Brody v. Mihm, 93-2252

• Decision Date: 26 April 1995
• Docket Number: No. 93-2252,93-2252
• Citation: 72 Ohio St.3d 81,647 N.E.2d 778
• Parties: BRODY, Appellant, v. MIHM, Admr., et al., Appellees.
• Court: Ohio Supreme Court

Page 81

72 Ohio St.3d 81

647 N.E.2d 778

BRODY, Appellant, v. MIHM, Admr., et al., Appellees.

No. 93-2252.

Supreme Court of Ohio.

Submitted Feb. 7, 1995.

Decided April 26, 1995.

Claimant-appellant, Stanley E. Brody, D.D.S., was a self-employed dentist for approximately twenty-eight years. During the course of his work, claimant "constantly stood in a forward bent and twisted position as [he] worked on [his] patients." In 1986 or 1987, claimant began to experience pain in his left hip. He continued to work until February 1988, when he was no longer able to perform his job duties. Accordingly, claimant terminated his dental practice and has not worked since.

Claimant filed an occupational disease claim with appellee Industrial Commission of Ohio. He alleged that due to constantly working in awkward positions, he aggravated a pre-existing arthritic condition. On February 20, 1990, claimant was examined by Anthony D. Vamvas, Jr., M.D., an Industrial Commission specialist. Dr. Vamvas concluded that "[i]t is my opinion, that the claimant developed an osteoarthritis of the left hip, due to the aging process; however, it has been aggravated by his work."

The claim was denied administratively and claimant appealed to the Stark County Court of Common Pleas pursuant to former R.C. 4123.519. Dr. Vamvas testified at deposition that, in his opinion, claimant's osteoarthritis developed during the course of his working years, but that the cause of the disease itself was the aging process, not claimant's job. However, he reiterated his opinion that claimant's osteoarthritis was aggravated and accelerated as a result of his employment, by constant standing in a forward bent and twisted position for twenty-eight years.

The trial court denied the appeal and held that claimant is not entitled to participate in the State Insurance Fund. Specifically, the court found that "[t]he disease complained of by Plaintiff was not caused by his employment as a dentist although plaintiff's arthritic condition was aggravated by his career as a dentist."

In a split decision, the court of appeals affirmed the trial court, finding, in relevant part, that "the aggravation of a pre-existing condition is not compensable when the cause of the aggravation is not itself an occupational disease." (Emphasis sic.)

The cause is now before the court pursuant to the allowance of a motion to certify the record.

Friedman & Stern, and Mitchell A. Stern, Cleveland, for appellant.

Betty D. Montgomery, Atty. Gen., William M. O'Neill, Mark E. Mastrangelo and Fred J. Pompeani, Asst. Attys. Gen., for appellees.

ALICE ROBIE RESNICK, Justice.

The issue is whether the claimant in this case has presented a compensable workers' compensation claim for the aggravation of a nonoccupational disease. In State ex rel. Miller v. Mead Corp. (1979), 58 Ohio St.2d 405, 12 O.O.3d 348, 390 N.E.2d 1192, claimant suffered from a pre-existing hearing loss as the result of artillery fire he encountered during World War II. He filed a compensation claim alleging that loud noise in the machine room at his job had aggravated his pre-existing condition. We found first that claimant's disability was not the result of an "injury." In so doing, we relied on the definition of "injury" employed at the time, which required a showing that the injury was not only work-related, but also accidental in the sense of being the result of a sudden mishap.

We then held that a pre-existing disease aggravated during employment is not compensable. In so holding, we relied upon the statutory language that an occupational disease, to be compensable, must be "contracted" in the course of employment. R.C. 4123.54 and 4123.68.

Claimant contends that case law subsequent to Miller, particularly Village v. Gen. Motors Corp. (1984), 15 Ohio St.3d 129, 15 OBR 279, 472 N.E.2d 1079, and Oswald v. Connor (1985), 16 Ohio St.3d 38, 16 OBR 520, 476 N.E.2d 658, has effectively, if not formally, overruled Miller. We disagree.

In Village, we held that "[a]n injury which develops gradually over time as the result of the performance of the injured worker's job-related duties is compensable under R.C. 4123.01(C)." In so holding, we overruled a tortuous line of cases which suggested that an injury must be the result of a sudden mishap occurring at a particular time and place to be compensable. Included were the very cases relied upon in Miller to find that the claimant's disability in that case was not the result of an injury.

The change in the definition of "injury," however, does not affect that portion of Miller which holds that a pre-existing disease aggravated during employment is not compensable. Claimant does not contend that the daily physical stresses and strains of his employment support an award under Village.

In Oswald, we held that "death from a pre-existing cause and accelerated by an occupational disease contracted in the course of and arising out of the scope of employment, is compensable * * *." (Emphasis added.) This holding was simply an extension of case law decided prior to Miller. Prior to Miller, we had held that death or disability resulting from a pre-existing cause or disease and accelerated by an injury, in the course of and arising out of employment, is compensable. Swanton v. Stringer (1975), 42 Ohio St.2d 356, 71 O.O.2d 325, 328 N.E.2d 794; McKee v. Elec. Auto-Lite Co. (1958), 168 Ohio St. 77, 5 O.O.2d 345, 151 N.E.2d 540. After Oswald, claims for aggravation of a pre-existing disease are compensable only where the aggravation itself qualifies as a compensable injury or occupational disease.

We are aware that substantial criticism exists concerning the "basic fallacy relating to aggravation cases * * * that the aggravation itself must, standing alone, have been able to qualify as a compensable accident or occupational disease [and that] [t]here is nothing in the statute requiring that the aggravation itself be quantitatively or qualitatively of such character as to support an award alone." 1 Larson, The Law of Workmen's Compensation (1990), Section 12.22, 3-440 to 3-441, fn. 60. ¹ We need not determine, however, whether this warrants overruling Miller, supra, since the claimant in this case would be precluded from receiving compensation in any event.

Even if we were to hold compensable a claim for wear-and-tear aggravation of a nonoccupational disease, the claimant would have to show that the employment contribution is legally, as well as medically, sufficient to give rise to a compensable disability. See Ryan v. Connor (1986), 28 Ohio St.3d 406, 409, 28 OBR 462, 465, 503 N.E.2d 1379, 1382; Village, supra, 15 Ohio St.3d at 135, 15 OBR at 284, 472 N.E.2d at 1084 (Holmes, J., concurring); 1A Larson, The Law of Workmen's Compensation, supra, 7-317, Section 38.83(a). This would require a showing that the workplace exertion or cumulative workplace exertions are greater than those encountered in ordinary nonemployment life. ² See Bison Co. v. Shubert (Fla.App.1986), 494 So.2d 253; Bryant v. Masters Machine Co. (Me.1982), 444 A.2d...