Summary
In Charette, we noted that "the last event in the chain of causation even if it is only an aggravation of a pre-existing condition, may be the legal cause."
Summary of this case from Gillis v. Waterbury ConstructionOpinion
CASE NO. 936 CRD-6-89-11
MARCH 19, 1991
The claimant was represented by Anthony Denorfia, Esq., Garbacik, Giammatteo, Denorfia, Foti Forgione, P.C.
The respondents were represented by Lucas Strunk, Esq., Richard Stabnick, Esq., Ann Kelly Zovas, Esq., and Margaret E. Corrigan, Esq., Pomeranz, Drayton Stabnick. The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General.
This Petition for Review from the October 23, 1989 Finding and Dismissal of the Dismissal of the Commissioner at Large acting for the Sixth District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
Claimant sustained a work related injury to the left hip January 29, 1985 when he slipped on some ice. Respondents paid benefits through March 7, 1985 when claimant returned to work. He continued to have problems with the left leg; on September 5, 1985, Dr. Robert Fisher diagnosed that the claimant had idiopathic bilateral hip avascular necrosis. The trial commissioner found in paragraph #7, "No medical doctor, either treater or reviewing specialist, ever concluded with reasonable medical certainty that 1)claimant's bilateral avascular necrosis hip condition was caused by his work injury (fall of January 29, 1985) or; 2)that said fall caused a symptomatic flare up of any underlying condition." (emphasis supplied)
On appeal claimant argues the commissioner erred in failing to conclude that the bilateral avascular necrosis hip condition was causally related to the January 29, 1985 fall. More narrowly claimant's position is that causality was proven with reasonable medical probability, and it was error to require reasonable medical certainty.
The reasonable medical probability standard has been accepted by our courts. See Madore v. New Departure Mfg. Co., 104 Conn. 709, 714 (1926); Aurora v. Miami Plumbing Heating, Inc., 6 Conn. App. 45, 46 (1986). See also, Aspiazu v. Orgera, 205 Conn. 623, 632-33 (1987); Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Healy v. White, 173 Conn. 438, 443-46 (1977); Wilson v. R.F.K. Corporation, 19 Conn. App. 548, 550-51 (1989); Connell v. Long Line Trucking, 8 Conn. Workers' Comp. Rev. Op. 54, 801 CRD-2-88-12 (1990).
Whether there is a real distinction between "reasonable medical certainty" and "reasonable medical probability" is open to much doubt. Connecticut courts have held an expert opinion as to causation "must be based upon reasonable probabilities rather than mere speculation or conjecture . . . ." Struckman v. Burns, 205 Conn. 542, 554-55 (1987) citing Healy v. White, 173 Conn. 438, 443-46. The Supreme Court has ruled, "Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony. "Struckman, supra at 555 citing Aurora v. Miami Plumbing Heating, Inc., 6 Conn. App. 45, 46 (1986).
In Aspiazu v. Orgera, 205 Conn. 623, (1987) the court restated the requisite basis for expert opinion. It cited Matott v. Ward, 48 N.Y. 2d 455, 463, 399 N.E.2d 532, 423 N.Y.S. 2d 645 (1979); in excerpting pertinent parts of the Matott opinion, Aspiazu seemed to equate "probability" and "certainty":
Although we approve generally of the "reasonable medical probability standard, we also note that no "talismanic words" are mandatory. See Healy v. White, 173 Conn. Supra, 444 . . . While we do not believe that it is mandatory to use "talismanic words" or "the particular combination of magical words represented by the "reasonable degree of medical certainty [or probability]; Matott v. Ward, 48 N.Y. 2d 455, 463, 399 N.E.2d 645 (1979); there is no question that . . . a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition . . . . (citations omitted)
Aspiazu, Supra 632. Construing reasonable medical certainty as equivalent to reasonable medical probability, the commissioner's statement was not erroneous. See also, Schrantz v. Launcing, 218 N.J. Super. 434, 527 A.2d 967 (1986); Dallas v. Burlington Northern Inc., 212 Mont. 514, 689 P.2d 273 (1984).
However, the commissioner's Finding, especially paragraph #7 seems to address only medical causation not legal causation, Colas v. Marriott Food Services, 939 CRD-7-89-11, P. 4 (2/26/91). The medical expert often speaks about the principal factor leading to a certain result as its cause. Under Sec. 31-349, C.G.S., the last event in the chain of causation even if it is only a aggravation of a pre-existing condition, may be the legal cause. Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920), Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). The commissioner's Finding, paragraph #8, states that claimant's treating physician testified the avascular necrosis was imminent and would have surfaced in 1985 with or without the work injury. But would it have surfaced on January 29, 1985?
"No case under this Act should be finally determined when the . . . Court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment." Cormican v. McMahon, 102 Conn. 234, 238 (1925). We remand to the District for further proceedings to determine whether the fall of January 29, 1985 was in any way a contributing cause to the disabling symptoms which followed it in time.
Commissioners Frank Verrilli and George Waldron concur.