[Cite as Miller v. Horizons Health Servs., L.L.C., 2017-Ohio-465.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104423



                                       LILLIE MILLER
                                                            PLAINTIFF-APPELLANT

                                                      vs.

        HORIZONS HEALTH SERVICES, L.L.C., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-848405

        BEFORE: Celebrezze, J., Keough, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: February 9, 2017
ATTORNEY FOR APPELLANT

Mitchell A. Stern
Mitchell A. Stern, L.P.A.
27730 Euclid Avenue
Cleveland, Ohio 44132


ATTORNEYS FOR APPELLEES

For Horizons Health Services, L.L.C.

Michael J. Reidy
Chad Aaron Fine
Ross Brittain & Schonberg Co., L.P.A.
6480 Rockside Woods Boulevard, South
Suite 350
Independence, Ohio 44131

For Bureau of Workers’ Compensation

Mike DeWine
Ohio Attorney General
By: Lisa A. Reid
Assistant Attorney General
Bureau of Workers’ Compensation
20 W. Federal Street, 3rd Floor
Youngstown, Ohio 44503
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, Lillie Miller (“Miller”), brings this appeal challenging the

trial court’s order granting summary judgment in favor of defendants-appellees, Horizons

Health Services, L.L.C. (“Horizons”) and the Bureau of Workers’ Compensation

(“BWC”),1 regarding Miller’s claim for workers’ compensation.                     Specifically, Miller

argues that the trial court erred by concluding that the conditions of her employment did

not increase her risk of injury. After a thorough review of the record and law, this court

affirms.

                               I. Factual and Procedural History

       {¶2} Miller is employed by Horizons as a licensed practical nurse (“LPN”).

Miller’s employment requires her to travel to the residences of her clients where she

performs nursing services.

       {¶3} On December 17, 2014, Miller was scheduled to visit a client at East 124th

Place in Cleveland.         As Miller was traveling to the client’s residence, she lost

consciousness at a stop light at the intersection of Noble Road and Euclid Avenue.

Miller’s vehicle crashed into a light pole and, as a result, she suffered fractures to her left

tibia and left fibula.

       {¶4} Miller was treated at University Hospitals on the day of the accident.                The

medical staff determined that Miller had a syncopal episode2 while driving.


           The BWC is acting on behalf of Horizons for purposes of this appeal.
       1




           Syncope, which causes dizziness and fainting, is “a temporary loss of consciousness due to
       2
       {¶5} In January 2015, Miller filed a claim for workers’ compensation benefits.

Miller provided the following description of the accident on her application: “waiting [at]

light next thing I remember is waking up hitting the pole (passed out [at] light)[.]”

Miller’s claim was denied in an administrative order issued on February 13, 2015. On

February 23, 2015, Miller appealed the denial of her claim.

       {¶6} On March 20, 2015, the Industrial Commission of Ohio (“Commission”)

denied Miller’s claim, concluding, in relevant part:

       [Miller] has failed to establish by a preponderance of the evidence that the
       injuries sustained in the motor vehicle accident * * * have been established
       to be in the course of and arising out of her employment with the employer
       of record.

       The records from University Hospitals provide [Miller] indicated that she
       has a history of passing out as well as being treated for blood pressure
       issues. There is a statement that she had not taken her blood pressure
       medication because of dizziness.

       ***

       This order is based on the failure of [Miller] to eliminate idiopathic causes
       for her losing consciousness which ultimately resulted in her striking a pole.
       [Miller] indicated she is a diabetic as well as she is being treated for blood
       pressure issues. It appears [Miller] lost consciousness for an unexplained
       reason.
       {¶7} Miller appealed the Commission’s ruling. On April 28, 2015, the

Commission upheld the denial of Miller’s claim, concluding, in relevant part:

       proof on file fails to indicate that the injuries sustained in the motor vehicle
       accident were in the course of and arising out of employment with the
       employer of record. Additionally [Miller] was unable to eliminate

low blood pressure.” Corsaro v. ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858,
2005-Ohio-1982,  22.
        idiopathic causes for her losing consciousness which caused her to strike a
        pole resulting in her injury.

Miller challenged the Commission’s affirmance, but the Commission declined to accept

Miller’s appeal on May 15, 2015.

