Fox v. Industrial Commission of Ohio

• Decision Date: 23 February 1955
• Docket Number: 34018,Nos. 33990,s. 33990
• Citation: 162 Ohio St. 569,125 N.E.2d 1
• Parties: , 55 O.O. 472 FOX, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee. SCHIELE, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
• Court: Ohio Supreme Court

Page 569

162 Ohio St. 569

125 N.E.2d 1, 55 O.O. 472

FOX, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.

SCHIELE, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.

Nos. 33990, 34018.

Supreme Court of Ohio.

Feb. 23, 1955.

Syllabus by the Court.

1. In order to establish a right to workmen's compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence, medical or otherwise, not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his injury and his harm or disability.

2. A jury may determine the issue of proximate cause on the basis of probabilities and not necessarily on the basis of absolute fact.

3. Where a medical expert witness answers a hypothetical question based upon testimony properly admitted, it is error to exclude the testimony of such witness as to his reasons for his answer.

Both these causes came to this court through the Court of Appeals for Muskingum County by reason of the allowance of motions to certify the records, and, since they involve similar questions for determination, they were heard together.

In case No. 33990, the plaintiff, on November 15, 1943, sustained an accidental injury to his ankle in the course of and arising out of his employment, for which injury he made claim to the Industrial Commission and was awarded compensation and medical expenses. Thereafter, plaintiff filed an application for further compensation, claiming that he was suffering from, among other things, a heart ailment which developed after his original injury but arose out of it. The commission denied the claim, finding that plaintiff was suffering from a heart ailment but that it was not the result of his injury.

A rehearing was had, testimony was taken and a further denial of the claim was made by the commission. An appeal was perfected to the Common Pleas Court of Muskingum County. The cause was then heard on the rehearing record made before the Industrial Commission. The jurisdictional facts as to the proceedings before the commission were stipulated, including the facts of injury and payment of prior compensation and the entry of the commission finding to the effect that plaintiff was suffering from a heart ailment but that such condition was not due to the injury in question. As a result, the sole question for determination in the trial court was whether plaintiff's heart ailment, under the evidence, was directly or proximately caused by his original compensable injury.

The first medical witness called by the plaintiff on rehearing before the commission testified in detail as to a physical examination of the plaintiff and to the effect that he was in a state of congestive heart failure. This witness was asked a hypothetical question which will hereinafter be described. An objection was interposed to this question and was sustained by the trial court. At the conclusion of the plaintiff's evidence, the court directed a verdict for the defendant and entered judgment upon the verdict, which judgment was affirmed by the Court of Appeals.

In case No. 34018, the jurisdictional facts as to the proceedings before the Industrial Commission were admitted by stipulation. Plaintiff filed with the commission an application for compensation based on an accidental injury, which application was denied on the ground that plaintiff's disability was not the result of an injury sustained in the course of and arising out of the employment.

The evidence on rehearing before the commission tended to show that on or about June 7, 1949, while plaintiff was employed as a molder by the Wise Foundry, Machine & Supply Company of Zanesville, he was subjected to stress and unusual exertion in that, while he and other employees were lifting part of a mold weighing between 500 and 600 pounds, extra weight was thrown upon plaintiff, and that this accidental circumstance caused damage to his heart.

The plaintiff testified that when the extra weight was thrust upon him everything turned black in front of him; that his knees started to buckle and he could not walk away; that he felt like something had 'busted' in his chest and things went black; that he could hardly get his breath and started to cough; and that he finished his work late that afternoon but continued to cough, had pain in his chest, could not sleep that night, and never returned to work after that incident.

At the rehearing, the plaintiff called a medical witness who had examined him. That witness testified that the plaintiff showed evidence of myocardial damage. A hypothetical question was propounded covering his examination of the plaintiff and inquiring whether there was any causal relationship between the weight-lifting occurrence and plaintiff's heart condition.

At the conclusion of the rehearing, plaintiff's claim was again denied. Upon appeal to the Court of Common Pleas of Muskingum County a trial was had to a jury on the transcript of the evidence taken before the commission. An objection was made to the hypothetical question above described, which objection was sustained by the court, and the answer of the witness as it appeared in the transcript was proffered.

