Opinion
No. 92-1161
Submitted May 18, 1993 —
Decided August 11, 1993.
APPEAL from the Court of Appeals for Cuyahoga County, No. 60198.
Decedent, Ronald T. France, was employed as a police officer with appellee, the city of Bedford Heights, beginning in 1982. On March 10 and 11, 1986, decedent worked the night shift from 10:30 p.m. to 6:30 a.m. in a police cruiser on routine patrol. Decedent's supervisor, Lt. Mark Kwiatkowski, testified that the daily log compiled by decedent indicated that decedent, as was the case with most night shift officers, was seated in his cruiser for sustained periods of time.
Decedent arrived home early on the morning of March 11, 1986 and, according to testimony of his wife, appellant, Mary France McNerney, "he didn't look himself" and he "looked extremely tired." When Mary returned home at approximately 1:30 p.m. to wake decedent up, she found him "laying [ sic] half on the floor * * * kind of tangled in the sheets. His feet were still in the bed, and he was very blue." Mary's attempts to resuscitate decedent were unsuccessful, and he was taken to Marymount Hospital, where he was officially pronounced dead at 2:23 p.m. Decedent was twenty-seven years of age at the time of his death and had no history of any vascular disease, diabetes, hypertension or thrombophlebitis.
Appellant-wife and Ryan France, the minor son of the decedent, who was born approximately six months after decedent's death, filed a claim for death benefits with the Bureau of Workers' Compensation pursuant to former R.C. 4123.68(BB). A district hearing officer for the appellant, Industrial Commission of Ohio ("commission"), determined that the death of Ronald France was the result of an occupational disease contracted in the course of and arising out of employment, and therefore awarded benefits to the claimants.
Subsequently, on May 11, 1989, a hearing was held before the regional board of review, whereupon the order of the district hearing officer was "affirmed in all respects." A further appeal by appellee-city was refused by the commission, whereupon the city appealed to the Cuyahoga County Court of Common Pleas pursuant to R.C. 4123.519.
At trial, claimants presented the testimony of two expert witnesses, Dr. Bennett Levine, M.D. and Dr. Allan Harris, M.D., through videotaped depositions. Both doctors testified that decedent died from a "pulmonary embolism," which occurs when a blood clot travels to the lungs and obstructs the flow of blood through them. Dr. Levine testified, "It is my opinion that the occupation of Mr. France, which required him to sit and be relatively immobile for prolonged periods of time[,] caused the formation of blood clots in his leg, and that one of the blood clots traveled to his lung, causing a pulmonary embolism and cause of his death."
Dr. Harris testified that "there was a direct relationship between [decedent's] duties on that shift and the development of the thrombosis of the lower extremities or the pelvis and the hemorrhagic infarct that was * * * the cause of his death."
At the close of claimant's evidence and at the close of all the evidence, the city moved for a directed verdict on the grounds that claimants had failed to produce the evidence necessary to meet the three-prong test set forth in State ex rel. Ohio Bell Tel. Co. v. Krise (1975), 42 Ohio St.2d 247, 71 O.O.2d 226, 327 N.E.2d 756, syllabus. The trial court denied both motions. The jury returned a verdict finding that claimants were entitled to participate in the Workers' Compensation Fund.
The court of appeals reversed and entered judgment for the city in a split decision. The appellate court majority held that there was "insufficient evidence" to establish the second and third prongs of the Krise test, and that, therefore, the trial court had erred in failing to grant the city's motion for a directed verdict.
The dissenting court of appeals judge opined in relevant part as follows:
"* * * I find that sufficient evidence did exist, which, when construed in a light most favorable to [claimants], would cause reasonable minds to reach different conclusions concerning the issue of whether Ronald T. France suffered an occupational disease, thus, entitling [claimants] to participate in the Worker's [ sic] Compensation Fund. * * *
"Upon carefully reviewing the entire transcript and record in this case and giving the proper deference to the jury's findings, I further find that its judgment is supported by competent and credible evidence. The jury simply chose to believe the testimony and evidence presented by [claimants]."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Charles E. Merchant and Katharine Lang Bettasso, for appellee.
Lee Fisher, Attorney General, and Diane J. Karpinski, Assistant Attorney General, for appellants Administrator, Bureau of Workers' Compensation and Industrial Commission.
Climaco, Climaco, Seminatore, Lefkowitz Garofoli Co., L.P.A., Robert Shepard, John A. Sivinski and Thomas M. Wilson, for appellants Mary France McNerney and Ryan France.
Stewart Jaffy Assoc. Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging reversal for amici curiae, Ohio AFL-CIO and Ohio Academy of Trial Lawyers.
In our view, the court of appeals majority did nothing more than reweigh the evidence and substitute its judgment for that of the trier of fact. Therefore, for the reasons that follow, we reverse the judgment of the court of appeals and reinstate the trial court's judgment.
