Summary
In Logsdon v. Indus. Comm. (1944), 143 Ohio St. 508, 514, 28 O.O. 429, 431, 57 N.E.2d 75, 78, this court defined a "permanent disability" as a condition which "will, with reasonable probability, continue for an indefinite period of time without any present indication of termination."
Summary of this case from State, ex Rel. Nelson Mccoy Pottery Co., v. WilsonOpinion
No. 29985
Decided June 28, 1944.
Workmen's compensation — Appeal — Section 1465-90, General Code (111 Ohio Laws, 227) — Right of claimant to further participate in fund — Permanent and total disability — Jury to find such disability exists at time of trial, when — "Permanent" defined.
1. In the trial on appeal of a workman's compensation claim under Section 1465-90, General Code (111 Ohio Laws, 227), wherein the claimant has already been awarded the full amounts fixed by statute, for all disability short of permanent and total disability, it is improper to submit to the jury as the ultimate question for determination the permanency and totality of the claimant's disability; but in submitting the issue of whether claimant is entitled to further participate the court should charge the jury that in order to render a verdict granting the claimant a right to further participate, it must find that he is permanently and totally disabled at the time of trial.
2. The term "permanent" as applied to disability under the workmen's compensation law does not mean that such disability must necessarily continue for the life of a claimant, but that it will, with reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom.
CERTIFIED by the Court of Appeals of Butler county.
The plaintiff, while at work in the course of his employment on May 28, 1930, sustained a fall resulting in injuries consisting of a comminuted fracture of the right leg at the hip and a fracture of the right heel bone.
Following his injury, the plaintiff made claim for compensation and the commission awarded him the full amount fixed by law for all disabilities short of permanent total disability, the payments ending April 17, 1940.
In May 1940, the plaintiff made application for further compensation claiming that the injuries above mentioned proximately aggravated and accelerated a pre-existing latent, inactive bronchial or asthmatic condition of the lungs, which, in turn, produced an impairment of the heart, all of which totally and permanently disabled him.
Upon this application, the commission made a finding that plaintiff was permanently and totally disabled, but that only a part of such disability was the result of his injuries. The commission also found that that portion of the disability due to the heart and lung conditions was not related to the original injuries and denied further compensation for that reason.
Upon rehearing, the commission again denied the claim "for the reason that the claimant's disabilities resulting from asthma and a heart ailment are not the result of the injury in this case."
An appeal was taken by the plaintiff to the Common Pleas Court of Butler county wherein the plaintiff, in his petition, alleged that as a proximate result of his injuries "he has been totally and continuously disabled from the date of said accident to the present time; that plaintiff has constantly required medical care and medicine for the treatment of his said condition and likely will need such medical attention during his future life."
The petition also alleged that the finding and order of the commission "constituted a denial of its jurisdiction of that part of said claim relating to disability caused by asthma and heart ailment, and a denial of its authority thereby to inquire into the amount of compensation." The prayer of the petition was that it be determined whether plaintiff's asthma and heart ailment were the result of said injuries and whether he had a right to continue to participate in the state insurance fund for the payment of compensation.
Upon the trial, the court instructed the jury, in special and general charges over plaintiff's objection, that it must determine whether the plaintiff was permanently and totally disabled and, if so, whether that portion of his disability resulting from his asthma and heart condition was caused by his injuries.
The verdict of the jury was in favor of plaintiff's right to participate in the state insurance fund. In answer to plaintiff's two special interrogatories, the jury also found that the plaintiff was permanently and totally disabled, and that such disability was the proximate result of plaintiff's injuries of May 28, 1930.
Defendant's motion for new trial was overruled and judgment was entered on the verdict. The defendant commission appealed on questions of law to the Court of Appeals, claiming, inter alia, that the trial court erred in its general charge to the jury upon the subject of total and permanent disability. The pertinent portion of the court's charge on these subjects was as follows:
"Now in connection with the issue as to whether plaintiff has proved by a preponderance of the evidence that he is permanently and totally disabled, the court tells you that if you find that plaintiff has proved by a preponderance of the evidence that he became disabled to such an extent as prevent him from doing substantially all the necessary and material things in connection with the work that he had been pursuing and the activities in which he was engaged up to the time that he did become disabled, should you find by the greater weight of the evidence that he did so become disabled, requiring his own exertion, in substantially his customary and usual manner, then the court instructs you that such disability would be total. In reference to the word 'permanent,' the court tells you that means that total disability need only be for an indefinite and indeterminate period and need not be of lifelong duration."
The Court of Appeals reversed the judgment of the Common Pleas Court and remanded the case to the latter court for a new trial on the ground that the trial court's charge defining permanent total disability was erroneous, one judge dissenting, and upon defendant's cross-assignment of error, the Court of Appeals also found that the question of whether plaintiff was permanently and totally disabled was not the proper issue in the trial of the action and should not have been submitted to the jury for determination, one judge dissenting.
