THAT SHE

SUFFERED A WORK-RELATED SUBSTANTIAL AGGRAVATION OF A PRE-EXISTING

PSYCHOLOGICAL CONDITION.”

{¶17} “III. THE TRIAL COURT ERRED IN DETERMINING THAT A PRE-INJURY

REFERENCE POINT IS REQUIRED TO ESTABLISH SUBSTANTIAL AGGRAVATION

OF A PRE-EXISTING CONDITION UNDER R.C. 4123.512.”

{¶18} “IV. THE TRIAL COURT ERRED IN DETERMINING THAT INDIAN RIVER

IS ENTITLED TO JUDGMENT AS A MATTER OF LAW PURSUANT TO CIV. R. 56(C).”

{¶19} “V. THE TRIAL COURT ERRED AS MATTER OF LAW IN NOT

PERMITTING FOWLER TO PURSUE AN ALTERNATIVE THEORY OF DIRECT

CAUSATION.”

{¶20} “VI. THE TRIAL COURT ERRED IN DETERMINING AS A MATTER OF

LAW THAT THE FEBRUARY 19, 2021 ORDER IS A FINAL, APPEALABLE ORDER.”

STANDARD OF REVIEW

{¶21} We review cases involving a grant of summary judgment using a de novo

standard of review. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-

Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is appropriately granted when “

‘(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party

is entitled to judgment as a matter of law; and (3) it appears from the evidence that

Stark County, Case No. 2021CA00021 8

reasonable minds can come to but one conclusion, and viewing such evidence most

strongly in favor of the party against whom the motion for summary judgment is made,

that conclusion is adverse to that party.’ ” Esber Beverage Co. v. Labatt USA Operating

Co., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9, citing M.H. v. Cuyahoga

Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, internal citation

omitted; Civ.R. 56(C).

{¶22} “ ‘* * * We look at the record on summary judgment in the light most

favorable to * * * the party opposing the motion.’ Poller v. Columbia Broadcasting System

(1962), 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458. Further, ‘* * *on summary

judgment the inferences to be drawn from the underlying facts contained in such materials

(depositions, affidavits and exhibits) must be viewed in the light most favorable to the

party opposing the motion.”” United States v. Diebold (1962), 369 U.S. 654, 655, 82 S.Ct.

993, 994, 8 L.Ed.2d 176. Williams v. First United Church of Christ, 37 Ohio St.2d 150,

151–52, 309 N.E.2d 924, 925 (1974).

{¶23} “[W]e afford no deference to the trial court's decision and independently

review the record to determine whether summary judgment is appropriate.” Tornado

Techs., Inc. v. Quality Control Inspection, Inc., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13

(8th Dist.). A * * * court should not enter a summary judgment if it appears a material fact

is genuinely disputed, nor if, construing the allegations most favorably towards the non-

moving party, reasonable minds could draw different conclusions from the undisputed

facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 433, 424 N.E. 2d 311 (1981).

A fact is material if it affects the outcome of the case under the applicable substantive

law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th

Stark County, Case No. 2021CA00021 9

Dist. 1999). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 323, 474

N.E.2d 271 (1984).

ANALYSIS

VI.

{¶24} We will begin our analysis with Fowler's sixth assignment of error, that the

trial court erred in determining as a matter of law that the February 19, 2021 order is a

final, appealable order, as that assignment concerns our jurisdiction to consider this

matter and must be resolved before we proceed.

{¶25} Fowler argues that the judgment she has appealed is not a final appealable

order because her claim against BWC remains pending, and the trial court did not issue

a determination that there was no just reason for delay. She claims that the order is not

final as it does not terminate the action as to all parties, but she does not provide a

description of the claim that she alleges remains to be decided.

{¶26} A final, appealable order is defined by R.C. 2505.02(B)(2) as “[a]n order * *

* that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is

* * * [a]n order that affects a substantial right made in a special proceeding or upon a

summary application in an action after judgment* * * ."

{¶27} "A special proceeding is defined as “an action or proceeding that is specially

created by statute and that prior to 1853 was not denoted as an action at law or a suit in

equity.” R.C. 2505.02(A)(2).

Workers' compensation did not exist at common law or in equity, but

was established by special legislation. See S.B. No. 127, 102 Ohio Laws

Stark County, Case No. 2021CA00021 10

524; Am.S.B. No. 48, 103 Ohio Laws 72. See, generally, Fulton, Ohio

Workers' Compensation Law (2d Ed.1998) 20–21, Sections 2.10–2.11.

