Oswald v. Connor

Locher, J.,

dissenting.

The majority has once again attempted to support a preordained result without reference to the applicable facts and law. If a shred of evidence beyond the speculative ruminations of decedent’s attending physician exists to support recovery, neither the majority nor I have been able to find it.

These attempts to modify the workers’ compensation laws only pave the way for unlimited recovery from a fund diminished by ruling after ruling by this court. See, e.g., Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90. I am therefore compelled to dissent.

The majority’s reliance on Weaver v. Indus. Comm. (1932), 125 Ohio St. 465, and McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77 [5 O.O.2d 345], is as mystifying as it is misplaced. In Weaver this court affirmed the necessity for showing the injury was the proximate cause of the acceleration of death by allowing a jury instruction to such effect when the trial court originally refused to so charge.

In McKee, a case this court supposedly is approving and extending, the decedent’s claimant sought to prove that a deep cut in decedent’s middle left finger aggravated a pre-existing heart condition and hastened death. The basis for this assertion, as it is in the case subjudice, was testimony by decedent’s personal physician who went one step further than the physician herein by claiming a direct causal relationship between the work-related finger accident and the coronary occlusion which actually caused the death.

Evidence was adduced in McKee to the effect that the decedent’s preexisting heart condition was well-advanced prior to the finger accident and any of a number of factors, from emotional upset to the common cold, could have accounted for the death. Finally, even plaintiff’s counsel admitted “that only God can tell the extent of any acceleration or aggravation, and, if only God can tell, how can a jury of twelve human beings do more than speculate upon the question?” Id. at 80. This court’s final con*45elusion was that although recovery might be possible when death was substantially accelerated by the wrongful act of the employer, the trial court erred in refusing to direct a verdict in favor of the defendant employer because the evidence was entirely speculative.

The instant case is virtually on all fours with McKee. Not only was the decedent suffering from a host of pre-existing ills including diabetes, hypertension and the coronary disease which ultimately culminated in his death, but his physician refused to establish a direct cause of death. If a myriad of intervening causal factors were insufficient to allow a directed verdict for appellees, the testimony of decedent’s physician indicated he was actually less sure of causation than the firmly rejected testimony of the physician in McKee. Decedent’s physician, Dr. Schaen, admitted, “I don’t think there was any direct relationship [between the wrist infection and the heart attack].” In response to a question directed by the court asking Dr. Schaen about the direct and proximate cause of Oswald’s death, the physician totally discredited his own letter which is the basis for the majority’s opinion and result:

“It’s a question that we are all here to try to figure out. I just have a gut feeling about it, that’s why I wrote the initial letter that I felt it did ex-celerate [sic] his death. How much, how soon, it is hard for me to put my finger on, but that’s just an opinion, it’s just a gut opinion.”

The basis for the majority decision is speculation without evidence to support the test of “direct and proximate result.” This is in spite of our prior decision in McKee where we noted without equivocation that speculation cannot be the basis for recovery. It is ironic that the case cited by the majority with approval in reality represents the antithesis of today’s result.

The analysis by the majority is as flawed as its legal precedent and evidence. First the majority concludes the words “direct and proximate causation” are magic and can be ignored. Once causation has been abolished by judicial fiat, the majority holds Oswald’s employer entirely responsible for Oswald’s death. This result is reached by castigating the employer for originally believing Oswald’s wrist infection was not job-related — a belief buttressed by Oswald’s own physician who originally misdiagnosed the problem. We are next led to believe that because the employer would not believe Oswald’s self-diagnosis, Oswald began to suffer stress and a subsequent depression. The majority would have us speculate Oswald’s pre-existing heart problems were accelerated by depression resulting in death, i.e., since the employer lacked faith in Oswald’s own diagnosis of his problems, stress ensued which in turn caused the depression, which in turn caused the heart condition to accelerate, which in turn caused the heart attack, which in turn caused death, and the employer must therefore be responsible for Oswald’s death!

The majority, however, is not content with merely reaching a preordained result by forging a causal chain linking one speculation after *46another. The opinion also creates an “egg shell” plaintiff rule that suggests an employer is responsible for any exacerbation of pre-existing condition, regardless of cause, once the magical incantation “job-related stress” is invoked to abolish “direct causation.” Presumably, the majority does not realize that after this opinion is issued employers will not hire marginally disabled individuals or those individuals with non-job-related pre-existing emotional or physical infirmities. Employers will justifiably fear both extensive workers’ compensation payments and intentional tort liability if anything on or off the job occurs to those employees. This fear is entirely justified when the majority’s analysis is stripped of its inconsistencies and rhetoric leaving the core of this opinion — a “but-for” test with an impossible burden on the employer to show lack of speculative causation.

The test for determining compensibility based on an accelerated preexisting condition is succinctly set forth in Swanton v. Stringer (1975), 42 Ohio St. 2d 356 [71 O.O.2d 325]. To recover, claimant must establish “that such disability was accelerated by a substantial period of time as a direct and proximate result of such injury. Id. at paragraph a of the syllabus. A reading of both the majority opinion and the trial court opinion indicates that no objective evidence was adduced to show the employer directly and proximately caused Oswald’s death. While this court will not substitute its own judgment for the trial court’s where evidence is sufficient to support the results reached, it is certainly our duty to reverse where no causation has been shown. This is such a case. It is unfortunate that the majority has now created a “but-for” test to usurp the previously well-established legal causation analysis.

Tragedy is a condition of life prevalent throughout the state, the country, and the world. As Supreme Court Justices in a court of law we must act with compassion and do what we can to ameliorate suffering. This does not mean that we may unilaterally act in contravention of law, logic, and precedent to reach preordained results for the few to the detriment of the many. Our workers’ compensation system is one of the finest in the country and should work to the benefit of the employees and employers.

Until the majority recognizes the institutional constraints upon this court in applying facts to law and the full ramifications its decision will have against employees with pre-existing medical problems, I am compelled to dissent.

Holmes and Wright, JJ., concur in the foregoing dissenting opinion.