[Cite as McRoberts v. Gen. Elec. Co.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

GERALD MCROBERTS, :

Appellant, : CASE NO. CA2012-10-216

: OPINION - vs - 7/15/2013 :

GENERAL ELECTRIC COMPANY, et al., :

Appellees. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2010-02-0642

Brown, Lippert & Laite, David A. Laite, 640 Cincinnati Club Bldg., 30 Garfield Place, Cincinnati, Ohio 45202, for appellant, Gerald McRoberts

Dinsmore & Shohl, LLP, Susan D. Solle, 1100 Courthouse Plaza SW, 10 North Ludlow, Dayton, Ohio 45202, for appellee, General Electric Company

Steven P. Fixler, Assistant Attorney General, Ohio Attorney General's Office, 1600 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202, for appellee, Marsha Ryan, Administrator, Ohio Bureau of Workers' Compensation

HENDRICKSON, P.J.

{¶ 1} Appellant, Gerald McRoberts, appeals from the judgment of the Butler County

Common Pleas Court denying his workers' compensation claim for the condition of left carpal

tunnel syndrome. For the reasons that follow, we affirm the judgment of the trial court. Butler CA2012-10-216

{¶ 2} McRoberts is a General Electric machinist who assembles and disassembles

parts. In September 2008, he filed a claim with the Ohio Bureau of Workers' Compensation

in which he requested compensation for injury to his bilateral index and ring trigger fingers

and left De Quervain's tenosynovitis. Those conditions were certified by GE. In January

2009, McRoberts filed a motion with the Industrial Commission of Ohio to amend his claim to

allow the additional conditions of bilateral middle trigger finger and right tennis elbow. The

Industrial Commission allowed these additional conditions. In June 2009, McRoberts filed a

second motion to amend his claim to allow three additional conditions, namely, bilateral

shoulder tendinosis, left carpal tunnel syndrome and substantial aggravation of degenerative

changes of the left shoulder. The Industrial Commission disallowed these three additional

conditions.

{¶ 3} McRoberts appealed the disallowance of the three additional conditions to the

Butler County Court of Common Pleas pursuant to R.C. 4123.512. The matter was referred

to a magistrate who held a bench trial on McRoberts' claims. GE presented the expert

testimony of Dr. Marc Whitsett, M.D., who specializes in internal medicine and occupational

diseases. Dr. Whitsett testified that it was his opinion, within a reasonable degree of medical

certainty, that it is not "more than fifty-one percent likely" that McRoberts' work activity at GE

is the proximate cause of his left carpal tunnel syndrome. However, Dr. Whitsett

acknowledged that McRoberts' work activity at GE is a "contributory factor" to his left carpal

tunnel syndrome, which he estimated to be "a thirty percent contributory [factor]."

{¶ 4} The magistrate denied McRoberts' claim that he was entitled to workers'

compensation benefits for the three additional conditions, including left carpal tunnel

syndrome. McRoberts filed only one objection to the magistrate's decision, arguing the

magistrate erred in disallowing the condition of left carpal tunnel syndrome. The trial court

overruled McRoberts' objection. -2- Butler CA2012-10-216

{¶ 5} McRoberts now appeals from the trial court's judgment and assigns the

following as error:

{¶ 6} THE TRIAL COURT ERRED BY OVERRULING PLAINTIFF'S OBJECTIONS

TO [sic] MAGISTRATE'S DECISION.

{¶ 7} McRoberts argues the trial court erred in overruling his objection to the

magistrate's decision denying his workers' compensation claim for left carpal tunnel

syndrome. We disagree with this argument.

{¶ 8} The trial court, in ruling on a R.C. 4123.512 appeal from an order of the

Industrial Commission denying a workers' compensation claim, uses a de novo standard of

review, i.e., it reviews the order independently and without deference to the commission's

decision. Krull v. Ryan, 1st Dist. No. C-100019,

, ¶ 9. The court of appeals,

in ruling on an appeal from the trial court's judgment in a R.C. 4123.512 appeal, uses a

manifest-weight-of-the-evidence standard and will uphold the judgment if it is supported by

competent, credible evidence.

To the extent that the trial court's judgment involves a

question of law, however, a court of appeals reviews the question of law independently and

without deference to the trial court's judgment. Budzevski v. OhioHealth Corp., 10th Dist. No.

