194 N.E. 881 | Ohio Ct. App. | 1934
Herman O. Borchert, an employee of The Consumers' Dairy Company, having been denied compensation by the Industrial Commission for alleged injuries claimed by him to have been compensable under the Workmen's Compensation Law of Ohio, appealed to the Court of Common Pleas, wherein, upon trial, the jury found in his favor. From the judgment rendered on the aforesaid finding the Industrial Commission prosecutes error to this court.
Borchert began working for the dairy company as a night watchman in the spring of 1930, and in July of that year his employment was changed to that of helping to load delivery trucks of the company. The Page Dairy Company, from which the milk was bought, delivered it by truck to The Consumers' Dairy Company in "cases of quarts", each weighing from 35 to 40 pounds or more, Borchert stating that each probably weighed between "35 and 40 pounds". It was his duty to help transfer the cases of milk from the Page Dairy trucks to the delivery trucks of the Consumers' Dairy. From the Page Dairy trucks the cases of milk were placed on a smaller truck, called a "dolly", from which Borchert lifted them to a chute on which they passed or were carried to employees of the Consumers' Dairy Company, whose business it was to deliver the milk to customers. Borchert's period of service was in the night time, but the evidence does not disclose when his hours of service began and ended. In doing his work, he handled approximately 400 cases of milk each night. In taking them from the "dolly" to place them on the chute he brought the milk cases against the side or front of his body with such force as would be usual in handling them in that manner. He performed this same work each night *7 from some time in July, 1930, until December 3, 1930. The floor where he was employed was wet and slippery, and he says that "about four or five days previous to going to the hospital, I was pulling one of these dollys with a steel hook, and my feet went out from under me and I started to fall backwards, and I fell right across the chute where we load the milk and struck myself across my abdomen. It took the breath out of me, — knocked the breath out of me."
He testified also that the day he went to the hospital was the first day he noticed these abdominal pains, that nothing had happened out of the ordinary the night before, and that he had done his regular work in the usual way. On the morning of December 3 he began to have intestinal pains and went to a drug store to get something to relieve the pain. Whatever he obtained was ineffective, and about eleven o'clock he asked to be and was taken to a hospital. He continued to suffer abdominal pains, and that night an operation was performed by Dr. Wenner; Dr. Figley also being present. Dr. Wenner thus described the condition of Borchert, as disclosed by the operation. He said:
"On entering the abdomen a moderate amount of blood-stained peritoneal fluid appeared at the opening. The small intestine was distended. A loop of small bowel about 18 inches long was found twisted and held by moderate adhesions; it was blue-black in color and markedly discolored. The adhesions were fresh and of recent origin. Small mesenteric vessels, involved in this loop, were thrombosed and ruptured and the mesentery was also blue-black in color. There was considerable emmena of all layers of the intestinal tract in this loop. The loop of bowel was freed and covered with hot towels and the remainder of the abdomen was explored. Strangulated loop of bowel showed no sign of returning normal blood supply, *8 thrombosing of the vessels making that impossible. This portion of the bowel was resected together with the V-shaped portion of the mesentery. The ends of the bowels were separated, inverted and covered with Lambert sutures. The mesenteric vessels, which were cut, were individually ligated. A side to side anastomosis was performed with an inner layer of sutures going through all coats and an outer layer of Lambert sutures. Mesentery was slightly overlapped and several approximating sutures were used to hold it in position."
He also testified as follows:
"Q. Would you say that the nature of the work which Borchert performed, such as loading milk cases in the performance of his work striking his abdominal region with each milk case as he piled them, caused his intestines to be ruptured? A. The intestines had not yet ruptured.
"Q. Would the constant striking against the abdomen in handling about 400 milk cases daily for five months cause blood vessels in that area to become ruptured or injured? A. Must be considered as an etiological factor."
"Q. Would the nature of Borchert's employment, such as loading milk cases, which necessitated the striking of his abdomen and the abdominal region with each case as he piled said milk cases for a period of about five months, cause injury to his abdominal organ and cause intestinal disorders and injury? A. I considered it an etiological factor.
"Q. Would the fact that Borchert handled about 400 cases of milk daily for a period of five months in the above described manner, cause the condition you found? A. That is my opinion."
"Q. Would you say that the striking of the abdomen and the abdominal region about 400 times each night for a period of about five months against the body of *9 a man of Borchert's size result in severe intestinal injury? A. I, personally, believe that Borchert's work must be considered as the probable exciting factor of his condition."
