Bowman v. National Graphics Corp.

Per Curiam.

The issue to be decided in this cause is whether the agency and the courts below correctly held that a physical disability caused by the performance of one’s normal job duties, which disability develops gradually over a prolonged period of time on the job, is a compensable injury within the meaning of R. C. 4123.01(C). Amendatory language was inserted in the statute effective November 2, 1959 (Am. Sub. H. B. No. 470; 128 Ohio Laws 743, 745).

That section then provided and still provides:

“ ‘Injury’ includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.”

It is of particular interest that the Bureau of Workers’ Compensation and the Industrial Commission are now alleging that they erred in originally allowing ap*224pellee’s claim as an “injury” under R. C. 4123.01(0). Their brief states:

“The Bureau and the Commission feel compelled to make this concession [that they erred] since the decision rendered by the Court of Appeals in this ease, adopts a definition of ‘injury’ substantially different than that currently being applied by these agencies, and substantially different from the definition set forth by this Court.”

This court has never held a claim such as appellee’s to be an “injury” as defined in the statute. We have held that in order to be a compensable injury, a claimant’s condition must be “accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.” Malone v. Indus. Comm. (1942), 140 Ohio St. 292, paragraph one of the syllabus.

The statutory language we are now required to interpret was the language of Malone and post-dated Malone. That language was offered as an amendment to proposed House Bill No. 470. In adopting the 1959 amendment, the General Assembly rejected the definition proposed in House Bill No. 470, which would have defined “injury” as follows:

“Injury shall mean any disability or harmful bodily change, traumatic or otherwise in origin or result, received in the course of, and arising out of the injured employee’s employment. It shall include the occurrence or aggravation of any disability through the use of any exertion or being subject to any strain. To constitute an injury it shall not be necessary that there be some sudden, unusual unexpected occurrence, or some sudden specific mishap or event, or accidental means.”

By adopting the compromise definition of injury it is clear that the General Assembly intended to follow the rule articulated in Malone. The words “accidental in character and result” used in the compromise definition are precisely the words which had been used by the court in the second paragraph of the syllabus in Malone.

*225In 1962, this court recognized that legislative intent in the ease of Hearing v. Wylie (1962), 173 Ohio St. 221, at 223, wherein it was stated:

“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.”

Under the stated facts of this cause it is clear that we cannot affirm the holding of the court below except by reversing our holding in Malone and by ignoring the language chosen by the General Assembly from that case.

Clearly, under the facts of the instant cause there was no occurrence which was unforseen, unexpected, and unusual which produced Bowman’s disability. His disability simply developed gradually over a period of time as a result of performing his normal work activities. As a matter of fact, given the type of physical work Bowman performed, his disability may well have been predicted and expected to have developed as a result of normal “wear and tear.”

Whether the members of this court believe that gradually occurring “wear and tear” type disabilities resulting from normal employment activities should be compensable, the adoption of such a concept is properly a function of the General Assembly and not a function of the judiciary. Section 35 of Article II of the Ohio Constitution clearly grants the General Assembly that authority, by providing in part:

“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.” (Emphasis added.)

In defining the term “injury” in R. C. 4123.01(0), the General Assembly outlined one of the most basic conditions for participation in the Workers’ Compensation *226fund. This being so, it was the obligation of the Court of Appeals below to apply the enacted law rather than to attempt to amend it.

The judgment of the Court of Appeals is reversed.

Judgment reversed.

O’Neill, C. J., Herbert, W. Brown and P. Brown, JJ., concur. Celebrezze, Sweeney and Locher, JJ., dissent.