By Kimberly Pistone
For the Sidney Daily News
SIDNEY – A Shelby County Common Pleas Court jury found in favor of the plantiff, Mark Wendel, in a workmans’ comp case on Thursday, April 4.
Wendel had an existing workmans’ comp claim from an accident on Jan. 20, 2003, when he was working for Slagle Mechanical Contractors. On that day, a piece of heavy equipment fell on him and he was granted workmans’ comp for a low back injury.
Wendel wanted to add eight additional conditions to his workmans’ comp case, and the Ohio Bureau of Workmans’ Comp denied them. During the course of the one day trial, Wendel, his pain management doctor, and a doctor for the Ohio Bureau of Workmans’ Compensation (BWC) who provided an independent medical examination, testified. Both doctors provided testimony in pre-recorded videos.
No one disputed the initial workmans’ comp case, and no one disputed the additional injuries – disc bulges at T12-L4 and spinal stenosis at T12-L4. The dispute was whether these injuries were caused by the original injury or if they were part of the normal course of aging.
Wendel’s attorney, Katherine Ivan, argued in the opening statement, that these additional medical conditions – four disc bulges and four spinal stenosis – would never have occurred if not for the original injury. Wendel was not asking for any money, he just wanted the right to participate in workmans’ comp for these additional eight conditions.
The attorney for the Ohio Bureau of Workmans’ Compensation, Barbara Barber, said in her opening statement, that workmans’ comp does not cover degenerative illnesses and injuries that have nothing to do with employment. Barber also stressed that Wendel did nothing wrong, this was simply a case deciding if the additional conditions were related to the initial injury in 2003 and should be covered by workmans’ comp, or, as she stated, if they were not related to the original injury and should not be included.
Wendel was the first witness. He said Slagle was a good company to work for, and he worked for them from when he was 18 until he had to quit due to disability. After the accident in 2003 he continued to work for Slagle and was supposed to be on light duty, but the nature of his job still required him to do things like climb ladders. At one point he fell 30 feet off a ladder while on the job. He did not file a new claim because the symptoms were the same as the ones already covered.
Wendel said despite everything the doctors have tried, including a pain pump which he is on currently, he runs a six on the pain scale constantly.
Dr. Edward Nelson, Wendel’s pain management doctor, was next to testify. His deposition was shown on video. Nelson has treated Wendel since 2019. Nelson said the additional eight conditions are consistent with degeneration and a history of trauma, such as the accident in 2003, and that they were causally related and getting worse. Nelson said he never did a thorough physical exam because only sees Wendel for medical management of his pain. Nelson believes the disc bulges and spinal stenosis are directly and proximately caused by the initial injury.
Dr. Richard Deerhake was next to testify, also by a prerecorded video. Deerhake does independent medical exams for workmans’ comp and personal injury cases. He examined Wendel in August 2023 and reviewed Wendel’s medical records. His opinion was that the degeneration did not appear to be accelerated because of the accident, and the bulges were a normal part of the aging process. Additionally, he believes the spinal stenosis were congenital conditions which have nothing to do with the accident in 2003.
Ivan cross-examined Deerhake and Deerhake said he could have given a better opinion closer to the time of the injury 20 years ago. Additionally he said, “I think he has been over-treated” and that Wendel should have found a different pain management doctor and should learn to live with a certain amount of pain.
Ivan gave her closing argument, saying that everyone agreed on the additional eight conditions – the disc bulges and spinal stenosis – but the disagreement was about the cause.
Barber, in her closing argument, said that the jurors were to focus on the injury claim submitted in 2003, and nothing about a fall was included. As well as to consider that over the course of 20 years there would be some degradation.
Before sending the jury to deliberate, the judge put it succinctly – the BWC denies the additional eight conditions to be covered because they say the conditions were due to natural degradation, while Wendel says these conditions were aggravated by the injury and the BWC should cover them. It was up to the jury to decide if the preponderance of evidence was in favor of Wendel or not.
The jury deliberated for little more than an hour before returning a verdict that all of the additional conditions should be covered by the BWC.
