Opinion
No. 31841
Decided May 3, 1950.
Workmen's compensation — Injury not compensable, when — Resulting from normal employment conditions, not trauma by accident — Benefit claim not supported, when — Evidence presented possibility of injury from accident or from normal conditions — Burden of proof not sustained, when — Choice of several possibilities presented.
1. Under the Ohio Workmen's Compensation Act, to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising out of his employment other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment.
2. It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain the burden as to such issue.
3. Evidence which shows simply that an injury either may have been the result of an accident in the course of and arising out of employment or may have been suffered in the course of employment in the regular course of nature in the usual and normal activities of the employment is not evidence to support a workmen's compensation claim.
APPEAL from the Court of Appeals for Mahoning county.
This cause originated in the Court of Common Pleas of Mahoning County as an appeal from an order of the Industrial Commission which denied plaintiff's claim for compensation for the death of her husband, John Gerich.
The defendant, Republic Steel Corporation, is a self-insurer. Issues were made by the petition and answer. The case was tried to a jury upon the evidence taken upon rehearing before the Industrial Commission.
The evidence disclosed that the decedent was an employee of the defendant at the time of his death on February 15, 1943. His occupation was that of foreman of a group of other employees engaged in the maintenance and repair of railroad tracks within the confines of the defendant's steel mill.
On the day of his death, the temperature in the city of Youngstown varied from four degrees below zero to eight degrees above zero, and at eleven a.m. on February 15, 1943, the temperature was one degree above zero.
At about eleven a.m. on February 15, 1943, decedent and four other employees of the defendant were engaged in moving a cart or buggy filled with tools on the railroad tracks leading to an open hearth charging floor of the defendant. This cart was constructed with flanged, roller-bearing wheels designed to run on tracks, and when it was loaded with the tools the cart weighed about 900 pounds. The tracks over which the cart was moved had an upward grade of 2.17 per cent.
Immediately prior to the death of Gerich, the four subordinate employees were pushing the loaded cart by hand over this track. One of these men ceased pushing the cart but remained nearby. This man is the only eyewitness to the events immediately prior to Gerich's death. He testified that when he stopped pushing the cart, Gerich took his place and the movement of the cart was continued; that when he returned he saw Gerich turn around holding his head and fall to the ground; and that Gerich had stopped pushing the cart before he fell.
Another of the employees who was pushing the cart at the time Gerich fell testified that he did not see him fall; that after Gerich ceased helping push the cart, it kept right on moving; and that he did not know that Gerich was no longer helping them until another employee called to them.
Other facts are stated in the opinion.
At the close of all the testimony, the defendant made a motion for a directed verdict, which was overruled. Certain special instructions were requested by the plaintiff and given to the jury before argument, to which the defendant excepted. Some of these instructions authorized recoveries for the plaintiff if the injury "aggravated * * * any pre-existing condition." The defendant contends that the record does not contain any evidence of a pre-existing physical condition of the decedent, which would make such instruction proper.
The case was submitted to the jury, which found for the plaintiff, and judgment was rendered accordingly.
An appeal was taken to the Court of Appeals which affirmed the judgment of the Court of Common Pleas.
The case is before this court on the allowance of a motion to certify the record.
Messrs. Traxler Yearick and Mr. Michael W. Kosach, for appellee.
Messrs. Harrington, Huxley Smith and Mr. C. Kenneth Clark, for appellant.
The defendant claims that there was insufficient evidence to go to the jury on the fundamental question whether the decedent as an employee of the defendant suffered an accidental injury in the course of and arising out of his employment, which resulted in his death.
Under the Ohio Workmen's Compensation Act, to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of his employment as a result of some accidental impact other than injuries which may occur in the regular course of nature from the usual and normal activities of his employment. To illustrate, an injury has been held to be compensable under circumstances as follows:
Feet of filling-station employee frozen during hours of employment ( Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449); night watchman stumbled over machinery, resulting in paralysis ( Drew v. Industrial Commission, 136 Ohio St. 499, 26 N.E.2d 793); heat exhaustion suddenly suffered as the result of employment in a foundry ( Malone v. Industrial Commission, 140 Ohio St. 292, 43 N.E.2d 266); infection resulting from the lifting of a heavy roll of fabric ( Maynard v. B.F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195); death due to inhalation of fumes escaping from a gas producer ( Stough v. Industrial Commission, 148 Ohio St. 415, 75 N.E.2d 441).
On the other hand, an injury has been held not to be compensable under circumstances as follows:
Collapse by a baker from acute dilatation of the heart while handling dough in his regular employment ( Goodman v. Industrial Commission, 135 Ohio St. 81, 19 N.E.2d 508); death from angina pectoris a short time after assisting in handling a heavy barrel of rubbish ( Haviland v. Industrial Commission, 135 Ohio St. 545, 21 N.E.2d 658); coronary occlusion suffered by an employee after assisting in loading five barrels of beer on a truck ( Vogt v. Industrial Commission, 138 Ohio St. 233, 34 N.E.2d 197); cerebral hemorrhage suffered by a lineman while he was at the top of a tall tower ( Cordray v. Industrial Commission, 139 Ohio St. 173, 38 N.E.2d 1017); catch or snap in employee's back allegedly suffered as a result of handling bags of lampblack in his usual employment ( Matczak v. Goodyear Tire Rubber Co., 139 Ohio St. 181, 38 N.E.2d 1021); death from gastric ulcer allegedly due to high nervous tension by reason of conditions at his place of employment ( Shea v. Youngstown Sheet Tube Co., 139 Ohio St. 407, 40 N.E.2d 669); arthritis aggravated by the use of heavy pneumatic air hammer, while occupying cramped position ( Reynolds v. Industrial Commission, 145 Ohio St. 389, 61 N.E.2d 784); employee fell in the restroom — cause of death angina pectoris ( Stanfield v. Industrial Commission, 146 Ohio St. 583, 67 N.E.2d 446); cerebral hemorrhage allegedly caused by working in a stooped and strained position ( Nelson v. Industrial Commission, 150 Ohio St. 1, 80 N.E.2d 430); death of a motorman from coronary thrombosis when he was subjected to physical and nervous strain in driving a passenger bus through heavy fog ( McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138).
