
    Fox, Appellant, v. Industrial Commission of Ohio, Appellee. Schiele, Appellant, v. Industrial Commission of Ohio, Appellee.
    (Nos. 33990 and 34018
    Decided February 23, 1955.)
    
      
      Mr. Thomas F. Joseph, Mr. Harold E. Gottlieb and Mr. James F. DeLeone, for appellant in case No. 33990.
    
      Mr. A. Millard Armstrong, for appellant in case No. 34018.
    
      Mr. C. William O’Neill, attorney general, Mr. Paul Tague, Jr., and Mr. James L. Young, for appellee.
   Hart, J.

The principal question to be determined in both cases is: Where, in a hearing on a workmen’s compensation claim, a hypothetical question is propounded to a medical witness for the purpose of establishing causal connection between an accidental injury and succeeding harm or disability, may such question inquire as to “a causal relationship” or must it inquire as to “a direct or proximate causal relationship ” ?

As a preliminary, it is appropriate to set forth briefly the basis upon which compensation to injured employees is determined and allowed. Prior to the 1937 amendment of Section 1465-68, General Code, it provided for compensation to an employee “injured * * * in the course of employment.” By reason of the amendment of that section , in 1937 (117 Ohio Laws, 109), the term, “injury,” was limited further to an injury “received in the course of, and arising out of the * * * employment,” and Section 4123.01, Revised Code, defining terms used in the Workmen’s Compensation Act, retains this limitation, as follows:

“(C) ‘Injury’ includes any injury received in the course of and arising out of, the injured employee’s employment. ’ ’

For an injury to “arise out of the employment” obviously requires a certain causal connection between the work or employment and the injury. It arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. McNicol’s case, 215 Mass., 497, 102 N. E., 697, Ann. Cas. 1916A, 306.

This court has heretofore repeatedly recognized the necessity of finding a causal connection between the employment and the injury in workmen’s compensation cases. Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104; Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38; Delassandro v. Industrial Commission, 110 Ohio St., 506, 144 N. E., 138; Industrial Commission v. Lewis, 125 Ohio St., 296, 297, 181 N. E., 136; Grabler Mfg. Co. v. Wrobel, 125 Ohio St., 265, 181 N. E., 97; Industrial Commission v. Bateman, 126 Ohio St., 279, 283, 185 N. E., 50; Industrial Commission v. Bankes, 127 Ohio St., 517, 189 N. E., 437; Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560; Industrial Commission v. Gintert, 128 Ohio St., 129, 132, 190 N. E., 400, 92 A. L. R., 1032; Gregory v. Industrial Commission, 129 Ohio St., 365, 195 N. E., 699; Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., 130 Ohio St., 175, 198 N. E., 276; Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St., 127, 132, 19 N. E. (2d), 898; Ashbrook v. Industrial Commission, 136 Ohio St., 115, 24 N. E. (2d), 33; Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, 56 N. E. (2d), 195; Parrott v. Industrial Commission, 145 Ohio St., 66, 69, 60 N. E. (2d), 660; Stanfield v. Industrial Commission, 146 Ohio St., 583, 585, 67 N. E. (2d), 446; Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693, 697, 76 N. E. (2d), 892.

In addition to the above-discnssed causal relationsMp between the employment and injury, this court has also definitely held that there must be a direct or proximate causal relationship between the employment and the compensable harm or disability. McNees v. Cincinnati St. Ry. Co., 152 Ohio St., 269, 279, 89 N. E. (2d), 138.

And this court has frequently held that a claimant for a death benefit must establish the fact that the accidental injury was the proximate cause of the death. Weaver v. Industrial Commission, 125 Ohio St., 465, 181 N. E., 894; Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St., 354, 30 N. E. (2d), 342; Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018. See, also, Maynard v. B. F. Goodrich Co., supra, 31; Bowling v. Industrial Commission, 145 Ohio St., 23, 60 N. E. (2d), 479.

Throughout the Restatement of the Law of Torts, the term, “injury,” is used to denote thp invasion of any legally protected interest of another, whereas the term, “harm,” implies the existence-of a tangible and material detriment, and these terms are so used throughout this opinion. See 1 Restatement of the Law of Torts, 16, Section 7.

