Perry v. Ltv Steel Co. , 84 Ohio App. 3d 670 ( 1992 )

I respectfully dissent from the majority herein in its disposition of the case sub judice.

With respect to the first assignment of error, the majority correctly states the issue, viz., whether the testimony of the appellee, Mr. Perry, was "sufficient to establish a proximate causal relationship between the appellee's initial trip and fall over the Larry-car rail and the appellee's subsequent loss of consciousness and second fall down a flight of steps." The majority opinion, however, fails to distinguish a complex medical problem such as a possible neurological disturbance resulting from an otherwise noninjurious trip and fall from what occurs when one suffers a common bruise.

In the case sub judice, the majority opinion apparently fails to comprehend what appellee was alleging in his claim: viz., not that his second fall was the cause of contusions to his back, but that the first noninjurious fall precipitated the second fall, i.e., was its proximate cause. Appellee claimed after the first fall he had pain in his back which progressed to a "dizziness" which then made him "black out." Certainly a chain of events such as was alleged in the case sub judice required more than appellee's testimony to establish the requisite causal connection. It required expert medical testimony. Darnell v.Eastman (1970), 23 Ohio St. 2d 13, 52 O.O.2d 76, 261 N.E.2d 114.

"Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence thata result was more likely than not to have been caused by an act,in the absence of any intervening cause." (Emphasis added.)Cooper v. Sisters of Charity (1971), 27 Ohio St. 2d 242, 56 O.O.2d 146, 272 N.E.2d 97.

The majority boldly asserts that "a person who trips, falls, becomes groggy and suffers immediate pain certainly can experience a sudden loss of consciousness." I disagree. In the case sub judice, appellee testified that he was taking unnecessarily large doses of a prescription drug. Appellee further testified that when he tripped over the Larry-car rail, the only thing he "fell on" was his hands. On cross-examination, appellee's testimony follows:

"Q. Incidentally, when you tripped and fell over the Larry car tracks at the tripping point, as I understand the testimony you had given, just to make sure I understand it perfectly,you didn't strike your back against anything when you fell, is that correct?

"A. At this particular time, yes.

"Q. You did or didn't?

"A. I did not.

"Q. And you didn't strike your neck against anything, did you, at that time?

"A. No.

"Q. You didn't strike your pelvis against anything at the time you tripped and fell, did you?

"A. No.

"Q. So, in terms of getting a bruise on your neck or your back or pelvis, it didn't happen here at the tripping point, did it?

"A. No.

"* * *

"Q. I thought you told me that you walked around the general area before you proceeded to the platform, did I misunderstand?

"A. Right, for a minute, just like I said.

"Q. Now, at that point in time, you were fully conscious, is that correct?

"A. Yes.

"Q. Were you feeling dizzy?

"A. Lightheaded, a lot of pain.

"Q. Lightheaded and a lot of pain where?

"A. In my back.

"Q. What part of your back?

"A. Whole back, up and down. Felt like something had pulled.

"* * *

"Q. You thought whatever hurt you might have sustained at that point in time was minor, didn't merit going to see a nurse about it, correct?

"A. At that time, yes.

"Q. You, then, as I understand things, Mr. Perry, you correct me if I'm wrong, you then proceeded to these steps, is that correct?

"A. Yes.

"* * *

"Q. Minute to minute and a half, all right. Your head was clear?

"A. Mostly, somewhat, yes.

"* * *

"Q. It is a dizziness that hit you all of the sudden when you were about five or six steps up, is that correct?

"A. I was having a lot of pain, as far as really being dizzy, yes, at that point, that's when it really hit, yes." (Emphasis added.)

Thus, appellee was alleging that a simple fall resulted in back pain severe enough to cause a blackout some three minutes later.

In an opinion cited by appellant but completely ignored by the majority herein, the Ohio Supreme Court recently stated the following:

"The evidence before the trial court at the time appellant moved for a directed verdict showed that appellee fell while descending stairs at his place of employment in an effort to report to a work assignment on a lower floor. The crucial issuebefore the court in determining whether appellee's injury wascompensable was whether appellee's injury did, in fact, ``ariseout of' his employment.

"An injury sustained by an employee that is compensable under the Workers' Compensation Act ``includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of the injured employee'semployment.' R.C. 4123.01(C). It is undisputed that appellee sustained his injury while in the course of his employment.

"* * *

"[However,] there must be some causal connection between theemployment and the injury. * * *

"An injury caused by an unexplained slip or fall presents a unique case under the workers' compensation laws. As Professor Larson notes: ``All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and "neutral" risks — i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universallynoncompensable. It is within the third category that most controversy in modern compensation law occurs. * * *' 1 Larson, The Law of Workmen's Compensation (1985) 3-12, Section 7.00. * * *

"* * *

"``It should be stressed * * * [internal weakness causing a fall], although often discussed in the same breath with unexplained falls, is basically different, since unexplained fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which isadmittedly personal and which therefore requires someaffirmative employment contribution to offset the prima facie showing of personal origin.' Larson, supra, at 3-314, Section 12.11." (Emphasis added.) Waller v. Mayfield (1988), 37 Ohio St. 3d 118,121-123, 524 N.E.2d 458, 461-463.

