[Cite as Wasinski v. PECO II, Inc., 2009-Ohio-2615.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

CRAWFORD COUNTY 

 

JODI D. WASINSKI, 

 APPELLEE, 

 CROSS-APPELLANT, CASE NO. 3-08-14 

 v. 

ADMINISTRATOR, BUREAU OF 

WORKERS’ COMPENSATION, 

 APPELLANT, 

 CROSS-APPELLEE, 

 -AND- O P I N I O N 

PECO II, INC., 

 APPELLEE. 

 

JODI D. WASINSKI, 

 APPELLEE, 

 CROSS-APPELLANT, CASE NO. 3-08-16 

 v. 

ADMINISTRATOR, BUREAU OF 

WORKERS’ COMPENSATION, 

 APPELLANT, 

 CROSS-APPELLEE, 

 -AND- O P I N I O N 

PECO II, INC., 

 APPELLEE. 

 
Case No. 3-08-14 and 3-08-16 

-2-

 

Appeal from Crawford County Common Pleas Court 

Trial Court No. 06-CV-0068 

Judgments Affirmed 

Date of Decision: June 8, 2009 

 

APPEARANCES: 

Nancy H. Rogers and Kevin J. Reis for Appellant/Cross-Appellee, 

Administrator, Ohio Bureau of Workers’ Compensation 

Jetta Mencer for Appellee/Cross-Appellee, Jodi D. Wasinski 
Case No. 3-08-14 and 3-08-16 

-3-

SHAW, P.J. 

{¶1} Appellant/Cross-Appellee, Administrator, Ohio Bureau of Workers’ 

Compensation (“BWC”) appeals from the June 2, 2008 Judgment Entry of the 

Court of Common Pleas, Crawford County, Ohio ordering that Appellee/CrossAppellant Jodi D. Wasinski (“Wasinski”) is entitled to participate in the benefits 

of the workers’ compensation fund for postural tachycardia syndrome and major 

depression, single episode. 

{¶2} Appellee/Cross-Appellant Wasinski cross-appeals from the February 

8, 2008 Order of the Crawford County Court of Common Pleas dismissing the 

issue of autonomic neuropathy, excluding the testimony of Robert Jones, M.D., 

and determining that the issues of concussion and loss of consciousness were 

barred by the doctrine of res judicata and collateral estoppel. Wasinski also crossappeals from a separate February 8, 2008 Order of the Crawford County Court of 

Common Pleas denying her motions in limine to exclude the testimony of Dr. 

Satish Raj, M.D., Dr. Gerald Steiman, M.D., and Dr. Donald Weinstein, Ph.D. 

Additionally, Wasinski cross-appeals from the February 11, 2008 Journal Entry of 

the Crawford County Court of Common Pleas excluding the testimony of Dr. Blair 

Grubb, M.D. 

{¶3} This matter involves a workers’ compensation case arising as an 

appeal to the Crawford County Court of Common Pleas filed pursuant to Ohio 
Case No. 3-08-14 and 3-08-16 

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Revised Code section 4123.512. Wasinski was employed by PECO II, Inc. 

(“PECO”), a company doing business in Crawford County, Ohio. On or about 

January 20, 2001 Wasinski was injured in an automobile accident while in Dallas, 

Texas on a business trip in the course of her employment with PECO. Wasinski 

filed an application for payment of compensation and benefits with the Industrial 

Commission of Ohio under the Ohio Workers’ Compensation Act. This claim was 

assigned Claim No. 01-318906 and was allowed by the Industrial Commission of 

Ohio (“Industrial Commission”) for injuries described as contusion to scalp and 

left knee, cervicothoracic strain, and lumbosacral strain. These conditions are not 

in dispute in the present appeal. 

{¶4} On February 7, 2003 Wasinski moved to have Claim No. 01-

0318906 modified to include the following additional allowances: (1) major 

depression single episode and moderate conversion disorder; (2) deferred with 

dependent traits; (3) multiple pain sites and neurological symptoms; and (4) pain 

symptoms and neurological symptoms, moderate. Wasinski’s motion for the 

additional allowances was heard by a District Hearing Officer on July 23, 2003 

and was denied. Wasinski’s motion was then heard by a Staff Hearing Officer on 

September 15, 2003 and was denied. Wasinski’s appeal to the Industrial 

Commission was refused on October 11, 2003. 
Case No. 3-08-14 and 3-08-16 

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{¶5} On December 8, 2003 Wasinski filed an appeal of the October 11, 

2003 decision of the Industrial Commission with the Cuyahoga County Court of 

Common Pleas pursuant to R.C. 4123.512. This case was transferred to the 

Crawford County Court of Common Pleas and assigned Case No. 04-CV-011. 

However, on February 23, 2004 this case was dismissed without prejudice 

pursuant to Civ.R. 41(a)(1). On February 14, 2006 Wasinski re-filed her 

complaint and jury demand in the Crawford County Court of Common Pleas 

wherein she alleged the right to participate in the benefits of the workers’ 

compensation fund for major depression, single episode. This matter was assigned 

Case No. 06-CV-0068. 

{¶6} On May 12, 2006 Wasinski filed another motion with the BWC 

requesting that Claim No. 01-318906 be additionally allowed for postural 

tachycardia syndrome and autonomic neuropathy. On August 11, 2006 a District 

Hearing Officer for the Industrial Commission issued an order granting Wasinski’s 

motion. However, Wasinski’s employer appealed the decision of the District 

Hearing Officer and on September 22, 2006, a Staff Hearing Officer vacated the 

previous order and denied Wasinski’s motion for the additional allowances. 

Wasinski appealed the order of the Staff Hearing Officer, and on October 6, 2006 

the Industrial Commission refused further appeal. 
Case No. 3-08-14 and 3-08-16 

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{¶7} On November 27, 2006 Wasinski filed a notice of appeal of the 

October 6, 2006 decision of the Industrial Commission with the Crawford County 

Court of Common Pleas. On this same date Wasinski also filed a complaint and 

jury demand, wherein she alleged the right to participate in the benefits of the 

workers’ compensation fund for the conditions of postural tachycardia syndrome 

and autonomic neuropathy. This matter was assigned Case No. 06-CV-0508. 

{¶8} On January 3, 2007 Wasinski filed a motion to consolidate Case No. 

06-CV-0508 with Case No. 06-CV-0068. On January 19, 2008 the trial court 

issued a Judgment Entry consolidating the two cases for trial purposes. 

{¶9} These matters proceeded to a jury trial on May 13, 2008. At the 

close of all the evidence, the jury returned a verdict in favor of Wasinski in both 

causes of action. Specifically, the jury determined that Wasinski was entitled to 

participate in the benefits of the Workers’ Compensation Law for the condition 

described as postural tachycardia syndrome [as contained in Case No. 06-CV0508] and for the condition described as major depression, single episode [as 

contained in Case No. 06-CV-0068]. See also June 2, 2008 Judgment Entry. 

{¶10} The BWC now appeals, asserting four assignments of error. 

ASSIGNMENT OF ERROR NO. 1

A. THE TRIAL COURT ABUSED ITS DISCRETION BY 

PERMITTING THE HEARSAY OPINION REPORT OF A 

NON-TESTIFYING PHYSICIAN TO BE PRESENTED TO 

THE JURY. 
Case No. 3-08-14 and 3-08-16 

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B. THE TRIAL COURT ABUSED ITS DISCRETION BY 

PERMITTING CROSS-EXAMINATION THAT PRESENTED 

TO THE JURY THE HEARSAY OPINION OF A NONTESTIFYING PHYSICIAN. 

C. THE TRIAL COURT ABUSED ITS DISCRETION BY 

PERMITTING THE JURY TO CONSIDER THE HEARSAY 

OPINION OF A NON-TESTIFYING PHYSICIAN 

CONCERNING THE DIAGNOSIS OF A MEDICAL 

CONDITION NOT ALLEGED OR ADVANCED PRIOR TO 

TRIAL. 

