Aikenv.Indus. Comm

Supreme Court of OhioMar 29, 1944
143 Ohio St. 113 (Ohio 1944)
143 Ohio St. 11353 N.E.2d 1018

No. 29704

Decided March 29, 1944.

Workmen's compensation — Death from acute myocarditis claimed attributable to knee injury — Proof necessary that injury was proximate cause of death — Competent medical testimony of probable relationship between injury and death, necessary.

To entitle the dependents of a deceased workman to participate in the state insurance fund upon a claim that the death of such workman from acute myocarditis was attributable to a compensable knee injury suffered six years before, the proof offered must show such injury was a proximate cause of death, and must include evidence by competent medical witnesses that a probable relationship existed between the original accident and the myocarditis.

APPEAL from the Court of Appeals of Lucas county.

This case is one under the workmen's compensation law and involves the right of a dependent widow and minor children to receive benefits from the state insurance fund upon the claim that the death of the husband and father was attributable to a compensable injury he received while working for a contributor to the fund.

The claim was denied by the Industrial Commission upon original hearing and upon rehearing, for the stated reason that the proof failed to show the death was due to an injury sustained in the course of and arising out of the employment.

An appeal to the Court of Common Pleas of Lucas county culminated in a verdict and judgment establishing the right of the plaintiff, Effie Aiken, to participate in the fund, which judgment was affirmed by the Court of Appeals, one judge dissenting.

The case is now in this court following the allowance of the motion for certification.

There is little or no dispute as to the facts. On March 11, 1932, Harry Aiken, forty-three years of age, apparently in good health and spirits and of sound mind, while in the regular employ of The Libbey Glass Company of Toledo, sustained an injury to his left knee in the course of and arising out of his employment. However, he returned to his job two days later and worked intermittently until some time in May. On April 18, 1932, he was examined by a Dr. Howard who found the "semi-lunar cartilage, on the internal side of the left knee, torn loose." The doctor was of the opinion that an operation for the removal of the cartilage was advisable and that the disability would "clear up" within six weeks thereafter. An operation on the knee was performed by a Dr. Chollett the following September.

Testimony was introduced that, after the injury, Aiken "appeared very nervous and suffering, * * * seemed to be very much worried as to his condition, * * * worried about his home, his payments and his family." His weight gradually decreased and his health became poor.

When he returned from the hospital after the operation "he was quiet and just sat around and worried and was always in pain and was always talking about he would lose his leg and afraid he would lose his home because the home wasn't paid for. He seemed rational enough at first but seemed to get worse right along."

At the time he left the employ of The Libbey Glass Company Aiken owed a balance of $385 on his residence property. In August of 1932 he received a check from the Industrial Commission, on account of his injury, for the sum of $199.41, representing compensation from April 26 to August 14, 1932. Other compensation checks arrived at regular intervals, and all expenses in connection with the operation were taken care of by the Industrial Commission. "The total amount of the temporary compensation was $967.66 and the total temporary partial paid to claimant was $415.80, and the total medical bill paid was $372.06."

Aiken's mental condition grew steadily worse. He had delusions about different subjects and was committed to the Toledo State Hospital for the mentally ill on July 19, 1933, where he remained as a hopeless case until his death. On August 17, 1934, his trouble was definitely diagnosed as dementia praecox. While at the state hospital Aiken had "pretty good physical health "and worked for a time at the dairy connected with the institution. In March of 1938, he developed a light cold. X-ray pictures then taken disclosed no abnormal heart condition.

On June 11, 1938, Aiken was stricken with acute myocarditis and died the following day. In the death certificate myocarditis was stated to be the immediate cause of death, with dementia praecox a contributing cause.

Dr. Milton P. Smith, chief psychiatrist at the hospital, who had had Aiken under observation, testified that dementia praecox was given as a contributing cause of death on the death certificate, but that any real connection between the dementia praecox and the myocarditis was remote — a possibility only.

It was stipulated between counsel that, if present, Dr. Goshon, superintendent of the Blair county hospital near Alton, Pennsylvania, a state hospital for mental cases, would testify that two of Aiken's sisters were or had been patients in such institution. It was further stipulated that other brothers and sisters "were healthy, normal individuals."

Called as an expert witness by the plaintiff was a Dr. Molle, who had practiced his profession less than a year. In answering a lengthy hypothetical question he stated that in his opinion there was a causal relation between Harry Aiken's injury and his death.

In explaining such answer, he said the shock to Aiken's nervous system and the pain incited by the injury, coupled with worry over his physical and financial condition, produced changes in his mental behavior, resulting in mental incompetence and lowered resistance, and "if the hospital regarded that dementia praecox was a contributing cause to the acute myocarditis, in view of the fact that he went downhill following this accident to the left knee, indirectly one could tie up the entire picture."

A Dr. Schnitker testified as defendant's expert, and in answer to hypothetical questions expressed the unqualified and positive view that there was no direct causal relationship between the knee injury and the mental disorder, or "between the injury to his knee which occurred in 1932 and the death from acute heart failure as given, which occurred six years later."

