Opinion
No. 23878
Decided May 10, 1933.
Workmen's compensation — Claimant's condition not compensable, unless result of physical injuries — Burden on claimant to prove condition result of physical injury — Insufficient evidence of traumatic injury from carrying molten iron ladle.
1. Unless a claimant's condition is the result of physical injury, it is not compensable under the workmen's compensation law of Ohio.
2. The burden is on the claimant to prove, by a preponderance of the evidence, that the condition of which he complains is the result of physical injury received in the course of his employment.
3. Where no claim was made that the condition complained of was the result of traumatic injury and the condition was as reasonably attributable to the nature of the employment as to traumatic injury, and the only testimony on the question of causation was to the effect that the witness could not tell whether the condition was caused by the nature of the employment, or traumatic injury, the claimant has failed, because there is no evidence of traumatic injury for consideration, and the court, a jury being waived, should have found for the Industrial Commission, and his failure to do so was error.
ERROR to the Court of Appeals of Lawrence county.
James Lambert, claimant herein, sought compensation for an injury alleged to have been received by him on February 22, 1930, while acting within the scope of his employment as an iron carrier in the employ of the Dayton Malleable Iron Company of Ironton, Ohio. He was refused compensation by the Industrial Commission and appealed his case to the common pleas court of Lawrence county. A jury was waived and the cause was submitted to the court. The trial court found in favor of Lambert. Motion for new trial was filed and overruled. Error was prosecuted to the Court of Appeals of Lawrence county, which court affirmed the decision of the court of common pleas. Error is prosecuted to this court to reverse the judgment of the Court of Appeals of Lawrence county.
There is little, if any, dispute of fact in this case. Lambert, at the time of his claimed injury, was an iron carrier at work for his company. His duties consisted in carrying ladles of molten iron from the furnace to the moulds. The ladle was composed of a bowl and shank, or handle. The bowl was lined with fire clay to prevent it from melting. It would hold about a gallon of molten metal. The shank, or handle, was about three feet long and about an inch in diameter. When the bowl was filled with molten iron, the ladle and iron weighed from seventy-five to eighty pounds. The molten iron was carried different distances up to a maximum of about one hundred feet. Claimant carried this molten iron from four and a half to six hours per day, depending on the number of heats. He had been an iron carrier for seven years.
The specific claim was to the effect that at about 11 o'clock a. m. on February 22, 1930, the heat and pressure of the ladle handle so affected the palmar surface of his right hand that it became inflamed, swollen and numb, and injured the nerves and tendons of his right hand to such an extent that it became paralyzed and useless.
The only testimony on the proposition of causation is that of Dr. Hunter, as follows:
"The pressure of that hot iron handle on his hand caused an inflammatory process to begin in the palm of this hand and extend out towards the fingers, and involved the tendons going to the fingers and seemed to involve the nerve."
Dr. Stewart also testified that claimant had a calloused and very peculiar hand. Dr. Stewart's testimony is purely descriptive of the condition. He tacitly admitted he did not know whether the constant handling of the ladle, or a bruise, caused the condition complained of.
The sole question in this case is whether there is any testimony in the record to warrant an award under the Workmen's Compensation Act (Section 1465-37 et seq., General Code).
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Messrs. Corn, Jenkins, Hopkins Collier, for defendant in error.
Counsel for claimant stand squarely on the case of Industrial Commission v. Weimer, 124 Ohio St. 50, 176 N.E. 886. It takes some stretch of the imagination to make the Weimer case fit the instant case. The Weimer case was an infection case. There is no such question in this case. In the Weimer case the court found as a matter of fact that there was evidence in the record to the effect that there was "injury sustained by Weimer, in that the skin became worn down * * * and thus ultimately suffered small lacerations through which infection entered."
The doctor testified in that case to the effect that conditions such as were found in that case were caused only by infection plus trauma, and that there must have been an abrasion of the skin to produce such condition. The court held that under the record the case should have been sent to the jury, holding further that "the infinitesimal character of the abrasion does not change its character. If it exists it constitutes an injury."
There was evidence of trauma in the Weimer case. There is no such evidence in the case now before us.
We fully recognize the rule that the Workmen's Compensation Act should be construed liberally so as to subserve the purpose of its enactment, and that trauma is trauma, however slight; but we have no power to inject it into a silent record.
There is absolutely no evidence of an accident or specific injury on February 22, 1930. If the work had anything to do with claimant's condition, it was simply because the nature of the employment caused "the pressure of that hot iron handle on his hand," and this in turn developed an inflammatory process. There was nothing unusual in the nature of claimant's employment on February 22, 1930. He was doing the same work he had been doing for seven years. True, he said he was on the longest trip that morning, but he had been making this trip at intervals for seven years, and there is nothing to show that the length of the trip had anything to do with causing the injury, other than the inference that his hand was probably on the shank of the ladle longer and exposed to the heat for a greater duration of time than on shorter trips. But this inference is of little assistance in the absence of testimony as to what caused claimant's condition. There is no testimony in this record from which a reasonable inference can be drawn to the effect that claimant's condition was the result of "sudden happening," but rather was the result of the prolonged carrying of the ladle of molten iron and the incidental exposure to the heat therefrom.
This statement is made in view of Dr. Hunter's testimony to the effect that claimant had a calloused and very peculiar hand.
Finding as we do that there is no testimony in the record tending to show that claimant's condition was caused by injury, the judgments of the Court of Appeals and the court of common pleas are reversed on the authority of Industrial Commission v. Brown, 92 Ohio St. 309, 110 N.E. 744, L.R.A., 1916B, 1277; Industrial Commission v. Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A. L. R., 1463; Industrial Commission v. Cross, 104 Ohio St. 561, 136 N.E. 283; Renkel v. Industrial Commission, 109 Ohio St. 152, 141 N.E. 834; Industrial Commission v. Middleton, ante, 212, 184 N.E. 835; and Industrial Commission v. Franken, ante, 299, 185 N.E. 199.
Judgment reversed.
DAY, ALLEN, JONES and MATTHIAS, JJ., concur.
WEYGANDT, C.J., dissents.
KINKADE, J., not participating.