Oswald v. Connor

Douglas, J. The single issue presented is whether there is sufficient evidence in the record to support the trial court’s determination that Vernon Oswald’s death from a myocardial infarction was accelerated by a substantial period of time as a direct and proximate result of the effect of his occupational disease, avian tuberculosis, on his pre-existing coronary artery disease. After a careful review of the record, this court finds that there is sufficient evidence in this record which would warrant a finding by the trier of fact that Oswald’s occupational disease was the proximate cause of the acceleration of his death. The judgment of the trial court must thus stand and, accordingly, the decision of the court of appeals is hereby reversed. Appellant contends that she is entitled to participate in the Workers’ Compensation Fund based on the following chain of events. She initially claims that her decedent contracted an occupational disease, avian tuberculosis, arising out of and in the course of his employment at the zoo, and, prior to so contracting, he suffered from a coronary artery disease. The avian tuberculosis, she then asserts, directly resulted in serious, unusual stress which was the proximate cause of the acceleration of her decedent’s death from a heart attack. Before this court considers the question of proximate causation, this court must determine, as a threshold issue, whether there is an entitlement to the payment of death benefits from the Workers’ Compensation Fund where death is accelerated by an occupational disease. Admittedly, no statute explicitly allows for such recovery. This court has, however, acknowledged the potential of a death claim predicated on death having been accelerated by an accidental injury where there was likewise no statute explicitly so allowing. In Weaver v. Indus. Comm. (1932), 125 Ohio St. 465, this court first recognized entitlement to payment of death benefits from the Workers’ Compensation Fund where an injury is the proximate cause of the acceleration of death just as where the injury directly causes the death itself. This court, in Weaver at 466, initially set forth the relevant statutory provision,1 which did not expressly address this issue, and then it concluded as follows: “Under * * * [G.C. 1465-82] the plaintiff in an appeal case from a denial of award by the Industrial Commission for death of a workman or employe [sic] has to establish that the injury was the proximate cause of the death, or was the proximate cause of the acceleration of death. [Citations omitted.]” Thereafter, in McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77, [41] 80 [5 O.O.2d 345], the court cited what was then R.C. 4123.592 and noted that there is no provision in this section allowing for the payment of death benefits as to an injury which merely accelerates a death from a preexisting cause. Relying on Weaver, supra, the court in McKee nonetheless held in the syllabus as follows: “Under the Workmen’s Compensation Act, death from a pre-existing cause and accelerated by an accidental injury, in the course of and arising out of employment, is compensable, where the death is accelerated by a substantial period of time as a direct and proximate result of the accident.” The court of appeals unanimously determined, and indeed the parties do not contest that, for the purposes of the rule of McKee, “occupational disease” may be freely substituted for the words “accidental injury.” This court can likewise perceive of no rational reason why the McKee rule regarding substantial acceleration should not also apply to those situations where death is accelerated by an occupational disease. In Ohio, both injuries and occupational diseases are compensable. Thus, the fact that this claim is grounded on the death having been accelerated, not by an accidental injury, but by an occupational disease, is a difference without a distinction. Accordingly, this court holds that under the Workers’ Compensation Act, death from a pre-existing cause and accelerated by an occupational disease contracted in the course of and arising out of the scope of employment, is compensable where the death is accelerated by a substantial period of time as a direct and proximate result of the occupational disease. Having concluded that there is a potential for recovery, this court may now consider whether the trial court properly found that recovery was warranted herein. The requisite degree of proof that appellant must demonstrate in order to recover is well-established. In McKee, supra, at 82, this court stated that “[t]here must be a substantial causal relationship between the accident and the accelerated death, and such relationship can not be proved by mere magic words of direct causation without evidence to definitely support it.” Previously, in Fox v. Indus. Comm. (1955), 162 Ohio St. 569 [55 O.O. 472], paragraph one of the syllabus, the court was somewhat more precise in discussing the requisite degree of proof in workers’ compensation claims: “In order to establish a right to workmen’s compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence, [42] medical or otherwise, not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his injury and his harm or disability.” In considering the issue of proximate cause in the workers’ compensation context, this court has held that the definition of and principles governing, the determination of “proximate cause” in the field of torts are applicable. Aiken v. Indus. Comm. (1944), 143 Ohio St. 113, 117 [28 O.O. 50]. Specifically, the court in Aiken first noted that the determination of the proximate cause of an ultimate result may be difficult. It then stated that “* * * the proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which that event would not have occurred.” Id. Similarly, in Indus. Comm. v. Palmer (1933), 126 Ohio St. 251, 257, the “but-for” test was used in determining proximate causation. In applying these basic principles to the facts of the instant case, this court must remain mindful of its limited right of review herein. As was stated in Swanton v. Stringer (1975), 42 Ohio