According to the Tenth District Court of Appeals, (Reichard v. R J. Wheels, Inc., 193 Ohio App.3d 334, 2011-Ohio-1597), in order for a claimant to prove a repetitive use type workers’ compensation injury the claimant must present evidence establishing repetitive use type activities or tasks on the job and medical evidence must then be presented that establishes the causation between the repetitive activities and the diagnosed condition for the claimant. Without such evidence, a repetitive use claim will not be allowed.
In the Reichard case, the claimant sought allowance for a left elbow injury identified as “lateral epicondylitis, left distal biceps tendinopothy and a strained-sprained left elbow. The claimant alleged that he developed these conditions both as a result of bumping his elbow on a car fender at work and as a result of repetitive activity undertaken as part of his job. His claim was initially denied by the Commission and he appealed that denial to the Court of Common Pleas for Franklin County. After a jury verdict was rendered in favor of the employer, the claimant filed an appeal to The Tenth District Court of Appeals. In support of his appeal, the claimant cited as reversible error the court’s refusal to allow the jury to consider his alternative theory of repetitive motion causation for his injury.
The court pointed out that, while there was some mention at the trial of the claimant’s job duties, the claimant provided testimony only on a single traumatic event. He claimed he banged or bumped his elbow against a car fender. More importantly, when his physician testified on the issue of causation, he only mentioned the single traumatic incident and not the contributing cause of any repetitive use activities. For these reasons, the court found that there was no error committed in refusing to allow the jury to consider an alternative causation theory.
In a repetitive use claim, employers should always evaluate the description provided of the repetitive activity, as well as, the expert opinion provided by the claimant’s doctor on causation. If the doctor does not specifically identify the repetitive activities or does not identify them accurately, there may be grounds to challenge the claim for lack of sufficient medical evidence.
Of additional interests in this case was the court’s decision allowing the claimant to recover all of his stenographic deposition costs even though the claimant had lost the appeal. The court noted that under Ohio Revised Code Section 4123.512(D) all such costs are recoverable by each party from the surplus fund regardless of the fact that the claimant may have lost on his or her appeal. The court quoted from a prior Ohio Supreme Court Decision and stated:
“A claimant never bears the responsibility for stenographic deposition costs, regardless of the outcome of his or her claim.”
This would also include the costs for copies of other depositions used at trial besides just the costs of the claimant’s doctor’s deposition.
This is an important case to keep in mind when seeking recovery of litigation costs in a workers’ compensation court appeal. An employer should also be able to recover all of its deposition costs if the claim is denied.
