Kanoff v. Industrial Commission of Ohio

• Decision Date: 29 November 1954
• Citation: 99 Ohio App. 357,133 N.E.2d 635
• Parties: , 59 O.O. 136 KANOFF, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.
• Court: Ohio Court of Appeals

Page 357

99 Ohio App. 357

133 N.E.2d 635, 59 O.O. 136

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

Court of Appeals of Ohio, Wood County.

Nov. 29, 1954.

Syllabus by the Court.

Where there is no medical evidence of probative value tending to establish that an injury sustained by a decedent was a proximate cause of the death of such decedent, and medical testimony as to such fact is conjectural, such evidence is entitled as proof to no greater value or weight than mere possibilities and does not meet the required test of tending to establish the essential element of causal relationship between the injury and the death by prooof of probabilities.

C. William O'Neill, Atty. Gen., and George Fell, Toledo, for appellant.

Winchester & Winchester, Toledo, for appellee.

DEEDS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Wood County. The judgment was entered by that court upon an award by a jury in favor of the plaintiff, appellee herein, as the dependent widow of John Kanoff, deceased, hereinafter referred to as plaintiff, against the defendant, appellant herein, the Industrial Commission of Ohio, hereinafter referred to as the defendant.

The trial to a jury in the Court of Common Pleas was had pursuant to Section 1465-90, General Code, Section 4123.51, Revised Code, upon the transcript of the record on rehearing had before the defendant, the petition of the plaintiff, and the answer of the defendant. Motions by the defendant for a directed verdict at the close of plaintiff's case and at the conclusion of all the evidence, and motions by the defendant for judgment notwithstanding the verdict of the jury and for a new trial were, respectively, overruled by the trial court.

It is not disputed that on July 21, 1951, the decedent, John Kanoff, sustained compensable injuries while in the course of his employment with The Libbey-Owens-Ford Glass Company an employer amenable to and complying with the Workmen's Compensation Act. It is the claim of the plaintiff that such injuries were a proximate cause of the death of the decedent. Therefore, the question determinative of the case on this appeal is whether on the record before us there is competent evidence of probative value tending to prove that the injury was a proximate cause of the death of the decedent, John Kanoff.

The injury which it is claimed resulted proximately in the death of the decedent, as described in the application of the plaintiff for payment of money out of the State Insurance Fund for compensation on account of the death, consisted of 'contusion of back and right forearm and injured abdomen.'

The testimony of Dr. Monroe Cronstine, the attending physician, concerning the injuries which he observed in his first examination of the decedent following the accident, on July 23, 1951, was as follows:

'A. The history was that he fell while working and hit himself on his left hip two days previously, which was July 21st, and as a result of same he had a contusion to the muscles of his left hip with severely strained abdominal muscles.'

The condition directly leading to decedent's death, according to the official death certificate as certified by Dr. B. E. Petcoff, was 'bowel obstruction following appendectomy.' According to the medical records of the Riverside Hospital at Toledo, where the decedent was a partient at the time of his death and where an emergency operation for acute appendicitis was performed upon the decedent by Dr. Norman B. Muhme on November 16, 1951, following which the decedent died on November 20, 1951, it appears that the death was the result of 'general peritonitis,' with 'acute appendicitis' being recorded as a 'contributory' cause. It appears also from the medical testimony in the record that the bowel obstruction resulted directly from the condition of peritonitis. It is clear, therefore, from the foregoing that the issue of causal connection between the injury as described and the death of the decedent as a result of the causes enumerated made necessary and involved a scientific inquiry and required competent testimony by qualified medical witnesses in order to establish a causal relationship between the injury and death.

In Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St. 205, 101 N.E.2d 897, the syllabus is as follows:

'1. A condition of bilateral cataracts claimed to have resulted from a small particle which blew into one of the eyes falls within the classification of industrial injury cases where the testimony of lay witnesses is without probative value to establish the probability of a proximate causal relationship between the accident and the claimed resulting physical condition, and in order to prove such relationship medical testimony is essential.

