Lee v. Minneapolis St. Ry. Co.

• Decision Date: 24 February 1950
• Docket Number: No. 35026,35026
• Citation: 230 Minn. 315,41 N.W.2d 433
• Parties: LEE v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

Page 433

41 N.W.2d 433

230 Minn. 315

LEE v. MINNEAPOLIS ST. RY. CO.

No. 35026.

Supreme Court of Minnesota.

Feb. 24, 1950.

Syllabus by the Court

1. The rule that the opinion of a physician as to the condition of an injured or deceased person is inadmissible where it is based wholly or partially on the history of the case as told to him by such person in the course of a personal examination made for the purpose of qualifying such physician as an expert medical witness does not have any application where the opinion of such physician is based upon a hypothetical question which substantially embodies all the relevant symptomatic facts--which are admitted or which might reasonably be found from the evidence--inclusive of such injured person's subjective complaints.

2. Although an injured person may be able to perform some parts of his occupation, he may be held to be totally disabled if he is unable to perform the substantial and material parts of some gainful work or occupation with reasonable continuity.

3. Occasional work for short periods by one generally disabled by impairment of mind or body does not, as a matter of law, negative total permanent disability.

4. If reasonably stable employment is not available for an employe by reason of certain injuries which have crippled him physically or neurologically, evidence of that fact--through the testimony of an experienced employment supervisor--is both material and relevant in determining whether the employe's disability is of such a character that he has no reasonable likelihood, While such disability continues, of being able to obtain and pursue an income-yielding occupation with reasonable continuity as contemplated by M.S.A. § 176.11, subd. 5.

5. It is for the industrial commission, as the trier of fact, to determine, in the light of the evidence as a whole, whether the assumptions of fact embodied in a hypothetical question, upon which an expert witness bases his opinion of total disability, are true.

6. A conflict in the opinions of expert witnesses is to be resolved by the trier of fact, and in so doing the trier of fact may determine the comparative weight to be given to the respective opinions and consider the qualifications of each expert and the source of his information.

John F. Dulebohn and Donald M. Jardine, Minneapolis, for relator.

John A. Goldie and Samuel I. Sigal, Minneapolis, for respondent.

MATSON, Justice.

Certiorari to review an order of the industrial commission awarding respondent, Byron R. Lee, compensation for total disability.

The issues for determination involve:

(1) The admissibility of the testimony of an expert medical witness;

(2) The admissibility of the testimony of the supervisor of placements for the state employment service, to the effect that jobs with a reasonable continuity are not available for a person handicapped with Lee's disabilities; and

(3) Whether the evidence sustains the commission's findings.

Lee, in the course of his employment in 1942, while flagging streetcars through a Memorial Day parade in Minneapolis, was injured by being caught and rolled between two streetcars traveling in opposite directions. He was hospitalized from May 30 to September 19, 1942, a period of more than three and one-half months. The report of the attending physician, admitted by stipulation, stated that Lee was suffering from shock upon admission to the hospital. Upon being told of the loss of sight of his left eye, Lee broke down and cried and was very depressed for a long period thereafter. On September 19, 1942, the attending physician stated, 'Patient is obviously neurotic.' Lee continually complained, as he does now, of pain in his left shoulder. Hypodermics were administered, but, as Lee still complained, a harmless solution of water and soda was administered, with practically equal success. The commission found, and there is title dispute, that Lee is 100 percent disabled in the left eye, 75 percent in the left arm, and 10 percent in the right ankle and foot. Relator has paid all medical bills and compensation for the above permanent partial disability. Relator, however, contends that there is insufficient competent evidence to sustain the commission's finding that Lee, by reason of the above disabilities, coupled with post-traumatic neurosis, is permanently and totally disabled.

1. Relator, in seeking to establish that the commission's findings are not sustained by the evidence, contends they are largely based upon a consideration of erroneously admitted evidence. Particular objection is made to the testimony of Dr. N. J. Berkwitz, an expert neurologist and psychiatrist, who, in behalf of Lee, expressed the opinion that Lee, by reason of his physical injuries plus the mental changes--constituting a traumatic neurosis--which had developed as a consequence thereof, was totally and permanently disabled. Relator asserts that this opinion was based either wholly or partially on the history of the case as told to Dr. Berkwitz by Lee in the course of a personal examination of Lee which was made for the express purpose of qualifying the doctor as an expert medical witness, and that as such his testimony is inadmissible. We do not agree with relator's interpretation of the evidence. Taking the testimony of Dr. Berkwitz as a whole, without isolating some single phrase or sentence from its context, it is quite clear that the opinion of this expert witness was elicited by, and based upon, a hypothetical question which, with methodical precision, embodied within its assumed facts, all relevant symptomatic factors, whether objective or subjective, inclusive of those subjective complaints which Lee had expressed directly to such expert witness. Even if Dr. Berkwitz in one of his opinion answers had in fact for the moment based his opinion on subjective symptoms disclosed by his personal examination of Lee, it was error without prejudice, in that he otherwise carefully and explicitly expressed the same opinion as being based on substantially similar factors which were embodied in the hypothetical question. It is the well-established rule that a physician called to give an expert opinion may testify as to a person's physical and neurological condition where the hypothetical question eliciting his opinion is based on all the facts admitted or established, or which, if controverted, might reasonably be found from the evidence. Crozier v. Minneapolis St. Ry. Co., 106 Minn. 77, 118 N.W. 256; Hohenstein v. Dodds, 215 Minn. 348, 10 N.W.2d 236. It follows that The rule that the opinion of a physician as to the condition of an injured or deceased person is inadmissible where it is based wholly or partially on the history of the case as told to him by such person in the course of a personal examination made for the purpose of qualifying such physician as an expert medical witness ¹ does not have any application where the opinion of such physician is based upon a hypothetical question which substantially embodies all the relevant...