O'Flaherty v. Industrial Commission

This case is before the court on an appeal by the Industrial Commission from a judgment of the court below based upon the verdict of a jury that the plaintiff's decedent was entitled to participate in the fund of the Industrial Commission. *Page 384 Briefly, the facts as shown by the pleadings are that plaintiff is the widow of the decedent, and that on the 6th day of November 1940, decedent was an employee of The Union Fork Hoe Company under contract. It is asserted that on the 6th day of November 1940, the decedent received an injury while in the course of his employment, which injury resulted in his death on the 28th day of November 1940; that thereafter, on the 24th of April 1941, plaintiff filed notice and preliminary application with the Industrial Commission, which claim was heard on the 14th day of June 1943, and disallowed, the commission denying her the right to participate in the fund upon the ground that the death of the decedent was not the result of an injury sustained in the course of and arising out of his employment. It is alleged in the amended petition that on the 6th of November 1940, and for some time previous thereto the decedent was an employee of The Union Fork Hoe Company, and was then engaged with another employee in loading a freight car with merchandise, among which were shovels; that, at the time, the plaintiff was taking bundles of shovels from a truck and lifting them into the hands of fellow employees for piling in a freight car; and that the bundles of merchandise then being loaded weighed between fifteen and forty-five pounds per package, but that there were two packages of what was known as "never-break" shovels that weighed approximately 118 and 145 pounds which the decedent was required to lift a distance of three and a half feet vertically. It is asserted that the decedent, for an unknown period of time previous to the 6th day of November 1940, was afflicted with cardiovascular-renal disease and that as he lifted the last of the heavier packages he slipped, and this, combined with the weight of the shovels, caused him to *Page 385 have a heart attack which resulted in his death on the 28th day of November. The commission, for answer to the amended petition, admitted the employment of the decedent and denied the other allegations. The case was heard before a jury which found that the plaintiff was entitled to participate in the fund. The verdict of the jury was unanimous. The plaintiff requested that the court give to the jury certain special charges which were given. The evidence presents a borderline case. Only one fellow workman testified as to the incidents of the alleged injury and that witness stated that nothing unusual occurred or was apparent in relation to the decedent, and that the decedent left the place where the work was being carried on, without any complaint. Another fellow worker, however, testified that shortly after the decedent returned he showed evidence of suffering pain and disclosed a pallid flush and vomited. The decedent then went to his home where he was attended by a physician who testified as to the symptoms shown and his wife testified as to the care she bestowed upon him in giving him hot applications and administering sedatives. By the 11th day of November he was so restored to a normal condition that he returned to his work and continued in the service of the company until the 27th day of November when he left the factory, returned to his home and died that night, seated upright in a chair. His wife found him dead at six o'clock on the morning of the 28th. A number of doctors testified in the trial. Dr. Mahanna, for the commission, testified at length. The net result of this doctor's examination, which was long and technical, was that in his opinion the man had for some time been afflicted with arteriosclerosis and that he ultimately died in the natural progress of this condition from coronary thrombosis which was *Page 386 not caused or accelerated by the lifting of the packages that were being stored in the box car. K.H. Armen was the doctor who attended O'Flaherty when he reached his home after the incident in the box car. He testified at length as to the condition in which he found O'Flaherty and the treatment he prescribed. He stated that O'Flaherty was suffering excruciating pain. This doctor did not claim that he was competent to testify as to whether the supposed accident would accelerate cardiovascular-renal disease from which he was suffering. The final question was propounded: "Doctor, if O'Flaherty died of cardiovascular-renal disease, as it is your opinion he did, would an unusual effort exercised on his part contribute to or accelerate his death?" The question was objected to and the doctor did not further testify in answer to that interrogatory. Dr. E.E. Smith was asked whether he had sufficient experience to determine whether the exercise of a strenuous effort occasioned by the lifting of a weight of 140 pounds would have any effect upon contributing to or accelerating the death of one afflicted with heart disease. On an affirmative answer he was asked: "Would the effort necessary to lift 140 pound weights have any effect upon one who is troubled with cardiovascular disease?" to which, after the ruling of the court he answered: "Yes, sir, I think an effort to raise 140 pounds would have an effect upon a person suffering from a cardiovascular disease." And further: "Any effort placed upon the heart is apt to cause it to act differently than it was normally. Several things might happen." The final question was: "The question is, would you say, doctor, the greater the effort the more certain it is that effort would contribute to or accelerate the death? A. Yes." *Page 387 See Drakulich v. Industrial Commission, 137 Ohio St. 82,27 N.E.2d 932, where it is held: "3. Testimony that a person's death from cancer of the livercould have resulted from a previous injury to his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of such causal connection." We are confronted with determining whether the testimony of the physicians was sufficient to establish a probability of the acceleration of the cardiac condition existing on the 6th of November. The only doctor testifying positively on this matter was Dr. Mahanna. This doctor testified that the exertion incident to the lifting of the packages being stored in the box car would not promote or accelerate the cardiac condition from which he may have been suffering at that time. We do not feel that the testimony of the other physicians, one of whom, Dr. Smith, testified that the effort necessary to lift 140 pounds weight would have an effect upon one troubled with cardiovascular-renal disease, and that the greater the effort the more certain it is that it would contribute to the acceleration and death, would meet the requirements laid down in Drakulich v. IndustrialCommission, supra. Before the case was submitted to the jury, six requests were submitted by the plaintiff as special charges, five of which were given and the sixth refused. The court in giving the special charges followed closely the statement of the law as found inMalone v. Industrial Commission, 140 Ohio St. 292,43 N.E.2d 266. It is asserted by the defendant that there was no competent evidence upon which the jury could properly predicate a verdict in that the record contains no competent evidence whatsoever tending to prove that *Page 388 plaintiff's decedent suffered a pre-existing cardiovascular-renal disease contrary to the holding in the case of Ackerman v.Industrial Commission, 131 Ohio St. 371, 3 N.E.2d 44. We arrive at the conclusion that while there may have been sufficient evidence to establish the fact that the decedent had for some period before the 6th of November suffered from cardiovascular-renal disease, yet there is in this case no evidence, first, establishing the fact by competent testimony that the decedent suffered an accident in the loading of the freight car; and, second, there is no sufficient evidence to establish the fact that if he did suffer such accident that the same accelerated the death of the decedent due to the prior existence of his disease. We are of the view that the decedent died not on account of the acceleration of the prior physical condition by reason of an accident, but on account of the natural progress of the disease from which he was suffering and had been suffering for a considerable period. The judgment of the Court of Common Pleas is reversed and it is ordered that final judgment be entered for the commission because of the complete failure to establish an injury in the course of his employment and failure to establish the fact that such injury, if suffered, accelerated the disease so as to cause an earlier death than he otherwise would have suffered. Judgment reversed. SHERICK, J., concurs. HORNBECK, J., concurs in the judgment. *Page 389 ON MOTION for rehearing.