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION BY 

OVERRULING DEFENDANT’S MOTION TO EXCLUDE 

THE OPINION TESTIMONY OF TERESA EGAN, PH.D. 

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ABUSED ITS DISCRETION BY 

FAILING TO REDACT THE WORDS “CONCUSSION”, 

“LOSS OF CONSCIOUSNESS”, AND “POST CONCUSSIVE 

SYNDROME” FROM MEDICAL RECORDS PRESENTED 

TO THE JURY. 

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED BY GIVING A JURY 

INSTRUCTION ON “AGGRAVATION” AND “FLOW 

THROUGH” WHICH THEORIES ARE NOT RELEVANT TO 

THE ISSUES AT TRIAL. 

{¶11} Additionally, Wasinski cross-appeals, asserting 11 assignments of 

error. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT IMPROPERLY PERMITTED CROSS 

EXAMINATION OF DRS. STEIMAN AND RAJ REGARDING 

THE HEARSAY REPORT OF A NON-TESTIFYING 

PHYSICIAN. 
Case No. 3-08-14 and 3-08-16 

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ASSIGNMENT OF ERROR II

DR. EGAN RELIED ON A MISTAKEN UNDERSTANDING 

OR DR. FOUAD-TARAZI’S HEARSAY REPORT TO 

CONCLUDE THAT WASINSKI’S DEPRESSION WAS 

CAUSED BY THE INDUSTRIAL INJURY. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY PERMITTING THE JURY 

TO HEAR DR. EGAN’S TESTIMONY BECAUSE IT FAILS 

TO SATISFY THE REQUIREMENTS OF EVID.R. 702(B) 

AND (C). 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED ITS DISCRETION BY 

SHOWING THE JURY DIAGNOSES OF CONCUSSION AND 

POST-CONCUSSION SYNDROME FROM NONTESTIFYING PHYSICIANS. 

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY 

THAT WASINSKI IS ENTITLED TO PARTICIPATE FOR 

“AGGRAVATION” (OF A PRE-EXISTING CONDITION) 

AND “FLOW THROUGH” THEORIES WHICH WERE 

NEVER ALLEGED, DIAGNOSED OR ADVANCED PRIOR 

TO TRIAL. 

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED IN EXCLUDING THE 

TESTIMONY OF ROBERT JONES, M.D. 

ASSIGNMENT OR ERROR VII

THE TRIAL COURT ERRED IN ALLOWING THE OPINION 

TESTIMONY OF GERALD STEIMAN, M.D. AND DONALD 

WEINSTEIN. 

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ERRED IN ALLOWING THE OPINION 

TESTIMONY OF SATISH RAJ, M.D. 
Case No. 3-08-14 and 3-08-16 

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ASSIGNMENT OF ERROR IX

THE TRIAL COURT ERRED IN DISMISSING THE CAUSE 

OF ACTION OF AUTONOMIC NEUROPATHY. 

ASSIGNMENT OF ERROR X

THE TRIAL COURT ERRED IN FINDING THAT THE ISSUE 

OF CONCUSSION AND LOSS OF CONSCIOUSNESS WAS 

BARRED BY THE DOCTRINE OF RES JUDICATA AND 

COLLATERAL ESTOPPEL. 

ASSIGNMENT OF ERROR XI

THE TRIAL COURT ERRED IN EXCLUDING THE 

DEPOSITION TESTIMONY OF BLAIR GRUBB, M.D. 

{¶12} Prior to addressing the merits of the BWC’s and Wasinski’s 

assignments of error, we must first address various procedural issues occurring in 

the present appeal. First, we note that Rule 16(A) of the Ohio Rules of Appellate 

Procedure governs the filing of the appellant’s brief and provides, in relevant part, 

as follows: 

The appellant shall include in its brief, under the headings and 

in the order indicated, all of the following: 

*** 

(7) An argument containing the contentions of the appellant with 

respect to each assignment of error presented for review and the 

reasons in support of the contentions, with citations to the 

authorities, statutes, and parts of the record on which appellant 

relies. The argument may be preceded by a summary. 

{¶13} Next, we note that our Local Appellate Rule 11 governs assignments 

of error and provides as follows: 

(A) Each assignment of error must be separately argued in the 

briefs unless the same argument, and no other, pertains to more 
Case No. 3-08-14 and 3-08-16 

-10-

than one assignment of error. “Propositions of law” may not be 

substituted for assignments of error. 

(B) Assignments of error, to the degree reasonably possible, 

should not be general in terms but should be specifically applied 

to the error claimed. A general assignment of error that “the 

judgment is contrary to law” will be disposed of adversely to the 

appellant for failure to be specific. 

{¶14} In the present case, we find that the BWC’s brief does not comply 

with App. R. 16(A)(7) as the “Law and Argument” portion of the BWC’s brief 

does not match the assignments of error set forth on page iv of its brief. We also 

find that the “Law and Argument” portion of the BWC’s brief is not numbered 

and/or lettered so as to correspond with the assignments of error. Furthermore, we 

note that the information set forth by the BWC prior to its “Law and Argument” 

portion of the brief (purportedly as a “summary” of the arguments and/or evidence 

to be discussed) also does not comply with App.R. 16(A)(7). Instead, this 

information is simply comprised of approximately eight pages of testimony, 

objections to testimony, and motions in limine that do not specifically correspond 

to the BWC’s assignments of error. Additionally, we find that the brief submitted 

by the BWC does not comply with Loc.R. 11 as the BWC’s assignments of error 

are not separately argued in the brief so as to correspond to the assignments of 

error as set forth on page iv of its brief. 

{¶15} An egregious failure to comply with App.R. 16 may prompt the 

outright dismissal of an appeal. In re Estate of Wilhelm (Aug. 19, 2003), 7th Dist. 
Case No. 3-08-14 and 3-08-16 

-11-

No. 02CA134. Additionally, pursuant to App.R. 12(A)(2), “[t]he court may 

disregard an assignment of error presented for review if the party raising it fails to 

identify in the record the error on which the assignment of error is based or fails to 

argue the assignment separately in the brief, as required under App.R. 16(A).” 

However, in the interest of justice, we choose not to disregard the BWC’s 

assignments of error. Instead, we shall use the assignments of error as set forth on 

page iv of the BWC’s brief as a starting point for our analysis of the assignments 

of error as we decide to characterize them. 

{¶16} Additionally, our review of the 11 assignments of error set forth by 

Wasinski in her cross-appeal reveals that Wasinski’s first five assignments of error 

are simply responses to the BWC’s assignments of error and argument on appeal. 

Accordingly, we shall confine our discussion and analysis of Wasinski’s 

assignments of error to those arguments set forth as numbers VI through XI. 

BWC Assignment of Error No. 1

{¶17} In its first assignment of error, the BWC sets forth three separate 

allegations: (A) that the trial court abused its discretion by permitting the hearsay 

report of a non-testifying physician (Dr. Fouad-Tarazi) to be presented to the jury; 

(B) that the trial court abused its discretion when it permitted the crossexamination of Dr. Steiman and Dr. Raj specifically regarding the hearsay report 

of Fouad-Tarazi; and (C) that the trial court abused its discretion by permitting the 
Case No. 3-08-14 and 3-08-16 

-12-

jury to consider the opinion of Fouad-Tarazi concerning the diagnosis of a medical 

condition not alleged or advanced by Wasinski prior to trial. As these allegations 

are substantially related, we shall address them together. 