Therefore, it falls within the definition of a special proceeding under R.C.

2505.02(A)(2).

Having determined that a workers' compensation proceeding is a

special proceeding as defined in R.C. 2505.02(A)(2), we now must

determine whether the order [granting Indian River's motion for summary

judgment] affected a substantial right.

Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶¶ 14-16. See

Also Anderson v. Sonoco Products Co., 112 Ohio App.3d 305, 308, 678 N.E.2d 631, 633

(2nd Dist. 1996) (Workers' compensation appeals were not known to the common law or

in equity. Therefore, a workers' compensation appeal is a special proceeding.)

{¶28} A substantial right is defined in R.C. 2505.02(A)(1) as “a right that the United

States Constitution, the Ohio Constitution, a statute, the common law, or a rule of

procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1). Myers, supra at

¶ 17. Fowler's right to participate in the Workers’ Compensation Fund and to appeal

adverse decisions is created by R.C. 4123.51, R.C. 4123.511 and R.C. 4123.512. The

trial court granted summary judgment which prevented Fowler from participating in the

Fund, thus it affects a substantial right and was a final appealable order.

{¶29} We also find that the trial court's decision qualifies as a final appealable

order as it is "[a]n order that affects a substantial right in an action that in effect determines

the action and prevents a judgment." R.C. 2505.02(B)(1). While Indian River and BWC

are parties to this matter, the only "claim" "is the basic or underlying request by an

Stark County, Case No. 2021CA00021 11

employee to participate in the compensation system because of a specific work-related

injury or disease. A decision by the commission determines the employee's right to

participate if it finalizes the allowance or disallowance of an employee's ‘claim.’”

(Emphasis sic.) Petry v. Kilbarger Constr., Inc., 5th Dist. Muskingum No. 2012-CA-13,

2012-Ohio-4355 *3.

{¶30} Fowler's complaint does not present a claim against Indian River or BWC in

the traditional sense, as it is an appeal of the decision of the BWC denying her petition to

participate in the Fund. " * * * [A]n appeal to the common pleas court is limited to one

decision: whether an employee is or is not entitled to be compensated for a particular

claim." Felty v. AT & T Techs., Inc., 65 Ohio St.3d 234, 239, 602 N.E.2d 1141 (1992).

When the trial court granted Indian River's motion for summary judgment, that decision

determined the action. Nothing remains for the trial court to adjudicate as there were no

separate claims against either BWC or Indian River. Fowler's claim "to participate in the

compensation system because of a specific work-related injury or disease" has been

determined and a judgment in her favor is prevented. Felty, supra at 239.

{¶31} We find that the trial court’s decision is a final appealable order and,

therefore, Fowler's sixth assignment of error is denied.

I,II,III,IV.

{¶32} Fowler attacks the trial court's grant of summary judgment in her first,

second, third and fourth assignments of error alleging different defects in the trial court’s

analysis in each error. Because the trial court focused upon the issue of a pre-injury

reference point in its judgment entry and because we have determined that our resolution

of that issue will render the other assignments of error moot, we will focus on the third

Stark County, Case No. 2021CA00021 12

assignment of error regarding the trial court’s finding that objective evidence of a pre-

injury reference point is necessary.

{¶33} The crux of the trial court's decision to grant summary judgment is its

conclusion that R.C. 4123.01 required Fowler to provide objective evidence of a pre-injury

reference point and that she failed to supply that evidence. The relevant statutory

language applicable to the facts of this case is contained in the definition of the term

"injury" in R.C. 4123.01(C)(4):

(C) “Injury” 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. “Injury” does not include:

***

(4) A condition that pre-existed an injury unless that pre-existing condition

is substantially aggravated by the injury. Such a substantial aggravation

must be documented by objective diagnostic findings, objective clinical

findings, or objective test results. Subjective complaints may be evidence

of such a substantial aggravation. However, subjective complaints without

objective diagnostic findings, objective clinical findings, or objective test

results are insufficient to substantiate a substantial aggravation.

