Opinion
No. 16452
Decided July 6, 1965.
Workmen's compensation — Compensation for disability — Proximate cause of disability — Expert medical testimony required — Proof not sufficient, when.
1. A workman is entitled to compensation for disability only if the disability was proximately caused by a compensable injury.
2. Only expert medical testimony is admissible as to the proximate cause of disability, and such testimony must be in terms of probability and not mere possibility.
3. Where the only expert medical witness testifies on direct examination that there was a "direct and proximate relationship" between the injury and disability, but on cross-examination testifies merely that the injury "could" have been the proximate cause of the disability, the defendants are entitled to judgment as a matter of law.
Mr. Robert A. Butler and Mr. Allan Sherry, for plaintiff.
Mr. T. J. Kremer, Jr., for defendant, Ormet Corporation.
From adverse administrative rulings on plaintiff's claim for workmen's compensation, he has appealed to this court.
Claimant is an employee of Ormet Corporation, a manufacturer of aluminum metal. On December 7, 1960, while installing 90-pound collector bars in sockets in electric furnaces, he felt a catch in his back. He went to the plant dispensary, and then to the plant doctor's office where X-rays were taken. The diagnosis was lumbosacral strain. He returned to work during the same shift. He lost no work time because of a back condition for the next eight months at least.
Only three times did claimant complain of his back to the dispensary and plant doctor. Five days after the accident, on December 12, 1960, he was given medication and an infra-red heat treatment. Six months later, on June 8, 1961, he reported back pain to the dispensary but refused a heat treatment; he said he would see his own physician, the next morning. Later in the month, on June 26th, the plant doctor arranged for him an appointment with Dr. J. P. Griffith, Jr., an orthopedic surgeon, whose deposition was read at the trial of this cause. Apparently claimant did not keep that appointment. Claimant was working steadily during the entire period in which these complaints were made.
During this period, claimant called frequently at the dispensary and the plant doctor's office, but for a nervous condition, general weakness and anemia. Claimant testified he quit work on August 14, 1961, eight months after the accident, because his back hurt. The dispensary records and the plant doctor's testimony, however, indicate that the work stoppage was due to psychiatric disabilities. When these were cleared up, a return to work slip was issued, six months later.
Dr. A. J. Antalis, the plant physician, testified that his X-rays and examination made at the time of the injury showed only a mild lumbo-sacral strain with some muscular spasm. The interspaces between vertebrae were normal.
The only evidence that the December 7, 1960, injury was the proximate cause of his present complaint of a narrowed intervertebral space is to be found in the deposition of Dr. John P. Griffith, Jr., an orthopedic surgeon, who examined him once only, on August 11, 1964. Dr. Griffith's testimony will be considered in some detail, infra.
The jury returned a verdict for the claimant.
For claimant to recover, the lumbro-sacral strain he received on December 7, 1960, must be shown to have been the proximate cause of his present condition of a narrowed vertebral interspace. In McNees v. Cincinnati St. Ry. Co. (1949), 152 Ohio St. 269, 89 N.E.2d 138, 40 O. O. 18, the court held:
"4. Death benefits under the Workmen's Compensation Act can be awarded only where the death was the proximate result of a compensable injury."
In Fox v. Industrial Commission of Ohio (1955), 162 Ohio St. 569, 125 N.E.2d 1, 55 O. O. 472, the court held:
"1. In order to establish a right to workmen's compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence, medical or otherwise, not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his injury and his harm or disability." (Emphasis added.)
Any proximate causal relationship between claimant's injury and his present condition must be shown by expert medical evidence. Such evidence, however, must deal with probabilities and not mere possibilities. Upon failure of proof, it is the duty of the court, either to direct a verdict for the employer, or grant judgment to the employer notwithstanding the verdict.
In Drakulich v. Industrial Commission (1940), 137 Ohio St. 82, 27 N.E.2d 932, 17 O. O. 398, the court held:
"2. Since the issue of causal connection between an injury to a persons's back and his subsequent death from cancer of the liver involves a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on this subject.
"3. Testimony that a person's death from cancer of the liver could have resulted from a previous injury to his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of such causal connection."
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.
In a per curiam opinion, the court said:
"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.
