Summary
In Pfister v. Industrial Commission (1942), 139 Ohio St. 399, 40 N.E.2d 671, 22 O. O. 465, plaintiff claimed he acquired a work-connected injury to his back which was the cause of his present condition.
Summary of this case from CARVOO v. KELLER, ADMROpinion
No. 28781
Decided March 18, 1942.
Workmen's compensation — No evidence of accidental injury — Strained back in lumbar sacroiliac region — Trauma and causal connection — Proof must establish probability, not mere possibility.
APPEAL from the Court of Appeals of Hamilton county.
Walter F. Pfister applied for workmen's compensation for an alleged injury he claims to have received when employed as a painter's helper, his duties consisting of cleaning and polishing automobiles for a contributor to the state fund. The Industrial Commission denied compensation upon the ground that claimant's disability was not the result of an injury sustained while in the course of or arising out of his employment. He perfected an appeal to the Common Pleas Court, his petition alleging "that in December 1935, the exact date of which is unknown to this plaintiff, in the course of his employment * * * he suffered an injury consisting of a Strained back in the lumbar sacroiliac region caused by constant rubbing and bending * * *." During trial to a jury the defendant moved for a directed verdict at the close of plaintiff's case and at the close of all the evidence, both of which motions were overruled. The jury returned a verdict for the plaintiff. Motions for judgment non obstante veredicto and for new trial were overruled and judgment was entered upon the verdict. Upon appeal on questions of law, that judgment was affirmed by the Court of Appeals. The controversy is before this court on appeal after the allowance of a motion to certify the record.
Messrs. Krusling Krusling, for appellee.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for appellant.
The only question in this case is whether there is any evidence to warrant payment of workmen's compensation.
Claimant testified that he entered the employ of the complying employer in April of 1935 when 18 years of age; that his disability "first developed like sort of a stiff back, but became worse as I worked, around in December 1935, seemed like I had a stiff back at the time"; that he first consulted a physician in March 1936; that he was compelled to leave his work for three days commencing August 22; that his work was changed to inventory clerk; and that he discontinued working on December 11, 1936.
There is no evidence whatever of an injury accidental in origin and cause or of a sudden and unexpected happening at a particular time. Goodman v. Industrial Commission, 135 Ohio St. 81, 19 N.E.2d 508; Industrial Commission v. Lambert, 126 Ohio St. 501, 186 N.E. 89; Industrial Commission v. Minard, 126 Ohio St. 641, 186 N.E. 708.
Medical testimony was introduced to establish trauma and causal connection. However, such testimony was merely to the effect that claimant's condition could have been or possibly was the result of trauma. As heretofore held by this court, the proof must establish a probability and not a mere possibility. Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932.
The judgment of the Court of Appeals is reversed and judgment is rendered for the appellant.
Judgment reversed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.