12AP-112,

, ¶ 13.

{¶ 9} In order to participate in the workers' compensation system, a claimant must

have been injured at work or have contracted an occupational disease through his

employment. Stoneman v. Zimmer Orthopaedic Surgical Products, Inc., 5th Dist. Nos. 2007

AP 08 0046, 2007 AP 08 0045,

. Here, McRoberts acknowledges

that his left carpal tunnel syndrome is not the result of any specific injury at GE. Therefore,

he was required to prove that his left carpal tunnel syndrome was an occupational disease he

contracted through his employment with GE.

{¶ 10} R.C. 4123.01(F) defines an "occupational disease" as -3- Butler CA2012-10-216

a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.

{¶ 11} R.C. 4123.68 lists a number of diseases that have been designated as

"scheduled" occupational diseases. Carpal tunnel syndrome is not listed as one of them.

Therefore, McRoberts had to prove that his "non-scheduled condition" of left carpal tunnel

syndrome qualifies as an "occupational disease" under the three-prong test in State ex rel.

Ohio Bell Tel. Co. v. Krise,

(1975), codified in R.C. 4123.01(F).

{¶ 12} Under Krise, in order to show that an occupational disease is compensable, the

claimant must prove (1) the disease is contracted in the course of employment; (2) the

disease is peculiar to the claimant's employment by its causes and the characteristics of its

manifestation, or the conditions of claimant's employment result in a hazard which

distinguishes the employment in character from employment generally; and (3) the

employment creates a risk of contracting the disease in a greater degree and in a different

manner than in the public generally.

{¶ 13} In order for a claimant to demonstrate that he contracted the occupational

disease while in the course of his employment, the claimant must prove that the disease was

proximately caused by his employment. Valentine v. PPG Industries, Inc.,

,

(4th Dist.), judgment aff'd,

,

.

The definition of proximate cause and the principles governing it are applicable in workers'

compensation cases. Id. at ¶ 16. "'The proximate cause of an event is that which in a

natural and continuous sequence, unbroken by any new, independent cause, produces that

event and without which, that event would not have occurred.'" Id., quoting Aiken v. Indus.

Comm.,

(1944). To prove the proximate cause of a medical condition, -4- Butler CA2012-10-216

expert medical testimony ordinarily is necessary.

. The expert medical

testimony must show that it is the expert's opinion, within a reasonable degree of medical

probability, that the occupational disease caused the injury for which the claimant is seeking

compensation. Douglas v. Ohio Bur. of Workers' Comp.,

(2nd

Dist. 1995).

{¶ 14} At trial, GE's medical expert, Dr. Whitsett, testified that it was his opinion, within

a reasonable decree of medical certainty, that it was not "more than fifty-one percent likely

that Mr. McRoberts' work at GE caused his left carpal tunnel syndrome[.]" Dr. Whitsett

acknowledged that McRoberts' work activity at GE was a "contributory factor" to his left carpal

tunnel syndrome, stating "I'll apportion it. I'll say that his work activity probably resulted in a

thirty percent contributory [factor]." The evidence also showed that McRoberts first

contracted carpal tunnel syndrome in both hands in 1990 and that he had surgery for this

condition very early in his tenure at GE. Dr. Whitsett testified that McRoberts' current left

carpal tunnel syndrome is "recurrent" from his prior diagnosis of carpal tunnel syndrome in

1990 and was likely caused by his history of hypothyroidism and possibly by his obesity if

McRoberts was in fact obese at that time.

{¶ 15} In Brody v. Mihm,

(1995), the court reaffirmed the portion of

its holding in State ex rel. Miller v. Mead Corp.,

(1979) "that a

pre-existing disease aggravated during employment is not compensable."

. The

Brody court rejected the claimant's argument that cases like Village v. General Motors Corp.,

(1984) and Oswald v. Connor,

(1985) effectively

overruled Miller. Brody.

{¶ 16} The Brody court noted that in Village, it held that an injury that develops

gradually over time as the result of the performance of the injured workers' job-related duties

was compensable, thereby overruling "a tortuous line of cases which suggested that an injury -5- Butler CA2012-10-216

must be the result of a sudden mishap occurring at a particular time and place to be

compensable."

. However, the Brody court noted that Village's change in the

definition of "injury" did not affect the portion of the court's decision in Miller which holds that

a pre-existing disease aggravated during employment is not compensable. Brody.

