Nelson v. Industrial Commission

OPINION .

By HURD, PJ.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Cuyahoga County which directed a verdict for the defendant at the close of plaintiff’s testimony and rendered judgment accordingly.

The action was filed as an appeal from the final order of the Industrial Commission, disallowing plaintiff’s application for death benefits as the result of the death of Robert Nelson, deceased, the husband of the plaintiff. The principal question presented on th'e issues joined is whether or not death was due to an accidental injury sustained while in the course of and arising out of decedent’s employment.

There is ample evidence in the record tending to show that the decedent died at or about 4 P. M. on Jan. 13, 1943 during the course of his employment with The L. M. Gunder-son Company, while in a crouched position on' one knee, engaged in screwing a heavy machine (weight about % ton) to a. wooden floor by means of a twelve inch wrench.

On the day of his death, when decedent left home to go to work he appeared to be “all right,” Previously he had two accidents, one in 1940 and the other the latter part of December, 1942, at which time the decedent strained himself over his abdomen, following the lifting of a very heavy metal electric box weighing between 300 and 600 pounds, while working in company with three other men; as a result of this latter strain in December, 1942, he went to a doctor for attention and treatment. The evidence further shows that on the day of his death he was required to “spot” a heavy piece of' machinery and bolt it to the floor, this being done by dragging the machine to the exact spot where it was marked to be bolted to the floor.

One witness testified that he noticed the decedent’s face was very flushed when seen in the crouched position necessary to do the bolting and this witness further testified that “you have a feeling of pressure in the chest when tightening the bolt” and that “it requires an exertion to pull the wrench.” .

Plaintiff proffered and the court rejected certain testimony of one Dr. Wilson Chamberlain, a former County Coroner, who qualified as an expert medical witness, to the general effect that there was a causal relationship by way of acceleration and aggravation between the work the decedent was doing and his death; further that the decedent had suffered an undue strain by reason of his exertion while in a crouched position causing a breakdown of his arterial system, resulting in his death by a probable cerebral hemorrhage.

The court also rejected proffered testimony by the same expert witness to the effect that working in the crouched position and doing the kind of work decedent was doing at the time, placed a greater strain on the heart and vascular system; thatf the general circulation was interfered with and that the compression of the muscular wall and compression of the abdominal contents and organs had a tendency to raise the blood pressure by interference with the circulation and still further raised the blood pressure because ah individual is unable to breathe as well under such circumstances; further that such effort caused an acceleration or aggravation of the condition of arteriosclerosis and an aggravation of the vascular condition and that therefore death was due directly to the undue strain or extra strain which was put upon the heart and circulatory system.

Many other hypothetical questions and answers by way of proffer in the record were rejected by the court. This testimony, we think, was competent and material as bearing upon the issue of accidental injury and resultant death in the course of employment. The rejection of this testimony constituted prejudicial error.¹

The court also excluded the reasons for the expert opinion, the proffered answer of the expert containing in one instance some 500 words explaining at some length the reason for his opinion. That the action of the trial court in so doing Constituted prejudicial error has heretofore been decided by this court.²

The courts of Ohio likewise have decided that under certain circumstances a strain caused by exertion in the course of employment is an accidental injury which is compensable and that whether or not in a particular case there was an accidental injury within the meaning of the Workmen’s Compensation Act as distinguished from disease, is a question of fact for determination by the jury under proper instructions by the court.³

We think the instant case must be distinguished from the case of Bayer v The American Shipbuilding Company, decided by this court Nov. 4, 1946, 72 N. E. (2) 394, wherein plaintiff caught cold “as the result of working in very severe weather .which later developed into a pleuritic condition with a possible pneumonia.”

From a thorough examination of the record in this case we conclude that there was prejudicial error in the exclusion of expert medical testimony proffered by plaintiff and in the direction of a verdict by the court for defendant at the close of plaintiff’s testimony.

We hold that with the inclusion of the proffered testimony there was ample evidence of probative value from which an inference could be drawn by the jury that the death of decedent was due to .an accidental injury while in the course of and arising out of his employment.

Therefore, the judgment is .reversed'and the cause is .remanded for further proceedings according to law. Exception.

MORGAN, J,' concurs. SKEEL, J, dissents, (see dissenting •opinion)

1 . See Peer appellant v Industrial Comm. 134 Oh St 61.

See also, Maynard appellant v Goodrich, 72 Oh Ap 445 wherein the court of appeals held that the trial court erred in excluding proffered answers of a medical witness to the same general effect. This ease was affirmed by the supreme court in 144 Oh St 22, wherein that court held that the question presented was’one for the jury.

2 . Squire v Industrial Comm. (decided July 1, 1946) 46 Abs 392, Ryan appellant v Industrial Comm. (decided Dec. 16, 1946) 47 Abs 561.

3 . Industrial Comm. v Parry, 37 O. L. R. 4 (Ct. of Appeals) (there was evidence showing that permanent disability was caused by sudden strain on heart.)

Tinker, appellant v Firestone Tire Co. 19 Abs 227 (directed verdict by trial court reversed by court of appeals. Claimant while performing usual work which required strenuous work, sustained injury to shoulder muscles. Held, jury question.)

Saupe, appellant, v Industrial Comm. 69 Oh Ap 519 (death from cerebral hemorrhage which doctor attributed to strain and increased blood pressure. Court of Appeals in reversing directed verdict for defendant by trial court held; “Death of an employee suffering from diabetes and arteriosclerosis as result of an artery in brain splitting because of strain and increased, blood pressure which resulted from his being subjected to working conditions to which he was unaccustomed, is a result of an injury as defined in §1465-68 G. C.”)

Parletto v Industrial Comm. 140 Oh St 12 (supreme court held: question of fact for jury whether inguinal hernia was result of injury due to unusual effort.)

Phillips v Industrial Comm. 57 Oh Ap 10 (Question of aggravation of stomach ulcers by lifting heavy rocks. Court of Appeals reversed a judgment for defendant where trial court charged that employee could not recover unless he showed by preponderance of evidence that the injury was occasioned while in the performance of an unusual burden.)

Industrial Commission v Heinlein, 47 Oh Ap 50 (disability claimed due to strain in course of employmenj;. Court- of Appeals held question of fact for jury.)

Industrial Commission v Harney, 30 O. L. R. 559 (Death of an employee from angina pectoris due to heavy strain and exertion in course of employment. Court -of Appeals affirmed verdict for plaintiff.)

Smith v Goodyear Tire Co. appellant 21 M & S Rep. 330 (Court of Appeals of Summit County.) (Claimant accustomed to •swinging himself down from platform and claimed to have aggravated an arthritic condition of wrist. Court of Appeals reversed judgment of directed verdict holding there was evidence in the record tending to prove an injury sustained in .course of employment accidental in character.. Held, under amendment of §1465-90 G. C., as construed in Malone case 140 Oh St 292 and the Maynard case, 144 Oh St 22, there were questions of fact for determination .•of a jury.)

See also: Industrial Comm. v Cleek, 13 Oh Ap 417, Cornett, appellant v Industrial Comm. 20 O. L. R. 364, Davis v American Rolling Mills 54 O. A. R. 298 Bauer v Industrial Comm. 144 O. A. R. 104 Ohio Public Service Co. v Peters 8 O. L. A. 297 Maynard, appellant v Goodrich, 72 O. A. R. 445 Vargo v Industrial Comm. 8 M & S Rep 313. (Ct. of Appeals Stark County.)