Posan v. Industrial Commission of Ohio

• Decision Date: 20 February 1939
• Citation: 22 N.E.2d 1014,61 Ohio App. 530
• Parties: POSAN v. INDUSTRIAL COMMISSION OF OHIO.
• Court: Ohio Court of Appeals

22 N.E.2d 1014

61 Ohio App. 530

POSAN v. INDUSTRIAL COMMISSION OF OHIO.

Court of Appeals of Ohio, Sixth District, Lucas.

February 20, 1939

Syllabus by the Court.

1. Death as a result of an injury received in the course of employment is not proved by showing that the decedent died of cancer of the liver about two years after having received a broken leg and bruises in the region of the chest, stomach and liver, as a result of an accident in the course of his employment.

2. In an action for an award for the death of decedent caused by cancer of the liver, a charge to the jury that the fact that decedent had been allowed compensation for an injury to his leg arising out of the same accident as is alleged to be the cause of the cancer is not evidence to be considered in determining the issue as to the cause of the cancer is correct.

3. Affidavits of jurors may not be used to impeach their own verdict.

James Harrington Boyd and Wm. F. Miller, both of Toledo, for appellant.

Thomas J. Herbert, Atty. Gen., and P. R. Taylor, of Toledo, for appellee.

OVERMYER Judge.

The appellant, as a claimed dependent, brought this action in Common Pleas Court on appeal from the Industrial Commission of Ohio, which had rejected a claim for death award for the death of appellant's father. The trial to a jury below resulted in a verdict and judgment for the commission, from which the appeal here is prosecuted.

The decedent, Frank Posan, was an employee of the Gulf Refining Company at Toledo, Ohio, and on February 19, 1931, while engaged in the course of his employment and while carrying on his shoulder an iron girder or angle iron, weighing about 60 pounds, slipped or stumbled over some other iron in his path and fell on his back, with the angle iron falling or resting on his chest. In his fall, the iron he was carrying struck and broke his left leg just above the ankle, causing a bad fracture which thereafter incapacitated him from his labors. He applied for and received disability compensation up to the time of his death, which occurred on January 18, 1933, from cancer of the liver.

In the third amended petition, on which trial was had, it was alleged that in addition to the broken leg the angle iron also struck him across his chest 'bruising his chest stomach and liver on the right side of his body, flattening the kidneys, causing injuries to his liver and kidneys permanently totally disabling him and finally causing his death from cancer of the liver, activated by said injury.'

The only contested issue in the case is whether the evidence shows a causal connection between decedent's injuries of February 19, 1931, and his death from cancer of the liver on January 18, 1933. In this connection it is significant that the records of the hospital, where he was taken on the day of the injury and where he remained for two months, do not show from the diagnosis there made, which is in evidence, any complaints or findings of any injury or ailment to the chest, liver or kidneys--nothing but the fractured leg. The hospital report showing the case history mentions nothing but the 'fracture of the tibia and fibula.' The record further shows that in decedent's own application for disability compensation he described his injuries as 'bruise and fractured left leg above ankle.' The original application filed by claimant herein with the commission for a death award described the injuries causing death as 'bruise and fracture of left leg above the ankle. Fracture involves the ankle joint.' It was in a supplemental petition filed with the commission on October 5, 1935, nearly three years after decedent's death, that claim was first made as to chest and liver and kidney injuries having caused cancer of the liver.

A monument to the skies awaits the man who can discover and demonstrate to the medical profession and the world the certain cause of cancer. This is apparent from the medical evidence in this record, and is a matter of such general knowledge that judicial notice may be taken of it. Certainly, on a question such as here presented, lay testimony would be of no avail, and the most that the medical witnesses upon whom appellant relies would say, was as follows.

A fully qualified physician who examined decedent at his instance nearly two years after the accident and a short time before decedent's death, a witness for the claimant, said:

'It is possible that this trauma may have been the exciting factor in activating the malignancy.

'In my opinion it might have possibly activated the malignancy.

'I would say that a history of trauma over this region might have been an inciting cause for the primary malignancy.

'I think it is possibly the inciting cause.' (Italics ours.)

Asked if it was the probable cause, his answer was: ' Possibly the inciting cause of the condition found.' (Italics ours.) Asked what causes cancer of the liver, the answer was 'No definite cause.' Asked the usual time between onset of cancer of the liver and death, the answer was: 'I have seen patients that I knew had cancer of the liver and lived three years; others that lived only three months. Don't know when it...