Where a workman has sustained an accidental injury arising out of the employment, he may or may not be allowed compensation for subsequent harm or injurious effects, depending upon whether they are the direct or proximate consequences of the accidental injury, or whether the chain of causation has been broken by intervening or superseding causes. Kill v. Industrial Commission, 160 Wis., 549, 152 N. W., 148, L. R. A. 1916A, 14.

Just as the employment must be the legal or direct cause of the accidental injury, so the injury must be the direct cause of the harm or disability complained of. McNees v. Cincinnati St. Ry. Co., supra. The problem here involved is the type or quality of medical evidence required to make proof of such latter relationship. In the case of Aiken v. Industrial Commission, supra, this court held that to entitle a claimant to participate in the State Insurance Fund upon the claim that the death of a workman resulting from acute myocarditis was attributable to a compensable knee injury, the evidence must show that the 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, citing, among other cases, Weaver v. Industrial Commission, 125 Ohio St., 465, 466, 181 N. E., 894. In the course of his opinion in the Aiken case, unanimously concurred in, Judge Zimmerman said:

“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, also, Brandt v. Mansfield, Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1; and Drew v. Industrial Commission, 136 Ohio St., 499, 26 N. E. (2d), 793.

We, therefore, conclude that in order to establish a right to workmen’s compensation for harm or disability claimed to have resulted- from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence not only that -his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his accidental injury and his harm or disability; and where medical evidence is necessary to establish such relationship, that evidence must show that his accidental injury was or probably was a direct or proximate cause of the harm or disability. The jury ma determine the issue of proximate cause from the evidence on the basis of probabilities and not necessarily on the basis of absolute fact. It would be inharmonious and inconsistent to require the evidence of the witness to be on a basis higher than that upon which the jury could predicate its finding on that issue, namely, on probabilities. See Brandt v. Mansfield Rapid Transit, Inc., supra.

In case No. 33990, the plaintiff, who worked several months after his injury for which he received compensation, bases his right to further compensation on a claimed development of a heart ailment which further disabled him. Such a claim can be established by medical testimony only. The facts 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; Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932; Davis v. State, 38 Md., 15; Tullis v. Rankin, 6 N. D., 44, 68 N. W., 187, 66 Am. St. Rep., 586, 35 L. R. A., 449; Castanie v. United Rys. Co., 249 Mo., 192, 155 S. W., 38, L. R. A., 1915A, 1056; 17 Ohio Jurisprudence, 483, 485, 487, 489, Sections 388, 389, 391, 393.

The first medical witness was asked whether there was a causal relationship between the plaintiff’s injury and the heart ailment. The court sustained an objection to this question for the reason that it did not require the witness to answer whether there was a direct or proximate causal relationship. A proffer was made that the witness, if permitted, would answer that “I believe there is a causal relationship.”

The exclusion of this question and answer was error. If admitted, the answer would constitute some evidence of causal relationship, since a proximate causal relationship is a causal relationship.

In any case, evidence is relevant and admissible if it tends to prove a certain element of an ultimate fact even though it does not tend to establish all elements of the ultimate fact necessary to be proved; and evidence is relevant and admissible if it tends to corroborate evidence of certain but not all elements of a necessary ultimate fact. See 20 American Jurisprudence, 245, Section 252.

However, the evidence here proffered was insufficient in itself to prove a direct or proximate causal relationship, and, in the absence of other evidence to cure the insufficiency, its exclusion was harmless error.

The second medical witness for the plaintiff testified that he found some congestive disturbance present in plaintiff’s lower extremities but found no direct cardiac involvement. After such testimony, a hypothetical question was submitted to him in which he was asked to assume certain facts contrary to his own testimony as to the physical condition of the plaintiff, and the court properly sustained an objection to the question.

The court sustained the objection to the hypothetical question submitted to the first medical witness on the ground the question did not inquire of the witness as to whether the injury was the “direct” or “proximate ’ ’ cause of the heart condition complained of, and the objection to the hypothetical question submitted to the second medical witness was sustained on the ground that the witness was asked to assume physical facts which were contrary to his own testimony. Since there was no competent evidence to support plaintiff’s claim of a direct causal relationship between his injury and the harm or disability because of the heart ailment, the court properly directed a verdict for the defendant.

