An Ohio appellate court denied an employer’s challenge to a jury verdict in favor of a long-time employee for her alleged injuries from her repetitive work actions.

Tamara Given worked for Whirlaway Corp. for approximately 26 years.

She filed a workers’ compensation claim in July 2018 for numbness and burning in her left hand and right shoulder allegedly caused by her repetitive work.

That same day, Given underwent a workers' compensation examination at Mercy Occupational Health Center. She was diagnosed with an injury of the median nerve at the wrist and hand level of her left arm, and a strain of the muscles in her right arm. Given was prescribed medication and put on restricted duty.

In August 2018, Given had a follow-up appointment. Doctors noted no significant improvement in her condition, and "tenderness along the right trapezius muscle and superior shoulder and posterior lateral neck muscles."

The doctors recommended an electromyography study and continued restrictive duty. They also stated that the cause of Given’s problems was her work.

In September 2018, doctors again noted no improvement, and Given was referred to Dr. Merun K. Elyaderani, who diagnosed a cervical strain with significant muscle spasm. Elyaderani also referred Given to a spine specialist and recommended obtaining a magnetic resonance imaging study prior to her cervical spine evaluation.

The MRI was taken in October 2018. It showed a small disc bulge to the right, mild left and moderate right uncovertebral hypertrophy, and moderate right neuroforaminal stenosis at the C5-C6 vertebra level.

Chiropractor Brian Bennett diagnosed Given with right-sided neural foraminal stenosis and substantial aggravation of preexisting C5-C6 degenerative disc disease, which he attributed directly to her work activities.

The Bureau of Workers' Compensation allowed Given's injury claim for a strain of muscle/fascia, tendon at right shoulder/upper arm, and strain of unspecified muscle/fascia/tendon at left wrist/hand level.

Given then requested additional allowances for cervical strain, right-sided neural foraminal stenosis and substantial aggravation of preexisting degenerative disc disease at C5-C6.

A district hearing officer allowed the additional conditions, but a staff hearing officer modified the order to allow the additional claim for cervical strain and disallow Given's additional claims.

After the Industrial Commission declined to hear further administrative appeals, Given filed a timely appeal in the Lorain County Court of Common Pleas.

A jury returned a verdict in favor of Given, finding she was entitled to benefits for the right-sided neural foraminal stenosis and substantial aggravation of preexisting degenerative disc disease.

The Court of Appeals for the 9th District of Ohio said there is no binding precedent that places any time constraint on whether a worker's gradual injury is compensable under Ohio law.

Although the 8th District has said there must be evidence “demonstrating causal connection between the injury and work-related duties taking place over a discernable period of time,” the 9th District said it was not obligated to follow the case law developed by a sister court.

The Ohio Supreme Court has said an injury that develops gradually over time as the result of the performance of job-related duties is compensable, with no requirement for a worker to prove the injury occurred "recently during a relatively narrow time frame" or within a "discernable period of time," the 9th District said.

Even if the 8th District is right that evidence of a "discernable period of time" is required to prove an injury, the 9th District said Given presented sufficient evidence to prove her claims.

The court noted that two physicians testified that Given's medical history did not indicate any issues with her shoulder/neck or cervical spine, and at least one specifically said the repetitive nature of her work caused her right-sided neural foraminal stenosis and substantially aggravated her degenerative disc disease.

Given also testified she started experiencing symptoms approximately five months before she "couldn't take it anymore," thus causing her to report an injury in July 2018.

The court said this testimony was evidence that Given’s neck and cervical spine conditions developed during a specific time frame, approximately five months prior to reporting an injury.

The court also said the trial judge did not err in denying Whirlaway’s request to include language regarding a "discernable period of time" in the jury instructions, since it did not proffer the proposed jury instruction on the record, nor did it file its proposed instruction in the appellate record.

“Further, even if the proposed jury instruction had been included in the record on appeal, we note the jury instruction, as given to the jury, is an accurate statement of law,” the court said.

To read the court’s decision in Given v. Whirlaway Corp., No. 21CA011791, 06/30/2022, published, click here.