Drakulichv.Indus. Comm

Supreme Court of OhioJun 12, 1940
137 Ohio St. 82 (Ohio 1940)
137 Ohio St. 8227 N.E.2d 932

No. 28016

Decided June 12, 1940.

Workmen's compensation — Appeal to Common Pleas Court — Evidence — Affidavits supporting motion to open rehearing of claim, inadmissible — Causal connection between injury to back and death from cancer — Competent medical testimony necessary — Proof must establish probability and not mere possibility.

1. Affidavits in support of a claimant's motion to open the rehearing of his claim for the purpose of introducing additional testimony, which affidavits were not offered in evidence or considered by the commission on rehearing of the claim, cannot be offered in support of such claim on appeal before the Common Pleas Court even though counsel have stipulated that such affidavits may be considered as being a part of the rehearing record and may be read to the jury as such.

2. Since the issue of causal connection between an injury to a person's back and his subsequent death from cancer of the liver involves a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on this subject.

3. Testimony that a person's death from cancer of the liver could have resulted from a previous injury to his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of such causal connection.

APPEAL from the Court of Appeals of Columbiana county.

On June 9, 1932, Nick Drakulich, while employed by The National Sanitary Manufacturing Company of Salem, Ohio, and while attempting in such employment to lift a heavy casting and place it on a truck, received an injury about the back which required him to cease work.

A physical examination made the next day by a physician revealed that Drakulich had a sprain of ligaments, tendons and muscles in his back, sides and abdomen, and had right and left inguinal hernias. Photographs taken on July 31, 1932, revealed a bony outgrowth of the ninth and tenth dorsal vertebrae on the right side broken loose. He was treated during the year after his injury by a physician who, upon further examination on June 8, 1933, found a mass in the epigastric region which indicated a malignant condition of the liver. Drakulich rapidly grew worse and on August 8, 1933, died of carcinoma of the liver.

Upon the death of Drakulich, his widow, Anna Drakulich, as his dependent, filed a claim with the Industrial Commission for a death award, claiming that her husband's death from cancer of the liver was caused by his injury in June, 1932, hereinbefore described. Her claim was disallowed. Application for rehearing was filed and rehearing had and completed on February 1, 1935.

After the claim was submitted on rehearing but before decision thereon, a motion was made by the claimant to open the rehearing for additional testimony which she proposed to furnish. Following the filing of this motion, the commission made an order requiring the claimant to furnish the names of the witnesses who were to testify and the substance of their proposed testimony. Thereupon, the claimant filed four affidavits in support of the motion. One was the affidavit of the widow, one of a fellow workman, and another of an acquaintance, the substance of which was to the effect that Drakulich was a strong, healthy man before the accident and after the accident he walked in a bent-over posture. The fourth affidavit was that of Dr. Henry H. Schwarzell who stated therein that he had examined the testimony, including one of the affidavits, the testimony of Dr. Holzbach who had treated the decedent after his injury, and the testimony of another witness, and that from this information it was his opinion that "the injury as described could have resulted in the malignancy which this man had."

The commission, on March 24, 1936, made an entry to the effect that claimant's motion to reopen the rehearing and to offer additional evidence be denied, and that the claim be disallowed on rehearing.

An appeal was taken to the Common Pleas Court of Columbiana county. After the issues were made up in that court, an application was made to the court by the claimant, to require the Industrial Commission to correct the rehearing record so as to include the motion for further hearing before the commission and the affidavits filed in support thereof.

The court allowed this application, but before trial counsel for claimant and for the commission entered into a stipulation approved by the court to the effect that the affidavits of Mr. McGuire, a fellow workman, and Dr. Schwarzell might be considered as included in and made a part of the rehearing record and be read to the jury the same as if they had been included in the rehearing record before the commission.

The case came on for trial but counsel for the commission objected to the introduction of the affidavits in evidence. The court overruled the objection as to the affidavits of McGuire and Dr. Schwarzell because of the stipulation, but excluded the other two affidavits.

The testimony of Dr. Holzbach, the physician who treated the decedent from the time of his original injury to the time of his death, as to the cause of cancer of the liver, is to the effect that he did not "know what starts cancer" and that he had "no opinion as to the cause of the cancer of the liver."

The jury returned a verdict for claimant. A motion for new trial was filed claiming, among other things, that the verdict was contrary to law, was contrary to the weight of the evidence, and that the court erred in admitting the affidavits of McGuire and Dr. Sohwarzell in evidence. The motion was overruled and judgment entered. On appeal the judgment was affirmed by the Court of Appeals. The case is now in this court for final review by reason of the allowance of a motion to certify the record.

Mr. O.G. Terry, for appellee.

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


Two questions are presented by the record in this case: (1) Were the affidavits of Dr. Schwarzell and Mr. McGuire properly admissible in evidence; and (2) was there sufficient evidence to establish a causal connection between the injury to decedent's back and cancer of the liver which caused his death?

The affidavits in question were offered before the Industrial Commission in support of a motion to open the rehearing for additional evidence in support of claimant's application. They were not offered as a part of the rehearing record. If, upon offer in rehearing, evidence had been rejected by the commission, it would have been the duty of the claimant to proffer the evidence sought to be introduced and except to its rejection. This procedure not having been followed, the affidavits did not become a part of the record. The court and counsel recognized this to be necessary when a motion was made and sustained in the Common Pleas Court on appeal to have the transcript of the rehearing record sent back to the commission in order to have the affidavits added to the transcript.