        {¶8} On July 17, 2015, Miller filed an appeal in the Cuyahoga County Court of

Common Pleas pursuant to R.C. 4123.512. Miller challenged the Commission’s finding

that her injury was idiopathic in nature and noncompensable.           Both the BWC and

Horizons, the appellees in the instant matter, filed answers and motions for summary

judgment thereafter.    The trial court granted Horizons’ motion for summary judgment on

March 14, 2016.

        {¶9} In support of its motion for summary judgment, the BWC argued that Miller’s

injuries were idiopathic and did not arise out of her employment under R.C. 4123.01().

Miller filed a brief in opposition to the BWC’s motion for summary judgment on April 1,

2016.

        {¶10} On April 11, 2016, the trial court granted the BWC’s motion for summary

judgment, concluding that Miller failed to meet her burden of eliminating any idiopathic

cause of her injury and that the conditions of Miller’s employment did not increase the

risk of injury.

        {¶11} Miller filed the instant appeal assigning one error for review:

        I. The trial court erred in granting the [BWC’s] motion for summary
        judgment by finding that [Miller’s] conditions of employment did not
        increase the risk of injury when [Miller] struck a light pole.

                                   II. Law and Analysis
                                  A. Standard of Review

       {¶12} This court reviews an appeal from summary judgment under a de novo

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d
241 (1996).    We accord no deference to the trial court’s decision and independently

review the record to determine whether summary judgment is appropriate.

       {¶13} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) no

genuine issue as to any material fact exists, (2) the party moving for summary judgment is

entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in

favor of the nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party.

       {¶14} On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate his or her entitlement to

summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280, 292-293, 662 N.E.2d 264

(1996).   If the moving party fails to meet this burden, summary judgment is not

appropriate. However, if the moving party meets this burden, the nonmoving party has

the reciprocal burden to point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is

appropriate if the nonmoving party fails to meet this burden. Id.

                          B. Workers’ Compensation Benefits

       {¶15} “To be eligible for workers’ compensation, a worker must show that an

injury occurred both ‘in the course of’ employment and that it ‘arises out of’ that
employment.” Rosado v. Cuyahoga Metro. Hous. Auth., Inc., 8th Dist. Cuyahoga No.

87922, 2007-Ohio-1164,  8, citing Ruckman v. Cubby Drilling, Inc., 81 Ohio St. 3d 117,

121, 689 N.E.2d 917 (1998), and Fisher v. Mayfield, 49 Ohio St. 3d 275, 277, 551 N.E.2d
1271 (1990); see also R.C. 4123.01().      In the instant matter, it is undisputed that

Miller’s injuries occurred in the course of her employment.    The issue before the trial

court at the summary judgment stage was whether Miller’s injuries arose out of her

employment.

      {¶16} In Fisher, the Ohio Supreme Court explained that the “in the course of”

element pertains to the time, place, and circumstances of the injury; the “arising out of”

element pertains to a causal connection, if any, between the injury and the employment.

Id. at 277-278.     This court construes the “arising out of” employment element

considering the totality of the circumstances to determine whether a causal connection

exists between Miller’s injury and her employment.          Id. at 277, citing Lord v.

Daugherty, 66 Ohio St. 2d 441, 423 N.E.2d 96 (1981).

      {¶17} A claimant’s failure to satisfy both the “in the course of” employment and

“arising out of” employment elements precludes recovery under the Workers’

Compensation Act.       Fisher at 277.       Pursuant to R.C. 4123.95, “[w]orkers’

compensation statutes must be liberally construed in favor of the employee.” Harris v.

Custom Graphics, Inc., 8th Dist. Cuyahoga No. 84326, 2005-Ohio-285,  8.

                                 C. Idiopathic Injuries
       {¶18} In its motion for summary judgment, the BWC argued that Miller’s injuries

were idiopathic and, thus, did not arise out of her employment under R.C. 4123.01().

Furthermore, the BWC argued that no employment duty or hazard of the roadway

increased the dangerous effects of Miller’s accident.