All the judges of the Court of Appeals concurred in certifying the case to this court for review and final determination on the ground of conflict with the judgment of the Court of Appeals of the Third Appellate District in the case of Furnis v. Industrial Commission, 71 Ohio App. 146, 45 N.E.2d 782.
Mr. C.J. Wardlaw and Mr. Dale Stump, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for appellee.
The first question raised by the plaintiff is whether, in the trial on appeal of a workman's compensation claim wherein the claimant has already been awarded the full amounts fixed by statute for all disability short of permanent and total disability, it is proper to submit to the jury the question of permanency and totality of the claimant's disability.
Plaintiff claims that the sole question for the jury is whether the claimant is entitled to further participate in the fund, and that the extent of the disability is to be determined solely by the commission. In other words, the plaintiff claims that when the commission has denied jurisdiction, a favorable finding for the claimant on appeal simply restores to the commission its broad continuing jurisdiction, enabling it to order further compensation to be paid in the manner provided by the compensation law.
At this point, it should be noted that an amendment to Section 1465-90, General Code (117 Ohio Laws, 86), which now authorizes an appeal from the denial of a claim by the commission on the ground that the claimant "is not permanently and totally disabled as a result of the injury" applies only to those claims arising after July 3, 1937, the effective date of the amendment, and does not affect the instant case.
The Court of Appeals, two judges concurring, adopted the view of the plaintiff and held that all the plaintiff had to prove was that after the date of the last payment made to the claimant, he was still disabled as a result of the injury, leaving the extent of his disability to the sole determination of the Industrial Commission. This court concurs in this view, which is in harmony with its former holdings. Parletto v. Industrial Commission, 140 Ohio St. 12, 42 N.E.2d 153; State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572; Noggle v. Industrial Commission, 129 Ohio St. 495, 196 N.E. 377; State, ex rel. Waller, v. Industrial Commission, 142 Ohio St. 193.
In the case of State, ex rel. Kauffman, v. Industrial Commission, above cited, this court held:
"1. By virtue of Section 1465-90, General Code, in cases heard on appeal to a Common Pleas Court from the Industrial Commission, the jury may only find whether or not the claimant is entitled to participate in the workmen's compensation fund, and the court may only pronounce judgment whether the claimant is entitled to participate in the workmen's compensation fund and to be paid in the manner provided by the workmen's compensation law.
"2. A verdict and judgment so entered and certified to the Industrial Commission do not impose upon the Industrial Commission a duty to pay compensation to any particular future date or for any particular extent of disability; it becomes the duty of the commission upon receiving such certificate to recognize the verdict and judgment as awarding some disability and to proceed to inquire the extent of such disability."
In the course of the opinion in that case the court said:
"In this case the writ can only be awarded if the judgment already referred to found that Kauffman was permanently and totally disabled. The judgment speaks for itself. It only finds that Kauffman is entitled to participate in the fund and to be paid in the manner provided by the workmen's compensation law. It is true that the petition in the Court of Common Pleas alleged that he was permanently and totally disabled, and the answer denied that allegation. Those allegations are not conclusive. The policy of the law is expressed in Section 1465-90, General Code, and states with particularity what may be heard by the Court of Common Pleas and what the verdict of the jury may award. It also provides with equal particularity as to what the judgment of the court may order. The verdict and the judgment in this case conform to the statute. By the verdict and judgment it becomes conclusive upon the commission that Kauffman was entitled to some compensation further than that which had already been awarded to him by the commission. The extent of the further disability and the extent of the further compensation could only be ascertained by the commission."
The plaintiff complains that the trial court erred in submitting to the jury, over his objection, the issue of total and permanent disability, but this was not prejudicial to him for the reason that he waived the error by the submission of interrogatories on that issue, which were answered by the jury.
The Court of Appeals also found that the trial court, in charging on the subject of total and permanent disability, erred prejudicially in defining the term "permanent" as applied to plaintiff's disability and reversed the judgment and remanded the case for a new trial for that reason.
The trial court charged to the effect that "permanent" as applied to disability "means that total disability need only be for an indefinite and indeterminate period and need not be of life long duration." The Court of Appeals held that this charge was "indefinite, and incomplete, in failing to include some instruction indicating that circumstances justifying a reasonable inference as to continuance for an extended period of time, attended with probabilities of lifetime duration, should have been included."
This court cannot say that the Court of Appeals erred in condemning the charge in the respects pointed out by it. The term "permanent" applied to disability as the subject matter of the statute is difficult to define. To meet the requirement of permanency as used in the statute it must appear that the disability will, with reasonable probability, continue for an indefinite period of time without any present indication of termination.
In the recent case of Stuhlbarg v. Metropolitan Life Ins. Co., ante, 390, this court in defining the term "permanent disability," as used in a disability insurance policy, held that it "does not mean that such disability must necessarily continue for the remainder of the life of the insured, but that it shall, with reasonable probability, continue for some indefinite period of time, without any present indication of recovery therefrom"
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL and WILLIAMS, JJ., concur.