In Aiken v. Industrial Commission (1944), 143 Ohio St. 113, 53 N.E.2d 1018, 28 O. O. 50, the court held:
"To entitle the dependents of a deceased workman to participate in the State Insurance Fund upon a claim that the death of such workman from acute myocarditis was attributable to a compensable knee injury suffered six years before, the proof offered must show such injury was a proximate cause of death, and must include evidence by competent medical witnesses that a probable relationship existed between the original accident and the myocarditis."
The court said, 143 Ohio St. at 118, 53 N.E.2d 1020, 28 O. O. at 52:
"The medical witness, Dr. Molle, who attempted to connect the injury with the death in answering a hypothetical question, based his conclusion in part on the fact that dementia praecox had been given as a contributing cause of death in the death certificate. But we have him saying finally in effect that death could be traced only `indirectly' to the knee trouble. Such testimony does not meet the test of probability required by the decision in Drakulich v. Industrial Commission, supra."
The court concluded, 143 Ohio St. at 119, 53 N.E.2d at 1021, 28 O. O. at 53:
"Appellant was entitled to a directed verdict or to judgment notwithstanding the verdict in the court of first instance. * * *"
In Brandt v. Mansfield Rapid Transit, Inc. (1950), 153 Ohio St. 429, 92 N.E.2d 1, 41 O. O. 428, the claimant's only physician witness answered, "I don't know," to the question if there was a probable causal connection between claimant's injury and her subsequent premature menopause. Then the physician said four times it "could happen." The court held:
"1. As triers of issues of fact a jury is required to determine probabilities.
"2. Such determination of probabilities cannot be based on testimony as to mere possibilities.
"3. The testimony of a physician that there `could' be a causal connection between an injury and a subsequent premature menopause is inadmissible as proof thereof.
"4. To be admissible as proof thereof such testimony must relate to probability."
The court said, 153 Ohio St. at 434, 92 N.E.2d at 3, 41 O. O. at 430:
"Consistent with the foregoing views it is necessary to reverse the judgment of the Court of Appeals and remand the cause to the Court of Common Pleas for a retrial by reason of the error in admitting the testimony of the plaintiff's physician concerning premature menopause and in refusing to withdraw this claim from the consideration of the jury."
In Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, 101 N.E.2d 897, 46 O. O. 93, the court held:
"2. Where a claimant for compensation under the Workmen's Compensation Act is suffering from bilateral cataracts and claims that the condition in his right eye proximately and directly resulted from a small particle no larger than a pin head which blew into that eye, and where the most favorable medical evidence was testimony that a causal relationship between the particle which blew into the eye and the eye condition was remotely possible, there is no evidence sufficient to justify submission to the jury of the question of causal connection between the claimed accident and the eye condition. Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932, approved and followed." Bowling v. Industrial Commission, 145 Ohio St. 23, 60 N.E.2d 479, distinguished.
In Fox v. Industrial Commission of Ohio, supra, two medical witnesses testified for the claimant. The testimony of one was excluded for reasons not pertinent here. The other's was also excluded, but he proffered the answer, "I believe there is a causal relationship." The Supreme Court of Ohio held the exclusion, although erroneous, was harmless, because the answer was insufficient in itself to prove a direct or proximate causal relationship.
The court said, 162 Ohio St. at 578, 125 N.E.2d at 6, 55 O. O. at 476:
"* * * Since there was no competent evidence to support plaintiff's claim of a direct causal relationship between his injury and the harm or disability because of the heart ailment, the court properly directed a verdict for the defendant."
Judge Taft said in a concurring opinion, 162 Ohio St. at 582, 125 N.E.2d at 8, 55 O. O. at 478:
"* * * to permit a jury to make a choice between two equally reasonable inferences as to the meaning of expert opinion testimony offered to prove the existence of an ultimate fact in the case by the party having the burden of proving such fact, one of which inferences would tend to indicate existence of that ultimate fact and the other of which would not, would be to allow speculation and conjecture to supply the meaning which such testimony should have to make it relevant and which it does not have without such speculation and conjecture."