{¶34} The trial court found that “Plaintiff and her clinician acknowledge that she

suffered from the underlying psychological condition prior to her workplace incident” but

concludes that "Plaintiff has not produced objective evidence of a pre-injury reference

point. Plaintiff has only produced subjective complaint of her pre-existing condition,

specifically disallowed by R.C.4123.0l(C)(4) which states that “subjective complaint

Stark County, Case No. 2021CA00021 13

without objective diagnostic findings, objective clinical findings, or objective test results

are insufficient to substantiate a substantial aggravation’” relying on Lake v. Anne Grady

Corp., 2013-Ohio-4740, 999 N.E.2d 1203 at ¶ 21 (6th Dist.). (Judgment Entry, Feb. 19,

2021, p.2). We respectfully disagree with the trial court as the Lake court recognized that

objective evidence is not only unnecessary, but also noted that a claim could be presented

even if the pre-existing injury had not been diagnosed prior to the work-related injury.

We agree with Lake and the Eighth District that Smith does not hold

that an injured worker is required to produce pre-injury objective medical

evidence documenting a pre-existing condition to support a substantial

aggravation claim. We also clarify that while pre-injury evidence of a pre-

existing condition—whether objective or subjective—is helpful, it is not

necessary so long as the worker can demonstrate through “objective

diagnostic findings, objective clinical findings, or objective test results” that

the preexisting condition was substantially aggravated by the injury. R.C.

4123.01(C)(4).

However, as recognized by Lake, to determine that a condition has

been substantially aggravated, there must be a pre-injury reference point

from which to compare the post-injury condition. In cases where the pre-

injury condition is asymptomatic, providing an initial reference point

becomes difficult, especially where the pre-existing condition has never * *

* been diagnosed. This does not mean, however, that proving substantial

aggravation of a pre-existing condition is impossible in these situations. In

fact, Ohio courts have found that sufficient evidence existed to support a

Stark County, Case No. 2021CA00021 14

substantial aggravation claim under R.C. 4123.01(C)(4) where the condition

had not been diagnosed pre-injury. (Emphasis sic.)

Lake v. Anne Grady Corp., 6th Dist. No. L-12-1330, 2013-Ohio-4740, 999 N.E.2d

1203, ¶¶ 20-21.

{¶35} We agree with “those courts that have held that the language of the statute

does not require a plaintiff to produce pre-injury documentation of a pre-existing condition

in order to prove a substantial aggravation claim. See, e.g., Gardi, Haynik, and Strickler.

Fabro v. OhioHealth Corp., 10th Dist. No. 13AP-755, 2014-Ohio-5161, 24 N.E.3d 614,

¶ 21. There must be, however, a ‘pre-injury reference point from which to compare the

post-injury condition,’ which can be demonstrated through the testimony of an expert or

post-injury medical records.” (Citations omitted.) Schaefer v. Lake Hosp. Sys., Inc., 11th

Dist. No. 2017-L-102, 2018-Ohio-3970, 120 N.E.3d 366, ¶ 19.

{¶36} As recently noted by the First District Court of Appeals “* * * R.C.

4123.01(C)(4) does not require the preexisting condition itself to be established by

objective evidence. * * * Although objective preinjury evidence is helpful, ‘it is not

necessary so long as the worker can demonstrate through ‘objective diagnostic findings,

objective clinical findings, or objective test results’ that the preexisting condition was

substantially aggravated by the injury.’ * * * ‘[A]ny requirement that a claimant must

present pre-injury documentation of the pre-existing condition * * * adds a requirement

that is not in the statute.’ ” Houlihan v. Morrison, 1st Dist. Hamilton No. C-200379, 2021-

Ohio-3087, ¶ 14.

{¶37} In this case Fowler presented the testimony of an expert who completed a

review of the available records and conducted a clinical exam of Fowler and concluded

Stark County, Case No. 2021CA00021 15

that she suffered a pre-injury diagnosis of major depressive disorder, single episode,

moderate and offered an opinion regarding the change post-injury. Further, Indian River

does not dispute the existence of a pre-injury condition, but concedes that it existed and

argues that Fowler lacks objective evidence of that pre-existing injury. (“To the contrary,

Plaintiff's own testimony, and that of her expert, clearly establish that her MDD pre-existed

the Incident.” Indian River Reply Brief, Nov. 2, 2020, p. 6).

{¶38} Because the Revised Code does not require objective evidence of a pre-

injury reference point, we find that the trial court erred when it concluded that Fowler’s

failure to provide objective evidence of a pre-injury reference point was a fatal flaw and

that without it summary judgment should be granted.

