Lead Opinion
The principal question to be determined in both cases is: Where, in a hearing on a workmen’s compensation claim, a hypothetical question is propounded to a medical witness for the purpose of establishing causal connection between an accidental
As a preliminary, it is appropriate to set forth briefly the basis upon which compensation to injured employees is determined and allowed. Prior to the 1937 amendment of Section 1465-68, General Code, it provided for compensation to an employee “injured * * * in the course of employment.” By reason of the amendment of that section , in 1937 (117 Ohio Laws, 109), the term, “injury,” was limited further to an injury “received in the course of, and arising out of the * * * employment,” and Section 4123.01, Revised Code, defining terms used in the Workmen’s Compensation Act, retains this limitation, as follows:
“(C) ‘Injury’ includes any injury received in the course of and arising out of, the injured employee’s employment. ’ ’
For an injury to “arise out of the employment” obviously requires a certain causal connection between the work or employment and the injury. It arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. McNicol’s case,
This court has heretofore repeatedly recognized the necessity of finding a causal connection between the employment and the injury in workmen’s compensation cases. Fassig v. State, ex rel. Turner, Atty. Genl.,
In addition to the above-discnssed causal relationsMp between the employment and injury, this court has also definitely held that there must be a direct or proximate causal relationship between the employment and the compensable harm or disability. McNees v. Cincinnati St. Ry. Co.,
And this court has frequently held that a claimant for a death benefit must establish the fact that the accidental injury was the proximate cause of the death. Weaver v. Industrial Commission,
Where a workman has sustained an accidental injury arising out of the employment, he may or may not be allowed compensation for subsequent harm or injurious effects, depending upon whether they are the direct or proximate consequences of the accidental injury, or whether the chain of causation has been broken by intervening or superseding causes. Kill v. Industrial Commission,
Just as the employment must be the legal or direct cause of the accidental injury, so the injury must be the direct cause of the harm or disability complained of. McNees v. Cincinnati St. Ry. Co., supra. The problem here involved is the type or quality of medical evidence required to make proof of such latter relationship. In the case of Aiken v. Industrial Commission, supra, this court held that to entitle a claimant to participate in the State Insurance Fund upon the claim that the death of a workman resulting from acute myocarditis was attributable to a compensable knee injury, the evidence must show that the 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, citing, among other cases, Weaver v. Industrial Commission,
“The rule is well settled by numerous cases that to*576 establish-the relation of cause and effect between an injury to a workman and his death so as to justify an award of death benefits under a workmen’s compensation law, the evidence must be such as to remove the case from the realm of speculation and conjecture; there must be competent evidence tending to show a proximate causal connection between the injury and the subsequent death.” See, also, Brandt v. Mansfield, Rapid Transit, Inc.,153 Ohio St., 429 , 92 N. E. (2d), 1; and Drew v. Industrial Commission,136 Ohio St., 499 , 26 N. E. (2d), 793.
We, therefore, conclude that 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 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 accidental injury and his harm or disability; and where medical evidence is necessary to establish such relationship, that evidence must show that his accidental injury was or probably was a direct or proximate cause of the harm or disability. The jury ma determine the issue of proximate cause from the evidence on the basis of probabilities and not necessarily on the basis of absolute fact. It would be inharmonious and inconsistent to require the evidence of the witness to be on a basis higher than that upon which the jury could predicate its finding on that issue, namely, on probabilities. See Brandt v. Mansfield Rapid Transit, Inc., supra.
In case No. 33990, the plaintiff, who worked several months after his injury for which he received compensation, bases his right to further compensation on a claimed development of a heart ailment which further disabled him. Such a claim can be established
The first medical witness was asked whether there was a causal relationship between the plaintiff’s injury and the heart ailment. The court sustained an objection to this question for the reason that it did not require the witness to answer whether there was a direct or proximate causal relationship. A proffer was made that the witness, if permitted, would answer that “I believe there is a causal relationship.”
The exclusion of this question and answer was error. If admitted, the answer would constitute some evidence of causal relationship, since a proximate causal relationship is a causal relationship.
In any case, evidence is relevant and admissible if it tends to prove a certain element of an ultimate fact even though it does not tend to establish all elements of the ultimate fact necessary to be proved; and evidence is relevant and admissible if it tends to corroborate evidence of certain but not all elements of a necessary ultimate fact. See 20 American Jurisprudence, 245, Section 252.