St. 2d 356, 359 [71 O.O.2d 325], a case in which entitlement to participate in the Workers’ Compensation Fund was also disputed: “The trial in the Court of Common Pleas is a trial de novo. State, ex rel. Federated Department Stores, v. Brown (1956), 165 Ohio St. 521 [60 O.O. 486]. If the evidence before that court is sufficient to support the result reached this court will not substitute its judgment.” It is within these guidelines that this court addresses the issue of whether there was sufficient evidence to support the trial court’s determination that appellant had proved, by a preponderance of the evidence, a chain of direct and proximate causes demonstrating that the pre-existing cause that would eventually result in death, and an occupational disease that combined with Oswald’s individual frailties, accelerated death by a substantial period of time. At the outset, this court acknowledges that Oswald’s attending physician, Dr. Michael Schaen, who testified at the trial level, did not use the magic words of direct causation. But just as this court will not allow the existence of the causal relationship between the occupational disease and accelerated death to be proved by use of mere magic words (see McKee, supra), it will correspondingly not require these magic words in order to find such causation. In either circumstance, there must be evidence to support the finding of causation. This court must thus review the record in this case to determine if there is evidence in the record to support a finding of proximate causation. Based on the record in this case, reasonable minds could find, by a preponderance of the evidence, that Oswald had coronary artery disease, diabetes, and hypertension at the time his wrist became infected by atypical avian tuberculosis and that the latter disease was an occupational disease as defined in R.C. 4123.68(BB). [43] Further, it could be found that doctors could not accurately diagnose or effectively treat this rare disease. Oswald underwent two surgical operations, neither of which was successful. Indeed, it was not until cultures and tissues were taken during the second surgery and were examined both by local pathologists and by the Infectious Disease Department at the Center for Disease Control in Atlanta that the diagnosis of atypical avian tuberculosis was finally confirmed. And, it was not until this time that it was learned that Oswald’s condition was untreatable. The record also indicates that the zoo persistently refused to acknowledge that Oswald’s disease was occupational in nature, despite the fact that a report of an occupational disease had been filed with the Bureau of Workers’ Compensation. The zoo offered Oswald no assistance in helping him to combat his disease. The record indicates that throughout this period, Oswald’s frustration with his doctors mounted as his painful condition continued, and his performance on the job was increasingly affected. There is also testimony in the record that Oswald was a highly sensitive individual, and the combination of the above-stated factors caused him distress and frustration, anger and resentment that he repressed, a continuing depression and “burn out.” Considering the testimony of Dr. Schaen in its totality, it may reasonably be understood to be that Oswald's death from a myocardial infarction was accelerated by his reaction to an extraordinarily difficult time with his work-acquired tuberculosis. For instance, in a letter dated June 1, 1977 and reaffirmed in a letter dated September 9, 1977, Dr. Schaen stated as follows: “There is also an implication that I felt the Tuberculosis infection was responsible for the patient’s death. This of course is not true. My point is that the patient’s frustration in seeking medical treatment and cure for his condition, plus the turmoil involved in convincing the proper authorities that his wrist problem was related to his occupation, led to significant chronic stress which accelerated his coronary artery disease and led to his sudden death at age fifty-six [sió\. I do not feel the Tuberculosis infection itself was the cause of death. This was just an unusual situation, in which a highly sensitive individual with underlying diabetes and hypertension, developed an occupational illness which was rare, difficult to diagnose, difficult to treat, required many office visits and two surgical procedures leading to enormous frustration. It is in the context of the total person and the situation which I feel contributed to this individual’s early death.” Based on the above-stated factors, this court does not find that there is insufficient evidence to support the result reached by the trial court. There is evidence in the record to the effect the appellant established, by a preponderance of the evidence, a chain of direct and proximate causes demonstrating that death was directly and proximately accelerated by the occupational disease, because the acceleration would not have occurred [44] but for the disease and Oswald’s reaction to it. Stated somewhat differently, this court finds that the trial court’s determination — that the combined result of the pre-existing disease, the occupational disease and Oswald’s negative psychosomatic reactions directly and proximately caused his death at a substantially earlier time than would have been the case without the occupational disease — is supported by the record. For the foregoing reasons, the judgment of the court of appeals is reversed. Judgment reversed. Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. Locher, Holmes and Wright, JJ., dissent. Footnotes [1] G.C. 1465-82 provided as follows: “In case the injury causes death within the period of two years, the benefits shall be in the amount and to the persons following * * *.” [2] R.C. 4123.59 provided as follows: “In case an injury to an employee causes death within a period of two years, and in cases in which compensation or disability on account of the injury has been continuous to the time of the death of the injured employee and the death is the result of such injury, benefits shall be in the amount and to the persons following * * *.”