In McKee v. The Electric Auto-Lite Co. (1958), 168 Ohio St. 77, 151 N.E.2d 540, 5 O. O. 2d 345, one of the Northeastern Reporter, Second Series, headnotes is as follows:
"4. In order for death from pre-existing cause which was accelerated by accidental injury to be compensable under Workmens' Compensation Act, there must be a substantial causal relationship between the accident and accelerated death, and such relationship cannot be proved by mere magic of words of direct causal relation without evidence to definitely support it." Sections 4123.01 et seq., 4123.51, 4123.59, Revised Code.
The court said, 168 Ohio St. at 82, 151 N.E.2d at 544, 5 O.O.2d at 348:
"In the present case, as we have shown from an analysis of the testimony of plaintiff's expert witness, his answer left only a speculation or guess as to any acceleration of McKee's death by the accident he sustained, in spite of the witness's words to the effect that his opinion was that there was a direct and causal connection between the accident and the acceleration of the death.
"* * * there must be a substantial causal relationship between the accident and the accelerated death, and such relationship cannot be proved by mere magic words of direct causation without evidence to definitely support it.
"* * *
"A careful perusal of the testimony of plaintiff's expert witness, which is the basis for the claim in the present case, demonstrates beyond the peradventure of a doubt that such witness could not and did not give any evidence as to a substantial traumatic acceleration of the death of Charles McKee.
"It follows that the trial court was in error in refusing to direct the jury to return a verdict for the defendant, * * *"
In Kanoff v. Industrial Commission of Ohio (1954), 99 Ohio App. 357, 133 N.E.2d 635, 59 O. O. 136, the workman fell, and contussed his left hip and severely strained his abdomen. Four months later, he died of appendicitis and peritonitis. The court said, 99 Ohio App. at 367, 133 N.E.2d 642, 59 O. O. at 142:
"Giving to the medical evidence in the record before us the most favorable consideration possible, we find that it reaches no greater strength as proof of the causal relationship essential for plaintiff's case than `that the injury could have been a cause' or that `it had a bearing,' or still further, that in the opinion of the doctor it was `detrimental,' `bad,' `deleterious.'
"We are compelled to the conclusion that such testimony is conjectural and is entitled as proof to no greater value or weight than mere possibilities, which it is clear is wholly insufficient to meet the requirements of the law as established by the decisions of the Supreme Court of the state. It is clear that the medical evidence in the record now before us does not meet the required test of tending to establish the essential element of causal relationship between the injury and the death of the decedent by proof of probabilities, and that therefore the defendant was entitled to a directed verdict and judgment in its favor in the trial court."
In the instant case, the only expert medical evidence offered by claimant on the question of proximate cause is the deposition of Dr. Griffith. About a year after claimant did not keep the appointment made for him by the company, he was examined by the doctor and X-rays were taken.
Dr. Griffith's opinion was based on this examination and the X-rays, made three years and eight months after the injury, and also a case history given by the claimant himself. He was not aware of the X-rays taken by the plant doctor shortly after the back strain occurred.
After stating various hypothetical facts, the questioning by claimant's attorney proceeded as follows (Dr. John P. Griffith's deposition, page 7):
"* * * Q. Now, Doctor, with those facts in mind, may I ask you if you have an opinion, based upon reasonable medical and surgical certainties as to whether or not there is a direct and proximate relationship between the disability possessed by this individual, which you will recall I have asked you to assume is identical to the disability of one Thomas Carvoo, and the injury which occurred in December, 1960 which I have asked you to recall as being identical to the injury sustained by one Thomas Carvoo. First of all, Doctor, do you have an opinion? A. Yes.
"Q. And would you state that opinion?
"* * *
"A. I don't quite know if I follow you, but what is the opinion you wish me to express?
"Q. Allow me to rephrase the last part. Considering the findings and the examination and the diagnosis and the history of this hypothetical individual to be the same as the one taken by you of Mr. Thomas Carvoo, I ask you whether or not there is a direct and proximate relationship between these findings, and so forth, and the injury sustained on December 7, 1960? A. I see.
"* * *
"A. I think there is a direct relationship between the injury and the orthopedic examination and the X-ray findings, although I think that some of the persistence of these findings has been prolonged because of this leg length differential.
"Q. We understand, Doctor, the leg length differential is not related to the injury in any way? A. No.
