Johnson v. Industrial Commission of Ohio

• Decision Date: 07 December 1955
• Docket Number: No. 34212,34212
• Citation: 130 N.E.2d 807,164 Ohio St. 297
• Parties: , 58 O.O. 90 JOHNSON, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.
• Court: Ohio Supreme Court

Page 297

164 Ohio St. 297

130 N.E.2d 807, 58 O.O. 90

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

No. 34212.

Supreme Court of Ohio.

Dec. 7, 1955.

Syllabus by the Court.

1. Where a claimant under the Workmen's Compensation Act for compensation on account of death endeavors to appeal pursuant to Section 1465-90, General Code, from a ruling of the Industrial Commission denying compensation, such claimant must establish that the decedent received an injury, within the meaning of the word 'injury' as used in Sections 1465-68 and 1465-82, General Code, and that that injury was the proximate cause of his death. McNees v. Cincinnati St. Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138, approved and followed. Sections 1465-68, 1465-82, and 1465-90, General Code, considered and applied.

2. In the enactment of the Workmen's Compensation Act, the General Assembly acted in pursuance of the authority apparently conferred by Section 35, Article II of the Constitution of Ohio, and, where it used the same words or terms used in that section, it will be presumed that it used them in the same sense that they are therein used. Paragraph one of the syllabus of Industrial Commission of Ohio v. Cross, 104 Ohio St. 561, 136 N.E. 283, approved and followed.

3. Section 35, Article II of the Constitution, differentiates between 'injuries' and 'occupational diseases.' Since 'occupational diseases' were not comprehended in the term 'injuries' by that section of the Constitution, diseases other than occupational diseases were not so comprehended. Paragraph two of the syllabus of Industrial Commission of Ohio v. Cross, 104 Ohio St. 561, 136 N.E. 283, approved and followed.

4. The term 'injury' as used in Sections 1465-68 and 1465-82, General Code, does not include a disease. Paragraph three of the syllabus of Industrial Commission of Ohio v. Cross, 104 Ohio St. 561, 136 N.E. 283; paragraph two of the syllabus of Renkel v. Industrial Commission, 109 Ohio St. 152, 141 N.E. 834; paragraph one of the syllabus of Industrial Commission of Ohio v. Franken, 126 Ohio St. 299, 185 N.E. 199; the syllabus in Industrial Commission of Ohio v. Middleton, 126 Ohio St. 212, 184 N.E. 835; the syllabus in Industrial Commission of Ohio v. Armacost, 129 Ohio St. 176, 194 N.E. 23; and Industrial Commission of Ohio v. Brumm, 130 Ohio St. 248, 198 N.E. 863, approved and followed. Industrial Commission of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A.L.R. 1463; Industrial Commission of Ohio v. Palmer, 126 Ohio St. 251, 185 N.E. 66; Industrial Commission of Ohio v. Burckard, 112 Ohio St. 372, 147 N.E. 81; Industrial Commission of Ohio v. Helriggle, 126 Ohio St. 645, 186 N.E. 711, distinguished. Paragraphs one and four of the syllabus of Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St. 693, 76 N.E.2d 892, overruled. Industrial Commission of Ohio v. Bartholome, 128 Ohio St. 13, 190 N.E. 193, overruled to the extent that it is inconsistent herewith.

5. Pneumonia cannot be an 'injury' within the meaning of Sections 1465-68 and 1465-82, General Code.

6. A workman's weakened resistance to infection from pneumonia, even though it may represent a derangement of his bodily functions, cannot be considered an injury within the meaning of the Workmen's Compensation Act.

This cause originated in the Common Pleas Court of Belmont County as an appeal, pursuant to Section 1465-90, General Code, from a decision of the Industrial Commission which denied plaintiff the right to participate in benefits under the Workmen's Compensation Act, Gen.Code, § 1465-37 et seq., on account of the death of her husband.

From the evidence, it appears that the decedent was 67 years old; that on February 15, 1949, he and seven other men were engaged in unloading 100-pound wet and slippery sacks of calcium from a railroad car; that these sacks were loaded into a truck, transported about one-half mile and then unloaded into the tipple of a mine; that decedent and the others walked the one-half mile uphill and over slippery muddy ground from the railroad car to the tipple and after unloading the truck rode back to the railroad car on the back end of the truck; that the day was cold and rainy; that there was a wind blowing down the hollow where this work was carried on; that the temperature was near freezing; that decedent wore overalls, coats and cap to try to keep warm; that during the day decedent was seen to perspire and to appear short of breath and he somewhat slowed down when exerting himself; that decedent and these other laborers worked two or two and one-half hours overtime on this day in order to complete the unloading of these sacks of calcium; that near the end of the day decedent was seen to be shivering and this was also observed while he was riding home from work; that when he got home decedent went directly to the stove, removed his coat and put his arms around the stove; that his clothing was wet at that time; that he was shaking and shivering; that, after he became warm, he ate his evening meal and went to bed; that he never returned to work; that he was confined to bed for two weeks prior to his death; and that, although decedent had previously done work of this kind, it had never involved unloading from a cattle car with slatted open sides.