{¶39} We hold that Fowler's third assignment of error is well taken and grant the

same. Our grant of this assignment of error leads to the reversal of the trial court’s

decision and renders assignments of error one, two and four moot and, therefore, they

will not be addressed.

V.

{¶40} In her fifth assignment of error, Fowler argues that the trial court erred as

matter of law in not permitting Fowler to pursue an alternative theory of direct causation.

Our ruling regarding the grant of summary judgment resolves this appeal, but we are

inclined to address the fifth assignment of error as this matter will be returned to the trial

court and the issue of whether Fowler can pursue direct causation may arise.

{¶41} The trial court found that Fowler did not include allegations of direct

causation in her complaint and that the record is replete with evidence of a pre-existing

condition, undermining any allegation that the work-related injury directly caused the

Stark County, Case No. 2021CA00021 16

major depressive disorder, single episode, moderate. Fowler relies upon Starkey v.

Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956

N.E.2d 267, contending that decision permits her to pursue a new theory of causation for

an injury that has been addressed administratively and that the focus of the trial court in

this context is the right to participate in the Fund for a specific injury, regardless of

causation.

{¶42} The Supreme Court of Ohio held that "We therefore agree with the courts

that have held that a claimant is not required to advance a specific theory of causation at

the administrative level if he or she wishes to use that theory in the trial court, because

R.C. 4123.512 allows for introduction of new evidence, provided that it relates to the same

medical condition or injury.” Id. at ¶ 18. So, it is evident that a different theory may be

pursued at the trial court level to prove the subject injury was work-related.

{¶43} Indian River conceded that the Starkey decision permits pursuit of a direct

causation theory but argued that Fowler failed to alleged that theory in her new complaint

and therefore cannot now argue a direct causation theory. Indian River further contended

that Fowler offered no evidence of direct causation and therefor she cannot claim the

court erred in denying her request to pursue a direct causation theory.

{¶44} Revised Code 4123.512(D) required Fowler to "file a petition containing a

statement of facts in ordinary and concise language showing a cause of action to

participate or to continue to participate in the fund and setting forth the basis for the

jurisdiction of the court over the action." As noted by the trial court and Indian River,

Fowler did not include allegations supporting a theory of direct causation in its complaint,

and focused only upon the theory that she suffered a substantial aggravation of a pre-

Stark County, Case No. 2021CA00021 17

existing injury. Fowler argued in her memorandum opposing summary judgment that

granting the motion required the trial court to find that she did not have a pre-existing

psychological condition and that, therefore, she must be permitted to pursue a direct

causation theory if the trial court planned to grant summary judgment. The trial court did

not so find and was not obligated to reach that conclusion to grant summary judgment.

Instead, the trial court relied upon its finding that Fowler had not provided objective

evidence of a pre-injury reference point. The trial court did not address whether a pre-

existing condition existed, as it is evident in the record that all parties accepted the

conclusion that Fowler suffered a pre-existing psychological condition. That issue was

not disputed. Fowler's attempt to manufacture a dispute by ignoring the evidence in the

record without any attempt to amend her complaint or offer any evidence of direct

causation was correctly ignored by the trial court.

{¶45} Fowler's Fifth Assignment of error is denied.

Stark County, Case No. 2021CA00021 18

{¶46} We reverse the decision of the Stark County Trial Court granting summary

judgment and remand this matter for further proceedings consistent with this opinion.

By: Baldwin, P.J.

Wise, Earle, J. concur,

Hoffman, J. concurs in part;

Dissents in part.

Stark County, Case No. 2021CA00021 19

Hoffman, P.J., concurring in part, and dissenting in part

{¶47} I concur in the majority’s analysis and disposition of Appellant’s

assignments of error with the singular exception of its decision regarding Appellant’s fifth

assignment of error.

{¶48} Because the majority chose to specifically overrule Appellant’s fifth

assignment of error, it may later be argued such would preclude Appellant from

attempting to raise it upon remand based on the theory of res judicata. Upon this Court’s

remand, I believe Appellant has the opportunity to raise the issue by seeking amendment

of her complaint to allege her direct causation theory as an alternative theory of her right

to participate in the Workers’ Compensation Fund. Rather than overruling the assignment

of error outright, I would find it premature.