However, the evidence here proffered was insufficient in itself to prove a direct or proximate causal relationship, and, in the absence of other evidence to cure the insufficiency, its exclusion was harmless error.
The second medical witness for the plaintiff testified
The court sustained the objection to the hypothetical question submitted to the first medical witness on the ground the question did not inquire of the witness as to whether the injury was the “direct” or “proximate ’ ’ cause of the heart condition complained of, and the objection to the hypothetical question submitted to the second medical witness was sustained on the ground that the witness was asked to assume physical facts which were contrary to his own testimony. 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.
The judgment of the Court of Appeals in this case is affirmed.
In case No. 34018, there was a claim of high blood pressure and heart damage as the basis of harm. The plaintiff himself testified to physical facts which presented competent evidence as to an accidental occurrence in connection with unusual exertion in lifting a heavy weight. Medical testimony was presented to the effect that this so-called accidental circumstance caused damage to plaintiff’s heart. A medical witness testified as to myocardial damage with resulting harm, and a hypothetical question was submitted covering his findings in a physical examination of the plaintiff and inquiring of the witness whether there was any
“It is my opinion that there was a direct causal relationship between the occurrence in June 1949 and the symptoms which followed, and the findings at the time of my examination.” (Italics supplied.)
The court sustained the objection to that answer and likewise to a very complete answer, on request, to explain his former answer, which latter answer covered the then physical condition of the plaintiff and in which the medical witness, among other statements, termed the condition found as “a factor which was aggravated by the occurrence in question.” A medical witness may properly explain his ofttimes limited answer to a hypothetical question. In the case of Nelson v. Industrial Commission,
This court is of the opinion that the trial court erred in refusing to admit these answers which fully met the legal requirements as to proof of proximate cause, even if the question submitted to the witness was not fully complete in that respect, especially where the evidence in the instant case was necessarily submitted on a transcript to the trial court and plaintiff’s counsel had no opportunity to reframe the hypothetical question to conform with the content of the competent answer. In this we think the trial court erred, and like
The judgment of the Court of Appeals in chis case is reversed and the cause is remanded to the Court of Common Pleas for further proceedings in conformance with this opinion.
Judgment in cause No. 33990 affirmed.
Judgment in cause No. 34018 reversed and cause remanded.
Concurrence Opinion
concurring. In cases of this kind, the plaintiff must establish by the preponderance of the evidence that his employment was (1) a proximate cause of an accidental iiijury and (2) that such injury was a proximate cause of the disability for which he seeks compensation (McNees v. Cincinnati Street Ry. Co.,
Such medical evidence, to be admissible, must tend to prove that proximate causal relationship. If it does not it must be rejected. Brandt v. Mansfield Rapid Transit, Inc.,
This does not mean that a medical witness must, in cases of this kind, testify that the accidental injury was the proximate cause of the disability. Hallworth v. Republic Steel Corp.,
In my opinion, the testimony of the first medical witness in case No. 33990, that the accidental injury to the plaintiff in that case was “a cause” of the heart condition, is too indefinite to be of any help to the jury in determining that the injury was the proximate cause of the heart condition; and it was therefore properly excluded.
A plaintiff in this kind of a case has the opportunity not only to select expert witnesses to testify on his behalf but also to frame hypothetical questions calling for answers which will definitely support his claim of proximate causation. Thus, there was nothing to prevent this plaintiff from asking a qualified expert witness a proper hypothetical question calling for his opinion as to whether plaintiff’s accidental injury was the “natural and probable cause” of the heart condition or whether the heart condition was “the natural and probable consequence” of the accidental injury.
If there was any merit to plaintiff’s claim, a qualified expert that he selected to support his claim should have been able to testify at least that plaintiff’s accidental injury was “the cause” (Hall v. Nagel,
As stated in paragraph four of the syllabus in Buretas v. Industrial Commission, ante, 549, “to permit a jury to make a choice between two irreconcilable inferences raised by the facts in evidence * * * is to substitute speculation and conjecture for proof.” Likewise, 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 case No. 34018 the medical witness was asked for “an opinion based upon a reasonable degree of medical certainty, as to whether or not there” was “any causal connection between” the accidental injury and the claimed disability. Obviously “any causal connection” could just as probably be legally a “remote” as it could be a “proximate” causal connection. Regardless of how probable or certain it was that there was merely “any causal connection,” there would be nothing to indicate any probability of a “proximate” rather than a “remote” causal relationship. In my opinion, this hypothetical question was objectionable.