In sustaining the objection to the hypothetical question the trial court expressed its reason as follows:

'That objection is sustained. Inquiry is not made relating to direct or causal connection on the authority of Fox v. Industrial Commission as reported in [Ohio Com.Pl.] 114 N.E.2d 451, and with particular reference to the eighth syllabus, which reads as follows: 'Testimony of expert medical witness as to causal relationship in workmen's compensation case must be qualified by inquiry as to whether witness has an opinion as to proximate causal relationship between injury and disability.''

At the conclusion of plaintiff's case, the court sustained defendant's motion for a directed verdict and entered judgment on the verdict. The cause was then appealed to the Court of Appeals where the judgment of the trial court was affirmed, with one judge dissenting.

Thomas F. Joseph, Martins Ferry, Harold E. Gottlieb, Zanesville, and James F. DeLeone, Columbus, for appellant in case No. 33990.

A. Millard Armstrong, Columbus, for appellant in case No. 34018.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., and James L. Young, Columbus, for appellee.

HART, Judge.

The principal question to be determined in both cases is: Where, in a hearing on a workmen's compensation claim, a hypothetical question is propounded to a medical witness for the purpose of establishing causal connection between an accidental injury and succeeding harm or disability, may such question inquire as to 'a causal relationship' or must it inquire as to 'a direct or proximate causal relationship'?

As a preliminary, it is appropriate to set forth briefly the basis upon which compensation to injured employees is determined and allowed. Prior to the 1937 amendment of Section 1465-68, General Code, it provided for compensation to an employee 'injured * * * in the course of employment.' By reason of the amendment of that section in 1937, 117 Ohio Laws, 109, the term, 'injury,' was limited further to an injury 'received in the course of, and arising out of the * * * employment', and Section 4123.01, Revised Code, defining terms used in the Workmen's Compensation Act, retains this limitation, as follows:

'(C) 'Injury' includes any injury received in the course of and arising out of, the injured employee's employment.'

For an injury to 'arise out of the employment' obviously requires a certain causal connection between the work or employment and the injury. It arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. In re McNicol's case, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306.

This court has heretofore repeatedly recognized the necessity of finding a causal connection between the employment and the injury in workmen's compensation cases. Fassig v. State ex rel. Turner, 95 Ohio St. 232, 116 N.E. 104; Industrial Commission of Ohio v. Weigandt, 102 Ohio St. 1, 130 N.E. 38; Delassandro v. Industrial Commission, 110 Ohio St. 506, 144 N.E. 138; Industrial Commission of Ohio v. Lewis, 125 Ohio St. 296, 297, 181 N.E. 136; Grabler Mfg. Co. v. Wrobel, 125 Ohio St. 265, 181 N.E. 97; Industrial Commission of Ohio v. Bateman, 126 Ohio St. 279, 283, 185 N.E. 50; Industrial Commission of Ohio v. Bankes, 127 Ohio St. 517, 189 N.E. 437; Industrial Commission of Ohio v. Baker, 127 Ohio St. 345, 188 N.E. 560; Industrial Commission of Ohio v. Gintert, 128 Ohio St. 129, 132, 190 N.E. 400, 92 A.L.R. 1032; Gregory v. Industrial Commission, 129 Ohio St. 365, 195 N.E. 699; Highway Oil Co. v. State ex rel. Bricker, 130 Ohio St. 175, 198 N.E. 276; Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St. 127, 132, 19 N.E.2d 898; Ashbrook v. Industrial Commission, 136 Ohio St. 115, 24 N.E.2d 33; Maynard v. B. F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195; Parrott v. Industrial Commission, 145 Ohio St. 66, 69, 60 N.E.2d 660; Stanfield v. Industrial Commission, 146 Ohio St. 583, 585, 67 N.E.2d 446; Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St. 693, 697, 76 N.E.2d 892.

In addition to the above-discussed causal relationship between the employment and injury, this court has also definitely held that there must be a direct or proximate causal relationship between the employment and the compensable harm or disability. McNees v. Cincinnati St. Ry. Co., 152 Ohio St. 269, 279, 89 N.E.2d 138.

And this court has frequently held that a claimant for a death benefit must establish the fact that the accidental injury was the proximate cause of the death. Weaver v. Industrial...