The certificate of death indicates that decedent died on March 9, 1949, from 'lobar pneumonia'; antecedent cause, 'influenza.' It also indicates that decedent had been attended by a physician from February 8, and that he suffered from the pneumonia for two weeks prior to his death and from influenza for four weeks prior thereto.

Although plaintiff did not call the attending physician as a witness, two other physicians testified in effect that, in their opinion, there was a direct causal relationship between the hazards to which decedent was exposed in his employment on February 15, 1949, and his subsequent pneumonia and death.

The cause was tried to the court without a jury and judgment was rendered for plaintiff.

On appeal to the Court of Appeals that judgment was affirmed.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., Columbus, and John M. Tobin, Bellaire, for appellant.

Thomas F. Joseph, Martin Ferry, for appellee.

TAFT, Judge.

Although a death caused by a socalled 'occupational disease' may in some instances be compensable under the Workmen's Compensation Act of this state, ¹ a claimant on account thereof does not have the right of appeal to the Common Pleas Court which plaintiff is asserting in the instant case. That right of appeal is provided for by Section 1465-90, General Code, and Section 1465-68b, General Code, specifically provides that 'Section 1465-90, General Code, * * * shall not apply to any case involving occupational disease'. Therefore, it is essential, if plaintiff is to prevail in the instant case, for plaintiff to establish that decedent received an injury, within the meaning of the word 'injury' as used in the Workmen's Compensation Act, and that that injury was the proximate cause of his death. McNees v. Cincinnati St. Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138; Section 1465-82, General Code (providing for death claims, other than those involving a socalled occupational disease, only 'In case the injury causes death * * * and * * * compensation or disability on account of the injury has been continuous to the time of the death * * * and the death is the result of such original injury'); Section 1465-68 (providing for compensation where 'employee * * * injured * * * in the course of employment' and defining 'injury' only as 'any injury received in the course of, and arising out of * * * employment').

Recognizing this necessity to establish such an 'injury,' plaintiff has argued that the pneumonia suffered by decedent and which caused decedent's death was an 'injury' within the meaning of the Workmen's Compensation Act and has apparently suggested that, if it was not, then decedent's weakened resistance to infection, either accidentally resulting from ² or accidentally caused by ³ hazards of his employment, ⁴ was an 'injury' within the meaning of the Workmen's Compensation Act.

In our opinion, the contention that pneumonia may be an 'injury' within the meaning of that part of the Workmen's Compensation Act constituting Sections 1465-68 and 1465-82, General Code, is fully sustained by portions of the syllabus in Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St. 693, 76 N.E.2d 892, and by the decision in Industrial Commission of Ohio v. Bartholome, 128 Ohio St. 13, 190 N.E. 193. See Industrial Commission of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A.L.R. 1463; Industrial Commission of Ohio v. Palmer, 126 Ohio St. 251, 185 N.E. 66; Industrial Commission of Ohio v. Helriggle, 126 Ohio St. 645, 186 N.E. 711, and Industrial Commission of Ohio v. Burckard, 112 Ohio St. 372, 147 N.E. 81. Cf. Industrial Commission of Ohio v. Polcen, 121 Ohio St. 377, 169 N.E. 305. See also Johnson v. Industrial Commission, 63 Ohio App. 544, 27 N.E.2d 418. On the other hand, the conclusion, that pneumonia cannot be such an 'injury,' is required by out decisions in Industrial Commission of Ohio v. Cross, 104 Ohio St. 561, 136 N.E. 283; Industrial Commission of Ohio v. Brumm, 130 Ohio St. 248, 198 N.E. 863; Renkel v. Industrial Commission, 109 Ohio St. 152, 141 N.E. 834; Industrial Commission of Ohio v. Armacost, 129 Ohio St. 176, 194 N.E. 23; Industrial Commission of Ohio v. Middleton, 126 Ohio St. 212, 184 N.E. 835, and Industrial Commission of Ohio v. Franken, 126 Ohio St. 299, 185 N.E. 199.

It is often said that the law is not an exact science. However, we see no justification for our following one of these two conflicting lines of cases and ignoring or attempting to distinguish cases in the other line to the extent that they cannot...