Brecount v. Proctor & Gamble Co.

• Decision Date: 03 July 1957
• Docket Number: No. 35056,35056
• Court: Ohio Supreme Court
• Parties: , 2 O.O.2d 494 BRECOUNT, Appellee, v. The PROCTER & GAMBLE CO., Appellant.

Page 477

166 Ohio St. 477

144 N.E.2d 189, 2 O.O.2d 494

BRECOUNT, Appellee, v. The PROCTER & GAMBLE CO., Appellant.

No. 35056.

Supreme Court of Ohio.

July 3, 1957.

Syllabus by the Court

1. In a workmen's compensation case, where the claimant plaintiff appeals from an order of the Industrial Commission denying compensation on the ground that his disability is not the result of his injury, such appeal being upon one of the grounds provided in Section 1465-90, General Code (Section 4123.51, Revised Code), it is not error for the trial court to refuse to charge the jury that, unless it finds plaintiff's disability to be at least the minimum percentage as provided in Section 1465-80, General Code (Section 4123.57, Revised Code), it must find for the defendant. The only issue for the jury to determine in such a case is whether there is a causal connection between the claimed disability and the injury and, accordingly, whether the plaintiff is entitled to participate in the State Insurance Fund.

2. In the event plaintiff's right to participate is established in such case, the Industrial Commission has exclusive jurisdiction to determine, under the Workmen's Compensation Act, the extent of such participation. State ex rel. Kauffman v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572, and Fisher Body Co. v. Cheflo, 122 Ohio St. 142, 171 N.E. 31, approved and followed.

3. In such a case, a so-called probability, which is actually a conjecture, if based on a probability, is no more than an inference based on an inference and is not sufficient to meet the burden of proof required to establish causal connection between a disability and a previous injury.

On May 25, 1946, David D. Brecount, referred to herein as plaintiff, who was at that time and had been for over 20 years in the employ of The Procter & Gamble Company, a self-insurer under the provisions of the Workmen's Compensation Act and herein called the defendant, splashed some fatty alcohol lye into his right eye while in the performance of his duties at defendant's plant in St. Bernard, Hamilton County. He was promptly sent to be treated by Dr. Schrimpf, an ophthalmologist. A dermatitis also ensued, for which he was treated by Dr. Goldblatt to whom he was referred on June 5 by Dr. Schrimpf. Plaintiff was hospitalized from June 8 to June 23, and he returned to work on July 10, 1946. For this injury and disability he was paid compensation by the defendant.

On November 6, 1950, while in the course of his employment, he splashed some Oxydol soap from a kettle into his right eye which was immediately treated. Apparently he did not receive any hospitalization following this accident. On December 9 following, he went to Dr. Schrimpf again, complaining of impairment of vision in his left eye. Upon examination he was found to have glaucoma in both eyes.

In April 1951, an operation was performed on his left eye and in September 1951 on his right eye, followed by a further operation on the right eye in April 1952 to remove a cyst which developed following the September 1951 operation. On October 4, 1951, Brecount filed an application for an adjustment of his claim, which was denied on May 23, 1952, upon a finding 'that claimant has no disability residual to the injury * * * that the glaucoma affecting both of claimant's eyes, which caused his hospitalization in St. Mary's Hospital in April 1951, is unrelated to and not the result of the injury in this claim.'

Thereafter, he timely filed an application for rehearing which was held at Cincinnati on November 6 and December 23, 1952. Following the report of the referee, recommending disallowance for the reason that claimant failed to prove that his loss of vision was the result of or related to the injuries of May 25, 1946, the Industrial Commission entered its order disallowing the claim, whereupon plaintiff duly filed his petition against defendant on March 23, 1953, in the Court of Common Pleas of Hamilton County. Plaintiff, in his petition, after setting forth his allegations of fact, states that his 'loss of vision is the result of the injury of May 25, 1946, sustained in the course of and arising out of his employment' and prays 'that upon trial of this cause he be found entitled to participate under the Workmen's Compensation Act, under his claim.'

Defendant, in its answer, states that in December 1950 glaucoma was found to exist in both eyes of plaintiff but denies that such glaucoma was connected with or related to the injuries sustained by plaintiff on May 25, 1946.