In the case sub judice, appellee alleged that upon tripping over the Larry-car rail and falling, he experienced "pain" and "dizziness," a "pulling sensation." He then asserted these feelings were the origin of the next mishap, viz., the fall down the stairs. This clearly had an idiopathic origin.¹ The court in Waller v. Mayfield restated the law on falls which are personal in origin: the claimant has the burden to prove his injury "arose out of" his employment. In the case sub judice, therefore, appellee had to prove a proximate causal connectionbetween appellee's first trip and fall and the subjectivefeelings which resulted and led to the second fall.

Feelings of pain obviously involve the body's nervous system; however, neurology is not a matter "within common knowledge of the ordinary person," as the majority herein asserts. Rather, the situation is more analogous to that addressed by the court in Gibbs v. Gen. Motors Corp. (Mar. 30, 1987), Trumbull Cty. No. 3675, unreported, 1987 WL 8462. Therein, the court noted the following with regard to injuries such as the one alleged in the case sub judice:

"While appellant may be correct in advancing that the average layman has experienced some type of strain and/or sprain during his lifetime, such an experience is not competent for purposesof demonstrating the nature or cause of the instant injury. In this respect, appellee's reliance on White, supra, is misplacedsince the injury in that case involved the existence and causeof a readily observable bruised knee.

"Here, the injury sustained by appellee was internal andelusive in nature, unaccompanied by any observable external evidence.

"It is when the internal complexities of the body are at issue, that we generally initiate the metamorphosis in the evidential progression where medical testimony moves from the pale of common knowledge matters and within layman competency where expert testimony is not required, to those areas where such testimony is more appropriate and indeed most necessary for the trier of fact to understand the nature and cause of the injuries alleged. * * *

"The record demonstrates that appellee was the only witness who testified at trial on the subject injury. Appellee'stestimony on this matter was not of sufficient, probative valueto support a finding that appellee's injury arose out of and in the course of his employment with appellant and that a direct or proximate causal relationship existed between appellee's employment and his disability." (Emphasis added.)

Similarly, in Dolly v. Daugherty (Nov. 15, 1979), Cuyahoga App. No. 40021, unreported, this court came to an identical conclusion. In Dolly, appellee filed a claim for an injury suffered when, while performing his employment duties, the car in which he was a passenger was struck. Appellee claimed this caused his injury, a lumbosacral strain. This court, however, decided that such was not an injury as was "within the realm of common or lay knowledge eliminating the requirement of expert testimony." As to appellee's argument regarding causation, this court stated as follows:

"Appellee argues causation was a relatively simple matter in the instant case, capable of determination without expert testimony. We disagree, as heretofore discussed. However, it would have been a relatively easy matter to establish causation by counsel propounding the relevant questions to Dr. Weigel upon deposing him. In fact, where causation is a basic element of a claimant's rights, it would be wisest as a general rule to establish same by use of expert witnesses." Id. at 6.

In the case sub judice, appellee's expert medical witness, Dr. Joyce, never testified concerning a proximate causal connection between appellee's first fall and the subsequent feelings of "pain and dizziness" which led to the second fall. In his deposition testimony which was submitted as evidence in the trial court, Dr. Joyce repeatedly stated that appellee was allowed to return to work with no restrictions, that appellee experienced some "dysesthesia"² over his "right buttock area," but that his original pelvic injury was "causing no problems" for appellee. Whether appellee's previous medical problems could have predisposed him to "pain and dizziness" after an otherwise noninjurious fall was never addressed.

In the case sub judice, therefore, due to the idiopathic nature of the claimed injuries, appellee's testimony was "without probative value to establish a proximate causal relationship between the injury and the result claimed."Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, at 213, 46 Ohio Op. 93, at 97, 101 N.E.2d 897, at 901. Since, without expert medical testimony, appellee failed to show by a preponderance of the evidence his injury arose out of his employment, the trial court erred in failing to grant appellant's motion for dismissal.³ Id.; Darnell v. Eastman. Accordingly, I would sustain the first assignment of error and enter judgment for appellant, thereby rendering all of appellant's remaining assignments of error moot. App.R. 12(A)(1)(c).

¹ "Idiopathic" was defined thus in footnote No. 3 inWaller v. Mayfield, supra:

"For workers' compensation purposes, idiopathic refers to an employee's preexisting physical weakness or disease whichcontributes to the accident." (Emphasis added.)

² In his deposition testimony, Dr. Joyce defined "dysesthesia" as "a change in the type of sensation that is interpretted [sic] when you touch," implying "an uncomfortable type sensation."

³ At trial, appellant erroneously characterized its motion as one for a directed verdict pursuant to Civ.R. 50(A). However, as appellant concedes to this court, its motion at trial is properly deemed a Civ.R. 41(B)(2) motion for dismissal.