Oswald v. Connor

Wright, J.,

dissenting.

I concur in Justice Locher’s dissent. I write separately to emphasize that the majority has incorrectly applied the requisite standards of proof and causation.

Although I agree that Oswald suffered an occupational disease, avian tuberculosis, I do not believe that the claimant established, by the requisite preponderance of the evidence, a legally adequate causal relationship between the occupational disease and Oswald’s death from a heart attack.

As noted by Justice Holmes in his concurring opinion in Village v. General Motors Corp. (1984), 15 Ohio St. 3d 129, 135, a claimant “must initially present substantial evidence that the resultant heart attack arose from conditions in the course of employment.” (Emphasis added.) In the present case, Dr. Schaen’s statement that it was his “gut feeling” that Oswald’s death was accelerated by job and disease-related stress does not satisfy this evidentiary requirement.

Furthermore, the majority has misapplied the rules of causation as they pertain to workers’ compensation cases. The majority correctly notes that in order to prevail, a claimant must prove: (1) that the injury or disease arose out of and in the course of employment; (2) that a direct, proximate, or substantial causal relationship existed between the injury and the harm, disability, or death; and (3) that the death or disability was accelerated by a substantial period of time as a direct or proximate result of the injury or disease. Fox v. Indus. Comm. (1955), 162 Ohio St. 569 [55 O.O. 472]; McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77 [5 O.O.2d 345]; Swanton v. Stringer (1975), 42 Ohio St. 2d 356 [71 O.O.2d 325]. These plainly are rules of proximate causation.

The majority, however, after acknowledging that recovery is warranted only upon proof that the occupational disease is the proximate cause of death, mistakenly applies the less stringent cause-in-fact test. This test is satisfied upon proof that the harm complained of would not have occurred but for the wrongful actions of the guilty party. The test for proximate cause, on the other hand, is satisfied when the injury is one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.

For the sake of argument, I will concede that the acceleration of Oswald’s death may not have occurred “but for” his occupational disease. The disease may have been but one amongst many remote causes-in-fact of *48bis death. This test of causation, however, will neither support recovery-under general principles of tort law nor under the Workers’ Compensation Act.

The claimant, in order to prevail, must prove that Oswald’s death by heart attack was a reasonably foreseeable consequence of the avian tuberculosis. Claimant has not, and indeed cannot, satisfy this requisite burden of proof as to causation. The avian tuberculosis was not the direct or proximate cause of Oswald’s death. The occupational disease and the response of the parties to it were the direct, proximate causes only of Oswald’s chronic stress. The stress, in turn, may have been a direct cause of Oswald’s heart attack. This, however, is uncertain because Oswald suffered from many pre-existing ailments — coronary disease, hypertension, diabetes, and the aftereffects of heavy smoking — all of which could cause a sudden heart attack. In any event, even if the stress was a cause of Oswald’s death, we simply cannot go so far down the chain of causation to conclude that the avian tuberculosis directly or proximately caused the fatal heart attack. In light of Oswald’s prior medical history, we can merely speculate whether the stress accelerated Oswald’s death by the required substantial period of time. Thus, the relationship between the occupational disease and Oswald’s death from a heart attack is indirect at best; that is not sufficient, however, to entitle the claimant to the benefits of the workers’ compensation system.

Thus, I must dissent.