AURORA v. MIAMI PLUMBING HEATING, 238 CRD-7-83 (12-10-84)

PETER AURORA, CLAIMANT vs. MIAMI PLUMBING HEATING, INC., EMPLOYER and TRANSAMERICA INSURANCE GROUP, INSURER, RESPONDENTS-APPELLEES and SECOND INJURY AND COMPENSATION ASSURANCE FUND, RESPONDENTS-APPELLANTS

CASE NO. 238 CRD-7-83Workers’ Compensation Commission
DECEMBER 10, 1984

In the proceedings before the Seventh District Commissioner the claimant was represented by Leonard L. Levy, Esq.

The Respondents-Appellees were represented by Edward D. O’Brien, Jr., Esq., and Karen Goldwaite, law student.

The Respondents-Appellants were represented by Robert W. Murphy, Esq., Assistant Attorney.

This Petition for Review from the May 26, 1983 Finding and Award of the Commissioner for the Seventh District was argued June 29, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioner A. Paul Berte and Rhoda Loeb.

FINDING AND AWARD

The Finding and Award of the Commissioner is affirmed and adopted as the Finding and Award of this Compensation Review Division.

OPINION

JOHN ARCUDI, Chairman.

No dispute here exists between the claimant and his employer. Claimant suffered a compensable injury to his back in the course of his employment July 18, 1974. The employer’s insurer paid compensation for the first 104 weeks and sought to have liability transferred to the Second Injury and Compensation Assurance Fund under 31-349, C.G.S.[1] The District Commissioner ordered the transfer over the Fund’s objections, and the Fund has appealed.

The Fund’s claim is that there was no competent medical evidence to support the Commissioner’s finding. The finding in question[2] was that claimant had a physical impairment pre-existing the July 18, 1974 injury, a lumbar stenosis, which together with the 1974 back injury created a disability materially and substantially greater than would have occurred from that injury alone. Dr. Franklin C. Wagner, Jr., the Yale School of Medicine neurosurgeon whose opinion formed the basis for the Commissioner’s finding was admittedly a highly qualified specialist, but the Fund’s contention was that his opinion was not based on reasonable medical probability.

The only evidence presented by the employer’s insurer consisted of Dr. Wagner’s December 4, 1980 and January 13, 1981 written reports. The respondent Fund did not seek to depose the doctor or seek to have him testify in person before the Commissioner. In the earlier report the doctor states, “In my opinion, the injury . . is likely (emphasis added) to have resulted in an exacerbation of his lumbar radiculopathy secondary to his lumbar stenosis.”

In the later report the doctor states without qualifications, “it is my medical opinion that his lumbar stenosis did antedate his injury of July 18, 1974, and made his overall permanent disability materially and substantially greater than had he experienced a herniated nucleus pulposus alone.” It is thus true, that the doctor did not employ the exact verbal formula “reasonably probable” which the Fund’s brief cited from Madore v. New Departure Mfg. Co., 104 Conn. 709, 714 (1926). But when we consider that the December 4 writing used the qualifying adverb “likely” while the January 13 document simply declared “it is my medical opinion” without a qualifying adverb, was not the Commissioner justified in treating the second report as a positive statement of reasonable probability rather than a merely likely medical speculation?

Given the richness of the English language reputed to contain the greatest number of words among all western tongues and the fertile legal imagination demonstrated by more than three centuries of American law, we cannot believe the Madore holding requires a slavish devotion to specific verbal symbols. What it does require is that in order to sustain a legal conclusion of liability, a medical opinion must be definite and positive and not merely speculative or likely. A situation somewhat similar to the instant case was presented in Glenn v. Stop Shop, Inc., 168 Conn. 413 (1975). There the medical expert first testified that repetitive lifting “could have caused the deterioration of the lumbar disc.” However, in later testimony the doctor stated his opinion more positively. Justice Bogdanski’s opinion therefore sustained the Commissioner’s finding, Glenn v. Stop Shop, Inc., supra, 418.

In the last analysis, the attorneys for the respondent Fund were free to call the doctor to the stand if they questioned the positive nature of Dr. Wagner’s January 13 statement as contrasted with his tentative employment of the adverb “likely” to qualify his December 4 report. They failed to do so and cannot now be heard to attack the Commissioner’s conclusion that the doctor’s last stated opinion was in fact such a positive declaration.

The decision of the Commissioner is affirmed.

Commissioners A. Paul Berte and Rhoda Loeb concur in in this opinion.

[1] Sec. 31-349. Compensation for second disability. Payment of insurance coverage for totally incapacitated persons. The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions resulted from second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. . .

[2] 5. The medical evidence in this case consisted exclusively of two medical reports issued by Dr. Franklin C. Wagner, Jr., on December 4, 1980 and January 13, 1981, respectively, in both of which reports Dr. Wagner opines that the claimant’s lumbar stenosis antedated the injury of July 18, 1974. 6. It is found that the claimant suffered from a condition of lumbar stenosis prior to July 18, 1974 coupled with said pre-existing stenotic condition produced a disability materially and substantially greater than that which would have resulted from the injury of July 18, 1974 alone.