It is claimed that the case of Industrial Commission v. Kauffman, 119 Ohio St. 494, 164 N.E. 510, is authority for the validity and effectiveness of the stipulation as to the affidavits in this case. In the case above named there was a stipulation that "the case be tried by the prior law which admits of oral evidence, and other evidence than the record itself." However, a colloquy between counsel, therein quoted, seems to indicate that what was introduced was taken from the record before the commission but not incorporated in the official transcript. In the case at bar the stipulation was not to introduce in evidence something which was a part of the record before the commission and which had not been included in the official transcript, but to include in the rehearing record to be read to the jury affidavits which were no part of the transcript of testimony on rehearing.

Section 1465-90, General Code (111 Ohio Laws, 227), among other things, provides as to the rehearing, that: "Such hearing shall be had and the evidence for and against the allowance of the claim submitted as in the trial of civil actions. The commission shall pass upon the admissibility of evidence, but either party may at the time make objection and take exception to the rulings of the commission thereon, and if the commission refuses to admit any evidence, the party offering the same shall state the nature of such evidence and the matter which such party proposes to prove thereby, and such statement shall be made a part of the record of such rehearing." It also provides that upon appeal the court and the jury, if a jury is demanded, "shall determine the right of the claimant to participate or to continue to participate in such fund upon the evidence contained in such record and no other evidence; but the court may exclude from evidence such portions of the transcript which are not competent, material or relevant evidence and to which objection was made or exception taken at such rehearing before the commission and may admit in evidence such competent, material or relevant evidence as was excluded by the commission at such rehearing, over the objection and exception of the party offering the same." (Italics ours.)

In view of the mandatory provisions of this statute, counsel had no authority to stipulate that the affidavits should be attached to the rehearing record and read to the jury. The evidence to be offered on the trial on appeal must first be heard and its competency passed upon by the commission. Until it is so offered and passed upon it cannot be made a part of the record and cannot be admitted by the trial court on appeal. The Common Pleas Court is not vested with jurisdiction to hear a case de novo on appeal from the Industrial Commission. The procedure, in this respect is similar to that on appeal, in civil actions on questions of law. In such cases, no evidence may be received or added to the record in the appellate court which was not offered and considered by the trial court from which the appeal was taken. The entire record must first have the consideration of the trial court or tribunal and be certified by it as the basis of its judgment. Curry v. Manfull, Admr., 123 Ohio St. 118, 126, 174 N.E. 248.

There is another reason why the affidavits in question were not admissible. The use of affidavits as evidence is limited. Since in the formal trial of a cause, the adversary party has the right to cross-examine witnesses as to facts in issue to which they testify, affidavits are not admissible to prove such facts. These affidavits, on objection by counsel for the defendant, should have been excluded by the court.

Conceding for the sake of argument that the affidavit of Dr. Schwarzell was admissible as evidence, was there sufficient proof of a causal connection between the physical injury to claimant's decedent and the cancer of the liver which caused his death? The only other medical testimony on this subject was that of the attending physician, Dr. Holzbach, who stated that he had "no opinion as to the cause of the cancer of the liver."

There was no lay testimony or evidence of other circumstances introduced tending to support the theory that the cancer of the liver had its origin in the injury to the decedent's back while lifting a casting. Even if there had been such evidence, it would not have been sufficient to establish the fact of causal connection. This issue presented a field of scientific inquiry where expert medical testimony is required to furnish the answer. It could not possibly be within the knowledge of lay witnesses or members of the jury. Ohio Indiana Torpedo Co. v. Fishburn, 61 Ohio St. 608, 56 N.E. 457, 76 Am. St. Rep., 437; 17 Ohio Jurisprudence, 483, 485, 487, 489, Sections 388, 389, 391, 393; Davis v. State, 38 Md. 15; Tullis v. Rankin, 6 N.D. 44, 35 A.L.R., 449; Castanie v. United Rys. Co., 249 Mo., 192, 155 S.W. 38, L.R.A. 1915A, 1056, annotation and cases cited.

The medical testimony, even if the affidavit of Dr. Schwarzell had been admitted, was insufficient to prove causal connection between the injury and the cancer which caused death. The testimony must establish a probability, not a mere possibility, of such causal connection. The testimony to the effect that the injury could have resulted in the malignancy does not meet that test.

The case of Drew v. Industrial Commission, 136 Ohio St. 499, 26 N.E.2d 793, involving the inquiry as to whether an injury from a fall produced partial paralysis of the body, is authority for this proposition. Judge Williams, speaking for this court, said: "Some of the expert medical witnesses testified that the paralysis could come from a fall causing a lesion or broken blood vessel in the brain; but there was medical testimony to the contrary. Of course evidence that the paralysis could be caused by injury sustained in the fall consisted wholly of the opinions of physicians. Standing alone such evidence would be insufficient to prove a traumatic origin of the paralysis. Proof of possibility is not sufficient to establish a fact; probability is necessary." See, also, Kuhn v. Banker, 133 Ohio St. 304, 312, 13 N.E.2d 242.

The judgment is reversed and final judgment rendered for the defendant

Judgment reversed.

WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and MATTHIAS, JJ., concur.