Seymour v. Young , 90 Ohio Law. Abs. 475 ( 1960 )

Duffy, J.

On November 2,1948, John Seymour was injured in the course of his employment and his claim was recognized by the Industrial Commission of Ohio, and he received some compensation for his injury. The last order of the Industrial Commission reads as follows:

“This day to-wit, April 24, 1956, this claim coming on for hearing for consideration of the Commission upon employer’s Appeal, filed February 16, 1956 and claimant’s Appeal, filed February 3, 1956, from the Columbus Regional Board of Review, together with the other proof of record, upon consideration thereof, it is the finding of the Commission that a prehearing conference will not serve a useful purpose and the same is hereby dispensed with.

“After considering all of the proof presented to it including the contents of the claim file, the Commission finds that the claimant’s disability does not exceed 70% and that he has heretofore been compensated for such disability.

“The Commission further finds that claimant’s suendylothesis and osteoporosis were not caused nor aggravated by the injury upon which this claim is based. ’ ’

An appeal was taken to the Court of Common Pleas of Franklin County by the claimant, John Seymour, where the issue was: Did tbe injury of November 2, 1948 aggravate a preexisting osteoporosis in tbe claimant’s back.

Tbe parties waived a jury and tried tbe case before tbe Common Pleas Judge wbo, after bearing the testimony of tbe claimant and three doctors, concluded that tbe claimant bad not sustained a burden of proof and was not entitled to participate further in tbe State Insurance Fund. From this ruling of tbe Court of Common Pleas tbe claimant, John Seymour, has appealed to this Court and gives as bis assignments of error, the following:

1. Tbe trial court erred in finding that tbe plaintiff bad failed to sustain tbe burden of proof.

2. Tbe trial court erred in failing to find that tbe evidence presented by the plaintiff established bis claim that bis condition of osteoporosis was aggravated and made disabling as tbe direct result of bis injury of November 2,1948.

3. That tbe Court of Common Pleas erred in finding that tbe plaintiff was not entitled to participate further in tbe State Insurance Fund.

Tbe Doctor testifying on behalf of tbe claimant stated, in bis opinion, “That there is a definite relationship between tbe injury and tbe symptoms that followed and have continued and that these symptoms arise from tbe aggravation of tbe osteoporosis.” In bis explanation of bis opinion tbe Doctor stated “Tbe symptoms that he had given are more or less typical of that of osteoporosis and inasmuch as be bad not bad difficulty prior to tbe injury and has subsequently continued to show these symptoms and signs, I feel that this is the result of an aggravation of this pre-existing condition.”

Tbe other two Doctors testified on behalf of the employer and tbe Bureau of Workmen’s Compensation, and stated that the injury would not aggravate tbe pre-existing osteoporosis, which is apparently a decalcification of the bone and in this case affected tbe vertebrae. One of these doctors did testify that injury precipitates symptoms but both stated definitely that tbe injury could not alter tbe process of tbe disease which they bold to be essentially a metabolic condition.

While it is confusing to one not trained in the profession of medicine to understand how the underlying disease itself could not be aggravated although the"'symptoms of pain and stiffness are increased, the parties agreed to leave the determination to the trial court, and in view of the conflicting testimony of the doctors, we cannot say the finding is contrary to law.

The judgment of the Court of Common Pleas is therefore affirmed.

Bryant, P. J., and McLaughlin, J., concur.