Cooke v. United Aircraft Corp.

• Decision Date: 02 December 1964
• Citation: 205 A.2d 484,152 Conn. 214
• Court: Connecticut Supreme Court
• Parties: Shirley H. COOKE v. UNITED AIRCRAFT CORPORATION et al. Supreme Court of Errors of Connecticut

Page 484

205 A.2d 484

152 Conn. 214

Shirley H. COOKE v. UNITED AIRCRAFT CORPORATION et al.

Supreme Court of Errors of Connecticut.

Dec. 2, 1964.

George A. Downing, Manchester, with whom, on the brief, were John W. Allen and Atherton B. Ryan, Manchester, for appellants (defendants).

William F. Gallagher, Hartford, with whom, on the brief, were Morton E. Cole and Cyril Cole, Hartford, for appellee (plaintiff).

Before KING, C. J., and MURPHY, ALCORN, COMLEY v. SHANNON, JJ.

SHANNON, Acting Justice.

The defendants claim error in the failure of the Superior Court to correct the commissioner's award by overruling the conclusion that the plaintiff is 'partially incapacitated to such a degree that there is no work that she can reasonably be expected to perform.' It is argued that this conclusion is without legal foundation or support in the subordinate facts. Another assignment of error questions the failure of the commissioner to rule on the contention that the plaintiff's condition was aggravated by nonemployment illnesses.

The principal issue on appeal is whether the commissioner was justified in finding partial incapacity on the basis of the plaintiff's testimony as to her constant pain and stiffness resulting from a 'fibrositis syndrome.' The testimony of two doctors who had treated the plaintiff from April, 1959, through January, 1961, supported the fact that she had this condition. There was undisputed evidence that an accidental fall of the plaintiff on the premises of her employer, the named defendant, in April, 1959, caused an incapacity which persisted until June, 1959. There is an indication in the evidence that the insurer allowed a claim for this period of disability.

A little more than a year after her original injury and subsequent treatment for muscle strain and muscular pain, and after working with some unrelated interruptions between June, 1959, and July, 1960, the plaintiff again complained of severe pain and stiffness extending throughout most of her right side. She was given some therapy treatment at this time, but, because of her failure to return to her work as an audit clerk in October, 1960, she was discharged for absenteeism in November, 1960.

The defendants do not contest the scope or duration of the award if the basis for it exists. They contend that the plaintiff's testimony about her inability to work more then one day per week, total, is not 'competent evidence' on which the commissioner could have based his conclusion. They do not question the diagnoses of the two doctors that the plaintiff had in fact been, and was, suffering from the 'fibrositis syndrome' through August, 1960. They contest, however, the finding that this condition resulted in the plaintiff's 'partial incapacity.'

In Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 116, 176 A.2d 578, 579, we said that a compensation award 'cannot be based on incompetent evidence.' The main issue in that case was whether the testimony of a physician who had examined the claimant solely for the purposes of testifying before the compensation commissioner was a qualified expert on whose testimony an award could be based. We held that the opinions of experts were to be received and considered as in 'other cases generally' but that 'the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testify as a medical expert.' Id., 119, 176 A.2d 580; Martin v. Sherwood, 74 Conn. 475, 482, 51 A. 526. In the case at bar, the testimony of both Dr. Elliott B. Sweet and Dr. Arnold Goldenberg was based on their reports made at the time of consultation and their diagnoses for the treatment of the plaintiff.

Dr. Goldenberg was the first medical expert to testify. He saw the plaintiff on one occasion and diagnosed her condition as fibrositis. In putting his reports before the commissioner, he related extensive examinations that were made upon the person of the plaintiff which indicated severe tenderness in many areas. Dr. Goldenberg also testified to the description of the plaintiff's discomfort as given to him by the plaintiff. He concluded that, although she was, in his opinion, capable of doing 'some type of work,' he did feel that there would be 'days when she wouldn't be able to go to work.' Dr. Sweet followed Dr. Goldenberg to the stand and agreed with his predecessor's characterization of the fibrositis syndrome and in greater detail testified to the...