{¶18} We note that decisions regarding the admissibility of evidence are 

within the sound discretion of the trial court and will not be reversed absent a 

showing of an abuse of discretion. State v. Yohey (Mar. 18, 1996), 3rd Dist. No. 9-

95-46, unreported, citing State v. Graham (1979), 58 Ohio St.2d 350, 390 N.E.2d 

805 and State v. Lundy (1987), 41 Ohio App.3d 163. An abuse of discretion 

“connotes more than an error of law or judgment; it implies that the court’s 

attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶19} The Ohio Rules of Evidence forbid the use of hearsay evidence at 

trial absent a recognized exception. See Evid.R. 802. Hearsay evidence is defined 

as “a statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 

801(C). Additionally, Evid.R. 803 sets forth certain exceptions to the hearsay 

rule, and provides in relevant part, as follows: 

The following are not excluded by the hearsay rule, even though 

the declarant is available as a witness: 

*** 

(6) Records of regularly conducted activity. A memorandum, 

report, record, or data compilation, in any form, of acts, events, 

or conditions, made at or near the time by, or from information 
Case No. 3-08-14 and 3-08-16 

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transmitted by, a person with knowledge, if kept in the course of 

a regularly conducted business activity, and if it was the regular 

practice of that business activity to make the memorandum, 

report, record, or data compilation, all as shown by the 

testimony of the custodian or other qualified witness or as 

provided by Rule 901(B)(1), unless the source of information or 

the method or circumstances of preparation indicate lack of 

trustworthiness. The term “business” as used in this paragraph 

includes business, institution, association, profession, occupation, 

and calling of every kind, whether or not conducted for profit.1

 

{¶20} We note that the Tenth District has previously held that “Evid.R. 

803(6) does not preclude the admissibility of opinions or diagnoses contained in 

medical records or reports as long as they satisfy the foundational authentication 

requirements of Evid.R. 803(6) and do not violate other evidentiary rules (e.g. 

R.C. 2317.02(B); Evid.R. 402 and Evid.R. 702).” Smith v. Dillard’s Dept. Stores, 

Inc. 8th Dist. No. 75787, 2000-Ohio-2689 [footnotes omitted]. Additionally, as 

applied to medical records, “the Supreme Court noted in Weis v. Weis (1947), 147 

Ohio St. 416, 72 N.E.2d 245, that the purpose of the statute [R.C. 2317.40] was to 

‘liberalize and broaden the shop-book rule, recognized at common law as an 

exception to the general rule excluding hearsay evidence, and to permit the 

admissions of records regularly kept in the course of business...’” Smith, supra, 

citing Weis, 147 Ohio St. at 425. Additionally, in Weis, the Supreme Court of 

Ohio stated, in relevant part, as follows: 

 

1

 The statutory equivalent of the business records exception to the hearsay rule is contained in Ohio 

Revised Code section 2317.40. 
Case No. 3-08-14 and 3-08-16 

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[T]hose portions of hospital records made in the regular course 

of business and pertaining to the business of hospitalization and 

recording observable acts, transactions, occurrences or events 

incident to the treatment of a patient are admissible, in the 

absence of privilege, as evidence of the facts therein recorded, 

insofar as such records are helpful to an understanding of the 

medical or surgical aspects of the case, provided such records 

have been prepared, identified and authenticated in the manner 

specified in the statute itself. (Citations omitted). 

Such a hospital or physician’s office record may properly 

include case history, diagnosis by one qualified to make it, 

condition and treatment of the patient covering such items as 

temperature, pulse, respiration, symptoms, food and medicines 

given, analysis of the tissues or fluids of the body and the 

behavior of and complaints made by the patient. (Citations 

omitted). 

Weis, 147 Ohio St. at 424-425. 

{¶21} In the present case, we note that the allegations contained in the 

BWC’s first assignment of error all relate to the admission, cross-examination 

related to, and the jury’s consideration of Fouad-Tarazi’s April 2, 2003 report, 

entered into evidence as Wasinski’s Exhibit A. However, prior to addressing the 

merits of the BWC’s first assignment of error, we must review the relevant facts 

and subsequent issues at trial concerning the April 2, 2003 report. 

{¶22} After returning to Ohio after the January 20, 2001 motor vehicle 

accident, Wasinski sought medical treatment from Dr. Paveer Kumar at Midwest 

Internal Medicine in Marion, Ohio. Dr. Kumar referred Wasinski to Dr. Blake 

Kellum, and Wasinski began treating with Kellum in Marion, Ohio on February 
Case No. 3-08-14 and 3-08-16 

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23, 2001. On March 16, 2001 Wasinski began treating with Dr. Raymond 

Baddour of Central Ohio Neurology, Inc. in Mansfield, Ohio. 

{¶23} In October, 2001 Wasinski began treating at the Cleveland Clinic 

due to her continuing problems with falling, blackouts, dizziness, and problems 

walking. While being treated at the Cleveland Clinic, Wasinski began seeing Dr. 

Robert Jones as her primary care physician. As Wasinski continued having back 

and neck pain, she was also treated by Dr. Oas at the pain clinic at the Cleveland 

Clinic. Wasinski also saw Dr. Fouad-Tarazi at the Cleveland Clinic’s Syncope 

Clinic who performed a passive tilt table test on Wasinski on March 26, 2003. Dr. 

Jones subsequently referred Wasinski to Dr. Blair Grubb at the University of 

Toledo Medical Center. Grubb first saw Wasinski on November 15, 2005 and 

diagnosed Wasinski as suffering from postural orthostatic tachycardia syndrome, 

or POTS. 

{¶24} In support of the allegations contained in its first assignment of 

error, specifically sub-sections (A) and (C), the BWC directs this Court’s attention 

to the language of Fouad-Tarazi’s April 2, 2003 report which provides, in relevant 

part, as follows: 

The patient [Wasinski] tolerated 70 degrees of tilt for 45 

minutes. During the tilt, patient complained of no symptoms. 

The SBT declined gradually and moderately during HUT...the 

DBP showed an initial normal response to HUT followed by a 

mild relative with oscillation in late 70 degree tilt...The heart 

rate response to HUT was diagnostic of Progressive Orthostatic 
Case No. 3-08-14 and 3-08-16 

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Tachydcardia Syndrome (POTS)...At maximum tilt, BP=145/65 

and HR=109. The test was terminated due to end of protocol. 

Recovery was rapid and uneventful. 

{¶25} On appeal, the BWC argues that because Fouad-Tarazi’s report 

states that Wasinski had “progressive orthostatic tachycardia syndrome,” it 

conflicts with other testimony that Wasinski had “postural tachycardia syndrome.” 

Additionally, the BWC states that because Fouad-Tarazi did not testify, there is no 

testimony or additional statement from her that Wasinski was suffering from 

“postural orthostatic tachycardia syndrome” and not “progressive orthostatic 

tachycardia syndrome” as stated in her April 2, 2003 report. Therefore, the BWC 

argues that the trial court should not have permitted the jury to see Fouad-Tarazi’s 

report. 

{¶26} Our review of the record reveals that during trial, Wasinski provided 

the video deposition testimony of Dr. Grubb. Grubb testified that he is licensed to 

practice medicine in Ohio, and that he is board certified in the areas of internal 

medicine, cardiology, and electrophysiology. Grubb testified that he is a physician 

at the University of Toledo Medical Center and that he specifically practices in the 

Electrophysiology and Autonomic Function Clinic. 

{¶27} Grubb testified that his initial visit with Wasinski was on November 

15, 2005 after she was referred by Dr. Jones for a “second opinion as to whether or 

not she had a type of disorder called postural tachycardia syndrome.” Grubb 
Case No. 3-08-14 and 3-08-16 

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testified that during his initial visit with Wasinski he took her medical history and 

examined her, which revealed that her blood pressure and heart rate control did not 

appear to be normal. Additionally, Grubb testified as follows: 

We also—she [Wasinski] had been previously evaluated at the 

Cleveland Clinic and had undergone an extensive series of 

evaluations of her autonomic function by one of the—one of the 

physicians there and in reviewing that data as well as her history 

and other findings we concurred with the Cleveland Clinic 

diagnosis that she had postural tachycardia syndrome. 

(Grubb, Tr. p. 8). 

{¶28} Grubb also testified that “the full name is postural orthostatic 

tachycardia syndrome and rather than say that people abbreviate it as POTS.” 

