Summary
In State ex rel. Miller v. Mead Corp. (1979), 58 Ohio St.2d 405, 12 O.O.3d 348, 390 N.E.2d 1192, claimant suffered from a pre-existing hearing loss as the result of artillery fire he encountered during World War II. He filed a compensation claim alleging that loud noise in the machine room at his job had aggravated his pre-existing condition.
Summary of this case from Brody v. MihmOpinion
No. 78-388
Decided June 20, 1979.
Workers' compensation — Aggravation of pre-existing disease — Not compensable, when.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal from a judgment in an original action in mandamus filed in the Court of Appeals for Franklin County.
Appellee was hired by appellant Mead Corporation in 1953. It is undisputed that he then suffered from a hearing loss as the result of artillery fire he encountered during World War II.
On January 15, 1975, appellee filed a form C-57 with the Bureau of Workers' Compensation, alleging that on July 28, 1974, he sustained an accident on the job. He described the accident as follows:
"While working on my job, the loud noise in the machine room has caused a partial loss of hearing in both ears."
On June 25, 1975, appellee stated in an affidavit:
"Nothing happened to me on July 28, 1974. I did not have an accident or incident that hurt my ear drums or affected my hearing."
The Industrial Commission refused appellee's appeal from the affirmance of an order denying him compensation for an occupational disease. That order held that the aggravation of appellee's pre-existing condition did not quality as a compensable occupational disease under the Workers' Compensation Act
Appellee's complaint in mandamus was upheld, in a split decision, by the Court of Appeals, and a writ was issued ordering an allowance of compensation. Appellants contend that the writ should have been denied.
The cause is now before this court upon an appeal as a matter of right.
Messrs. Clayman Jaffy and Mr. Stewart R. Jaffy, for appellee.
Messrs. Smith Schnacke, Mr. James J. Gilvary and Mr. Gary W. Auman, for appellant Mead Corporation.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellant Industrial Commission of Ohio.
Appellee's disability is not the result of an injury, within the meaning of the Workers' Compensation Act, since an injury "comprehends a physical or traumatic damage or harm," which must be "accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place." Malone v. Indus. Comm. (1942), 140 Ohio St. 292, 43 N.E.2d 266, paragraph one of the syllabus; Bowman v. National Graphics Corp. (1978), 55 Ohio St.2d 222, 224, 378 N.E.2d 1056.
The issue, therefore, is whether a pre-existing disease, aggravated while a claimant is in the employ of an employer subject to the Workers' Compensation Act, may be the subject of compensation from the fund.
R.C. 4123.54 states that "[e]very employee, who * * * contracts an occupational disease * * * is entitled to receive * * * compensation * * *." And, in State, ex rel. Ohio Bell Tel. Co., v. Krise (1975), 42 Ohio St.2d 247, 327 N.E.2d 756, this court stated in the syllabus: "An occupational disease is compensable under R.C. 4123.68(BB) where the following criteria exist: (1) The disease is contracted in the course of employment * * *."
We do not fault the Court of Appeals' majority for its effort to award compensation in this case. However, current statutory law does not permit such an outcome. The record speaks clearly that appellee did not "contract" his disease, within the meaning of R.C. 4123.54 or 4123.68, while he was an R.C. 4123.01(A) "employee" of an R.C. 4123.01(B) "employer."
Accordingly, the judgment of the Court of Appeals must be reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and PALMER, JJ., concur.
PALMER, J., of the First Appellate District, sitting for HOLMES, J., who did not participate because he was a Judge of the Court of Appeals which heard the case.