Industrial Commission v. Hosafros (47 Ohio App. 261, 1933)

Guernsey, J.

Plaintiff in error, the Industrial Commission of Ohio, was defendant, and defendant in error, Elizabeth Hosafros, was plaintiff in the court below, and they will be hereafter referred to in the relation in which they appeared in the lower court.

This is an action brought by plaintiff, an employee of Deisel-Wemmer Gilbert Corporation in its cigar factory at Findlay, Ohio, to participate in the state insurance fund on account of disability resulting from a gonorrheal infection in her left eye. After the Industrial Commission denied her claim, she filed suit in the Court of Common Pleas, where a verdict was returned in her favor, and judgment entered on the verdict. This proceeding in error is brought to reverse the judgment of the lower court.

It is the contention of the Industrial Commission of Ohio, defendant below, that there is error in the proceedings in the Court of Common Pleas in the following particulars:

1. The court should have directed the jury to return a verdict in favor of the defendant.

2. The verdict of the jury is contrary to law, contrary to the evidence, and against the manifest weight of the evidence.

On or about December 13, 1929, plaintiff was employed in a cigar factory of the Deisel-Wemmer Gilbert Corporation at Findlay, Ohio. There were twenty-four tobacco machines operated in such factory, with a crew of four employees to each machine, and the factory at that time was operating in day and night shifts. The plaintiff’s work consisted of feeding tobacco to one of the machines, and during the progress of her work quantities of dust would be thrown off by the tobacco fed into the machines.

It was the custom of the employer to furnish rags for the employees to use in cleaning the machines and the persons and clothing of the employees. A number of such rags were hung at a convenient place on each machine for the use of the employees.. Ordinarily the rags hung on each machine were used by the employees on that machine, but at times the rags on one machine were used by the employees on other machines. The employees were permitted to' secure additional rags from a central storage point to replace rags in use on the machines which had become dirty, and the rags thus replaced were then laundered and placed at the central storage point for further use of the employees. The same rags were used for a number of days at a time, and even from two to three weeks at a time, without being laundered. The plaintiff worked nine hours per day, with one-half hour allowed for lunch.

The sanitary equipment provided by the company consisted of a water trough and water bucket for washing, which was situated outside of the toilet and restroom. The rest room was provided with six toilets, but was not provided with any lavatory, and no towels were provided for the use of the employees. It was the custom of the employees to use the rags mentioned for the purpose of wiping their hands and faces while working on the machines, and for drying their hands and faces after using the washing facilities provided.

Plaintiff, who was then fifty-four years of age, wore glasses, and in the performance of her duties her glasses as well as her hands, face and clothing would become .covered with dust from the tobacco used in feeding the machines, and the plaintiff was in the habit of using the rags mentioned from time to time to wipe the dust from her glasses and her eyes.

On or about the 13th day of December plaintiff noted an irritation in her left eye, similar to an irritation caused by the presence of a small piece of tobacco in the eye. The eye thereafter became inflamed and swollen and she applied hot applications to it for several days, and then, upon examination by Dr. Fishel, a diagnosis was made of gonorrheal infection of the eye, and the eye was thereafter removed on account of such infection.

The employment of the plaintiff terminated shortly after she first noticed the irritation in her eye.

Dr. Fishel also made a physical examination of the plaintiff at the time he made the diagnosis mentioned, and at other times subsequent thereto, for the purpose of determining whether plaintiff was afflicted with gonorrhea, and found no evidence of gonorrhea except the infection in the eye.

Dr. Fishel, who gave the only medical testimony in the case, testified that gonorrhea is an infectious disease, and that the infection is usually transmitted by direct contact with the secretion that contains the germs, and that its usual habitat is mucous membrane in the generative region; and that a person can get this secretion on the finger, rub the eye, and if the germs are active they will transmit the infection to the eye, which is the common method of transmission; and that it attacks the mucous membrane of the eye, and the incubative period of gonorrheal infection is about nine days.

There was no evidence tending to show that any of the employees at this factory in Findlay, other than the plaintiff, had' gonorrheal infection.

In order for the plaintiff to participate in the workmen’s compensation fund the burden is on her to prove, first, that the infection suffered by her is an injury within the meaning of Section 1465-68, General Code; and, second, that such injury was incurred in the course of her employment.

In the case of Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199, decided by the Supreme Court on March 1, 1933, it was held that: 4 4 The term ‘injury’ as used in the "Workmen’s Compensation Law of Ohio comprehends only such injuries as are accidental in their origin and cause.”

In the case of Industrial Commission v. Cross, 104 Ohio St., 561, 136 N. E., 283, it was held: “The term ‘injury’ as used in Section 1465-68, General Code, does not include diseases which are contracted, as distinguished from diseases which are occasioned by or follow as a result from physical injury.”

And in the case of Renkel v. Industrial Commission, 109 Ohio St., 152, 141 N. E., 834, it was held: “Diseases contracted in the course of employment, and not occasioned by or the result of a physical injury, are not compensable as ‘injuries’ under Section 1465-68, General Code.” See, also, Industrial Commission v. Middleton, 126 Ohio St., 212, 184 N. E., 835.

There is no evidence of any tranma or injury sustained hy the plaintiff except as the infection itself may be considered an injury.

The undisputed testimony is to the effect that gonorrheal infection of this character is transmitted by direct contact of the secretion containing the germs with the mucous membrane of the eye, and there is no evidence that such infection is occasioned by or follows as a result from physical injury.

As the disease from which the plaintiff suffered was not occasioned by, or followed as a result of, a physical injury, it was not an injury within the meaning of the term as used in the Workmen’s Compensation Law of Ohio.

The facts in the case at bar are materially different from the facts in the case of Industrial Commission v. Davison, 118 Ohio St., 180, 160 N. E., 693, relied upon by plaintiff.

In the Davison case the infection was occasioned by and followed as the result of a physical injury, to wit, the puncture of the skin, while in the instant case the infection was transmitted direct from the secretion to the mucous membrane and did not result from any injury to the membrane.

The facts in the instant case also differ from the facts in the case of Jasionowski v. Industrial Commission, 22 Ohio App., 112, 153 N. E., 247, in that in the Jasionowski case the infection occurred through a sore on the claimant’s face and from material used in her employment.

Even if the infection had constituted an injury within the meaning of the Workmen’s Compensation Law, the evidence in this case fails to show the presence of any gonorrheal infection among the employees of Deisel-Wemmer Gilbert Corporation at plaintiff’s place of employment during the time she contracted such disease. The presence of gonorrheal infection not being shown, no inference could arise from the facts in evidence that the plaintiff contracted gonorrhea from the use of rags used by the other employees of the company, and, consequently, no reasonable inference could arise that the infection of the plaintiff occurred in the course of her employment.

As the gonorrheal infection of the plaintiff, was not an injury within the meaning of the Workmen’s Compensation Law, and, as there is no evidence tending to show that such infection occurred in the course of her employment, the plaintiff is not entitled to participate in the workmen’s compensation fund.

Holding these views the judgment of the lower court will be reversed as being contrary to law, and judgment will be entered in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Crow, P. J., and Klinger, J., concur.