Sutton v. Industrial Commission

486 N.E.2d 844, 20 Ohio App. 3d 343, 20 Ohio B. 446, 1984 Ohio App. LEXIS 12614
CourtOhio Court of Appeals
DecidedNovember 19, 1984
Docket3428
StatusPublished

This text of 486 N.E.2d 844 (Sutton v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sutton v. Industrial Commission, 486 N.E.2d 844, 20 Ohio App. 3d 343, 20 Ohio B. 446, 1984 Ohio App. LEXIS 12614 (Ohio Ct. App. 1984).

Opinion

Dahling, J.

This is an appeal from a judgment of the common pleas court in which, after a trial by jury, judgment was rendered ordering that plaintiff-appellee may participate in the Workers’ Compensation Fund of Ohio. Also, plaintiff’s attorney was awarded $1,500 in attorney fees, and defendant-appellant was ordered to pay costs. We affirm.

On July 14,1979, plaintiff-appellee’s (Barbara Sutton’s) husband (Billy H. Sutton) suffered a fractured left femur following a fall at his place of employment and in the course of his employment duties. On July 15, 1979, Sutton underwent corrective surgery to repair the leg fracture, and on July 26,1979, he was discharged from the hospital. He returned home but remained under doctor’s care during his convalescence.

On October 22, 1979, Sutton was returned to the hospital for additional surgery as the injury was failing to heal properly. On October 25,1979, a second operation was performed and post-surgery indications were very positive. However, on October 31, 1979, Sutton suddenly became ill and died a few hours later. The doctors indicated that the cause of death was reportedly “car-diogenic shock, cardiac arrest — cause undetermined.”

On January 12, 1981, the Court of Common Pleas of Trumbull County entertained an appeal filed by defendant-appellant, Heckett, Division of Harsco Corporation, alleging that the final order declaring that appellee Sutton was entitled to participate in the Workers’ Compensation Fund was in error.

On February 27 and 28,1984, a jury trial was held on the matter, which resulted in a verdict in favor of appellee Sutton. Appellant moved for judgment notwithstanding the verdict, or in the alternative, the granting of a new trial. On April 18, 1984, these motions were denied. This appeal followed.

Assignment of Error Nos. I and IV

“I. The trial court erred in overruling defendant-appellant’s motion for a directed verdict at the conclusion of plaintiff’s case and in overruling defendant-appellant’s motion for judgment notwithstanding the verdict.”

*344 “IV. The trial court erred in overruling defendant-appellant’s motion for a new trial.”

These assignments of error will be discussed together. They are without merit.

Appellant’s primary contention is that the trial court erred in failing to grant his motion for a new trial, as the answers given by the jury to special jury interrogatories were contradictory to the general jury verdict. The record reflects that the jury found for appellee Sutton on the general verdict and responded to the special jury interrogatories in the following manner:

Interrogatory No. 1
“Q. Do you find by a preponderance of the evidence, that the death of Mr. Billy Sutton on October 31, 1979, was directly and proximately caused by an injury which occurred during the course of his employment on July 14, 1979?
“A. Yes.”
Interrogatory No. 2
“Q. Do you find, by a preponderance of the evidence, that Mr. Bill [sic] Sutton died on October 31,1979, of ‘car-diogenic shock with cardiac arrest’?
“A. No.”
Interrogatory No. 3
“Q. If your answer to Interrogatory No. 2 is ‘yes’, do you find by a preponderance of the evidence that the direct and proximate cause of this condition ‘cardiogenic shock with cardiac arrest’ was the injury received on July 14, 1979?
“A. No.”

The apparent inconsistency can be resolved by a review of the testimony of Dr. Paloski. The doctor testified:

“Q. Okay, Doctor, based upon your review of those reports that you noted, did you form an opinion within reasonable medical certainty or probability that the injuries Mr. Sutton incurred in July of 1979 were related to his death in October of 1979?
“A. It was my opinion based on the information I had that there was a very high probability, or high cause that the fractured femur did cause a fat embolus, and did cause the death of Mr. Sutton. [Emphasis added.]
!): ‡
“Q. Doctor, let me ask you a hypothetical situation, and at the end of it I’ll ask you to state an opinion. Assume that there’s a 60 year old man and while at work on July 14, 1979, he falls approximately seven feet and is injured and is taken to the Trumbull Memorial Hospital. There’s an admitting diagnosis of a fractured left femur, hypertension and emphysema.
“On July 14,1979, this person has a surgical procedure to repair the fractured femur which involved the fixation of a Jewett hip nail.
“On October 25,1979, he is readmitted because of a pseudoarthritis of the subtrochanteric fracture of the left hip, and a second surgical procedure is performed.
“On October 31, 1979, while this man is in the physical therapy department he develops an unexplained shock and despite resuscitation measures he expires on October 31, 1979.
“An autopsy is performed with a pathological diagnosis of cardiogenic shock with cardiac arrest, cause unexplained, and among other findings there is further evidence of pulmonary fat embolism, emphysema and hypertension.
“Based on these facts, Doctor, do you have an opinion with reasonable medical certainty or probability whether the findings of pulmonary fat embolism and cardiogenic shock with cardiac arrest would have occurred had Mr. Sutton not been injured on July 14, 1979?
“A. It’s my opinion that the facts as stated, that Mr. Sutton, a 60 year old gentleman with the incident as described, it is in all likelihood that due to his surgeries that he could have developed a cardiogenic shock and fat *345 embolism, which ultimately caused his demise. I doubt whether if he had not been involved in the industrial accident, whether he would have died from car-diogenic shock, etc. * * *”

The jury had before it an opportunity to choose between the cause of death as pulmonary fat embolus or cardiogenic shock with cardiac arrest. The answers to the interrogatories only suggest that the opinion evidence related to pulmonary fat embolus was more persuasive than the opinion evidence related to cardiogenic shock.

Appellant also contends that the answers to the interrogatories are against the manifest weight of the evidence. Therefore, a new trial should have been granted.

As noted above, there was sufficient evidence to support the finding of the jury as well as a rational explanation of the alleged inconsistency between the special jury interrogatories.

“The law in Ohio is clear that an appellate court will not disturb the findings of the trier of fact unless they are against the manifest weight of the evidence. Landis v. Kelly (1875), 27 Ohio St.

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Bluebook (online)
486 N.E.2d 844, 20 Ohio App. 3d 343, 20 Ohio B. 446, 1984 Ohio App. LEXIS 12614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-industrial-commission-ohioctapp-1984.