Additionally, Grubb testified at length regarding the symptoms of POTS, and 

stated that people that sometimes suffer from POTS “are those who suffer some 

kind of trauma, motor vehicle accidents, but also things, sometimes surgeries and 

similar things can seem to...provoke symptoms.” In speaking about people 

suffering from POTS after experiencing trauma, Grubb testified that “[u]sually 

injury that occurs to the brain and more particularly the brain stem appears to be 

the most common site where these injuries will lead to a thing like postural 

tachycardia syndrome.” When asked how one would sustain an injury to the brain 

or brain stem, Grubb answered, “[a]nything that would provide a sudden 

movement or blow to the head such as in an automobile accident...” Grubb also 

testified that it would not be unusual for tests such as a MRI, CAT scan, or x-rays 
Case No. 3-08-14 and 3-08-16 

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taken around the time of the accident to be normal, and an individual still develop 

POTS as a result of a motor vehicle accident. 

{¶29} Additionally, Grubb testified regarding the importance of and 

procedures used in conducting a tilt table test when determining whether a patient 

is suffering from POTS. Grubb testified that “heart rate and blood pressure are the 

typical things measured during the course of the test.” In reviewing FouadTarazi’s report and being asked what specifically happened with respect to 

Wasinski’s heart and blood pressure during the tilt table test, Grubb testified as 

follows: 

Her heart rate initially was 66 beats a minute. The—it’s—POTS 

is defined by an increase of about at least 30 beats a minute in 

the first 10 minutes of upright posture or a peak heart rate that 

exceeds 120, so she had in those very early minutes a greater 

than 30 beats per minute increase and that was the define—

that’s the—that’s the usual definition that’s employed in 

diagnosing the condition. 

(Grubb, Tr. p. 14). 

{¶30} Grubb also testified that based on the information Wasinski 

provided, he was able to determine that her POTS “appeared to temporally be 

related to her motor vehicle accident.” Specifically, Grubb testified that 

“according to the information she [Wasinski] provided to us, that her symptoms 

did not begin until after the motor vehicle accident had occurred.” Grubb testified 
Case No. 3-08-14 and 3-08-16 

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that in his opinion, Wasinski suffers from POTS and autonomic neuropathy as a 

result of the January 20, 2001 motor vehicle accident. 

{¶31} Our review of the record reveals that Fouad-Tarazi’s April 2, 2003 

report was a record kept in the regular course of treatment, in a regularly 

conducted business activity (i.e. by the Cleveland Clinic), that it contained 

relevant, probative evidence of Wasinski’s medical condition, and there was no 

question concerning its authenticity. Additionally, we note that this report was 

used by Grubb in his treatment of Wasinski and in making his own diagnosis that 

Wasinski was suffering from POTS. Furthermore, it is clear from the testimony 

presented that Dr. Grubb did not rely solely on Fouad-Tarazi’s report in 

diagnosing Wasinski with POTS, and that Fouad-Tarazi’s report was clearly not 

the sole basis for Grubb’s subsequent diagnosis of POTS. Additionally, we note 

that when Grubb specifically testified regarding Wasinski’s evaluation at the 

Cleveland Clinic and his concurrence with the diagnosis of POTS, counsel for the 

BWC did not object to this testimony being presented. 

{¶32} Based on the foregoing, we find that Fouad-Tarazi’s April 2, 2003 

report itself falls within a recognized exception to the hearsay rule. See Evid.R. 

803(6). Therefore, we find that the trial court did not abuse its discretion by 

permitting Fouad-Tarazi’s report to be admitted into evidence and considered by 

the jury during their deliberations. 
Case No. 3-08-14 and 3-08-16 

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{¶33} Turning our attention to the allegations contained in sub-section (B) 

of the BWC’s first assignment of error, we note that the BWC alleges that the trial 

court abused its discretion by permitting Wasinski to cross-examine the BWC’s 

expert witnesses regarding Fouad-Tarazi’s April 2, 2003 report. Specifically, the 

BWC alleges that Wasinski introduced the hearsay testimony of Fouad-Tarazi 

through Wasinski’s cross-examination of Dr. Steiman and Dr. Raj. 

{¶34} In support of this allegation, the BWC argues that the diagnoses or 

opinions of a non-testifying physician witness are not admissible as evidence. 

However, we note that in its appellate brief, the BWC concedes that “statements 

by non-testifying physicians may sometimes be admitted under the business 

records exception to the hearsay rule, the proponent of such evidence must 

establish that the business records exception applies.” 

{¶35} As we have previously determined, Fouad-Tarazi’s April 2, 2003 

report falls within a recognized exception to the hearsay rule. See Evid.R. 803(6). 

Additionally, our review of the record reveals that Grubb testified that Wasinski 

was suffering from postural tachycardia syndrome on November 7, 2007, which 

was well before Steiman testified on January 22, 2008 and Raj testified on January 

23, 2008. Furthermore, our review of the record also reveals that Grubb’s 

testimony was presented to the jury prior to the presentation of Steiman and Raj’s 

testimony. In reviewing the record we find nothing prejudicial to the BWC as 
Case No. 3-08-14 and 3-08-16 

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related to Steiman or Raj’s testimony and, in light of our previous determination 

that the trial court did not abuse its discretion by allowing Fouad-Tarazi’s report to 

be admitted into evidence, we find that the BWC was not prejudiced by the trial 

court’s admission of Steiman and Raj’s cross-examination testimony. Therefore, 

we find that the trial court did not abuse its discretion by permitting Wasinski to 

cross-examine the BWC’s expert witnesses regarding Fouad-Tarazi’s April 2, 

2003 report. 

{¶36} Based on the foregoing, the BWC’s first assignment of error is 

overruled. 

BWC Assignment of Error No. 2

{¶37} In its second assignment of error, the BWC alleges that the trial 

court abused its discretion by overruling the BWC’s motion to exclude the opinion 

testimony of Teresa Egan, Ph.D. as Egan’s testimony fails to satisfy the 

requirements set forth in Ohio Evidence Rule 702(B) and (C). 

{¶38} The trial court has sound discretion to determine an expert witness’ 

qualifications to testify on a particular subject. State v. Jones (2000), 90 Ohio 

St.3d 403, 414, 739 N.E.2d 300 citing State v. Awkal (1996), 76 Ohio St.3d 324, 

331, 667 N.E.2d 960. Therefore, any decision concerning the admission or 

exclusion of expert testimony will not be disturbed absent an abuse of discretion. 

Jones, supra, citing State v. Bidinost (1994), 71 Ohio St.3d 449, 453, 644 N.E.2d 
Case No. 3-08-14 and 3-08-16 

-22-

318. An abuse of discretion constitutes more than an error of law or judgment and 

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When 

applying the abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Id. 

{¶39} Expert testimony must meet the criteria of Evid.R. 702 which 

provides that a witness may testify as an expert if all of the following apply: 

(A) The witness’ testimony either relates to matters beyond the 

knowledge or experience possessed by lay persons or dispels a 

misconception common among lay persons; 

(B) The witness is qualified as an expert by specialized 

knowledge, skill, experience, training, or education regarding 

the subject matter of the testimony; 

(C) The witness’ testimony is based on reliable scientific, 

technical, or other specialized information... 

Evid.R. 702; see also State v. Rowe, 3rd Dist. Nos. 14-05-31, 14-05-46, 2006-Ohio1883, citing State v. Hartman (2001), 93 Ohio St.3d 274, 283-84, 754 N.E.2d 

1150. 

{¶40} Our review of the record reveals that Teresa Egan, Ph.D. (“Egan”) 

provided her deposition testimony on April 21, 2008.2

 Egan testified that she is a 

clinical psychologist and that she is licensed to practice psychology in the State of 

Ohio. Egan testified that she treats a range of patients for a variety of mental

 

2

 Our review of the record reveals that Egan was deposed by both the BWC (at 9:05 a.m.) and Wasinski (at 

11:00 a.m.) on April 21, 2008. 
Case No. 3-08-14 and 3-08-16 

-23-

health issues such as anxiety, depression, and adjustment issues. Egan testified 

that in the course of her training in psychology, she received training concerning 

determining the cause of certain types of psychological conditions. Egan also 

testified that in treating a patient, it is important to know the cause or have an idea 

of the cause of the patient’s psychological issues. 