'2. Where a claimant for compensation under the Workmen's Compensation Act is suffering from bilateral cataracts and claims that the condition in his right eye proximately and directly resulted from a small particle no larger than a pin head which blew into that eye, and where the most favorable medical evidence was testimony that a causal relationship between the particle which blew into the eye and the eye condition was remotely possible, there is no evidence sufficient to justify submission to the jury of the question of causal connection between the claimed accident and the eye condition. Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932, approved and followed. Bowling v. Industrial Commission, 145 Ohio St. 23, 60 N.E.2d 479, distinguished.'

In the opinion of the court in the Stacey case, supra, 156 Ohio St. at pages 210, 211, 101 N.E.2d at page 899, is a statement pertinent to the subject now under consideration:

'Under the decisions of this court, where an issue in a case involves a question of scientific inquiry which is not within the knowledge of lay witnesses or members of the jury, expert testimony is required to furnish the answers, and, if the issue relates to a causal connection between an injury and a subsequent physical condition which involves only a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on the subject, and the proof in such case must establish a probability and not a mere possibility of such causal connection. Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932; Aiken v. Industrial Commission, 143 Ohio St. 113, 53 N.E.2d 1018.

'The syllabus in the Aiken case reads:

'To entitle the dependents of a deceased workman to participate in the state insurance fund upon a claim that the death of such workman from acute myocarditis was attributable to a compensable knee injury suffered six years before, the proof offered must show such injury was a proximate cause of death, and must include evidence by competent medical witnesses that a probable relationship existed between the original accident and the myocarditis.' See, also, Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St. 429, 92 N.E.2d 1.'

From the transcript on rehearing before the defendant it appears that three physicians testified on behalf of the plaintiff, the first medical witness being Dr. Cronstine, the attending physician of the decedent, whose testimony has been quoted to the effect that he first saw and examined the decedent on July 23, 1951, two days following the accident, and who testified further that he thereafter saw and treated the decedent on July 26, August 2, 9, 16, 24 and 27, also on September 5, 12, 19 and 26, and on October 8, the last occasion upon which this physician saw or treated the decedent being October 24, 1951.

In view of the conclusion which this court has reached on the record in the case now before us for review, it becomes necessary to consider in this opinion the medical testimony which is most favorable to the plaintiff. Also by reason of our conclusion on this appeal it becomes unnecessary and would serve no purpose pertinent to this appeal for the court to comment or pass upon the competency of the several hypothetical questions propounded to the medical witnesses on behalf of the plaintiff.

We do consider the circumstance significant in considering the testimony of the attending physician Dr. Cronstine, that Dr. Cronstine did not see or examine the decedent between the date of October 24 and the decedent's death, which occurred on November 20, 1951. It appears from the transcript that in answer to a question which, in substance, concerned whether there was any connection between the cause of the decedent's death and the injury he received on July 21, 1951, for which this attending physician treated him, the witness answered:

'I can't answer yes or no. It's probable or possible, let's put it that way.'

Thereafter the doctor was interrogated further and answered as follows:

'My opinion is that even from the written records here and not from memory, as I have mentioned, I repeat that even from the records that I have from my office on the 23rd of July, 1951, he presented himself at my office and showed evidence of an injury to his left hip and also strained abdominal muscles. Now, it is possible that as a result of some injury to the abdominal muscles that it may have lowered the resistence of the tissues of the abdomen, thereby helping for an appendicitis to come about in that individual. Although I might say that people have appendicitis that never were in an injury and people may have an injury and never have appendicitis. So with that possibility that appendicitis may have been brought about in this individual, but there is nothing factual that can be stated in that direction.'

A complete resume of Dr. Cronstine's observation and treatment of the decedent was elicited upon cross-examination of the doctor as follows:

'By Mr. Green: Now, Dr. Cronstine, would the following be an accurate statement of your medical history and treatment of Mr. Kanoff as made...