Opinion
Decided February 10, 1938.
Workmen's compensation — Injury in course of employment — Disease not result of injury — Workman suffering from myeloma at time of accident — Directed verdict.
Where a workman complains of pain while assisting in lifting a cash register weighing 340 pounds, and a medical examination two months later leads to a diagnosis that the patient was then suffering from malignant myeloma, a bone disease, which was probably present at the time of the alleged accident, and the doctors testify that the diseased bone condition was not caused by the strain in lifting, but that the pain suffered was a symptom of the disease, and beneficial to the patient, in that it led to earlier treatment, the court did not err in directing a verdict in favor of the Industrial Commission of Ohio.
APPEAL: Court of Appeals for Montgomery county.
Mr. George Becker, for appellant.
Mr. Herbert S. Duffy, attorney general, and Mr. Nicholas F. Nolan, prosecuting attorney, for appellee.
This cause is before this court upon appeal on questions of law from an order and judgment of the Common Pleas Court of Montgomery county, sustaining the motion of the defendant for a directed verdict.
The matter had its inception in a petition filed by plaintiff against the Industrial Commission, in which he alleges that on the 10th day of June, 1935, he was in the employ of the Rike-Kumler Company of Dayton, Ohio, as an electrician and maintenance man; that on that day, while at work for that company, and while in the course of his employment, he sustained a severe injury to the right side of his back in the region of the right sacroiliac joint, while assisting another employee in lifting a cash register of the weight of 340 pounds from the close proximity of the floor to the platform of a truck of the height of about three feet; that he continued to work for the company until August 12, 1935, at which time, his condition being acute, he was required to submit to medical treatment; and that as a result of the injury and by reason thereof he has lost the use of both legs.
To this petition the defendant answers admitting that proceedings were had as set forth in his petition. Defendant denies all allegations not admitted, and prays that the suit may be dismissed.
The cause came on for hearing before a jury. After the evidence had been introduced the commission moved the court for a directed verdict for the reason that the plaintiff had failed to show that he sustained such an injury as is compensable under the compensation law. The court directed a verdict in favor of the defendant.
Three questions are presented: First, did the plaintiff suffer an accident as claimed; second, was such accident the proximate cause of the injuries of which he complains; and third, did it aggravate an existing condition?
The evidence tends to show that on the day in question while the plaintiff, together with a fellow employee, was engaged in lifting the cash register, the plaintiff exclaimed, "Oh, I hurt my back." The evidence further shows that the plaintiff returned to work and continued in his employment until the 12th day of August; and that during July he showed signs of limping, but continued his work, not, however, participating in the moving of registers after the 10th of June.
Dr. James C. Walker, an orthopedic specialist, testified that he had given the plaintiff a superficial examination on the 17th day of August when he found a slight amount of tenderness in the right sacroiliac region, which led to a diagnosis of myeloma with plasmocytoma, and that he sought a further examination from the experts of Johns Hopkins Hospital, who made a diagnosis of interrupted myeloma; that myeloma is a malignant growth of rare type. The doctor stated that it was probable myeloma was present sixty days prior to the examination on August 17th, and possibly present six months prior; that it was possible, but hardly probable that it developed after June 10th, the date of the alleged accident; that the sacroiliac region was destroyed by the growth at the time of the operation; that he could not say that the myeloma was definitely aggravated by the injury. In the opinion of the doctor the condition did not arise from strain, although the symptoms did. The condition existed before the strain.
Dr. Merrill Prugh, another physician, was asked whether, if the myeloma was present on June 10th, the experience of a strain could aggravate the myeloma condition, to which he answered: "That is a hard question to answer. I would say yes it could aggravate it because practically any injury to a malignant growth has some effect in increasing the rapidity of the growth; myeloma is a progressive condition, and if nothing is done to treat it, it proceeds to the ultimate destruction of the bone." Malignancy is aggravated by trauma which should be avoided as it may increase the rapidity of the growth.
The defendant assigns as error the action of the court in sustaining defendant's motion for directed verdict, and asserts that the decision of the court is contrary to law and not sustained by evidence.
The only opinion of the court sustaining the motion appears in the record in his statement to the jury.
And further, after the motion for new trial:
"I think that comes within the Lathrop case, 52 Ohio App. 55 [ 2 N.E.2d 828], and I will have to direct a verdict on that question."
But see contra, Esmonde v. Lima Locomotive Works, Inc., 51 Ohio App. 454, 1 N.E.2d 633 .
In the case of Industrial Commission v. Luger, 54 Ohio App. 148, 6 N.E.2d 573, Judge Hornbeck of this court, reviews in searching detail the various decisions of our Supreme Court and points out the fact that the cases are not always reconcilable.
It is beyond controversy that there is no evidence in this record that indicates that the condition which afflicted the plaintiff was caused by the strain he may have suffered on June 10 when he was assisting his fellow workman in lifting a cash register. The disease from which he was suffering was a deep seated, malignant sarcoma, attacking the tissues, bone and marrow at the point where he experienced pain.
The danger signal displayed on June 10, and continuing intermittently until the examination developed the seriousness of his condition, was, as the doctors testify, ultimately beneficial to the plaintiff for the reason that it brought the trouble more promptly to the attention of the physicians.
We have no difficulty in arriving at the conclusion that the ultimate trouble was not caused by the accident — if it were an accident within the terms of the Workmen's Compensation Act.
The more difficult question is whether a pre-existing condition was aggravated and its development hastened by the strain suffered.
We think we may safely say that there is evidence that the diseased condition existed in some stage on June 10, the day of the injury, but the question remains whether the injury proximately contributed to or aggravated or accelerated it.
In the case of Ackerman v. Industrial Commission, 131 Ohio St. 371, 3 N.E.2d 44, it is held that unless and until it is shown that the diseased condition existed at the time of the injury, all testimony tendered for the purpose of showing acceleration of the diseased condition is incompetent and should be excluded. As we have indicated, we think the condition there stated is met.
To entitle a claimant to an award it is not sufficient to show that death occurred while he was engaged in the employment; there must be some evidence that the employment had some causal connection with the injury, either through its activities, its conditions or its environment. Grabler Mfg. Co. v. Wrobel, 125 Ohio St. 265, 181 N.E. 97. A disease, other than enumerated occupational diseases, is not compensable merely because it was contracted during the period of a particular employment. To be compensable such disease must be occasioned by or follow as a result of physical injury. Industrial Commission v. Middleton, 126 Ohio St. 212, 184 N.E. 835; Industrial Commission v. Franken, 126 Ohio St. 299, 185 N.E. 199. Unless a claimant's condition is the result of physical injury it is not compensable under the Workmen's Compensation Law of Ohio. Industrial Commission v. Lambert, 126 Ohio St. 501, 186 N.E. 89.
While the doctors may have expressed opinion that under certain conditions the injury may have accelerated the disease, yet they are so indefinite as not to present a case that required the question of acceleration alone to be submitted to the jury.
If it was accelerated it was beneficial to the plaintiff in that it gave opportunity for early treatment. Holding as we do that neither the diseased condition nor the acceleration thereof could be attributed to the strain complained of, the judgment of the court below is affirmed.
Judgment affirmed.
BARNES, P.J., and HORNBECK, J., concur.