Howard v. White-Westinghouse, Inc.

444 N.E.2d 46, 3 Ohio App. 3d 169, 3 Ohio B. 194, 1981 Ohio App. LEXIS 10038

• Court: Ohio Court of Appeals
• Decided: September 29, 1981
• Docket: 81AP-145 and 81AP-146
• Status: Published

Opinion

Reilly, J.

This is an appeal from a judgment of the Court of Common Pleas of Franklin County.

The record shows that appellee, Patty L. Howard, reported that she injured her back. She was working on a refrigerator assembly line, for periods of one to one and one-half hours. Her job required her to bend and stoop several times during the hour. The plant physician, Dr. Augusto Pangalangan, indicated that her pain apparently was from repeated bending. Her physician, Dr. Paul Matrka, an orthopedic surgeon, could not identify a single incident causing her injury, but indicated that it occurred over approximately a time span of an hour.

Appellant, White-Westinghouse, moved for a directed verdict. The trial court overruled the motion and the case was decided by the jury in appellee’s favor.

Appellant has now perfected this appeal, including the following assignment of error:

“1. The Trial Court erred in not directing a verdict for White-Westinghouse Corporation because the manifest weight of the evidence is that no one specific incident caused Patty Howard’s injuries while she was working for White-Westinghouse Corporation on April 28, 1977 but rather her injuries were caused by repeated activity and through gradual onset. As such she did not suffer a com-pensable injury under the Law of Ohio.”

Counsel for both parties cite Bowman v. National Graphics Corp. (1978), 55 Ohio St. 2d 222 [9 O.O.3d 159], which states at page 224:

“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 [23 O.O. 496], paragraph one of the syllabus.”

Therefore, when an employee doing various tasks, some of which require repeated bending and stooping for a period of approximately one to one and one-half hours, was accidentally injured, a causal connection between her employment and her injury was established, the injury being accidental in character and result. This rationale has been recently set forth by the Supreme Court in Czarnecki v. Jones & Laughlin Corp. (1979), 58 Ohio St. 2d 413, at pages 418-419 [12 O.O.3d 353]:

“The chronology of Malone, Dripps and R.C. 4123.01(C) also shows that the General Assembly did not intend for the Malone language in R.C. 4123.01(C) to require a preceding unusual circumstance as a prerequisite for compensation. The Franken opinion, which established the ‘external accidental means’ or unusual circumstances doctrine, was written in 1933. In 1937, the General Assembly enacted G.C. 1465-68, which defined com-pensable injury as ‘any injury received in the course of, and arising out of, the injured employee’s employment.’ (Emphasis added.) The Malone opinion was written in 1942, and the Dripps opinion reinstated the ‘external accidental means’ requirement in 1956. In 1959, Judge Bell’s concurring opinion in Davis, supra (168 Ohio St. 482, 484 [7 O.O.2d 302]), characterized the Malone and Dripps doc trine as conflicting, applied the Dripps doctrine and, in Judge Bell’s words, appealed to the General Assembly to correct any error the court may have made in applying the Dripps test for compensability.

“Later in 1959, the General Assembly amended the statutory definition of com-pensable injury. (The timing and language of the amendment indicate that the General Assembly was responding to the problems raised in the Davis case.) In the process of redrafting the statute, the General Assembly adopted the definition of compensable injury now found in R.C. 4123.01(C), a definition that incorporates both the Malone and Dripps tests for com-pensability. (The language of R.C. 4123.01(C) — specifically the word ‘or’ which joins the phrases ‘caused by external accidental means’ and ‘accidental in character and result’ — makes it clear that the General Assembly intended the two phrases to be read in the alternative and intended the injury to be compensable if it fell under either phrase.) By declining to adopt the Dripps test alone, the General Assembly chose not to make an unusual circumstance a prerequisite to compen-sability. * * *”

Thus to hold for appellant in this ease would require reinstatement of the Dripps test (Dripps v. Indus. Comm. [1956], 165 Ohio St. 407 [60 O.O. 305]), because appellant’s contention is inconsistent with Bowman, Malone and Czamecki, and consistent only with Dripps. In Malone, it is the result that is sudden and unexpected; unlike in Dripps, wherein the means must be sudden and unexpected. Dripps limits the test to means, but Malone expands it and includes the result. Appellee in this case has not proven accidental means but she has shown that her injury was accidental in character and result. As set forth above in Czamecki, appellee was not required to show that one specific incident, or unusual circumstance, caused her injuries as a prerequisite to a compensable injury.

Therefore, appellant’s assignment of error is not well taken and is overruled.

Accordingly, for the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

Whiteside and NoRRis, JJ., concur.