The cause went to trial in October 1954, resulting in a verdict and judgment for plaintiff. A motion for judgment notwithstanding the verdict and a motion for a new trial having been filed by defendant, the trial court on August 1, 1955, made an entry overruling the motion for judgment notwithstanding the verdict and sustaining the motion for a new trial. The cause came on for trial again in April 1956, resulting in a verdict 'that the plaintiff is entitled to participate in the workmen's compensation fund' and judgment accordingly. Again defendant filed its motions for judgment notwithstanding the verdict and for new trial, both of which were overruled.

On appeal, the Court of Appeals on October 31, 1956, made its entry finding no error prejudicial to defendant and affirming the judgment of the Court of Common Pleas. On November 16, 1956, the Court of Appeals certified the cause to this court, finding its judgment to be in conflict with the judgment of the Court of Appeals for Franklin County in the case of Industrial Commission v. Whitlatch, 1935, 20 Ohio Law Abst. 145, and with the judgment of the Court of Appeals for Lorain County in the case of Bacetti v. National Tube Co., 1952, Ohio App., 113 N.E.2d 925, 'on the question of refusal to charge the jury that plaintiff must prove at least 25 per cent loss of vision.'

Further facts are discussed in the opinion.

Hoover, Beall, Whitman & Eichel, Cincinnati, for appellee.

Dinsmore, Shohl, Dinsmore & Todd, William L. Blum and George C. Gaines, Cincinnati, for appellant.

HERBERT, Judge.

We consider first the issue on which the Court of Appeals certified this cause.

The defendant has maintained throughout that the trial court should have charged the jury that, 'unless they find that plaintiff's loss of vision is at least 25 per cent, the jury will find for the defendant,' and contends that failure to do so constitutes reversible error.

As applicable to this case, Section 1465-80, General Code (Section 4123.57, Revised Code), provides in part:

'Partial disability compensation shall be paid as follows:

* * *

* * * '(b) In all cases included in the schedule in paragraph (c) hereof, and in all cases in which the employee has elected or is deemed to have elected that compensation on account of partial disability shall be awarded under the provisions of paragraph (b) hereof, and in all cases where the industrial commission has determined that the percentage of physical disability is less than twenty-five percent, the injury shall be deemed to have resulted in permanent partial disability. * * *

'(c) In cases included in the following schedule the compensation payable to the employee shall be sixty-six and two-thirds percent of the average weekly wage, not to exceed a maximum of thirty-two dollars and twenty cents per week and not to be less than a minimum of fourteen dollars per week. and shall continue during the periods provided in the following schedule, to-wit:

* * *

* * *

'For the permanent partial loss of sight of an eye, 66 2/3% of the average weekly wages for such portion of one hundred twenty-five weeks as the commission may, in each case determine, based upon the percentage of vision actually lost as a result of the casualty, but in no case shall an award of compensation be made for less than 25 per cent loss of vision. In no case shall the payments of compensation for partial loss of sight or total loss of sight or facial or head disfigurement due to loss of the eye, whether caused by one or more accidents total more than one hundred and twenty-five weeks.' (Emphasis added.)

In conjunction with the above section, also to be considered is Section 1465-89, General Code (Section 4123.66, Revised Code), which provides:

'In addition to the compensation provided for herein, the industrial commission of Ohio shall disburse and pay from the state insurance fund, such amounts for medical, nurse and hospital services and medicine as it may deem proper * * *.'

Section 1465-90, General Code (Section 4123.51, Revised Code), so far as pertinent, provides:

'The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon shall be final, except as provided in this section. The commission shall definitely and specifically pass upon each and every issue raised in the claim, necessary for a proper and complete decision thereon. In all claims for compensation on account of injury, or death resulting therefrom, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds on which the claim was denied; and if the claim was denied on any of the following grounds: * * * that the claimant's disability is not the result of the injury * * * then the claimant may within thirty days after the receipt of notice of such finding of the commission, file an application with the commission for a rehearing of his claim * * *.

'If the commission, after such hearing, denies the right of the claimant to receive or to continue to receive compensation it shall state the ground or grounds on which the claim was denied and if the claim was denied on any of the grounds hereinabove specifically stated than the claimant, within sixty days after receipt of notice of such action of the commission, may file a petition in...