Opinion
No. 109450
Decided June 29, 1967.
Workmen's compensation — Injury compensable, when — No unusual or unexpected event except injury — "Accidental in character and result," construed — Section 4123.01, Revised Code — "Doing same or usual job in same or usual way," construed.
1. A workman whose regular duties consist of, and who suffers a back injury (herniated disc) as a result of, lifting 50 pound sacks of dry powder to the platform where he is standing from the floor 3 feet below is eligible for Workmen's Compensation notwithstanding the fact that the injury occurs while he is doing the same job in the same way he has done it the past 13 years and notwithstanding the fact that there is no unusual or unexpected event or occurrence other than the injury itself.
2. The phrase "accidental in character and result" contained in the 1959 amendment to the statutory definition of "injury" (Section 4123.01 C, Revised Code) in the Workmen's Compensation Act is without independent meaning, adds no element to the requirements for compensability, and refers solely to the relationship which the injury must bear to the employment already stated in and required by the words "received in the course of, and arising out of the employment."
3. The concept "doing the same or usual job in the same or usual way" is totally without significance in Ohio Workmen's Compensation Law except to serve as a shorthand expression of the judicial conclusion that an injury was not received in the course of, and arising out of the employment but resulted from natural or other causes not related to the employment and merely occurred coincidentally while the worker was at work.
Mr. O. V. Blumenstiel, for plaintiff.
Mr. William Saxbe, attorney general, and Mr. John M. Walsh, for defendants.
This matter came on to be heard by the court without a jury upon an appeal (Section 4123.519, Revised Code) from the decision of the Industrial Commission that George Stull was not eligible to participate in the Workmen's Compensation Fund.
This court finds, from the evidence adduced at the hearing, that under the law the claimant, George Stull, is entitled to participate or continue to participate in the fund and certifies its decision to the Industrial Commission.
George Stull suffered a back injury (herniated disc) while lifting a fifty-pound bag of dry powder to the work platform where he stood from the floor three feet below the work platform.
It is not disputed that this lifting was a regular part of his job. On the contrary, the fact — that it was — has been twisted into a defense.
It is the substance of the defense that he had been doing the same thing in the same way for thirteen years and there has been no change in the job since then (although someone else now does this particular work).
The administrator contends there was nothing unusual or unexpected about this event except the experiencing of sudden pain when the sack was one foot off the floor on the way up.
In substance, the administrator argues there is nothing unusual or unexpected about receiving a broken back from doing "back-breaking" work, therefore this claimant cannot recover.
The history of the struggle of workmen to have their jobcaused disabilities added to the cost of the product goes back to the case of Priestly v. Fowler (1838), 150 English Reports 1030, 3 M W 1, Court of Exchequer. There a butcher's helper sued his master for injuries arising solely out of the negligence of a fellow servant.
In that case, Lord Abinger said:
"It is admitted that there is no precedent for the present action by a servant against a master. We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision one way or the other.
"If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent * * *.
"The inconvenience, not to say the absurdity of these consequences, afford a sufficient argument against the application of this principle to the present case."
Professor Willard Hurst of the University of Wisconsin Law School starts with this case and uses the evolution of this struggle through the "safe place statutes" to Workmen's Compensation insurance to teach beginning students the nature of common-law courts and the legislative process.
In Ohio the struggle culminated in the adoption of a constitutional provision in 1912. The first sentence of Article II, Section 35 of the present Constitution reads:
"For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom."
The plain meaning of that language is that the disability shall be compensated if "occasioned in the course of such workmen's employment."
Yet in Industrial Commission v. Brown (1915), 92 Ohio St. 309, 110 N.E. 744, L.R.A. 1916 B 1277, the court said lead poisoning was a "disease," not an "injury," hence not compensable, speaking these words:
"In a large measure Ohio may be said to be the pioneer in the working out and reducing to a working basis the theories of Workmen's Compensation. No statute enacted in these latter days has had to encounter so fierce and powerful an opposition as this particular class of legislation. The law is yet on trial."
