Bagge's (Dependents') Case, In re

• Decision Date: 03 December 1975
• Parties: In re Neil G. BAGGE'S (DEPENDENTS') CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 348

338 N.E.2d 348

369 Mass. 129

In re Neil G. BAGGE'S (DEPENDENTS') CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 15, 1975.

Decided Dec. 3. 1975.

Francis F. Foley, Brockton, for insurer.

Norman P. Beane, Jr., Boston, for claimants.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ. HENNESSEY, Justice.

In this case the Liberty Mutual Insurance Company (insurer) seeks reversal of a judgment ¹ in the Superior Court awarding the claimant-parents of Neil G. Bagge (deceased) the lump sum of $57,375. ² The lump sum was awarded to the deceased's parents as the uncollected balance remaining from compensation to which the deceased had become entitled under § 36 of c. 152 of the General Laws. G.L. c. 152, § 36A. ³ After the appeal was entered in the Appeals Court, we transferred the case here for direct review, on our own initiative.

The deceased was fatally injured on August 28, 1970, when the raised bed of a dump truck he had been working with collapsed, pinning him between the bed and the truck frame. Within minutes of the accident, two coworkers extricated him from beneath the truck bed. The deceased was conscious and spoke a few words to one of his fellow workers, who rendered mouth-to-mouth resuscitation while awaiting further aid. The deceased was then taken to the Goddard Memorial Hospital in Stoughton, Massachusetts, but was dead on arrival.

The parents of the decedent received death benefits from the insurer pursuant to G.L. c. 152, § 31, and made a further claim for compensation under §§ 36 and 36A. A hearing was held by a single member of the Industrial Accident Board (board), who found that the deceased, had he lived, would have been entitled to compensation for total loss of vision in both eyes (§ 36(a)), total loss of hearing in both ears (§ 36(f)), total loss of function in both arms and both legs (§ 36(t) and (q); (n) and (q)), loss of 'all other bodily functions' (§ 36(i)), ⁴ and disfigurement resulting from the cumulative loss of these functions and senses (§ 36(h)).

The insurer filed a claim for review with a three member reviewing board, which affirmed and adopted the single member's findings and decision. The insurer's exceptions and motion to strike certain testimony given at the hearing before the single member were saved. On further hearing in the Superior Court these exceptions were overruled and the motion to strike was denied; the judgment sustained the reviewing board's order in its entirety.

In urging reversal of the judgment, the insurer cites insufficiencies in the evidence on which the claimants' expert medical witness relied in responding to a hypothetical question regarding the losses the deceased would have suffered had he survived. Specifically, the insurer claims that there was no evidence as to when death actually occurred, and no evidence that there was a deprivation of oxygen to the brain for more than four minutes. Deprivation for at least that length of time was crucial to the medical opinion favorable to the claimants' contentions. These evidentiary deficiencies, the insurer argues, resulted in impermissible speculation on the part of the claimants' expert as to the losses of function which the deceased would have experienced.

The insurer also presses reversal by contending that this case is distinguishable from a line of cases, all of which at least partially sustained awards under §§ 36 and 36A, where the injured employee expired shortly after the accident. See Papanastassiou's Case, 362 Mass. 91, 284 N.E.2d 598 (1972); Chin's Case, 357 Mass. 772, 258 N.E.2d 925 (1970); Taylor's Case, 355 Mass. 797, 247 N.E.2d 395 (1969); Bosenquet's Case, 353 Mass. 364, 231 N.E.2d 567 (1967); Lauble's Case, 341 Mass. 520, 170 N.E.2d 720 (1960); Henderson's Case, 333 Mass. 491, 131 N.E.2d 925 (1956). But see Machado's Case, 356 Mass. 720, 249 N.E.2d 242 (1969); Morris's Case, 354 Mass. 420, 238 N.E.2d 35 (1968). The insurer argues that all of these cases involved either direct injuries to the brain or to specific body members for which awards were made, and that in each case the injured employee lived long enough for a medical examination and evaluation. Here, it is advanced, the award was made following expert medical testimony concerning the operation of a 'secondary mechanism,' i.e., deprivation of the blood supply to the brain for a critical period of time (four minutes) resulting in irreversible brain damage before death. We affirm the award in all respects. ⁵

