CASE NO. 867 CRD-7-89-5Workers’ Compensation Commission
NOVEMBER 30, 1990
The claimant was represented at the trial level by David A. Clough, Esq. of FitzMaurice, Ambrozaitis, Clough, and on appeal by W. Paul Flynn, Esq.
The respondents were represented by Michael J. McAuliffe, Esq., and William P. Meehan, Esq.
This Petition for Review from the May 18, 1989 Finding and Dismissal of the Commissioner for the Seventh District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and George Waldron.
OPINION
JOHN ARCUDI, CHAIRMAN.
This appeal arises because the Seventh District concluded that claimant’s myocardial infarction did not arise in and out of the course of employment. Crucial to that determination was the issue of proximate causation for the heart attack.
Claimant’s argument centers on the following excerpt from the January 8, 1987 testimony of Dr. Alan Radoff:
“Q Okay.
Based upon your history that you have taken of Mr. Hoffman and treatment and various examinations, do you have an opinion which is more probable than not as to the cause of Mr. Hoffman’s myocardial infarction which occurred May 5, 1986?
A The basic cause was atherosclerotic coronary artery disease and the myocardial infarction was caused by a sudden total occlusion or blockage of the blood vessel in question.
Q Do you have an opinion which is more probable than not as to whether the vehicle incident that occurred on May 5, 1986 could have precipitated this myocardial infarction?
MR. MEEHAN: I object to the form of the question. I think the standard is that the doctor’s opinion be based on reasonable medical probability?
COMMISSIONER: Agreed.
MR. MEEHAN: I ask that the question be rephrased.
COMMISSIONER: I’ll ask you to rephrase the question as well, Mr. Clough.
CONTINUED DIRECT EXAMINATION BY MR. CLOUGH:
Q Doctor, do you have an opinion based upon reasonable medical certainty as to what precipitated Mr. Hoffman’s myocardial infarction on May 5, 1986?
A I cannot say that with reasonable medical certainty the myocardial infarction was precipitated by the vehicular accident. I can say —
MR. MEEHAN: Objection. You answered the question.
COMMISSIONER: I will sustain the objection, you have answered the question.
CONTINUED DIRECT EXAMINATION BY MR. CLOUGH:
Q Do you feel that the vehicular incident in any way contributed to the precipitating of the myocardial infarction?
MR. MEEHAN: Objection.
COMMISSIONER: I think that he’s answered the question, Mr. Clough. He said that he cannot state, I assume your answer is you cannot state with reasonable medical certainty that in your opinion the motor vehicle incident caused the myocardial infarction.
DOCTOR RADOFF: That’s correct.”
Appellant’s contention is that the Commissioner sustained the objections, because he required that causation testimony needed to adhere to a rigid verbal formula. He argues that the testimony could satisfy the evidentiary requirement that an expert’s opinion be stated in terms of probabilities and not possibilities.
“Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Struckman v. Burns, 205 Conn. 542, 544-45 (1987). See also, DeBarros v. A.L. Singleton, 21 Conn. App. 107 aff’g, 6 Conn. Workers’ Comp. Rev. Op. 22, 498 CRD-5-86 (1988) cert. denied, 215 Conn. 808 (1990) citing Healy v. White, 173 Conn. 438, 443 (1977). The issue of the degree of certainty with which expert opinions must be cloaked was considered in Aurora v. Miami Plumbing Heating, Inc., 6 Conn. App. 45 (1986) (per curiam) affirming this tribunal’s decision in 2 Conn. Workers’ Comp. Rev. Op. 113, 238 CRD-7-83 (1984). Aurora considered whether statements in two medical reports satisfied the evidentiary rule that a physician’s opinion must be based on reasonable medical probability. The first report stated, “`In my opinion, the injury . . . is likely [emphasis added] to have resulted in an exacerbation of his lumbar radiculopathy secondary to his lumbar stenosis'”. Aurora, 2 Conn. Workers’ Comp. Rev. Op. 114. The later report declared, “`[I]t is my medical opinion that his lumbar stenosis did antedate his [the claimant’s] injury.'” Id. The Compensation Review Division held the physician’s reports were sufficient competent evidence to support the trier’s decision.
The Appellate Court affirmed and noted that the standard of proof necessary for medical opinions was enunciated in Madore v. New Departure Mfg. Co., 104 Conn. 709 (1926). See Aurora, 6 Conn. App. at 46, Note 1. Madore held:
Necessarily the decision is often controlled by the conclusion reached by medical experts. That opinion, if relied upon by the commissioner or trier, must be found to be an honest one, and one which the rational mind would reasonably reach upon the established facts. If upon the facts the medical expert is merely willing to testify that the disease might have, or was likely to have, resulted from the employment, or the conditions under which it was carried on, but is unwilling to go further and testify that, in his opinion, taking into consideration all of the facts presented and considering every other hypothesis suggested, it was reasonably probable that the disease resulted from the employment, and therefore the employment was its direct cause, the commissioner or court should not conclude that the disease did result from the employment, unless the facts outside this medical testimony fairly warrant that conclusion. Mauchline v. State Insurance Fund, 279 Pa. St. 524, 124 Atl. 168. We did not intend by this to exclude from consideration the testimony of the medical witness who merely states that the accident or disease might have resulted from the employment, or the conditions under which it was carried on; it may be invaluable, as an expression of a cautious opinion, in corroboration of other testimony. What we do intend is that the trier cannot himself reach a definite conclusion when he had nothing to rely upon but the opinion of a medical witness who is unable with all of his professional learning and experience to reach the definite conclusion which the court is required to reach upon the same facts in making an award.
Madore, supra, 714.
In the instant case later in Dr. Radoff’s examination, the following exchange took place:
Q And just to restate your opinion earlier, you really cannot state that this particular “MI” was caused by the near motor vehicle accident, you can’t state that with reasonable medical probability?
A I cannot.
January 8, 1987 TR, 40-41.
From our examination of the entire record and especially from the evidentiary excerpts cited above, we cannot conclude that the commissioner below required a greater degree of certitude than the reasonable probability standard of Madore and Aurora. We therefore affirm the denial of benefits.
Commissioners Andrew Denuzze and George Waldron concur.