It is said in 58 Ohio Jurisprudence 2d, Workmen's Compensation, Section 3, page 89:
"The purpose of Workmen's Compensation is to require as a matter of justice that injuries to workmen sustained in the course of their employment be regarded as a charge upon the business in which they are engaged and that compensation be paid them from a specific fund through a speedy and inexpensive remedy as a substitute for previous unsatisfactory methods."
Opinions and law review articles laboriously have dealt with injuries clearly attributable to the economic cost of production as a matter of causal fact but which were declared uncompensable by courts because of the particular way in which the hazard of the employment has operated to injure. (20 Ohio State Law Journal 601.) Also see the collection of cases in the opinion of Hart, J., in Gerich v. Republic Steel (1950), 153 Ohio St. 463, 41 O. O. 468.
As the ghost of Lord Abinger rode down through the decades, phrases such as "result of an external and accidental means," "sudden mishap," and "unusual event" have been added by the courts to pervert the spirit of the constitutional authorization and legislative definitions so as to disallow claims directly caused in fact by the job while the worker was on the job. ( Dripps v. Industrial Commission (1956), 165 Ohio St. 407, 60 O. O. 55.)
Let us now turn to the history surrounding the enactment of the present Ohio statutory definition of "injury" under Workmen's Compensation. It is recited by Judge Bell in the majority opinion in Hearing v. Wylie (1962), 173 Ohio St. 221, 19 O. O. 2d 42.
The Hearing case dealt with a lifting injury which took place before the effective date of the 1959 statutory amendment to the definition of "injury" in Section 4123.01 (C), Revised Code, and the 1959 enactment of the "liberal construction" clause. Compensability was denied. The majority of the court, although not referring to the liberal construction clause, agreed that the injury would have been compensable had it occurred after the effective date of the 1959 legislation. Judge Zimmerman dissented:
"ZIMMERMAN, J., dissenting. The General Assembly amended Section 1465-58, General Code (117 Ohio Laws, 109, now Section 4123.54, Revised Code), effective in July of 1937, by adding the following provisions: "`The term "injury" as used in this section and in the Workmen's Compensation Act shall include any injury received in the course of, and arising out of, the injured employee's employment.'" (Emphasis supplied.) Such part of the section was in substance placed in Section 4123.01, Revised Code, effective October 1, 1953.
"It is the writer's position, which he has maintained and expressed for a long time, that the provision above quoted meant exactly what it said, so that any injury received by a workman which was directly attributable to and associated with the employment in which he was engaged at the time was compensable and embraced an injury accidental in character and result as well as one caused by accidental means. For example, see the writer's dissent in * * *
"Consequently, it is the writer's opinion and conviction that, when in 1959 the General Assembly, recognizing that a majority of this court was persistently misinterpreting the definition of the term, `injury,' as it had been defined in 1937 and thereafter, amended Section 4123.01, Revised Code, by defining `injury' as including `any injury, whether caused by external accidental means or accidental in character and result.' It did no more than to restate and emphasize what it had actually intended and said when it amended Section 1465-68, General Code [Section 4123.54, Revised Code], in 1937 and when it included similar language in original Section 4123.01, Revised Code, defining `injury.'
"Therefore, the judgment of the Court of Appeals herein should be affirmed."
Judge Bell for the majority in the Hearing case had said:
"The conclusion is inescapable to a majority of this court that the General Assembly intended to define `injury' in the terms of the Malone rule and in the terms of Judge Zimmerman's dissent in Dripps." ( Dripps v. Industrial Commission, 165 Ohio St. 407, 60 O. O. 57. Malone v. Industrial Commission, 140 Ohio St. 292, 23 O. O. 496, 43 N.E.2d 266.)
Continuing from Judge Bell's opinion:
"The legislative branch of the government exercised a prerogative delegated to it, and the judiciary is obligated to respect that prerogative."
Thus we observe the Dripps is repealed and Judge Zimmerman's position is "codified." Let us examine it.
Dripps v. Industrial Commission, 165 Ohio St. 407, at page 411:
"ZIMMERMAN, J., dissenting. In addition to what Judge Hart has said in his opinion, I would like to add the following observations:
"It seem to me that the majority opinion in its plain implications, at least, represents a return to this court's position prior to the amendment of old Section 1465-68, General Code. That statute as amended, presently Section 4123.01, Revised Code, defines `injury' as including ` any injury received in the course of, and arising out of, the injured employee's employment.'