{¶41} Egan testified that she began treating Wasinski as a patient in April 

2001, after Wasinski was referred for mental health counseling by her neurologist. 

Egan testified during Wasinski’s first office visit she obtained a detailed history 

from Wasinski, conducted a mental status exam, and diagnosed Wasinski as 

suffering from major depressive disorder, single episode. Egan testified that her 

opinion is that the physical aliments that resulted from Wasinski’s injury (on 

January 21, 2001) are a cause of her major depression. Egan also testified as 

follows: 

I think part of treatment, being a treating psychologist is trying 

to discern what causes or things may have set this particular set 

of problems in motion so that we can understand a little more 

about that and that that may help guide some of our treatment 

decisions, coping strategies that we would work with the client 

and so on. So to that extent, part of treatment is assessment and 

evaluation, which includes looking at causation. 

{¶42} In addressing the criteria contained in Evid.R. 702 in the context of 

the facts of the present case, we find that the issue of diagnosis and treatment of 

depression are matters outside of the scope of knowledge or experience possessed 
Case No. 3-08-14 and 3-08-16 

-24-

by an ordinary lay person, such as a member of a jury. We also find that Egan’s 

testimony directly related to Wasinski’s depression and was necessary to 

determine Wasinski’s psychiatric condition. Accordingly, Egan’s testimony 

satisfies the requirements of Evid.R. 702(A). 

{¶43} Turning our attention to the second criteria set forth in Evid.R. 702, 

we note that Egan’s testimony reveals that she has earned a Ph.D. in clinical 

psychology from Kent State University as well as a Master’s degree in clinical and 

community psychology from Cleveland State University and has been licensed to 

practice psychology in Ohio since 1989. Additionally, Egan testified that she 

currently practices in the field of clinical psychology and has been treating 

Wasinski since 2001. Accordingly, we find that Egan is qualified to testify as an 

expert by specialized knowledge, experience, training, and education regarding the 

subject matter of her testimony provided. Therefore, Egan’s testimony satisfies 

the requirements of Evid.R. 702(B). 

{¶44} Finally, regarding the third criteria set forth in Evid.R. 702, our 

review of the record reveals that Egan’s testimony was based on other specialized 

information. Egan testified regarding her detailed knowledge concerning 

Wasinski, her complaints, and her history. Additionally, Egan based both her 

diagnosis of major depression, single episode, and her opinion concerning the 

cause of Wasinski’s depression, on several factors. These factors specifically 
Case No. 3-08-14 and 3-08-16 

-25-

include the mental status examination she performed on Wasinski, Wasinski’s 

medical history, numerous office visits and interviews of Wasinski, and her 

general observations of Wasinski over the course of her therapy sessions. 

Furthermore, as specifically related to Evid.R. 702(C) we note that the record 

reflects that Egan evaluated and diagnosed Wasinski pursuant to accepted 

psychological standards and did not create or use a new scientific method in her 

treatment of Wasinski. Accordingly, Egan’s testimony satisfies the requirements 

of Evid.R. 702(C). 

{¶45} Based on the foregoing, we find that the trial court did not act 

unreasonably, arbitrarily, or unconscionably by overruling the BWC’s motion to 

exclude the opinion testimony of Teresa Egan, Ph.D. Accordingly, the BWC’s 

second assignment of error is overruled. 

BWC Assignment of Error No. 3

{¶46} In its third assignment of error, the BWC alleges that the trial court 

abused its discretion by failing to redact the words “concussion,” “loss of 

consciousness” and “post concussive syndrome” from the medical records 

admitted into evidence and presented to the jury as the only medical expert to 

testify for Wasinski did not find a loss of consciousness at the accident scene, nor 

did he diagnose a concussion or post-concussion syndrome. 
Case No. 3-08-14 and 3-08-16 

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{¶47} Prior to addressing the merits of the BWC’s third assignment of 

error, we note that the BWC failed to present any citations to legal authority or 

statutes in its initial brief to this court specifically pertaining to its third 

assignment of error, contrary to the requirements of App.R. 16(A)(7). However, 

we do note that minimal citations to legal authority are contained in the BWC’s 

reply brief. 

{¶48} Trial courts have broad discretion in determining whether to admit 

or exclude evidence. Deskins v. Cunningham, 3rd Dist. No. 14-05-29, 2006-Ohio2003 citing Huffman v. Hair Surgeon, Inc. (1984), 19 Ohio St.3d 83, 482 N.E.2d 

1248. An appellate court will not reverse a trial court’s decision to admit or 

exclude evidence absent an abuse of discretion. State v. Osborn, 3rd Dist. No. 9-

05-35, 2006-Ohio-1890 citing State v. Bronlow, 3rd Dist. No. 1-02-95, 2003-Ohio5757; Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 437, 735 N.E.2d 

546. Additionally, Civ.R. 61 provides, in relevant part, as follows: 

No error in either the admission or exclusion of evidence *** is 

ground for granting a new trial or for setting aside a verdict or 

for vacating, modifying or otherwise disturbing a judgment or 

order, unless refusal to take such action appears to the court 

inconsistent with substantial justice. 

See also, In re Matthews, 3rd Dist. Nos. 9-07-28, 9-07-29, 9-07-34, 2008-Ohio276. An abuse of discretion constitutes more than an error of law or judgment and 

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. 
Case No. 3-08-14 and 3-08-16 

-27-

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When 

applying the abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Id. 

{¶49} Our review of the record reveals that on February 4, 2008 the BWC 

filed a motion in limine requesting that the trial court prohibit any evidence or 

argument by Wasinski alleging a “loss of consciousness” or “concussion.” In 

support of this motion, the BWC alleged that there was no expert testimony 

presented concerning a diagnosis of concussion, nor was there any expert 

testimony presented alleging that either a concussion or loss of consciousness was 

the proximate cause of Wasinski’s alleged conditions. The BWC also alleged that 

Wasinski’s claim of “post-concussion syndrome” was previously denied by the 

Industrial Commission because there was no credible evidence of a loss of 

consciousness at the scene of the accident and therefore, these claims were barred 

by the doctrines of res judicata and collateral estoppel. 

{¶50} On February 8, 2008 the trial court issued an Order granting the 

BWC’s motions in limine as related to the prohibition of any evidence or 

argument alleging a “loss of consciousness,” “concussion” and “post-concussion 

syndrome.” In its Order, the trial court referred to these specific motions in limine 

as “Branches 4&5” and granted said motions “based on the doctrine of res judicata 

and collateral estoppel.” On February 11, 2008 Wasinski filed a response to the 
Case No. 3-08-14 and 3-08-16 

-28-

BWC’s motions in limine, and on May 9, 2008 Wasinski filed a motion for 

reconsideration of the trial court’s February 8, 2008 Order. 

{¶51} In response to the allegations set forth in the BWC’s third 

assignment of error, Wasinski submits that the records containing the issues of 

“concussion,” “loss of consciousness” and “post-concussion syndrome” also 

contained detailed descriptions of her complaints and the diagnostic tests that 

occurred immediately after her industrial injury. Accordingly, Wasinski argues 

that the medical records documenting her physical condition near the time of her 

industrial injury were relevant to her diagnosis and opinion concerning the 

causation of her problems. Therefore, Wasinski argues that the records were 

properly admissible in the present case and the trial court did not abuse its 

discretion in admitting the medical records containing the words “concussion,” 

“loss of consciousness” and “post-concussion syndrome” and presenting the same 

to the jury. 