Mr. Samuel Z. Kaplan and Mr. Stephen A. Mack, for appellee.

Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for appellant.

Is the evidence in this case of such a character as to support a finding that the knee injury sustained by Harry Aiken on March 11, 1932, was a proximate cause of his death on June 12, 1938? If it is, the judgment of the Court of Appeals should be affirmed; if not, final judgment should be entered for the Industrial Commission.

In the case of Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St. 354, 30 N.E.2d 342, this court held, as stated in the syllabus:

"To entitle a claimant to recover under the Workmen's Compensation Act as a dependent of a killed employee, it must appear from the evidence that such employee sustained a physical or traumatic injury in the course of and arising out of his employment, and that such injury was the proximate cause of his death."

As to the necessity for showing a direct causal relation between an injury and death, see also Weaver v. Industrial Commission, 125 Ohio St. 465, 466, 181 N.E. 894; Peer v. Industrial Commission, 134 Ohio St. 61, 64, 15 N.E.2d 772, 774. And compare Industrial Commission v. Brubaker, 129 Ohio St. 617, 196 N.E. 409.

In the case of Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932, it was announced that the issue of causal connection between an accidental injury and subsequent death from disease, involves a scientific inquiry and must be determined by the testimony of competent medical witnesses. Furthermore, such testimony must show a probability and not a mere possibility that there was a causal connection between the injury and the death to allow a claimant to participate in the state insurance fund. This pronouncement was approved and followed in the later case of Pfister v. Industrial Commission, 139 Ohio St. 399, 400, 40 N.E.2d 671.

The definition and determination of "proximate cause" in the field of torts is applicable here. While the determination of the proximate cause of an ultimate result sometimes presents a difficult problem in a particular case, general principles controlling the settlement of such question are well established. Briefly stated, 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.

In the instant case we find Harry Aiken sustaining an accidental injury in March of 1932, which disability a medical witness testified would disappear within six weeks following an operation. We find him worrying over his physical condition, his finances and his family, which affected his health and spirits, although he owed but a small amount on his home and began receiving regular compensation payments of substantial amounts in August of 1932. We observe a progressive mental deterioration which necessitated his commitment to a state hospital in July of 1933. While he was there we find him in a normal physical condition, but with a permanent derangement of the mind. In March of 1938 we find him contracting a slight cold. X-ray pictures taken at that time showed no visible signs of a defective or impaired heart. We find him succumbing on June 12, 1938, by reason of a sudden heart attack taking place on the preceding day, which a physician, familiar with his case, testified was a remote — a possible — result of his abnormal mental state.

The medical witness, Dr. Molle, who attempted to connect the injury with the death in answering a hypothetical question, based his conclusion in part on the fact that dementia praecox had been given as a contributing cause of death in the death certificate. But we have him saying finally in effect that death could be traced only "indirectly" to the knee trouble. Such testimony does not meet the test of probability required by the decision in Drakulich v. Industrial Commission, supra.

If we assume in the present case that worry over the injury brought on dementia praecox, it does not follow that the death can be attributed to such injury. Death was rather the consequence of a separate and independent cause. Had Aiken died from peritonitis induced by a ruptured appendix or had death been due to amoebic dysentery, certainly it could not be said with any degree of assurance that the original accident was the proximate, natural or probable cause thereof. Under the circumstances appearing herein, it is no more reasonable to say that the original injury was directly responsible for the attack of myocarditis which killed Aiken.

When we look back from the death, occasioned by a heart attack, any connection between the knee injury and the death appears unnatural, unreasonable and improbable in the light of common experience; the injury, if it may be deemed a factor in the death at all, must be considered remote rather than proximate.

To accept appellee's theory would necessitate the recognition of novel and extraordinary consequences, in the absence of proof from which it could be fairly concluded that a normal and continuous sequence existed between the accident in 1932 and the death in 1938.

No matter how much we would like to decide in appellee's favor because of her situation, she cannot prevail when her right to participate in the state insurance fund rests on such a conjectural and speculative basis.

The rule is well settled by numerous cases that to establish the relation of cause and effect between an injury to a workman and his death so as to justify an award of death benefits under a workmen's compensation law, the evidence must be such as to remove the case from the realm of speculation and conjecture; there must be competent evidence tending to show a proximate causal connection between the injury and the subsequent death. See Duncan v. Weidman (Neb.), 11 N.W.2d 537; Pixa v. Grainger, Bros. (Neb.), 12 N.W.2d 74; Gilmore v. Hoke County Board of Education, 222 N.C. 358, 23 S.E.2d 292; Monahan v. Seeds Durham, 336 Pa. 67, 6 A.2d 889; McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S. W (2d), 408; Cole v. Dept. of Labor Industries, 200 Wn. 296, 93 P.2d 413.

Appellant was entitled to a directed verdict or to judgment notwithstanding the verdict in the court of first instance. It follows, therefore, that the judgment of the Court of Appeals must be reversed and final judgment rendered for the Industrial Commission.

Judgment reversed.