Under the foregoing definition of compensable injury, to recover in the instant case it was incumbent upon the plaintiff to show by a preponderance of the evidence that the heart condition from which the decedent died was proximately caused by an accidental injury sustained through his employment out of the regular course of nature, or that he received, as a direct result of his employment, an accidental injury out of the regular course of nature which aggravated or accelerated a pre-existing heart condition causing his death.
This court has held that "it is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden." Stevens v. Industrial Commission, 145 Ohio St. 198, 61 N.E.2d 198. See, also, Aiken v. Industrial Commission, 143 Ohio St. 113, 53 N.E.2d 1018; Cordray v. Industrial Commission, supra; Nelson v. Industrial Commission, supra; Gedra v. Dallmer Co., 153 Ohio St. 258, 265, 266; Boles v. Montgomery Ward Co., ante, 381.
"The mere choice of probabilities does not constitute evidence, but creates only conjecture and surmise on which a verdict of a jury cannot stand." Franklin v. Skelly Oil Co., 141 F.2d 568, 571, 153 A.L.R., 156, 161.
Evidence which shows simply that an injury either may have been the result of an accidental impact arising out of and in the course of employment or may have been suffered in the course of employment in the regular course of nature in the usual and normal activities of the employment is not evidence to support a compensation claim.
In view of the foregoing discussion as to the basis for compensable injuries and evidential requirements to support the same, was there evidence in the instant case which supported the claim of the plaintiff? The evidence in general was to the effect that the decedent was engaged in his regular work. There was no evidence that any accidental or unusual incident occurred, or that at the time Gerich collapsed he was putting forth any unusual exertion different in kind or amount from that usually exerted by him. Domico and Finecchio, two of the four men pushing the truck, were the only factual witnesses who testified to the situation at the time Gerich was stricken. Specifically, Domico testified that he had worked on the tracks 15 or 20 years; that he and three others were pushing the truck when, for a brief period, Gerich took his place; and that after he came back to the truck Gerich had stopped pushing and was holding his head when he fell over.
Finecchio testified that he and three others were pushing the truck loaded with tools on a narrow gauge track; that the truck weighed about 500 pounds; that one man could not push it but two could push it with rest periods and four men could push it easily; that the temperature was cold and there was snow on the ground; that he saw Gerich after he fell about 50 feet behind the truck; and that no accident happened to him. There was no probative evidence whatever that Gerich had ever had a previous impaired-heart condition or that such a condition was accelerated by his employment.
While there was some medical testimony that there was a causal relation between Gerich's death and the activities of his employment, the lack of factual evidence upon which to base any such opinion was evidenced by the fact that the medical witnesses in expressing such opinion supplied and assumed facts as to which there was no proof.
For instance, a medical witness on behalf of the plaintiff, in expressing an opinion based upon facts already established by other witnesses, said that Gerich's death resulted from a coronary condition. When asked as to the basis of his opinion he said:
"Well, the suddenness of it, the effort that was involved, and in his particular work at this particular time. And you have to take into consideration the age of the man; you would, naturally, think of that as being the A-1 causative factor of his death."
And when further interrogated as to whether he had an opinion on any causal relationship between the work Gerich was doing and the cause of his death and the basis for such opinion, this witness, after expressing his opinion that there was such relationship, said:
"I base my opinion upon the experience we have in the handling of these cardiac diseases. I am assuming, now, that this man had a pre-existing vascular, perhaps a hypertensive arteriosclerotic disease prior to this." (Italics supplied.)
Again, it must be observed, there was no evidence in the case which would support the assumption made by the witness.
The witness was further interrogated:
"Q. I am trying to find out, Doctor, on what you based your opinion? A. I based my opinion assuming that he had had some trouble there before, possibly a myocarditis or hypertensive myocarditis, and being engaged in this extra effort simply produced the termination.
"Q. In answering the hypothetical question, were you assuming that this man was engaged in unusual or extra effort just before he died? * * * A. Yes."
Again, there was an assumption of facts not proven, namely, that the decedent "was engaged in unusual or extra effort just before he died."
Giving this testimony, without the assumptions of facts not proven, full weight, there was clearly no evidence to prove that Gerich's death was an accidental one resulting from his employment. From the evidence, it was just as probable that he died from natural causes independent of his employment as that it was brought about by the employment. See Cordray v. Industrial Commission, supra. Under such state of the evidence, the plaintiff failed to sustain the burden of proof on that phase of her case, and a verdict should have been directed for the defendant.
The judgment is therefore reversed and final judgment is awarded for the defendant.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.