{¶52} It is well established that a decision on a motion in limine is a 

“tentative, preliminary or presumptive ruling about an evidentiary issue that is 

anticipated but has not yet been presented in its full context. State v. Geboy

(2001), 145 Ohio St.3d 706, 726, 764 N.E.2d 451 citing State v. Grubb (1986), 28 

Ohio St.3d 199, 203, 503 N.E.2d 142. Because a ruling on a motion in limine is 

not considered final, “[a]n appellate court need not review the propriety of such an 
Case No. 3-08-14 and 3-08-16 

-29-

order unless the claimed error is preserved by an objection, proffer, or ruling on 

the record when the issue is actually reached and the context is developed at trial.” 

Id. See, also, Gollihue v. Consol. Rail Corp. (1997), 120 Ohio App.3d 378, 288, 

697 N.E.2d 1109. 

{¶53} At the close of her case-in-chief, Wasinski’s counsel moved to have 

Exhibit B (office notes of Dr. Jones regarding his December 14, 2001 office visit 

with Wasinski) admitted into evidence. Counsel for the BWC objected to the 

admission of Exhibit B and the following exchange occurred: 

Mr. Reis: Loss of consciousness has been stricken by the Court. 

There’s references to loss of consciousness. She said she woke 

up by a fireman tapping on her window. That’s also 

objectionable, Your Honor, because of this Court’s previous 

ruling that no loss of consciousness or concussion or evidence of 

that nature would be admissible in this case. 

The Court: Yeah, Dr.—Jetta, Dr. Jones’s notes, I think he’s 

right, they were covered by something else by a previous ruling. 

But I’ll let you put what you want on the record. 

Ms. Mencer: I’m not sure they were covered. I know you struck 

the deposition and I—again, I was unclear as to the reason all 

the deposition was struck. I understand there might have been 

issues concerning his opinion testimony. 

The Court: Sure. 

Ms. Mencer: But again, it’s a medical record. 

The Court: Did any of the other doctors use it whose testimony 

we did hear or are going to hear? 
Case No. 3-08-14 and 3-08-16 

-30-

Ms. Mencer: I –you know, I’m not certain that I didn’t ask—I 

don’t recall whether I asked—Dr. Grubb did not use it, no. Did 

I ask questions in cross? I’m not certain whether I did. Did the 

other doctors have that record and, you know, use it as part of 

the—their opinions, I’m certain they have had to. 

The Court: Did your doctors have access to Dr. Jones’s notes as 

part of their records that they reviewed? 

Mr. Reis: Yes, Your Honor. 

The Court: All right, overruled. B will be admitted. 

(Tr. Vol. III, pp. 368-369). 

{¶54} Wasinski also moved to have Exhibit E (records of Dr. Baddour 

regarding his care of Wasinski beginning March 16, 2001) admitted into evidence. 

Counsel for the BWC objected to the admission of Exhibit E and the following 

exchange occurred: 

The Court: Go ahead, put them on the record. Once again, are 

these—were the records in the form they’re in now given to the 

doctors that are testifying? 

Ms. Mencer: Other than the top page. 

The Court: Other than the front page; do you agree with that? 

All the doctors had access to everything you’ve got in your hand 

here before they testified? 

Mr. Reis: Yes, Your Honor. 

The Court: Okay, well put your objections in the record. 

Mr. Reis: Again, loss of consciousness is in the letter of April 26, 

2001, Dr. Baddour’s record. Again, this court ruled subsequent, 

Your Honor, to my doctors having reviewed these records. And 
Case No. 3-08-14 and 3-08-16 

-31-

I would submit that part of the independent medical 

examination process is to provide the expert with all records. At 

that point in time we don’t know what the Court’s ruling is 

going to be on the admissibility of these diagnoses or phrase 

contained in the reports. 

So therefore, even though they reviewed them, that doesn’t make 

it admissible. Counsel could have questioned that doctor about 

loss of consciousness or concussion or words to that effect. 

She did not do that; therefore, by providing the record to the 

doctor and that pertains to all exhibits we’re talking about, A, B, 

C, D, and E, the Defendant is not thereby waiving the objection 

because this Court did not rule upon the motion in limine until 

February 11, 2008. So for the record, I understand the Court’s 

ruling, but, for the record, loss of consciousness is contained in 

this record various places... 

*** 

The Court: Well, you made your record. I understand where 

you’re coming from. But they’re overruled. Baddour’s will be 

admitted as is. 

(Tr. Vol. III, pp. 373-376). 

{¶55} The power to grant a motion in limine lies within the inherent power 

and discretion of a trial court to control its proceedings. State v. Grubb, 28 Ohio 

St.3d at 201 citing State v. Spahr (1976), 47 Ohio App.2d 221, 224, 353 N.E.2d 

624. Additionally, the function of a motion in limine as a precautionary 

instruction is to avoid error, prejudice, and possibly a mistrial by prohibiting 

opposing counsel from raising or making reference to an evidentiary issue until the 

trial court is better able to rule upon its admissibility outside the presence of a jury 

once the trial has commenced. Id. 
Case No. 3-08-14 and 3-08-16 

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{¶56} We also note that “[t]he sustaining of a motion in limine does not 

determine the admissibility of the evidence to which it is directed. Rather it is 

only a preliminary interlocutory order precluding questions being asked in a 

certain area until the court can determine from the total circumstances of the case

whether the evidence would be admissible.” (Emphasis added). Id. referencing 

State v. Leslie (1984), 14 Ohio App.3d 343, 471 N.E.2d 503. Therefore, should 

circumstances subsequently develop at trial, the trial court is certainly at liberty to 

consider the admissibility of the disputed evidence in its actual context. Grubb, 28 

Ohio St.3d at 202 citing State v. White (1982), 6 Ohio App.3d 1, 4, 451 N.E.2d 

533. 

{¶57} In the present case, our review of the record reveals that Wasinski’s 

medical records admitted into evidence were all provided to the BWC’s expert 

witnesses for their review and were also authenticated by counsel for the BWC. 

(See also Tr. Vol. III pp. 372-373). Furthermore, we note that the BWC has not 

indicated on appeal how the trial court’s failure to redact the words “concussion,” 

loss of consciousness,” and “post-concussive syndrome” has materially prejudiced 

the BWC. 

{¶58} Based on the foregoing, we find that the trial court did not act 

unreasonably, arbitrarily, or unconscionably by failing to redact the words 

“concussion,” “loss of consciousness,” and “post concussive syndrome” from the 
Case No. 3-08-14 and 3-08-16 

-33-

medical records presented to the jury and therefore find that the trial court did not 

abuse its discretion. Accordingly, the BWC’s third assignment of error is 

overruled. 

BWC Assignment of Error No. 4

{¶59} In its fourth assignment of error, the BWC alleges that the trial court 

erred and abused its discretion by giving jury instructions on “aggravation” and 

“flow through” as these theories were not relevant to the issues presented at trial. 

{¶60} It is well established that the trial court will not instruct the jury 

where there is no evidence to support an issue. Murphy v. Carrolton Mfg. Co.

(1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828 citing Riley v. Cincinnati (1976), 

46 Ohio St.2d 287, 348 N.E.2d 135. In general, requested instructions should be 

given if they are correct statements of the law applicable to the facts in the case 

and reasonable minds might reach the conclusion sought by the instruction. Id. 

“In reviewing a record to ascertain the presence of sufficient evidence to support 

the giving of a[n]...instruction, an appellate court should determine whether the 

record contains evidence from which reasonable minds might reach the conclusion 

sought by the instruction.” Id. citing Feterle v. Huettner (1971), 28 Ohio St.2d 54, 

275 N.E.2d 340 at syllabus. 

{¶61} In reviewing the sufficiency of jury instructions given by a trial 

court, an appellate court must not disturb the trial court’s instructions unless the 
Case No. 3-08-14 and 3-08-16 

-34-

record demonstrates an abuse of discretion, as it is within the sound discretion of 

the trial court to instruct the jury. State v. Wright, 3rd Dist. No. 5-01-10, 2001-

Ohio-2258 citing State v. Dailey, 3rd Dist. No. 5-99-56, 2000-Ohio-1818. An 

abuse of discretion occurs when the court’s attitude is unreasonable, arbitrary, or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d at 219. When applying 

the abuse of discretion standard, a reviewing court may not simply substitute its 

judgment for that of the trial court. Id. 