The version of R.C. 4123.68 in effect at the time of decedent's death provided as follows:
"Every employee who is disabled because of the contraction of an occupational disease as defined in this section, or the dependent of an employee whose death is caused by an occupational disease as defined in this section, is entitled to * * * compensation* * *.
"The following diseases shall be considered occupational diseases and compensable as such when contracted by an employee in the course of the employment in which such employee was engaged and due to the nature of any process described in this section.
"SCHEDULE
"Description of disease or injury and description of process:
"* * *
"(BB) All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment." Am.H.B. 1282, 137 Ohio Laws, Part II, 3954, 3960.
In the syllabus of State ex rel. Ohio Bell Tel. Co. v. Krise (1975), 42 Ohio St.2d 247, 71 O.O.2d 226, 327 N.E.2d 756, this court interpreted the scope of the foregoing statutory language as follows:
"An occupational disease is compensable under R.C. 4123.68(BB) where the following criteria exist: (1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally."
The court of appeals held that while the first prong of the Krise test was satisfied, the evidence was "insufficient" to satisfy the second and third prongs of Krise. We disagree. It appears that the appellate court majority lost sight of the requirement of R.C. 4123.95 that R.C. 4123.68 "shall be liberally construed in favor of employees and the dependents of deceased employees." Instead, the court of appeals majority simply concentrated its attention on whether the evidence was sufficient to overcome a Civ.R. 50 motion for a directed verdict, and failed to even acknowledge the requirement to liberally construe all workers' compensation statutes.
As pointed out by appellate Judge Leo Spellacy in his dissenting opinion below, appellants submitted the videotaped testimony of two physicians who opined that decedent's "pulmonary embolism was peculiar to his work and that he had a greater risk of contracting it in a different manner than did the public generally." A review of appellants' expert testimony in light of the elements set forth in Krise, supra, reveals that sufficient evidence was presented to support the award of benefits granted to appellants.
That appellants satisfied the first prong of Krise is virtually unchallenged. With respect to the second and third prongs of Krise, Dr. Harris testified that "the thrombosis that developed someplace in [decedent's] lower body * * * [was] due to the sedentary nature of his activity for the previous six or eight hours, however long he was on the shift, prior to coming home," and that "there was a direct relationship between his duties on that shift and the development of the thrombosis of the lower extremities or the pelvis and the hemorrhagic infarct that was found at postmortem examination, and that was agreed upon as the cause of his death." Dr. Harris further testified that the basis of his opinion was his "knowledge in the field of cardiovascular disease that [decedent] was exposed to a significant risk factor prior to his death, risk factor in the development of thrombophlebitis, and that there was no other risk factor that was presented to me that could have caused [the condition of decedent] found at postmortem." Additionally, Dr. Harris responded in the affirmative to the question whether decedent was more likely to develop thrombosis and the resultant pulmonary embolism than the public in general.
Dr. Levine also testified that it was his opinion that decedent "definitely had a greater risk and likelihood of developing a — a blood clot in his legs and a pulmonary embolism than the general public and general occupation." Dr. Levine stated that the basis of his opinion was that "the work which Mr. France did required periods of immobility and lack of activity causing stagnation of blood in his — the veins of his leg, which by mechanism, which I previously described, led to formation of blood clots and pulmonary embolism." In addition, Dr. Levine testified that the blood clots and pulmonary embolism which caused decedent's death "were definitely work-related."
We believe that the foregoing testimony was sufficient to satisfy R.C. 4123.68(BB) as explained in the syllabus of Krise. In addition, the evidence proffered by appellants was substantial, competent evidence on which reasonable minds could differ. Therefore, the trial court correctly denied the city's motions for a directed verdict. See, e.g., Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 109, 592 N.E.2d 828, 837.
Here, the court of appeals majority simply substituted its judgment for that of the jury. While it is true that in the abstract, reasonable minds could reach different conclusions concerning whether decedent suffered an occupational disease that caused his death, it is also true that every tribunal reviewing this particular cause, save the court of appeals majority, concluded that decedent's death was due to a compensable occupational disease, and that, therefore, appellants were entitled to participate in the Workers' Compensation Fund. In light of Krise, R.C. 4123.68(BB) and the liberal-construction directive of R.C. 4123.95, we hold that the evidence in the record is sufficient to support the award of workers' compensation benefits.
Accordingly, the judgment of the court of appeals is reversed, and the judgment of the trial court is hereby reinstated.
Judgment reversed.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., and WRIGHT, J., dissent.
I agree with the posture adopted by the court of appeals and am convinced that the majority has misapplied the second prong of the Krise test, now codified in the first paragraph of R.C. 4123.68. See State ex rel. Ohio Bell Tel. Co. v. Krise (1975), 42 Ohio St.2d 247, 71 O.O.2d 226, 327 N.E.2d 756, syllabus.
MOYER, C.J., concurs in the foregoing dissenting opinion.