Having been asked his opinion as to the cause of the condition he found, he said:
"I consider that the increased bodily effort required by Borchert's work, together with the constant trauma of his abdomen, must be considered as the probable exciting cause of his condition, which necessitated the operation."
Dr. Figley testified as follows:
"Q. What was your diagnosis? A. That the strangulated bowel was due to adhesions, due to intestinal adhesions which had practically tied the bowel up in knots.
"Q. Growing together by scar tissue? A. Yes.
"Q. Was there anything in this case to indicate the cause of these adhesions? A. No, sir.
"Q. You mentioned inflammation being the cause of the adhesions, within or without or where? A. It is necessary to have inflammation within the abdominal cavity.
"Q. Would that be within the intestines? A. Not on the inside of the intestines, but on the outside.
"Q. But within the abdominal cavity? A. Yes.
"Q. Was there anything to indicate how old these adhesions were? A. They must have been there for some time because some of them were very dense.
"Q. Can you give us any idea of the length of time? A. No, I cannot. I have no way to do that.
"Q. Would it be a matter of hours, days, or weeks or months? A. In my opinion it was a matter of months.
"Q. Is it fair to say, Doctor, that the acute condition which you found and which you say was due to adhesions, resulted as a development of the adhesions *10 over a period of months, gradually getting worse, until the acute condition resulted? A. As a result of the presence of these adhesions in my opinion it was inevitable that sooner or later this man would develop such a condition he might develop it as he did, very acutely.
"Q. When an acute condition like that develops, the individual is almost immediately incapacitated, isn't he, Doctor? A. Acute strangulation or acute intestinal obstruction does come very suddenly, yes.
"Q. And it incapacitates the individual immediately? A. Yes."
From the foregoing issues and facts the question arises as to whether the condition of Borchert, as disclosed by the surgical operation, was an injury within the meaning of the Workmen's Compensation Law. All of the evidence is clearly and indisputably to the effect that the disclosed condition developed over a long period of time and resulted from the repeated contacts of the milk cases with Borchert's body, no one of which alone was the cause. All of them together, say the physicians, by gradation of effect caused the ultimately discovered condition. The manner of performing the work was the usual, customary and incidental method inherent in his employment. In its meaning, the term "disease" is of broad and inclusive significance, but no claim is here made that Borchert's condition was a compensable disease. Neither was his condition the result of an accident, since an accident is an instant happening, not the result of a gradually progressing or developing condition. The evidence does not indicate that the falling by Borchert upon the slippery floor induced or in any way affected or caused Borchert's alleged injury. The medical testimony, which is the only evidence on the subject, attributes the cause of his suffering solely to the continuing series of physical contacts of his body with the milk cases during *11
the five month period of his employment. The Supreme Court inIndustrial Commission v. Franken,
"Unless the entire theory of the Workmen's Compensation Law which has obtained in this state for many years is to be disregarded and the many decisions of this court involving the question are to be reversed, it must be held that the term `injury' as used in the Ohio Workmen's Compensation Law comprehends only such injuries as are accidental in their origin and cause."
The court also says at page 301:
"Impairment of physical condition accruing from constant and continued labor, no matter how heavy or arduous it may be, is not covered by the Workmen's Compensation Law. Such impairment does not come within the meaning of the term `injury'."
Also, in the first paragraph of the syllabus in IndustrialCommission v. Lambert,
"Unless a claimant's condition is the result of physical injury, it is not compensable under the workmen's compensation law of Ohio."
Lambert's duties "consisted in carrying ladles of molten iron from the furnace to the moulds." The specific claim was to the effect that at about 11 o'clock, a.m., on February 22, 1930, "the heat and pressure of the ladle handle so affected the palmar surface of his right hand that it became inflamed, swollen and numb, and injured the nerves and tendons of his right hand to such an extent that it became paralyzed and useless."
In its opinion, at page 504, the Supreme Court says:
"There is absolutely no evidence of an accident or specific injury on February 22, 1930. If the work had anything to do with claimant's condition, it was simply *12 because the nature of the employment caused `the pressure of that hot iron handle on his hand', and this in turn developed an inflammatory process. There was nothing unusual in the nature of claimant's employment on February 22, 1930. He was doing the same work he had been doing for seven years."
In harmony with the foregoing decisions, we conclude that the bodily impairment suffered by Borchert is not an injury within the meaning of the Workmen's Compensation Law.
The judgment of the Court of Common Pleas is therefore reversed and final judgment rendered in favor of the Industrial Commission.
Judgment reversed and final judgment for plaintiff in error.
RICHARDS and CROW, JJ., the latter of the Third Appellate District, concur.
