Senvisky v. Truscon Steel Division of Republic Steel Corp.

168 Ohio St. (N.S.) 523
CourtOhio Supreme Court
DecidedFebruary 25, 1959
DocketNo. 35466
StatusPublished

This text of 168 Ohio St. (N.S.) 523 (Senvisky v. Truscon Steel Division of Republic Steel Corp.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Senvisky v. Truscon Steel Division of Republic Steel Corp., 168 Ohio St. (N.S.) 523 (Ohio 1959).

Opinion

Herbert, J.

Both parties to this appeal state the question of law at issue here, as follows:

“Is the defendant-employer in a workmen’s compensation case entitled to judgment as a matter of law when the claimant’s medical evidence presents only ‘a causal relationship’ between the death of plaintiff’s decedent and an industrial accident?”

The record shows that plaintiff’s husband died February 18, 1953, at Youngstown, Ohio, from Hodgkin’s disease, a malignant condition of the lymph glands which spreads to other parts of the body and invariably results in death. This condition was first diagnosed at the time of the removal of a lymph gland from the left side of Senvisky’s neck on August 4, 1951, when the pathologist at the hospital determined that he was suffering from “reticulum cell sarcoma,” which the testimony [525]*525established is a manifestation of Hodgkin’s disease. During the periods from August 14 to August 24 and September 7 to September 14, 1951, he was given deep X-ray therapy on the left side of his neck by a Dr. Heberding (called as a state witness) to whom he had been referred by a Dr. Mermis, the decedent’s personal physician who had removed the gland.

In August of 1952, Dr. Heberding resumed X-ray treatments on decedent’s neck, most of these treatments being on the right side “because he had some glands appearing on the right side of his neck at that time.”

Dr. Heberding also testified as to deep X-ray treatments of Senvisky’s lumbar and abdominal regions, during the period from September 3 through October 17, 1952, treating him through the back, both sides and front because of lumps he could feel in the abdomen. All these treatments were for the lymph gland condition, according to Dr. Heberding.

On April 16, 1952, the decedent, then employed in the shipping department of defendant, was injured while engaged in loading steel hanger doors in a railroad gondola car, when a string of other cars, being pushed by a locomotive, struck a crane which was being used to load the doors into the car. He was thrown by the impact against the side of one of these doors, striking his head and back. For a short period of time he was dazed and when he regained his senses he wás out of the car and “down on the ground, but I felt pretty good then.” He remained at work the rest of the day, doing light-work, but the pain in his back became severe that evening so that he reported to the company dispensary the nest day, where he received heat treatments on his back at intervals for a period of about one month. In the month of June following, an appendectomy was performed on him by his physician, Dr. Mermis.

Dr. Goudsmit was called as a witness on behalf of plaintiff. He saw the decedent the first time on July 10, 1952, and the second time on November 26, 1952. The decedent was referred to him by the pathologist at the hospital “who was taking the place of Dr. W. 0. Mermis, who had been, and still was Mr. Senvisky’s regular physician and surgeon.” Dr. Goudsmit, whose speciality was internal medicine, testified that the Hodgkin’s disease, as it was diagnosed in November 1952, [526]*526was “exactly the same thing that was called ‘reticulum cell sarcoma’ ” by the pathologist in 1951. Following the decedent’s second visit, Dr. G-oudsmit placed him in the hospital from November 30,1952, to January 31,1953, and again from February 15,1953, until his death three days later. After a recitation of the facts of the injury of April 16 and the medical history of the decedent as a foundation for the inquiry, he was asked and answered the following hypothetical question:

“Doctor, I wish you to further assume your findings and diagnosis throughout the entire period of time that you saw Mr. Senvisky, both at the office and during his hospitalization, but exclude any history given you by Mr. Senvisky, and limiting your opinion, if you have one, to the facts contained in this question, I will ask you if you have an opinion as to whether or not there is a probable causal relationship between the incident described as occurring on April 16, 1952, when he struck his back, the symptoms that followed and the cause of his death on February 18th, 1953, from Hodgkin’s disease? a* * #

“A. Yes, I do have an opinion.

“Q. What is your opinion as to the causal relationship? a # # #

“A. It is my opinion that there exists a causal relationship between the accident in which Mr. Senvisky was involved in April of 1952, and the death which incurred [occurred] on February 18, 1953.”

The second medical witness for the claimant was a practicing physician in the city of Columbus, Ohio, specializing in internal medicine, who was called as an expert to render an opinion. He never knew or saw the decedent in his lifetime or after death. After testimony as to the nature of Hodgkin’s disease, the following hypothetical question, based upon a recitation of the facts of the accident and illness, was asked and answered:

“Assuming, doctor, those facts to be true, and limiting your opinion as to the facts contained in this hypothetical question, I will ask you if you have an opinion as to whether there is or is not a probable causal relationship either by way of causa[527]*527tion, aggravation, or acceleration between the incident described to you as happening at the plant of the Truscon Steel Company on April 16, 1952, when he struck his back, the symptoms that followed, and the cause of his death on February 16, 1953, from Hodgkin’s disease? í Í * * *

“A. Yes, sir.

“Q. And what is that opinion, doctor? ii # * #

“A. That there is a causal relationship.”

Both witnesses gave reasons for their opinions, but their explanations did not explain or expand their statements that there was “a causal relationship.” Since the death of Senvisky resulted from Hodgkin’s disease, which admittedly existed in his system prior to August 1951, the testimony of these two medical expert witnesses is particularly important.

In the case of McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. (2d), 138, this court held in paragraph four of the syllabus that death benefits under the Workmen’s Compensation Act can be awarded only where the death was the proximate result of a compensable injury. In the opinion, at page 275, Taft, J., stated:

“Although there is no statutory provision requiring a proatimate causal relationship between a compensable injury and a death for which compensation is sought, this court has frequently held that it is necessary for a death claimant to establish that such an injury was the proximate cause of the death. Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018; Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St., 354, 30 N. E. (2d), 342; and Weaver v. Industrial Commission, 125 Ohio St., 465, 181 N. E., 894.”

In the Aiken case an effort was made to establish that death of an employee from acute myocarditis was attributable to a prior compensable knee injury. The medical witness, testifying as an expert, answered a lengthy hypothetical question by stating that in.his opinion there was a causal relation between Harry Aiken’s injury and his death. In the syllabus in that case, it was held that “the proof offered must show such injury [528]

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Related

Larrissey v. Norwalk Truck Lines, Inc.
98 N.E.2d 419 (Ohio Supreme Court, 1951)
McNees v. Cincinnati Street Ry. Co.
89 N.E.2d 138 (Ohio Supreme Court, 1949)
Aiken v. Industrial Commission
53 N.E.2d 1018 (Ohio Supreme Court, 1944)
Gwaltney v. General Motors Corp.
30 N.E.2d 342 (Ohio Supreme Court, 1940)
Weaver v. Industrial Commission
181 N.E. 894 (Ohio Supreme Court, 1932)
Ackerman v. Industrial Commission
3 N.E.2d 44 (Ohio Supreme Court, 1936)

Cite This Page — Counsel Stack

Bluebook (online)
168 Ohio St. (N.S.) 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/senvisky-v-truscon-steel-division-of-republic-steel-corp-ohio-1959.