       {¶19} In Bahr v. Progressive Cas. Ins. Co., 8th Dist. Cuyahoga No. 92620,

2009-Ohio-6641, this court explained that an idiopathic injury is “an injury that arose

from circumstances particular to an individual employee, rather than out of a risk related

to the employment.” Id. at  32, citing Dailey v. AutoZone, Inc., 11th Dist. Trumbull

No. 99-T-0146, 2000 Ohio App. LEXIS 4574 (Sept. 29, 2000), Duvall v. J & J Refuse,

5th Dist. Stark No. 2004CA00008, 2005-Ohio-223, Eggers v. Indus. Comm., 157 Ohio St.
70, 104 N.E.2d 681 (1952), Evans v. Mihm, 11th Dist. Trumbull No. 92-T-4644, 1992

Ohio App. LEXIS 4571 (Sept. 4, 1992), and Stanfield v. Indus. Comm., 146 Ohio St. 583,

67 N.E.2d 446 (1946). Furthermore, the Ohio Supreme Court has explained:

       the term “idiopathic” is defined as “peculiar to the individual.” Webster’s
       Third New International Dictionary (1986) 1123.                For workers’
       compensation purposes, idiopathic refers to an employee’s pre-existing
       physical weakness or disease which contributes to the accident. 1 Larson,
       The Law of Workmen’s Compensation (1985) 3-308, Section 12.00.

Waller v. Mayfield, 37 Ohio St. 3d 118, 524 N.E.2d 458 (1988), fn. 3.

       {¶20} In cases involving unexplained accidents and injuries, courts distinguish

between neutral injuries that have “no particular employment or personal character” and

idiopathic injuries that are precipitated by an existing physical condition of the employee.

 Waller at 122. In the case of neutral injuries, where the injured employee does not have
an existing medical condition, the Ohio Supreme Court has held that “the claimant has the

burden of eliminating idiopathic causes.” Id. at 125. If the employee meets this burden,

a presumption arises that the injury was caused by something in the work conditions or

environment. Id. at paragraph three of the syllabus.

       {¶21} On the other hand, idiopathic injuries arising from causes independent of

employment are generally not compensable. Id. at 123. In order for the idiopathic injury

to be compensable, the employee must show that although the workplace conditions or

environment did not cause the injury, the conditions or environment caused the employee

to suffer worse injuries. Id. An idiopathic injury is compensable “if the employment

significantly contributed to the injury by placing the employee in a position which

increased the dangerous effects of the [accident].” Id., citing Indus. Comm. of Ohio v.

Nelson, 127 Ohio St. 41, 186 N.E. 735 (1933).

       {¶22} In support of its motion for summary judgment, the BWC submitted Miller’s

medical report from University Hospitals. The hospital’s report included a history of

present illness (“HPI”) which provided, in relevant part:

       This is a 61-year-old female with a history of type 2 diabetes and

       hypertension, who had a syncopal episode while driving. She said that she

       has not been taking her blood pressure medication for the past couple of

       days because it made her dizzy. * * * She said she lost consciousness while

       driving and had a single motor vehicle accident. * * * Her blood glucose

       she said this morning was 80s, which is low for her, but she did not eat
       breakfast before leaving.

The report also included an addendum, which provided, in relevant part:

       [Miller] says she was feeling fine earlier today, was driving her car at a
       stoplight. Next thing she knows she was in a car accident. Apparently,
       she woke up as she was hitting a pole. * * * She does not remember the
       accident. She had no premonition of syncope. * * * She has passed out
       before, but she has always had the sensation that she was about to pass out,
       but today she never had that sensation.

       {¶23} In order for Miller’s claim to survive the BWC’s summary judgment

motion, she had the burden to produce evidence, pointing to specific facts, that her

injuries were either nonidiopathic or that a condition, risk, or hazard of her employment

made her injuries worse.

       {¶24} In opposing the BWC’s motion for summary judgment, Miller argued that

she suffered her injuries in the course of her employment, which the BWC conceded.

Miller further argued, without identifying any specific conditions, that the conditions of

her employment significantly contributed to the risk of injury. She compared the light

pole into which her vehicle crashed to the welding machine in Nelson.

       {¶25} Miller relied on her deposition testimony in opposing the BWC’s motion for

summary judgment. She provided the following account of the incident during her

deposition:   “I remember sitting at the light, waiting on the light to change at the

intersection. The next thing I remember was waking up due to the airbags and hitting a

pole.” (Tr. 36.)

       {¶26} The record reflects that Miller failed to meet her burden of setting forth

specific facts showing that there was a genuine issue of material fact for trial. Miller did
not dispute that her injuries were idiopathic. She failed to point to specific facts in the

record that show a condition, risk, or hazard of her employment that caused or contributed

to her injuries. Rather, she merely suggested that driving was a hazard or risk incident to

her employment.

