Parenteau v. Zimmerman Engineering, Inc.

• Decision Date: 22 January 1973
• Docket Number: No. 1565-A,1565-A
• Citation: 299 A.2d 168,111 R.I. 68
• Parties: Yvonne PARENTEAU v. ZIMMERMAN ENGINEERING, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 168

299 A.2d 168

111 R.I. 68

Yvonne PARENTEAU v. ZIMMERMAN ENGINEERING, INC.

No. 1565-Appeal.

Supreme Court of Rhode Island.

Jan. 22, 1973.

Pearlman & Pearlman, Alan Pearlman, Providence, for petitioner

Anderson & Kane, Vincent F. Kane, Providence, for respondent.

OPINION

PAOLINO, Justice.

This is a widow's petition for death benefits under G.L.1956, § 28-33-12, as amended by P.L.1963, ch. 46, sec. 1. ¹ The trial commissioner granted the benefits sought by the petitioner. The cause is here on the respondent employer's appeal from the decree of the full commission which affirmed the decree entered by the trial commissioner.

The record of the hearing before the trial commissioner contains the following pertinent evidence. The petitioner is the widow of the deceased employee, Hector J. Parenteau, hereinafter referred to as the decedent. On August 20, 1968, decedent was working as a steamfitter for respondent when a cement block fell from a staging above and hit him in the back while he was in a stooped position. The block weighed approximately 25 to 30 pounds and fell from a window ledge about five feet above decedent. The petitioner testified that decedent was in good health immediately prior to August 20, 1968; that he returned home that evening in pain, was unable to eat, had an awful burning feeling and could not straighten out; and that he suffered from headaches, inability to sleep, dizziness, nausea, tiredness and pain in the head, neck and stomach from the time of his injury to his death on October 4, 1968.

The decedent did not work after August 20, 1968. He went to the emergency room of Sturdy Memorial Hospital in Attleboro, Massachusetts on August 22, 1968. The hospital record diagnosis was contusion of the dorsal spine. On September 12, 1968 and several times thereafter until September 30, 1968, decedent was treated by Dr. Eugene E. Roy, his family physician in Attleboro. Doctor Roy died before being called to testify in this case.

On October 4, 1968, decedent fell from his bed to the floor at about 5 a.m. He was pronounced dead upon arival at Sturdy Memorial Hospital. Shortly thereafter, Dr. Rudolph Osgood, a medical examiner for Bristol County, Massachusetts, performed the autopsy which disclosed that the cause of decedent's death was a ruptured congenital cerebral aneurysm which involved the anterior communicating artery located at the base of the brain.

Doctor Thomas C. McOsker, a local neurosurgeon, and Dr. Osgood, both of whom testified for respondent, were of the opinion that there was no causal connection between the August 20, 1968 injury and the cause of death.

Doctor Morton S. Berk, an internist specializing primarily with cardiology and blood vessel disorders, testified for petitioner. He was of the opinion that decedent's death was caused by the injury of August 20, 1968. His opinion was based upon his finding that the blow which decedent sustained caused the congenital aneurysm to rupture, that bleeding developed causing intracranial hemorrhage which resulted in decedent's death.

Because of the conflicting medical testimony, the trial commissioner, acting pursuant to the provisions of G.L.1956 (1968 Reenactment) § 28-35-24, ² appointed an impartial medical examiner, Dr. Julius Stoll, Jr., a local neurosurgeon. He asked Dr. Stoll for his impartial medical opinion as to

'What, if any, causal connection existed between the incident at work on August 20, 1968 and the death of the decedent caused by a ruptured congenital cerebral aneurysm which occurred on Ctober 4, 1968?'