"Q. But as to some of the other matters which you found, in particular the muscle spasms or the narrowing of the disc space, these would be directly related? A. Yes, I think so."
The hypothetical question is not in terms of proximate cause, but of "direct and proximate relationship." This latter phrase is ambiguous. There are many kinds of relationship besides cause and effect; e. g., time or space. It is true that claimant does not have to use certain magic words in order to recover. On the other hand, there must be substantial evidence of causation. McKee v. The Electric Auto-Lite Co., supra. The answer to the hypothetical question is not evidence of proximate causation.
In the instant case, claimant seems almost to be avoiding the use of the words "proximate cause," for fear perhaps of the answer they might evoke from the physician, who was originally suggested to claimant by the employer.
In the cross-examination by the employer's attorney, the word "cause" is used for the first time. It is clear that Dr. Griffith considers claimant's injury, not the probable cause, but no more than a possible cause of his present condition. On page 10 of the doctor's deposition is the following:
"Q. Could you, in any certainty, say when that may have resulted to him; when it may have occurred to him? A. No, the duration of when it occurred, I cannot be positive, no, sir.
"Q. I'm not sure I understand you there. The duration? You say you found this condition but you cannot say with any certainty when this condition — A. May have arisen? That's true.
"Q. Now, Doctor, you say you examined him on August 11th of 1964, is that correct? A. Yes, sir.
"Q. Now, did you, on your examination, did you find any worsening of that from the time of that? What I am getting at, Doctor, say he was injured in 1960. Could you tell from your examination or X-rays whether that was a worsening of the condition in 1964 than what may have happened in 1960? A. He might have had X-rays taken in '60 or '61. I —
"Q. Does this condition get better or worse? A. Many times discs get worse. He may have been normal in 1960 but not normal now."
On page 11 of the deposition is the following:
"Q. Then you would say from your examination in '64 that this narrowing of the disc space resulted from a claimed injury in 1960? A. I say it could have.
"Q. But you wouldn't say it could, actually?
"Mr. Thompson: Object. Already testified to this.
"Q. Do you follow my question, Doctor? A. I'm not sure.
"Reporter read question: But you wouldn't say it could, actually?
"Mr. Kremer: I'll rephrase the question.
"The Witness: Surely.
"Q. Your examination on August 11, 1964, you found there was some narrowing there? A. Yes.
"Q. Could you, with any certainty, say that that narrowing was the result of some claimed accident he may have received in 1960? Could you say that with any certainty either that could have happened a year or two later? A. Yes, that's true. It could have happened a year later. That's true."
And on page 13:
"Q. Well, Doctor, I will ask you this. You say you took X-rays on August 11th of '64. Would it make any difference to your relation of this condition if it were shown that X-rays taken in 1960 showed that they were negative? A. Yes. I would feel that if X-rays taken in 1960 showed they were nagative and they were compared with my X-rays which showed an extreme narrowing which I have in my notes, then I would feel that the man's condition, certainly something happened to the man between the time the X-rays were taken and the time I took my X-rays, which produced this narrowing."
On page 14:
"Q. Doctor, in your diagnosis here, your finding, did you have to rely pretty much on the history as given to you by Carvoo? A. Well, I have only seen this man once and you must realize that it's been almost four years following his injury, so there is extreme — there is much room for conjecture in a case like this, but I would rely certainly on the history; but, then, again the man had physical findings compatible with an orthopedic injury."
Finally, on page 15:
"Q. Then you couldn't say then, without taking in his history, that he could have had a trauma condition or an accident in December of 1960, not taking into consideration his history but just what you observed, you could not say that this condition did arise in 1960, say, December 7th? Do you follow me? A. It's a little hard to follow you. This could have happened six months later. This could have happened probably from an injury six months after December of '60. It could have happened in early '61. Middle of '61, perhaps, but once you get into '62 I don't believe so because I think it would take that length of time to produce as much narrowing as this patient had.
"Q. Without a history you could not say, with any certainty, this condition you found on August 11, 1964 was from the happening of December 7th, 1960? A. That's right."
Since there is no substantial expert medical testimony that claimant's injury on December 7, 1960 was probably the proximate cause of his disability, the employer's motion for judgment notwithstanding the verdict should be allowed.
Motion allowed.