{¶62} In the present case, the BWC filed its proposed jury instructions with 

the trial court on February 4, 2008 and on February 5, 2008 Wasinski filed her 

request for jury instructions with the trial court. Wasinski’s request for jury 

instructions requested an instruction on the issue of “aggravation” which read as 

follows: 

Employers take their employees as they find them and assume 

the risk of having an employee’s pre-existing condition made 

worse by some injury which would not hurt or bother a perfectly 

healthy person. It is not necessary for the employee to prove 

that the aggravation is substantial in order to participate in the 

Workers’ Compensation fund. (3 OJI 365.13). 

{¶63} Wasinski also requested an instruction on the issue of “flow through 

condition” wherein Wasinski advised the court that “[a] “flow through condition” 

occurs when the employee’s work-related injury generates a medical condition in 

a body part other than that which the employee originally specified.” 
Case No. 3-08-14 and 3-08-16 

-35-

{¶64} On appeal, the BWC alleges that Wasinski never asserted the theory 

of “aggravation” in her complaint filed with the Crawford County Court of 

Common Pleas, nor did she seek to amend her complaint to include this theory. 

The BWC also alleges that Wasinski did not elicit expert witness testimony to 

assert the theories of “aggravation” and “flow through” prior to or during trial. 

Therefore, the BWC alleges that because jury instructions must be consistent with 

the theory of causation for the medical condition appealed to the common pleas 

court, and because the theories of “aggravation” and “flow through” were not set 

forth by Wasinski nor testified to during trial, the trial court abused its discretion 

by providing the jury with instructions on “aggravation” and “flow through.” 

{¶65} In response, Wasinski alleges that her major depression arose from 

the pain and the disability she suffered due to her industrial injury, not that her 

major depression was caused by her industrial injury. Additionally, Wasinski 

alleges that psychological injuries are only allowed in the claim as flow-through 

injuries—that the injury generates a medical condition in a body part other than 

that which the employee originally specified. 

{¶66} In support of her allegations, Wasinski directs this court’s attention 

to R.C. 4123.01(C) which provides as follows3

: 

 

3

 We note that R.C. 4123.01 was amended by 2008 Ohio Laws File 97 (Am. Sub. S.B.) which was 

approved on June 11, 2008. However, we note that the language of subsection (C) was not changed or 

otherwise amended by 2008 Ohio Laws File 97. 
Case No. 3-08-14 and 3-08-16 

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(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: 

(1) Psychiatric conditions except where the claimant’s 

psychiatric conditions have arisen from an injury or 

occupational disease sustained by the claimant or where the 

claimant’s psychiatric conditions have arisen from sexual 

conduct in which the claimant was forced by threat of physical 

harm to engage or participate; 

(2) Injury or disability caused primarily by the natural 

deterioration of tissue, an organ, or part of the body; 

(3) Injury or disability incurred in voluntary participation in 

an employer-sponsored recreation or fitness activity if the 

employee signs a waiver of the employee’s right to compensation 

or benefits under this chapter prior to engaging in the recreation 

or fitness activity; 

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

{¶67} Wasinski also directs this court’s attention to Ohio Jury Instruction 

CV 427.134

 which provides as follows: 

Aggravation. Employers take their employees as they find them 

and assume the risk of having an employee’s pre-existing 

 

4

 We note that in her brief to this court, Wasinski directs our attention to 3 OJI 365.13. However, the 

instruction cited by Wasinski has been updated and accordingly, we cite to OJI CV 427.13, which contains 

language substantially similar to the language set forth by Wasinski. 
Case No. 3-08-14 and 3-08-16 

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condition (aggravated) (made worse) by some injury which 

would not hurt or bother a perfectly healthy person. It is not 

necessary for the employee to prove that the aggravation is 

substantial in order to (participate) (continue to participate) in 

the Workers’ Compensation fund. 

{¶68} Our review of the record reveals that during the jury trial in this 

matter, the jury was presented with the video deposition testimony of Teresa Egan, 

Ph.D. (“Egan”). Egan testified that she is a licensed clinical psychologist who 

treats mental health issues including anxiety and depression disorders. Egan 

testified that she has treated Wasinski since April 2001 and that she diagnosed 

Wasinski with major depressive disorder, single episode.5

 Egan also testified that 

“the onset of [Wasinski’s] symptoms of depression occurred with the motor 

vehicle accident in January, ‘01 and the subsequent effect that those physical 

problems had on her ability to work and to function in other areas of her life.” 

Egan also testified that a cause of Wasinski’s major depression is the effect that 

her physical ailments and symptoms that resulted from her automobile injury, have 

had on her life. 

{¶69} Our review of the record also reveals that at the close of the BWC’s 

case-in-chief, the trial court discussed jury instructions with counsel for both 

parties and the following exchange occurred: 

 

5

 Regarding the diagnosis of “major depressive disorder, single episode” Egan specifically testified that 

“major depressive episode represents a set of symptoms that include factors such as impaired concentration, 

sadness, tearfulness, irritability, sleep disruption, sometimes appetite disruption, feelings of hopelessness or 

helplessness, sometimes suicidal thoughts.” 
Case No. 3-08-14 and 3-08-16 

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The Court: I’ve been told by Ms. Mack that, apparently, the 

parties are in agreement except for one instruction that was 

requested by the Plaintiff; is that correct? And that would be 

the one on flow through conditions. Is that the one you want to 

be heard on, Mr. Reis? 

*** 

The Court: I just want to hear your objection, if any, on the 

proposed instructions. 

*** 

Mr. Reis: And then the next objection I had concerning 

proximate cause, Ms. Mencer has shown me the OJI from which 

she obtained that instruction. We have an objection—our next 

objection is Page 18. I’m looking at the original copy. It talks 

about aggravation. This is not an aggravation case so, therefore, 

that jury instruction is not appropriate at all. 

*** 

The Court: Aggravation. 

Mr. Reis: I think it will be confusing, Your Honor. I don’t 

think it’s appropriate. 

The Court: Well, I think based on the evidence I heard, that fits 

in close enough and so your objection is noted but overruled. 

I’m gonna leave that in. And then let’s see, do you have an 

objection on new Page 19 as to the flow through? 

Mr. Reis: Okay, I didn’t see that one. That was just added. 

Again, this is not a flow through case. Again, that has to do 

with— 

Ms. Mencer: Depression is flow through. 

Mr. Reis: Well, again, it goes back to my objection on 

aggravation. For the benefit of the Court, a Worker’s Comp 

case has to be brought as, for instance—examples, I aggravated 

my degenerative disc disease. That is the condition that’s 

brought at administrative level. So we’re not a Moore v. Kroger

situation where Plaintiff has changed the nature of their case. 

There’s no testimony from the expert that this is an aggravation 
Case No. 3-08-14 and 3-08-16 

-39-

case or a flow through case and, therefore, it would be improper 

to have any instruction on either aggravation or flow through. 

Ms. Mencer: Your Honor, depression by nature is a flow 

through injury. Psychological injuries that result from a specific 

incident are not allowable. This is clearly flow through. I mean, 

depression is— 

The Court: I agree with her. I think this instruction—I mean, 

and your objection, once again is there on the record, but I gotta 

make a decision. And based on what I’ve heard, I do think this 

is a reasonable request by the Plaintiff and I’m going to allow 

that one in. 

(Tr. Vol. IV, pp. 436-438). 

{¶70} When subsequently providing oral instructions to the jury the trial 

court instructed the jury, in relevant part, as follows: 

A “flow through condition” occurs when the employee’s workrelated injury generates a medical condition in a body part other 

than that which the employee originally specified. 

Employers take their employees as they find them and assume 

the risk of having an employee’s pre-existing condition 

aggravated by some injury which would not hurt or bother a 

perfectly healthy person. 

