574 N.E.2d 1188

AGEE v. INDUSTRIAL COMMISSION OF OHIO.

No. 84-07214.Court of Claims of Ohio.
Decided May 27, 1987.

Edwin L. Hoseus, Jr., for plaintiff.

Anthony J. Celebrezze, Jr., Attorney General, and Sheryl Creed Maxfield, Assistant Attorney General, for defendant.

GUY G. CLINE, Judge.

Plaintiff Terry L. Agee, age thirty-two, says that on October 7, 1982, she was driving her Honda automobile on her way to work at the Veterans Administration (“VA”), Cincinnati, Ohio, when she stopped her car for other traffic at the intersection of Harrison Avenue and Queen City; she further alleges that a second car stopped behind her but a third car driven by Nelson Redd, an agent of the Ohio Industrial Commission while acting within the scope of his employment, negligently failed to stop, striking the second car,

Page 102

propelling it into plaintiff’s Honda, proximately causing personal injury to plaintiff and damage to her vehicle. The defendant filed a denial and the parties proceeded to trial. At the close of defendant’s evidence the court granted plaintiff a directed verdict as to liability. R.C. 4511.21(A).

FACTS
The plaintiff, who was employed as director of respiratory therapy at the VA Hospital in Cincinnati, testified that while on her way to work she stopped her Honda automobile at the intersection of Harrison Avenue and Queen City and that while she was stopped, an auto driven by Nelson Redd struck the auto stopped behind her and propelled it into plaintiff’s car causing plaintiff personal injury and damage to her Honda automobile. She further testified that to date she has incurred $1,034 in medical bills, and $250 damage to her car. The defendant state of Ohio stipulated that Nelson Redd was an agent of the Industrial Commission acting within the scope of his employment, and offered no evidence contrary to the above facts but disputed the amount of injury and damage. The court thereupon granted plaintiff’s motion for a judgment for the plaintiff as to liability, based upon a failure of Nelson Redd to maintain the assured clear distance in violation of R.C. 4511.21(A), which provides:

“No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”

The plaintiff further testified that prior to the accident she was in excellent health, with no physical problems; that she was active in sports such as tennis, softball and several other sports. She further testified that since the accident, any activity by her in which she participated over thirty minutes causes her pain; however, she admitted playing softball in the summers of 1983, 1984, 1985; and that the softball league folded in 1986 eliminating her participation for the 1986 year. About thirty minutes after the accident the plaintiff began experiencing pain and stiffness in her neck and shoulders.

Dr. Richard Smith, with whom she worked at Good Samaritan Hospital, told her to take aspirin. The following day, October 8, 1982, he examined her and found tenderness and muscle spasm in her neck and shoulders, which was diagnosed as cervical strain. He prescribed Roboxin, a muscle relaxant. Plaintiff continued to have pain in her shoulders and neck. Dr. Smith saw her on November 3, 1982 and ordered X-rays (which were normal), but plaintiff

Page 103

continued to have tenderness, muscle spasms, and “muscle popping.” Dr. Smith prescribed hot soaks twice a day; he increased her medication to 600 mg. six times a day. On January 26, 1983, Dr. Smith saw her again, but her condition had not improved so he referred her to Dr. Koppenhoefer.

From January 31, 1983 through July 21, 1983, Dr. Koppenhoefer prescribed physical therapy, and home exercises for stretching and strengthening her neck and shoulder muscles; hydrocollar packs; and Motrin (a medication). Dr. Koppenhoefer encouraged her to play softball, and to keep active. Plaintiff continued to have pain in her neck and shoulders.

Since her condition had not improved, plaintiff consulted Dr. Robert J. Burkhart, D.C., a chiropractor, and continued treatments for two and one-half years (about twenty-four treatments).

On March 17, 1986, plaintiff consulted with Dr. Robert Heidt, an orthopedic surgeon, who diagnosed plaintiff’s case as fibrositis, for which he prescribed exercises.

On June 30, 1986, plaintiff consulted Dr. Randall Braddom, a physical medicine and rehabilitation specialist, who also diagnosed her case as fibrositis and prescribed a comprehensive treatment program including exercises, elimination of caffeine, walking, and swimming. He further testified that plaintiff may have to alter her life style.

The defendant had plaintiff examined by Dr. Fallon, a specialist in physical medicine for rehabilitation, who also diagnosed plaintiff’s case as fibrositis/fibromylagia (non-articular rheumatism) treatable with mild analgesics, a non-narcotic type of medication, predominantly aspirin and Tylenol. He further described plaintiff’s condition as “positive jump sign,” which refers to pinching the trysezua or shoulder. Plaintiff informed Dr. Fallon that she was not on any exercise program, since exercise tended to aggravate her discomfort, but that she performed range-of-motion routines consisting of neck rolls, and shoulder scapular mobilization (moving shoulders up, down, backward and forward).

Dr. Fallon stated: “We encourage people to be as active as possible because we find that if they are not active they have a tendency to be more symptomatic * * * nothing that I would indicate to her that she should avoid * * * intermittent episodes of it for a long period of time.”

He further stated: “There is a difference between disability and impairment. Impairment relates to an anatomic or pathologic condition * * * that it does not impose a disability on her, there is some discomfort that is associated. The discomfort is a treatable type of discomfort that is treated with mild

Page 104

analgesics, non-narcotic types of medication, predominantly aspirin and Tylenol. It usually responds to mild heat, cold and exercise programs.”

Findings
The court finds that the plaintiff has proven by a preponderance of the evidence all of the following:

1. On October 7, 1982, the plaintiff while driving her Honda automobile, was stopped for other traffic at the intersection of Harrison Avenue and Queen City in Cincinnati, Ohio, and that her Honda was struck in the rear end by a second car which was negligently pushed into plaintiff’s vehicle by a third car driven by Nelson Redd;

2. The plaintiff was personally injured and her car damaged, both being proximately caused by the negligent operation of the auto of Nelson Redd, an agent of defendant who was acting within the scope of his employment;

3. Plaintiff suffered damages proximately caused by the negligence of Nelson Redd in the operation of his auto;

4. The plaintiff’s injuries were not permanent and she was not required to miss any days at work although she took advantage of her variable time schedule.

The plaintiff was thirty-two years of age with a life expectancy of 47.7 years; her car was damaged causing a loss of $250; and plaintiff incurred unreimbursed medical bills of $1,034. The court therefore renders a finding and judgment in the amount of $4,700.

Judgment for plaintiff.

GUY G. CLINE, J., retired, of the Pickaway County Probate/Juvenile Court, sitting by assignment.

Page 105