Dr. Stoll's report states that he reviewed the information included with the trial commissioner's letter asking him for an impartial medical opinion and he listed the documents which he reviewed. Because of the conflict in the evidence submitted to him by the commissioner, Dr. Stoll gave his opinion concerning causation in the alternative. He stated his opinion as follows:

'The patient died from rupture of a congenital aneurysm of the anterior communicating artery which had been present all of his life. The question to be answered here concerns whether or not the blow he received on 8-20-68 contributed to the rupture of this aneurysm. As I have reviewed the information supplied to me, there is some discrepancy which I think is important. It is true that a blow applied either to the head or the upper dorsal area may well cause an increase in blood pressure at the time and I don't believe it is important whether it is upper spine or head that was struck. This could conceivably either weaken the aneurysm or produce slight bleeding at that time. This may then have contributed to the repture of the aneurysm as the final incident which apparently occurred on October 4, 1968 some six weeks after the accident. If the testimony of Mrs. Parenteau is true, which states that since the accident he complained of being dizzy, had pain in the head, neck and stomach, it may well indicate that the aneurysm did leak slightly at the time of the accident due to the increased blood pressure which is involved with such a blow, and in which case I think one would have to say that the accident contributed towards the rupture of this aneurysm earlier than it might have in the course of natural events. However, conflicting evidence here is the report of the patient. This is the one dated 9/27/68 in which the patient described a burning sensation in his back, but did not describe headache or pain in the neck.

'I do not have Dr. Eugene Roy's records. I feel that if the evidence indicates that he did have pain in the head and neck which persisted from the time of the accident for a reasonable period of time then one has to consider the accident as contributing toward the rupture of the aneurysm. However, if the pain were confined to the upper back then I feel that the accident was not contributory toward the rupture of this aneurysm.'

The trial commissioner found as a fact that decedent did have pain in the head and the neck which persisted from the time of the accident for a reasonable epriod of time and that decedent suffered from symptoms of a different nature than those usually associated with a contusion. He found petitioner's testimony concerning decedent's condition between August 20, 1968 and October 4, 1968 to be worthy of belief. He stated that he did not give 'great weight' to Dr. Osgood's opinion and he gave his reason for so doing. He found that the preponderance of the evidence established that the death of decedent was caused by the blow sustained on August 20, 1968.

The full commission affirmed the findings and orders of the trial commissioner.

I

The respondent's first contention is that the findings of fact contained in the decree of the trial commissioner and affirmed by the final decree of the full commission are not supported by legal evidence and therefore are not binding and conclusive on this court. Specifically respondent argues that Dr. Berk's testimony was not legally competent because he had never seen decedent prior to the latter's death, had never treated him, was not present during the autopsy, had derived all of his facts concerning decedent's death from petitioner, who naturally had an interest in the outcome of the case, and, finally, because he had not reviewed all of the pertinent medical records before coming to his opinion as to causal relationship.

This argument is without merit. Doctor Berk qualified as an expert in his field. It is clear from the transcript that he based his opinion in part on petitioner's statements to him regarding decedent's medical history, in part on a study of some of the medical records concerning decedent, and in part on certain facts contained in hypothetical questions. The mere fact that Dr. Berk had not examined decedent, was not present during the autopsy, and had not reviewed all the medical records, does not affect the admissibility of his opinion testimony, although those factors may affect the weight to be given to his opinion. The respondent has advanced no valid reason for excluding Dr. Berk's testimony.

II

The respondent next contends that the trial commissioner and the full commission misconstrued and mosconceived the evidence and the legislative intent of § 28-35-24.

A

We address ourselves first to respondent's contention that (a) a close analysis of Dr. Stoll's testimony will show a complete lack of testimony that the blow on the back did, in fact, cause the injury resulting in decedent's death; and (b) that Dr. Stoll's opinion as to causation was purely speculative in nature. The respondent pin points certain portions of Dr. Stoll's testimony to support its argument. We do not consider it necessary to discuss the testimony referred to because we are satisfied that there is no validity to this argument.

What we said with respect to the admissibility of Dr. Berk's testimony is equally applicable here. The arguments made by respondent go to the weight of the doctor's testimony, not to its admissibility or competence. Doctor Stoll was of the opinion that the August 20, 1968 injury was the cause of decedent's death if the evidence indicated decedent had pain in the neck which persisted from the time of the accident for a reasonable period of time. The trial commissioner found these facts to be true, and petitioner's testimony was competent evidence to support this finding.

Even though Dr. Stoll had never seen decedent he had the benefit of various evidentiary facts concerning the accident on August 20, 1968, decedent's physical condition, and medical information which had been submitted to him by the trial...