{¶ 17} The Brody court noted that in Oswald, it held that death from a pre-existing

cause and accelerated by an occupational disease contracted in the course of and arising

out of the scope of employment is compensable, and that this holding was merely an

extension of its previous case law in which it held that death or disability resulting from a pre-

existing cause or disease and accelerated by an injury, in the course of and arising out of

employment, is compensable.

. The Brody court stated that "[a]fter Oswald,

claims for aggravation of a pre-existing disease are compensable only where the aggravation

itself qualifies as a compensable injury or occupational disease." Brody.

{¶ 18} In this case, there is sufficient evidence to support the trial court's finding that

McRoberts' carpal tunnel syndrome predates his employment at GE. Dr. Whitsett's

testimony shows that the proximate cause of his original carpal tunnel syndrome was likely

McRoberts' hypothyroidism and possibly his obesity and that the proximate cause of his

recurrence of carpal tunnel syndrome was likely caused by factors other than his work

activities at GE. As a result, McRoberts' pre-existing carpal tunnel syndrome, which was

aggravated during his 20 years of employment with GE, is not compensable.

.

{¶ 19} Furthermore, the work-related aggravation of McRoberts' pre-existing carpal

tunnel syndrome is not compensable because the aggravation, itself, i.e., McRoberts' 20

years of employment as a machinist at GE, cannot qualify as a compensable occupational

disease.

. Compare Oswald,

(determining that

employee's "atypical avian tuberculosis" was an occupational disease and the combined

result of this disease and his pre-existing diseases of coronary artery disease, diabetes and -6- Butler CA2012-10-216

hypertension directly and proximately caused his death at a substantially earlier time than

would have been the case without the occupational disease, and therefore employee's widow

was entitled to death benefits under the Workers' Compensation Act).

{¶ 20} Nevertheless, McRoberts argues that, under the principle of "dual causation,"

Dr. Whitsett's testimony that his work activities at GE were a 30% contributing factor to his

carpal tunnel syndrome was sufficient to establish that his employment was a proximate

cause of that condition. We disagree with this argument.

{¶ 21} "It is a well-established principle of tort law that an injury may have more than

one proximate cause." Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d at 588. "In Ohio, when

two factors combine to produce damage or illness, each is a proximate cause." Norris v.

Babcock & Wilcox Co.,

(9th Dist.).

{¶ 22} The principle of dual causation, as it relates to the cause or causes of an

occupational disease, was discussed in Isom v. Dayton Power & Light Co., 2nd Dist. No.

23911,

, ¶ 20, as follows:

"The term 'dual causation' is used to describe any occupational disease causation problem in which a personal element, such as smoking, combines with an employment element, such as inhalation of asbestos or textile fibers, noxious fumes, acrid smoke, or irritating dust, to produce lung cancer, emphysema, bronchitis and the like." Larson's Workers' Compensation Law, § 52-06[4][a]. Some jurisdictions, though not Ohio, have enacted apportionment statutes in an effort to exclude the "personal element" from a finding of causation. Even then, "[t]he crucial distinction ... is between apportioning disability and apportioning cause. The former is possible in the minority of states having apportionment statutes; the latter is never possible." Id. at § 52.06[4][d].

{¶ 23} McRoberts, relying primarily on Isom, contends that, since all of the medical

experts who testified in this case agreed that his work activities and other factors, such as his

obesity, hypothyroidism and previous occurrence of carpal tunnel syndrome, played a

contributing role in the recurrence of his carpal tunnel syndrome, his work activities and the -7- Butler CA2012-10-216

other factors are each proximate causes of his condition, and therefore he was entitled to

workers' compensation benefits. We find this argument unpersuasive.

{¶ 24} The supreme court has made it clear that Ohio does not recognize occupational

disease claims for aggravation of pre-existing non-industrial medical conditions or diseases

unless the aggravation itself qualifies as a compensable injury or occupational disease.

. Additionally, McRoberts has failed to cite any case in which a claimant

seeking workers' compensation benefits has prevailed where the opposing party's expert

testified that 70% of the cause of the claimant's medical condition for which he is seeking

benefits is attributable to factors other than his employment, nor are we aware of any.

{¶ 25} In light of the foregoing, McRoberts' assignment of error is overruled.

{¶ 26} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.

-8-