Mull v. Jeep Corp.

• Decision Date: 30 December 1983
• Citation: 13 OBR 514,13 Ohio App.3d 426,469 N.E.2d 923
• Parties: , 13 O.B.R. 514 MULL, Appellant, v. JEEP CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 426

13 Ohio App.3d 426

469 N.E.2d 923, 13 O.B.R. 514

MULL, Appellant, v. JEEP CORPORATION et al., Appellees.

Court of Appeals of Ohio, Sixth District, Lucas County.

Dec. 30, 1983.

Syllabus by the Court

1. In order to establish that a heart attack is a compensable occupational disease under R.C. 4123.68(BB), the claimant must prove: (1) that the disease was contracted in the course of employment; (2) that the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

2. When the claimant pursues his workers' compensation claim through the administrative process as an occupational disease, he cannot, upon appeal to the court of common pleas, allege an "injury" as defined in R.C. 4123.01(C).

Michael Vanderhorst, Toledo, for appellant.

Vorys, Sater, Seymour & Pease, Russell Herrold, Jr., Columbus, and Roger Weiher, Toledo, for appellee Jeep Corp.

CONNORS, Presiding Judge.

This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:

This cause comes on appeal from a judgment of the Court of Common Pleas of Lucas County granting summary judgment in favor of appellees and affirming a decision of the Industrial Commission, finding that appellant did not suffer a compensable occupational disease. Appellant's appeal from the judgment of the trial court sets forth the following assignments of error:

"(1) As a matter of law, the trial court erred in granting summary judgment to the defendant-appellee on the issue of whether or not the plaintiff sustained a compensable occupational disease, where evidence shows that the plaintiff's exposure to an extraordinary amount of both physical and emotional stress and strain, by virtue of his special duties as union director of workers' compensation and safety, clearly exceeded that to which the public, and employees in general, are normally subjected.

"(2) As a matter of law, the trial court erred in granting summary judgment for the defendant-appellee on the issue of whether the trial court had jurisdiction to consider the plaintiff's claim that he sustained an injury in the course of and arising out of his employment so as to constitute a compensable industrial injury, as the sole issue before the trial court was whether the claimant-plaintiff was entitled to participate in the Workers' Compensation [Fund]."

As to the first assignment of error, the record indicates that appellant filed a claim for an occupational disease, stating the disease as a heart attack, and the cause thereof to be stress and strain due to his job. A district hearing officer disallowed appellant's claim. The Toledo Regional Board of Review vacated the decision of the hearing officer and allowed the claim. The Industrial Commission vacated the board of review's order and reinstated the order of the district hearing officer disallowing the claim. Upon appeal to the court of common pleas, summary judgment was granted in favor of appellees and the decision of the Industrial Commission was affirmed.

The statute pertinent to appellant's claim is R.C. 4123.68(BB), which states as follows:

"All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment."

The case law has developed the following criteria necessary to establish that a disease is compensable under R.C. 4123.68(BB):

"(1) The disease is contracted in the course of employment;

"(2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and

"(3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally." State, ex rel. Republic Steel v. Indus. Comm. (1980), 61 Ohio St.2d 193, 194-195, 399 N.E.2d 1268 ; State, ex rel. Ohio Bell Telephone Co., v. Krise (1975), 42 Ohio St.2d 247, 327 N.E.2d 756 ; Frigidaire v. Indus. Comm. (1976), 45 Ohio St.2d 143, 341 N.E.2d 851 .

In support of his claim, appellant filed the affidavit of a physician indicating that appellant's heart attack was directly and proximately caused by his employment through the physical and emotional stress and strain associated with his job. In support of their motion for summary judgment, appellees submitted the affidavit of a physician indicating that heart attacks represent the most common illness of the Twentieth Century. The physician stated that factors increasing the risk of a heart attack include American nationality, male sex, being over the age of thirty-five, specifically persons in their fifties, obesity and, perhaps most important, a history of tobacco usage. The record indicates that appellant is an American male, fifty-five years old at the time of his heart attack, was slightly overweight, and had smoked at least a pack of cigarettes a day for over forty years. The affidavit submitted by appellees further indicated that heart attacks are not caused by employment conditions but arise from causes to which many, if not most persons in all walks of life, are exposed.

Construing the evidence in favor of appellant as required by Civ.R. 56, appellant has submitted evidence indicating that his heart attack was contracted in the course of his employment and that the stress and strain of his employment caused the heart attack. However, appellant has not submitted evidence indicating that his heart attack was peculiar to his employment by the characteristic of its manifestation or that his employment created a risk of contracting a heart attack in a different manner than in the public generally. Our examination of the record indicates that while stress and strain may be a factor contributing to a heart attack, all of us are exposed to varying degrees of stress and strain, both at work and at home. In this regard, the record does not indicate that the heart attack suffered by appellant was peculiar to his employment. We conclude that appellant failed to submit evidentiary materials which set forth specific facts showing that there were genuine issues for trial. More specifically, appellant failed to submit evidence tending to satisfy the second and third requirements necessary to establish a compensable disease under R.C. 4123.68(BB). Krise, supra. Appellant's first assignment of error is not well-taken.

As to appellant's second assignment of error,...