1. At the hearing before the single member there was somewhat conflicting testimony by the experts concerning the mechanism of death. Dr. Pierce H. Leavitt, medical examiner for Plymouth County at the time of the deceased's accident, stated that his examination of the body shortly after death revealed 'multiple factured ribs, probable tear of the great vessels around the heart, and hemothorax; that is blood in the chest.' He also testified to the existence of certain marks or scars across the chest where the truck bed impacted against the deceased, and, based on a post mortem chest X-ray, to a bilateral pneumothoraces or injury to the lung body which allows air in the lung to escape into the chest cavity. Based on his observations, Dr. Leavitt did not delieve that, had the deceased survived, there would be any loss of use or disturbance to his arms, legs or sensory functions. Dr. Elliot L. Sagall, called by the insurer, testified that, in his opinion, the cause of death was simply a crushing injury to the chest with accompanying hemorrhage from the great blood vessels. He expressed 'considerable doubt' that the injury here caused significant deprivation of oxygen to the brain for a critical period of time because there was evidence of consciousness on the part of the deceased after the injury. Dr. Sagall believed that it would be speculating to express an opinion in this case regarding the effect of the injury on the brain.

Dr. John P. Rattigan, called by the claimants, opined that the mechanism of death probably was cerebral anoxia resulting from severe hemorrhage of the great blood vessels and the collapse of both lungs. In his view, had the deceased survived the primary trauma, he would have suffered extensive loss of cerebral and voluntary motor function and lack of sensory perception and ability to communicate; in short, the deceased would have been reduced to a vegetative state, with only the lower centers of the brain remaining operative.

Of necessity, our function in passing on the admissibility of expert opinion testimony involves answering two questions (1) Was the expert warranted in his conclusion on the basis of direct evidence or inferences reasonably drawn therefrom or from the evidence as a whole? and (2) Was the trier of fact warranted in its conclusion on the basis of the expert testimony and permissible inferences drawn therefrom? See Cormier's Case, 337 Mass. 714, 716, 151 N.E.2d 269 (1958), and cases cited.

In answering the first of these questions, it is not for us to say whether an expert's testimony was technically sound as long as the proffered opinion is consistent with common sense and free from conjecture. Murphy's Case, 328 Mass. 301, 304, 103 N.E.2d 267 (1952); Ruschetti's Case, 299 Mass. 426, 430--431, 13 N.E.2d 34 (1938); Coddaire v. Sibley, 270 Mass. 41, 47--48, 169 N.E. 797 (1930). in responding to a hypothetical question, an expert cannot properly rely on misstatements of material fact. Buck's Case, 342 Mass. 766, 770--771, 175 N.E.2d 369 (1961). If this is the case, an expert's opinion is entitled to no weight. Cormier's Case, supra. In answering the second question, supra, we are guided by the well established principle that we must accept the board's decision as final if it is supported by the evidence and not wrong as matter of law. Haley's Case, 356 Mass. 678, 680, 255 N.E.2d 322 (1970), and cases cited. Brigham's Case, 348 Mass. 140, 141, 202 N.E.2d 597 (1964), and cases cited.

In this instance we must answer both queries affirmatively. We recognize that the claimants' expert was not testifying from personal knowledge of the events of August 28, 1970, nor did he examine the body of the deceased. Neither of these facts, however, is relevant on the issue of the admissibility of his opinion, and the insurer properly does not rely on them. We are convinced that Dr. Rattigan's testimony was correctly received because he had examined the post mortem X-ray report taken shortly after the accident, had heard the testimony of Dr. Leavitt who examined the deceased approximately thirty-five minutes after his admission to the hospital, and had also heard the testimony of the deceased's fellow employee and the policeman who transported the deceased to the hospital concerning immediate post-trauma events. There was direct testimony that both queries affirmatively. We recognize and collapse of both lungs. There was further direct testimony that the entire episode, from the injury until the deceased was pronounced dead, consumed between seventeen and twenty-four minutes.

From the evidence as a whole, Dr. Rattigan was warranted in concluding, as he did, that the injuries in this case interfered with the blood circulation and oxygenation system, impaired the blood supply to the deceased's brain for a critical length of time, and led to permanent and near total function and sense losses.

On other occasions we have stated that the board's function in cases such as this is to find 'as a fact for present award the future state of health and bodily function of living claimants.' Lauble's Case, 341 Mass. at 522, 170 N.E.2d at 722. This fact-finding is accomplished despite conflicting medical testimony, and the intervening occurrence of the employee's death provides 'no basis for a different rule of evidence.' Id. at 523, 170 N.E.2d at 722. Accordingly, we hold that, although the board might have been justified, based on all the...