(Tr. p. 510).6

 

{¶71} Based on the foregoing, we find that the jury instructions given on 

“aggravation” and “flow through” were proper statements of the law. However, 

upon review of the record, we do not believe there was sufficient evidence, 

 

6

 Our review of the record reveals that the written instructions provided to the jury were exactly the same as 

the oral instructions provided by the court. 
Case No. 3-08-14 and 3-08-16 

-40-

argument, or other indication of a pre-existing condition that was “aggravated” by 

the industrial injury to support the jury instruction on “aggravation.” On the other 

hand, there was expert testimony that Wasinski’s alleged depression was directly 

caused by the disabilities resulting from the previously allowed industrial injury. 

{¶72} Accordingly, we find that the trial court’s jury instruction as to “flow 

through” was supported in the evidence. However, we find that on this record, it 

was error for the trial court to instruct the jury as to the “aggravation” of a preexisting injury. Nevertheless, in view of the ample evidence supporting the “flow 

through” instruction, the error as to the “aggravation” instruction was harmless. 

Therefore, the BWC’s fourth assignment of error is overruled. 

Wasinski’s Cross-Appeal/Assignments of Error VI-XI

{¶73} Prior to addressing the merits of Wasinski’s assignments of error, we 

must first address a discussion that occurred during oral argument in this matter. 

On December 9, 2007 counsel for the BWC and Wasinski appeared before this 

court for oral argument. During Wasinski’s argument, this court inquired as to the 

status of Wasinski’s assignments of error, should the court ultimately overrule the 

BWC’s assignments of error in its written opinion. In response, Wasinski’s 

counsel stated that she would withdraw assignments of error 6-9 and 11 should 

this court overrule the BWC’s assignments of error and affirm the judgment of the 

trial court. Accordingly, as we have overruled all of the BWC’s assignments of 
Case No. 3-08-14 and 3-08-16 

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error, we shall confine our analysis of Wasinski’s cross-appeal to her argument 

contained in Assignment of Error X. 

Assignment of Error X

{¶74} In her tenth assignment of error, Wasinski alleges that the trial court 

erred by finding that the issues of “concussion” and “loss of consciousness” were 

barred by the doctrine of res judicata and collateral estoppel. In support of this 

allegation, Wasinski submits that the issues of concussion and loss of 

consciousness have never been adjudicated by the Industrial Commission or any 

other court. 

{¶75} Our review of the record reveals that on February 4, 2008 the BWC 

filed motions in limine wherein the BWC requested that the trial court prohibit, in 

relevant part, as follows: 

4. To prohibit any evidence, argument alleging a “loss of 

consciousness” or “concussion.” First, there is no expert 

testimony concerning a diagnosis of “concussion.” Second, 

Plaintiff’s (sic) Claim of “post concussion syndrome” was 

previously denied by the Industrial Commission for the reason 

that there was no credible evidence of a loss of consciousness at 

the accident scene. Furthermore, there is no expert testimony 

from either Dr. Grubb or Dr. Jones of alleging a “concussion” (a 

medical condition) or “loss of consciousness” to be the proximate 

cause of her alleged conditions. Finally, evidence or argument of 

a “loss of consciousness” or “concussion” is barred by the 

doctrine of res judicata and collateral estoppel. McCabe v. Zeller 

Corp. (1997), 117 Ohio App.3d 209. 
Case No. 3-08-14 and 3-08-16 

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{¶76} In support of these requests, the BWC argued that it was anticipated 

that during trial Wasinski and her witnesses would refer to a loss of consciousness 

or concussion occurring at the accident scene in Dallas, Texas in January 2001. 

The BWC also argued that it was anticipated that Wasinski’s counsel would argue 

that the conditions that, Wasinski was seeking to participate in the benefits of the 

workers’ compensation fund, were caused by a concussion or loss of 

consciousness at the accident scene. However, the BWC alleged that these claims 

and/or theories of causation have been denied and never appealed and therefore 

“[t]hat claim, diagnosis, mechanism of injury and/or description of injury is barred 

by res judicata and collateral estoppel.” Finally, the BWC argued that no expert 

has described, diagnosed, or causally related a concussion or loss of consciousness 

to the alleged condition or the mechanism of injury for the industrial injury. 

{¶77} On February 8, 2008 the trial court issued an Order granting the 

BWC’s motions in limine as related to the prohibition of any evidence or 

argument alleging a “loss of consciousness,” “concussion” and “post-concussion 

syndrome.” In its Order, the trial court specifically referred to these motions in 

limine as “Branches 4&5” and granted said motions “based on the doctrine of res 

judicata and collateral estoppel.” 

{¶78} Our review of the record reveals that on February 11, 2008 Wasinski 

filed a notice of filing with the trial court which included a copy of the Industrial 
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Commission’s Record of Proceedings, as typed May 30, 2001. This Record of 

Proceedings provides, in relevant part, as follows: 

The order of the District Hearing Officer, from the hearing 

dated 04/17/2001 is affirmed. 

The claim remains allowed for the following conditions: 

contusion to scalp and left knee; cervicothoracic strain; 

lumbosacral strain. 

The claim remains specifically disallowed for “post-concussion 

syndrome.” *** Claimant was injured in a motor vehicle 

accident was on business, out-of-state, on 1/20/2001. No 

treatment was rendered at the scene or on the date of injury. 

The claimant testified she lost consciousness following or during 

the accident but there is no contemporaneous medical evidence 

to verify that statement. *** The Staff Hearing Officer finds the 

medical evidence is not persuasive on which to allow the post 

concussion syndrome. *** He [Dr. Baddour] does not diagnose 

post-concussive syndrome. Dr. Kellum notes claimant has 

ailments of post-concussive syndrome but he does not 

specifically relate this to the motor vehicle accident. 

{¶79} Our review of the record reveals that the Industrial Commission 

denied Wasinski’s claimed medical condition of post-concussion syndrome 

because there was no contemporary evidence presented regarding a loss of 

consciousness at the scene of the January 21, 2001 motor vehicle accident. Our 

review of the record also reveals that Wasinski did not appeal the Industrial 

Commission’s May 30, 2001 decision to the court of common pleas as required or 

allowed under R.C. 4123.512. 
Case No. 3-08-14 and 3-08-16 

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{¶80} Additionally, it appears that Wasinski does not attempt to re-litigate 

the May 30, 2001 decision and factual findings of the Industrial Commission until 

2008, and it appears that Wasinski attempts to do so without any medical 

testimony contained in the record formally diagnosing her with a concussion. 

Furthermore, we note that the facts surrounding Wasinski’s medical condition as 

specifically related to suffering from a concussion, or post-concussive syndrome 

have not changed between the January 20, 2001 motor vehicle accident and the 

trial court’s finding that the issues of “concussion” and “loss of consciousness” 

were barred by the doctrine of res judicata and collateral estoppel. 

{¶81} Based on the foregoing, we find that the trial court did not err or 

abuse its discretion in determining that the issues of “concussion” and “loss of 

consciousness” were barred by the doctrine of res judicata and collateral estoppel. 

Moreover, the trial court’s decision not to allow these issues to become the basis 

for separate claims before the jury is distinguishable from the trial court’s decision 

not to require the terms “concussion” and “loss of consciousness” to be redacted 

from medical records that were testified to and introduced in support of entirely 

different claims as discussed in the BWC’s third assignment of error. 

Accordingly, Wasinski’s tenth assignment of error is overruled. 

{¶82} Based on the foregoing, the BWC’s assignments of error one 

through four are overruled in their entirety. Therefore, Wasinski’s assignments of 
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error one through five are rendered moot. Additionally, as Wasinski’s 

assignments of error six through nine and eleven have been withdrawn, they are 

also rendered moot. Finally, Wasinski’s assignment of error ten is overruled. 

{¶83} Accordingly, the Judgment Entries of the Court of Common Pleas, 

Crawford County, Ohio are affirmed. 

Judgments Affirmed 

WILLAMOWSKI and ROGERS, J.J., concurs. 

/jlr