
    O’Flaherty, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 3734
    October 31, 1944.)
    
      Mr. John A. Connor and Mr. John D. Connor, for appellee.
    
      Mr. Thomas. J. Herbert, attorney general, Mr. Robert K. Hall and Mr. Albertus B. Conn, for appellant.
   Geiger, J.

This ease is before the court on an ap-

peal by the Industrial Commission from a judgment of the court below based upon the verdict of a jury that the plaintiff’s decedent was entitled to participate in the fund of the Industrial Commission.

Briefly, the facts as shown by the pleadings are that plaintiff is the widow of the decedent, and that on the 6th day of November 1940, decedent was an employee of The Union Fork & Hoe Company under contract.

It is asserted that on the 6th day of November 1940, the decedent received an injury while in the course of his employment, which injury resulted in his death on the 28th day of November 1940; that thereafter, on the 24th of April 1941, plaintiff filed notice and preliminary application with the Industrial Commission, which claim was heard on the 14th day of June 1943, and disallowed, the commission denying her the right to participate in the fund upon the ground that the death of the decedent was not the result of an injury sustained in the course of and arising out of his employment.

It is alleged in the amended petition that on the 6th of November 1940, and for some time previous thereto the decedent was an employee of The Union Fork & Hoe Company, and was then engaged with another employee in loading a freight car with merchandise, among which were shovels; that, at the time, the plaintiff was taking bundles of shovels from a truck and lifting them into the hands of fellow employees for piling in a freight car; and that the bundles of merchandise then being loaded weighed between fifteen and forty-five pounds per package, but that there were two packages of what was known as “never-break” shovels that weighed approximately 118 and 145 pounds which the decedent was required to lift a distance of three and a half feet vertically. It is asserted that the decedent, for an unknown period of time previous to the 6th day of November 1940, was afflicted with cardiovascular-renal disease and that as he lifted the last of the heavier packages he slipped, and this, combined with the weight of the shovels, caused him to have a heart attack which resulted in his death on the 28th day of November.

The commission, for answer to the amended petition, admitted the employment of the decedent and denied the other allegations.

The case was heard before a jury which found that the plaintiff was entitled to participate in the fund. The verdict of the jury was unanimous.

The plaintiff requested that the court give to the jury certain special charges which were given.

The evidence presents a borderline case.

Only one fellow workman testified as to the incidents of the alleged injury and that witness stated that nothing unusual occurred or was apparent in relation to the decedent, and that the decedent left the place where the work was being carried on, without any complaint. Another fellow worker, however, testified that shortly after the decedent returned he showed evidence of suffering pain and disclosed a pallid flush and vomited. The decedent then went to his home where he was attended by a physician who testified as to the symptoms shown and his wife testified as to the care she bestowed upon him in giving him hot applications and administering sedatives. By the 11th day of November he was so restored to a normal condition that he returned to his work and continued in the service of the company until the 27th day of November when he left the factory, returned to his home and died that night, seated upright in a chair. His wife found him dead at six o’clock on the morning of the 28th.

A number of doctors testified in the trial.

Dr. Mahanna, for the commission, testified at length.

The net result of this doctor’s examination, which was long and technical, was that in his opinion the man had for some time been afflicted with arteriosclerosis and that he ultimately died in the natural progress of this condition from coronary thrombosis which was not caused or accelerated by tbe lifting of tbe packages that were being stored in tbe box car.

K. H. Armen was the doctor who attended 0 ’Flaherty when he reached his home after the incident in the box car. He testified at length as to the condition in which he found O’Flaherty and the treatment he prescribed. He stated that O’Flaherty was suffering excruciating pain. This doctor did not claim that he was competent to testify as to whether the supposed accident would accelerate cardiovascular-renal disease from which he was suffering. The final question was propounded: “Doctor, if O’Flaherty died of cardiovascular-renal disease, as it is your opinion he did, would an unusual effort exercised on his part contribute to or accelerate his death?” The question was objected to and the doctor did not further testify in answer to that interrogatory.

Dr. E. E. Smith was asked whether he had sufficient experience to determine whether the exercise of a strenuous effort occasioned by the lifting of a weight of 140 pounds would have any effect upon contributing to or accelerating the death of one afflicted with heart disease. On an affirmative answer he was asked: “Would the effort necessary to lift 140 pound weights have any effect upon one who is troubled with cardiovascular disease?” to which, after the ruling of the court he answered: “Yes, sir, I think an effort to raise 140 pounds would have an effect upon a person suffering from a cardiovascular disease.”

And further: “Any effort placed upon-the heart is apt to cause it to act differently than it was normally. Several things might happen.”

The final question was: “The question is, would you say, doctor, the greater the effort the more certain it is that effort would contribute to or accelerate the death? A. Yes.”

See Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, where it is held: :

“3. Testimony that a person ’s death from cancer of the liver coulcl 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.”

We are confronted with determining whether the testimony of the physicians was sufficient to establish a probability of the acceleration of the cardiac •condition existing on the 6th of November. The only •doctor testifying positively on this matter was Dr. Mahanna. This doctor testified that the exertion incident to the lifting of the packages being stored in the box car would not promote or accelerate the cardiac condition from which he may have been suffering at that time. We do not feel that the testimony of the other physicians, one of whom, Dr. Smith, testified that the effort necessary to lift 140 pounds weight would have an effect upon one troubled with cardiovascular-renal disease, and that the greater the effort "the more certain it is that it would contribute to the -acceleration and death, would meet the requirements laid down in Drakulich v. Industrial Commission, supra.

Before the case was submitted to the jury, six re•quests were submitted by the plaintiff as special charges, five of which were given and the sixth refused. 'The court in giving the special charges followed closely the statement of the law as found in Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266.