"Surely there was a purpose in adopting this amendment and to my mind that purpose was to broaden the term, `injury,' to embrace injuries accidental in character and result as well as those produced or caused by accidental means."
Having examined the meaning of Judge Zimmerman's dissent in the Dripps case, let us now examine the problem of back injuries by heavy lifting since the case of Malone v. Industrial Commission (1942), 140 Ohio St. 292, 23 O. O. 496. We do this because Judge Bell in Hearing v. Wylie said that the Legislature in 1959 intended to adopt the Malone rule as well as the rule in Judge Zimmerman's dissent in the Dripps case.
We find a clear-cut answer in the case of injury by heavy lifting. Such lifting injuries are compensable since and because of the "Malone rule" according to the express opinion and holding of the Supreme Court in Maynard v. B. F. Goodrich Co. (1944), 144 Ohio St. 22, 28 O. O. 558, which says:
"The statute does not expressly require the injury to be accidental. Neither is it expressly required therein that there be a causal connection between the injury and the employment. Yet there is the express provision that the injury must be received in the course of and arise out of the employment. This essential cannot exist without such causal connection, and, in turn, causal connection cannot exist unless the injury is accidental in character and result."
The court in the Maynard case dealt with a heavy lifting injury which it said was now compensable since and because of the "Malone rule" although such lifting cases were not compensable before the Malone case. (See Industrial Commission v. Franken (1933), 126 Ohio St. 299, and Maczak v. Goodyear Rubber Co. (1942), 139 Ohio St. 181, 22 O. O. 157.)
The Maynard case says all that is required to be shown is that the injury is "accidental in character and result" and goes on to explain that such phrase is nothing more than an expression of the causal connection implied by the statutory provision that the injury must be "received in the course of, and arising out of the employment."
In cases where the job requires frequent and regular heavy lifting, an exclusion from compensability because the injuries were received while doing the usual work in the usual way or without any unusual event or occurrence, would be particularly vicious. This particular "usual work" has a great capacity to produce a generally accepted injury when done in the usual way.
Beyond pre-1959 the case law, the most compelling authority for recovery in the case at bar is the liberal construction clause (Section 4123.95, Revised Code).
In 1959, Davis v. Goodyear, 168 Ohio St. 482, 7 O. O. 2d 302, was decided reaffirming the Dripps rule and Judge Bell "* * * suggested that if the court was wrong in Dripps, `our error should be corrected by the General Assembly and a different approach to Workmen's Compensation outlined in clear and unequivocal legislative expression.'" Promptly and in direct response the Legislature did both.
The Legislature did two things in 1959. It not only amended the definition of "injury" using the words of Judge Zimmerman's dissent in Dripps but in addition thereto it added for the first time a liberal construction section.
Section 4123.95, Revised Code, is:
"Liberal construction. Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees."
One might regard this as the final nail in Lord Abinger's coffin. Yet the administrative agency would once again raise Lord Abinger's ghost and harass another claimant whose back is broken directly in the service of his employer.
The curious thing about the administrator's position is that had a machine been doing this job and broken at this stage of the operation no one would claim it was not a properly chargeable expense of production.
A human back used to save the expense of a machine for thirteen years is, when it breaks, somehow regarded with less favor than a machine.
Such injuries to employees are an economic cost of production. They always have been and they always will be.
Stull's disability is one which was undisputedly caused by the work and not one which merely appeared coincidentally while the workman was at his place of employment.
Yet the administrator asserts "something unusual must happen." To this, an inquiring mind must respond "Why?" If the worker's back breaks while working in place of a machine and because of the workload, what more need be shown?
If a fellow worker watching this phenomenon slipped on a banana peel, his resultant injuries would — one may gather — be compensated without opposition.
The point of this decision is that artificial rules based not upon causation but someone's subjective appraisal of the entertainment value of the surrounding circumstances are no more than remnants of "judge-made" policy which subsidized industry at the expense of the workman in 19th Century England.
This governmental policy is dead!
The modern rule evolved is that costs of production should be borne by the consumer of the goods produced.