However, the answer to this question was “that there was a direct causal relationship between” the accident and the claimed disability. If the ques
Such a question should not be considered as using the term “direct” as necessarily meaning “direct” in the legal sense as equivalent to “proximate.” Cross-examination of the witness might disclose that, in using the words “direct causal relationship,” he was describing what would be legally a remote instead of a proximate causal relationship, in which event it would appear that his testimony had no more significance than the answer to the hypothetical question in case No. 33990 and would be subject to a motion to strike. However, in the absence of something to indicate that the words “a direct causal relationship” were not intended to be given their ordinary meaning, those words will more probably indicate what is legally a “proximate” than what is legally a “remote” causal relationship.
If this were an ordinary civil aetion in which the trial judge had sustained an objection to the hypothetical question, his ruling on that objection would be affirmed on appeal notwithstanding the proffered answer. However, the record in a workmen’s compensation case like this is made before a rehearing referee. In this case, the referee overruled the objection to the hypothetical question. Thus, if the sworn answer of the witness is not allowed to cure the defect in the form of the question, counsel for plaintiff will be deprived of a right, which he would have had in an ordinary civil aetion, to remedy that defect by rephrasing the question, although the record clearly discloses that he could have remedied the defect in the form of the question so as to make the sworn answer of the witness admissible. Because of this and since there is nothing to indicate that plaintiff would secure
The statement in paragraph three of the syllabus represents the expression of an opinion on a question of law which was neither briefed nor argued by the parties and which it is not necessary for this court to consider in deciding these cases.
Although, in case No. 34018, testimony of an expert medical witness as to his reasons for his answer to a hypothetical question was excluded, the decision of this court reversing the- Court of Appeals and the Common Pleas Court can be fully supported by our finding of error in sustaining the objection to the hypothetical question and its answer. If the proffered answer to that question had been admitted, there would have been sufficient evidence to justify submission of the cause to the jury, even in the absence of any further testimony of the witness as to his reasons for that answer.
Nelson v. Industrial Commission,
There is no doubt that, where a witness- -has answered a hypothetical question on direct examination, the opposing party on cross-examination may ask him to give the reasons for the opinion which he gave in answer to the hypothetical question. See Bellefontaine & Indiana Rd. Co. v. Bailey,
Ordinarily, cross-examination of a witness is an attack on the credibility of a witness.' Where conducted by a- party adverse to the party offering the witness, that is its usual purpose, although--sometimes the tes
To permit a party to ask of his own expert witness on direct examination questions, designed only to elicit answers giving his reasons for an opinion stated in answering a hypothetical question, appears to me to permit that party to cross-examine his own witness for the purpose of bolstering his credibility before that credibility has even been attacked. Such a bolstering of the credibility of one’s own witness would appear to be what might be referred to as “impeachment in reverse” of one’s own witness. It would also provide a very effective opportunity for a party to use his expert witness as a means of making an argument to the jury through the testimony of that witness as to the soundness of the conclusion of the witness before the credibility of that conclusion had even been attacked. The necessity, which justifies permitting an expert witness to state his conclusion in answer to a hypothetical question, would hardly seem to justify the giving of such an opportunity to a litigant before the credibility of that conclusion has even been attacked.
I do not mean to suggest that, on direct examination, an expert witness cannot be asked to give any explanation with respect to his answer. For example, in case No. 34018, the medical expert had examined the plaintiff about whom he was testifying. If, in the hypothetical question, he were asked to base his opinion on certain assumed facts and on his findings, it would be necessary to ask him to state to the jury what the findings were that he took into consideration in formulating his opinion. Otherwise, the jury would have no means of knowing the facts upon which his opinion was based. It is, of course, necessary that the record show the facts upon which the opinion is based
Also, there may be instances where, after questions have been asked on cross-examination as to reasons for the opinion of the expert witness given in his answer to the hypothetical question, it may clearly be proper on redirect examination to inquire further with respect to such reasons.
It may be that the reasons for my doubt as to the soundness of the broad statement in paragraph three of the syllabus are not sound or would be outweighted by other reasons which are not now apparent to me, but I believe that this court should refrain from again making such a statement in a syllabus before the legal questions involved therein are presented to us for consideration.