The judgment of the Court of Appeals in this case is affirmed.

In case No. 34018, there was a claim of high blood pressure and heart damage as the basis of harm. The plaintiff himself testified to physical facts which presented competent evidence as to an accidental occurrence in connection with unusual exertion in lifting a heavy weight. Medical testimony was presented to the effect that this so-called accidental circumstance caused damage to plaintiff’s heart. A medical witness testified as to myocardial damage with resulting harm, and a hypothetical question was submitted covering his findings in a physical examination of the plaintiff and inquiring of the witness whether there was any causal connection between tbe lifting incident and tbe subsequent harm or disability. Objection to this question was sustained, but a proffer was made of the following answer given by the witness in answer to the same question before the commission on rehearing:

“It is my opinion that there was a direct causal relationship between the occurrence in June 1949 and the symptoms which followed, and the findings at the time of my examination.” (Italics supplied.)

The court sustained the objection to that answer and likewise to a very complete answer, on request, to explain his former answer, which latter answer covered the then physical condition of the plaintiff and in which the medical witness, among other statements, termed the condition found as “a factor which was aggravated by the occurrence in question.” A medical witness may properly explain his ofttimes limited answer to a hypothetical question. In the case of Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430, this court held that, where a medical expert witness has answered a hypothetical question based upon testimony properly admitted, it is error to exclude the testimony of such witness as to his reasons for his answer that certain activities of a decedent aggravated a pre-existing physical condition and contributed to his death.

This court is of the opinion that the trial court erred in refusing to admit these answers which fully met the legal requirements as to proof of proximate cause, even if the question submitted to the witness was not fully complete in that respect, especially where the evidence in the instant case was necessarily submitted on a transcript to the trial court and plaintiff’s counsel had no opportunity to reframe the hypothetical question to conform with the content of the competent answer. In this we think the trial court erred, and likewise erred in directing a verdict for the defendant and entering judgment thereon. The Court of Appeals likewise erred in affirming that judgment.

The judgment of the Court of Appeals in chis case is reversed and the cause is remanded to the Court of Common Pleas for further proceedings in conformance with this opinion.

Judgment in cause No. 33990 affirmed.

Judgment in cause No. 34018 reversed and cause remanded.

Weygandt, C. J., Matthias, Zimmerman, Stewart and Bell, JJ., concur.

Taft, J., concurs except as to paragraph three of the syllabus.

Taft, J.,

concurring. In cases of this kind, the plaintiff must establish by the preponderance of the evidence that his employment was (1) a proximate cause of an accidental iiijury and (2) that such injury was a proximate cause of the disability for which he seeks compensation (McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. [2d], 138); and, since the testimony of lay witnesses is without probative value to establish the probability of a proximate causal relationship between such injury and such disability, medical testimony is essential for the purpose. Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St., 205, 101 N. E. (2d), 897.

Such medical evidence, to be admissible, must tend to prove that proximate causal relationship. If it does not it must be rejected. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1. Otherwise, even if there is other sufficient evidence tending to prove such proximate causal relationship, a jury would be invited to give a weight to such inadmissible medical evidence which it does not have.

This does not mean that a medical witness must, in cases of this kind, testify that the accidental injury was the proximate cause of the disability. Hallworth v. Republic Steel Corp., 153 Ohio St., 349, 91 N. E. (2d), 690. “Proximate cause” is a legal term. It is even arguable that the use of such a term in a question to an expert witness would be improper because it would make the question call for an answer which would be a legal conclusion and would also represent an invasion of the province of the jury.

In my opinion, the testimony of the first medical witness in case No. 33990, that the accidental injury to the plaintiff in that case was “a cause” of the heart condition, is too indefinite to be of any help to the jury in determining that the injury was the proximate cause of the heart condition; and it was therefore properly excluded.

A plaintiff in this kind of a case has the opportunity not only to select expert witnesses to testify on his behalf but also to frame hypothetical questions calling for answers which will definitely support his claim of proximate causation. Thus, there was nothing to prevent this plaintiff from asking a qualified expert witness a proper hypothetical question calling for his opinion as to whether plaintiff’s accidental injury was the “natural and probable cause” of the heart condition or whether the heart condition was “the natural and probable consequence” of the accidental injury.

If there was any merit to plaintiff’s claim, a qualified expert that he selected to support his claim should have been able to testify at least that plaintiff’s accidental injury was “the cause” (Hall v. Nagel, 139 Ohio St., 265, 39 N. E. [2d], 612) or “the probable cause” (Halhoorth v. Republic Steel Corp., supra) of his heart condition or “an important contributing cause.” “A cause” may just as probably be legally “a remote cause” as it may be a “proximate cause.” On the other hand, either “the cause” or “the probable cause” or “an important contributing cause” will more probably be legally “a proximate cause” than a “remote cause.”

As stated in paragraph four of the syllabus in Buretas v. Industrial Commission, ante, 549, “to permit a jury to make a choice between two irreconcilable inferences raised by the facts in evidence * * * is to substitute speculation and conjecture for proof.” Likewise, to permit a jury to make a choice between two equally reasonable inferences as to the meaning of expert opinion testimony offered to prove the existence of an ultimate fact in the case by the party having the burden of proving such fact, one of which inferences would tend to indicate existence of that ultimate fact and the other of which would not, would be to allow speculation and conjecture to supply the meaning which such testimony should have to make it relevant and which it does not have without such speculation and conjecture.

In case No. 34018 the medical witness was asked for “an opinion based upon a reasonable degree of medical certainty, as to whether or not there” was “any causal connection between” the accidental injury and the claimed disability. Obviously “any causal connection” could just as probably be legally a “remote” as it could be a “proximate” causal connection. Regardless of how probable or certain it was that there was merely “any causal connection,” there would be nothing to indicate any probability of a “proximate” rather than a “remote” causal relationship. In my opinion, this hypothetical question was objectionable.

However, the answer to this question was “that there was a direct causal relationship between” the accident and the claimed disability. If the question had asked for an opinion as to whether there was such a direct causal relationship, it would, in my opinion, have been a proper question and the answer given would have been admissible.

Such a question should not be considered as using the term “direct” as necessarily meaning “direct” in the legal sense as equivalent to “proximate.” Cross-examination of the witness might disclose that, in using the words “direct causal relationship,” he was describing what would be legally a remote instead of a proximate causal relationship, in which event it would appear that his testimony had no more significance than the answer to the hypothetical question in case No. 33990 and would be subject to a motion to strike. However, in the absence of something to indicate that the words “a direct causal relationship” were not intended to be given their ordinary meaning, those words will more probably indicate what is legally a “proximate” than what is legally a “remote” causal relationship.

If this were an ordinary civil aetion in which the trial judge had sustained an objection to the hypothetical question, his ruling on that objection would be affirmed on appeal notwithstanding the proffered answer. However, the record in a workmen’s compensation case like this is made before a rehearing referee. In this case, the referee overruled the objection to the hypothetical question. Thus, if the sworn answer of the witness is not allowed to cure the defect in the form of the question, counsel for plaintiff will be deprived of a right, which he would have had in an ordinary civil aetion, to remedy that defect by rephrasing the question, although the record clearly discloses that he could have remedied the defect in the form of the question so as to make the sworn answer of the witness admissible. Because of this and since there is nothing to indicate that plaintiff would secure any advantage by having this hypothetical question in its present form instead of in the proper form which the sworn answer of the witness indicates it could have had, that answer should be considered as curing the defect in the form of the question.

The statement in paragraph three of the syllabus represents the expression of an opinion on a question of law which was neither briefed nor argued by the parties and which it is not necessary for this court to consider in deciding these cases.

Although, in case No. 34018, testimony of an expert medical witness as to his reasons for his answer to a hypothetical question was excluded, the decision of this court reversing the- Court of Appeals and the Common Pleas Court can be fully supported by our finding of error in sustaining the objection to the hypothetical question and its answer. If the proffered answer to that question had been admitted, there would have been sufficient evidence to justify submission of the cause to the jury, even in the absence of any further testimony of the witness as to his reasons for that answer.

Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430, is the only authority cited in the opinion in the instant cases in support of the statement made in the third paragraph of the syllabus. Although the second paragraph of the syllabus in the Nelson case does state that “where a medical expert witness has answered a hypothetical question based upon testimony properly admitted, it is error to exclude the testimony of such witness as to his reasons-for his answer and opinion,” that same paragraph indicates that this quoted statement therefrom represented the expression of an opinion on a question of law which was not used-as the basis for the decision rendered by this court- in that case. The holding of the court was that, even if such testimony was considered, there was insufficient evidence to justify submission of that case to the jury. The opinion in that case gives no reasons for this statement quoted above from paragraph two of that syllabus and does not even discuss the questions of law involved therein.

There is no doubt that, where a witness- -has answered a hypothetical question on direct examination, the opposing party on cross-examination may ask him to give the reasons for the opinion which he gave in answer to the hypothetical question. See Bellefontaine & Indiana Rd. Co. v. Bailey, 11 Ohio St., 333, 336, 337. The primary purpose of cross-examination is to test the accuracy, truthfulness, soundness and thereby the credibility (i. e., its worthiness of belief) of the testimony given by the witness on direct examination. Martin v. Eldon, 32 Ohio St., 282, 287; Legg v. Drake, 1 Ohio St., 286, 291, 292. However, it was held by this court at a time when our statute' authorized a party to call the adverse party as a witness “in the same manner and subject to the same rules of examination, as other witnesses are compelled to -testify,” but not as now “as if under cross-examination” (see Section 11497, General Code), that such adverse party witness could not be cross-examined on behalf of himself with a view to his own impeachment “for the reason that he could not allege his own want of credibility;” See Legg v. Drake, supra, 290. Likewise, a party who calls a witness is not permitted to impeach that witness or even to cross-examine him in the absence of hostility of the witness (Hurley v. State, 46 Ohio St., 320, 21 N. E., 645, 4 L. R. A., 161) because, by calling the witness, he represents that his testimony is credible.

Ordinarily, cross-examination of a witness is an attack on the credibility of a witness.' Where conducted by a- party adverse to the party offering the witness, that is its usual purpose, although--sometimes the testimony has been so favorable to the adverse party that the purpose of his cross-examination may be to bolster the testimony of the witness.

To permit a party to ask of his own expert witness on direct examination questions, designed only to elicit answers giving his reasons for an opinion stated in answering a hypothetical question, appears to me to permit that party to cross-examine his own witness for the purpose of bolstering his credibility before that credibility has even been attacked. Such a bolstering of the credibility of one’s own witness would appear to be what might be referred to as “impeachment in reverse” of one’s own witness. It would also provide a very effective opportunity for a party to use his expert witness as a means of making an argument to the jury through the testimony of that witness as to the soundness of the conclusion of the witness before the credibility of that conclusion had even been attacked. The necessity, which justifies permitting an expert witness to state his conclusion in answer to a hypothetical question, would hardly seem to justify the giving of such an opportunity to a litigant before the credibility of that conclusion has even been attacked.

I do not mean to suggest that, on direct examination, an expert witness cannot be asked to give any explanation with respect to his answer. For example, in case No. 34018, the medical expert had examined the plaintiff about whom he was testifying. If, in the hypothetical question, he were asked to base his opinion on certain assumed facts and on his findings, it would be necessary to ask him to state to the jury what the findings were that he took into consideration in formulating his opinion. Otherwise, the jury would have no means of knowing the facts upon which his opinion was based. It is, of course, necessary that the record show the facts upon which the opinion is based because, unless the jury finds that all those facts are established by the preponderance of the evidence, it should give no weight to the expert’s opinion as stated in his answer to the hypothetical question. See Haas v. Kundtz, 94 Ohio St., 238, 113 N. E., 826; Williams v. Brown, Exr., 28 Ohio St., 547.

Also, there may be instances where, after questions have been asked on cross-examination as to reasons for the opinion of the expert witness given in his answer to the hypothetical question, it may clearly be proper on redirect examination to inquire further with respect to such reasons.

It may be that the reasons for my doubt as to the soundness of the broad statement in paragraph three of the syllabus are not sound or would be outweighted by other reasons which are not now apparent to me, but I believe that this court should refrain from again making such a statement in a syllabus before the legal questions involved therein are presented to us for consideration.  