       {¶27} Miller’s reliance on Nelson, both in opposing the BWC’s motion for

summary judgment and in the instant appeal, is misplaced. There, an employee suffered

an epileptic seizure during which he fell and struck his head on a welding machine at

which he was working. Nelson, 127 Ohio St. at 42, 186 N.E. 735. The fall caused a

concussion from which the employee died the following day. Id. The Ohio Supreme

Court held that the employee’s injury was compensable because the injury was sustained

in the course of the employee’s employment and arose out of his employment. Id. at

paragraph three of the syllabus.

       {¶28} In the instant matter, Miller contends that “[h]itting a light pole and

fracturing [her] bones is akin to hitting one’s head on a spot welding machine and

sustaining a concussion.” Appellant’s brief at 7. We disagree. Unlike Nelson, where

the welding machine at which the employee was working constituted an added risk or

hazard incident to employment, the light pole is entirely unrelated to Miller’s employment

and, thus, is not a condition attendant to her employment. Regarding the roadway on

which Miller was traveling, there is no evidence, nor does Miller claim, that the roadway

was unsafe in any way.
      {¶29} The instant matter is more akin to Stanfield, 146 Ohio St. 583, 67 N.E.2d
446 than Nelson. In Stanfield, an employee fell and struck his head on the cement floor

of an employee rest room after suffering a heart attack. Id. at 584. The court found the

matter to be distinguishable from Nelson, and concluded that the employee’s injury was

not compensable because falling on the rest room floor was neither an added risk nor a

hazard incident to his employment:

      [t]he Nelson and the instant cases are readily distinguishable. In [Nelson]
      the employee was working at the welding machine which clearly constituted
      an added risk or hazard incident to the employment. The injury not only
      occurred in the course of the employment but it also arose out of the
      employment. In the instant case the floor was in no sense an added risk or
      hazard incident to the employment. The [employee’s] head simply struck
      the common surface upon which he was walking — an experience that
      could have occurred to him in any building or on the street irrespective of
      his employment. The fall resulted from the seizure alone and not from any
      circumstance of his employment. Concededly to entitle a claimant to
      compensation there must be an accidental injury not only in the course of
      but also arising out of the employment. Evidence of an injury arising out
      of the employment is not disclosed by the record in this case.

(Emphasis added.) Id. at 585-586.

      {¶30} In the instant matter, the roadway and the light pole were in no sense an

added risk or hazard incident to Miller’s employment. Miller’s vehicle simply stuck a

common obstacle adjacent to the roadway upon which she was driving.             Miller’s

experience could have occurred at any time or on any street, irrespective of her

employment. Miller’s vehicle could have struck any common obstacle on or adjacent to

the roadway, including, but not limited to, other vehicles, mail boxes, posted signs, or

medians. Furthermore, Miller could have sustained the same injuries to her leg if she
suffered the syncopal episode while she was walking, rather than driving.

       {¶31} In Heuring v. Meijer, Inc., 6th              Dist. Lucas No. L-09-1243,

2010-Ohio-1598, the court explained that the idiopathic injury exception “is not limited to

contact with inherently dangerous machines, simply contact that, but for the employment,

would not have occurred.” Id. at ¶ 18. In the instant matter, we cannot say that but for

Miller’s employment, she would not have crashed into the light pole. As previously

noted, the light pole is not a condition attendant to Miller’s employment, nor was the light

pole an added risk or hazard incident to her employment. Miller’s accident resulted from

her syncopal episode alone and not from any circumstance of her employment.

       {¶32} Based on Miller’s failure to point to specific facts demonstrating a genuine

issue of material fact regarding either the nonidiopathic cause of her injuries or a

condition of her employment that contributed to her injuries, the trial court properly

granted summary judgment in the BWC’s favor. Although Miller’s injuries occurred in

the course of her employment, the record reflects that Miller’s injuries were idiopathic

and did not arise out of her employment. Thus, Miller’s injuries are noncompensable.

       {¶33} Miller’s sole assignment of error is overruled.

                                     III. Conclusion

       {¶34} After thoroughly reviewing the record, we find that the trial court properly

granted summary judgment in favor of Horizons and the BWC on Miller’s workers’

compensation claim.     Miller’s injuries were idiopathic in nature, resulting from her

syncopal episode alone and not from any circumstance of her employment.
Furthermore, there is no evidence demonstrating that a condition or hazard of Miller’s

employment created an increased risk of injury such that her idiopathic injuries would be

compensable.

      {¶35} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR