I write separately in order to indicate (1) my concurrence in the judgment of the majority, and (2) my disagreement with the appraisal of the majority that Kane v. Ford Motor Co. (1984),17 Ohio App.3d 111, 17 OBR 173, 477 N.E.2d 662, is the preferred interpretation of Swanton v. Stringer (1975), 42 Ohio St.2d 356, 71 O.O. 2d 325, 328 N.E.2d 794, over the interpretation expressed in Starcher v. Chrysler Corp. (1984), 15 Ohio App.3d 57, 15 OBR 86, 472 N.E.2d 736.3
The syllabus of Swanton, supra, is as follows:
"1a. A disabling condition, resulting from a pre-existing disease and claimed to have been accelerated by an injury in the course of and arising out of employment, is compensable under the Workmen's Compensation Act, where it is established that such disability was accelerated by a substantial period of time as a direct and proximate result of such injury.
"b. In such case, proof that the disability of an employee from disease was accelerated as the result of an injury in the course of and arising out of employment must include competent medical testimony that the injury directly and proximately accelerated the debilitating effect of the disability by a substantial period of time.
"c. Such competent expert medical testimony, in response to a proper hypothetical question based on evidence, that `any acute exposure to a significant amount of dust or irritating odors would substantially aggravate this pre-existing condition' and `I feel that this might be, figuratively speaking, the straw that broke the camel's back by aggravation of the pre-existing condition' is sufficient competent medical testimony to establish that the injury directly and proximately accelerated the disability by aggravation of the pre-existing disease."
The syllabus does not state the law to be that a substantial aggravation of the pre-existing condition must be proved in order for the injury to be compensable. In the syllabus, the adjective "substantial" modifies acceleration of the progress of the pre-existing *Page 192 condition. That word is found as a modifier of "aggravation" only in the quotation of a portion of an answer of an expert medical witness in paragraph 1c of the syllabus.
This use of "substantial" by the Supreme Court in Swanton is noted in Starcher, supra; Kane, supra, does not even mentionSwanton. Starcher held that the trial court erred in its instruction to the jury that the claimant must establish a substantial aggravation of a pre-existing condition in order to participate in the workers' compensation fund on account of that condition. The Court of Appeals for the Ninth District relied onSwanton in holding that all the claimant need prove in this regard is that the pre-existing condition was aggravated by the injury. I am not ready to agree on the record of this case that "such acceleration [of disability by a substantial period of time] can be caused only by a substantial aggravation."
Finally, the majority determined, correctly, that the injury sustained by appellant constituted a substantial aggravation of his pre-existing condition. A "substantial aggravation" is by its very name something more than "aggravation." I would not, therefore, rely on Kane, supra, or consider it a preferred interpretation of Swanton.
3 See, also, Heichel v. Bur. of Workers' Comp. (Oct. 8, 1986), Richland App. No. CA-2398, unreported.