It is asserted by the defendant that there was' no •competent evidence upon which the jury could properly predicate a verdict in that the record contains no •competent evidence whatsoever tending to prove that plaintiff’s decedent suffered a pre-existing cardiovascular-renal disease contrary to the holding in the case of Ackerman v. Industrial Commission, 131 Ohio St., 371, 3 N. E. (2d), 44.

We arrive at the conclusion that while there may have been sufficient evidence to establish the fact that the decedent had for some period before the 6th of November suffered from cardiovascular-renal disease, yet there is in this case no evidence, first, establishing the fact by competent testimony that the decedent suffered an accident in the loading of the freight car; and, second, there is no sufficient evidence to establish the fact that if he did suffer such accident that the same accelerated the death of the decedent due to the prior existence of his disease.

We are of the view that the decedent died not on account of the acceleration of the prior physical condition by reason of an accident, but on account of the natural progress of the disease from which he-.was suffering and had been suffering for a considerable period.

The judgment of the Court of Common Pleas is reversed and it is ordered that final judgment be entered for the commission because of the complete failure to establish an injury in the course of his employment and failure to establish the fact that such injury, if suffered, accelerated the disease so as to cause an earlier death than he otherwise would have suffered.

Judgment reversed.

Sherick, J., concurs.

Hornbeck, J., concurs in the judgment.

(Decided December 20, 1944.)

On Motion for rehearing.

By the Court.

The application for rehearing is based largely upon the fact that this court in its original opinion did not comment upon the evidence of Dr. Robert L. Barnes, but confined its comments chiefly to the testimony of the physicians produced by the commission.

Since the matter was called to our attention we have read and re-read the entire testimony of this physician and are anxious to give it all the weight to which it is entitled. The testimony is too long to permit us to examine it in detail, but we will assume that counsel have selected that portion of Dr. Barnes’ testimony which will most strongly support the application for rehearing.

Counsel especially call our attention to pages 108, 109, 112 and 131 of the bill of exceptions.

After making inquiry as to a patient afflicted with cardiovascular-renal disease, the doctor was asked to state briefly what was meant by this medical term, and replied that “it is a combination of heart, kidneys— heart and kidney disease, associated with disorders of the vascular and nervous system.” The doctor was inquired: “Does unusual exertion have any effect in this disease, doctor?” And he replied: “In my opinion, yes.” He was asked whether the fact that a patient afflicted with this disease died within six weeks following a history of unusual strain would be of any significance, to which the doctor replied in the affirmative, and being asked what significance it would have, he recited certain facts that “a man fifty-nine years of age — and doing anything unusual in the way of physical or mental exertion might rush into some of the complications of vascular disease known here-as cardiovascular-renal disease.”

A hypothetical question was then propounded to the-doctor and he was asked whether assuming the facts-stated to be true would he have an opinion, to which he replied, “I would.” And being asked “What is that opinion, doctor?,” he again recited the prominent facts in the history of the case ■ and stated that it was his opinion that “the initial lesion was-some form of intra-cardiac accident, which is one of the most common complications of hypertension or cardiovascular-renal disease. * * * And this may have been further complicated by certain kidney condition. The doctor further stated: “* * * it is my opinion this man started with — had that when he went to work this time, some signs of cardiovascular-renal disease-—that part was established; he had unusual physical effort. He had many of these cardinal symptoms of intra-cardiac complication, and the symptoms and the-fact that he died afterwards, are quite convincing that, the unusual effort — the fact that he had cardiac disease or hypertension had a great deal to do with his-death. ’ ’

The doctor was asked whether he was able to give an opinion whether the patient probably would have died, if the assumption of exertion were disregarded, to-which he replied: “All I can say about exertion, you have a man with a diseased structure — a physical, unusual physical or mental disturbance is going to increase the liability of complication to that syndrome."

Dr. Barnes testified, ‘ The exertion of the lifting of the 145 pound package,” followed by the symptoms-enumerated “that were continuous until his death, and the cause of his death.” This statement of the-doctor’s in the bill of exceptions is not quite clear.

We examine the doctor’s testimony under the rules-laid down in Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, in the second and third paragraphs of the syllahns, which are to the effect that causal connection between an injury to a person and his subsequent death involves a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on this subject, and that testimony that a person’s death from cancer of the liver could have resulted from 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.”

See Drew v. Industrial Commission, 136 Ohio St., 499, 501, 26 N. E. (2d), 793; Kuhn v. Banker, 133 Ohio St., 304, 312, 13 N. E. (2d), 242, 115 A. L. R., 292; Industrial Commission v. Lathrop, 52 Ohio App., 55, 2 N. E. (2d), 828.

The doctor stated that a man 59 years of age and doing anything unusual in the way of physical or mental •exertion “might rush into some of the complications of vascular disease.”

The doctor also stated “the fact that he had cardiac ■disease or hypertension had a great deal to do with his •death. ’ ’

We are of the opinion that this doctor’s testimony falls short of the requirements of the Drakulich case ■and we are'still of the opinion as stated by us in our original decision:

“* * * there is in this case no evidence., first, establishing the fact by competent testimony that the decedent suffered an accident in the loading of the freight car; and, second, there is no sufficient evidence to esfablish the fact that if he did suffer such accident that the same accelerated the death of the decedent due to the prior existence of his disease.”

Application for rehearing is denied.

Rehearing denied.

Hornbeck, G-eiger and “Sherick, JJ., concur.

Hornbeck, J.

I concurred in the original decision because of lack of proof that plaintiff’s decedent suffered an accidental injury, and therefore concur in the decision denying the application for rehearing.

Sherick, J.,

of the Fifth Appellate District, sitting by designation in the Second Appellate District.  