Rosaki v. School House Candy Company

• Decision Date: 25 July 1979
• Docket Number: No. 77-339-A,77-339-A
• Citation: 404 A.2d 75,122 R.I. 51
• Parties: SCHOOL HOUSE CANDY COMPANY v. Catherine ROSAKI.
• Court: Rhode Island Supreme Court

Page 75

404 A.2d 75

122 R.I. 51

SCHOOL HOUSE CANDY COMPANY v. Catherine ROSAKI.

No. 77-339-A.

Supreme Court of Rhode Island.

July 25, 1979.

[122 R.I. 55] Bernard W. Boyer, Providence, for plaintiff.

Bernard C. Gladstone, Providence, for respondent.

OPINION

JOSLIN, Justice.

In this workers' compensation proceeding the employee, who sustained a compensable injury in 1973, petitions to review and alleges a return of total incapacity. The only witnesses to testify before the trial commissioner were the employee; her attending physician, Dr. Howard S. Sturim; and a medical librarian who authenticated certain hospital records. On the basis of their testimony the commissioner found for the employee. The employer appealed to the full commission which found as a fact that Dr. Sturim's opinion stating that the employee's total incapacity related back to the 1973 injury was based not only upon his own observations, but also upon medical reports that were not in evidence. It held that to admit such testimony was error; that the trial commissioner should have stricken it; and that without that testimony there was insufficient competent evidence to support the trial commissioner's finding that the employee had suffered a recurrence of incapacity traceable to her 1973 injury. From a decree embodying those findings and conclusions, the employee appealed to this court.

The dispositive question here is whether Young v. New England Transportation Co., 97 R.I. 499, 199 A.2d 300 (1964), governs. In that case the Workers' Compensation Commission, in finding that the employee had not established that his present disability was due to a prior compensable injury, relied on the testimony of Dr. Lester L. Vargas, who had examined the worker on the employer's behalf. The doctor was called by the employer as a forensic expert, rather than as an attending physician, and he testified that his opinion stating that the recurring disability was not traceable to the original incapacity was based upon his own personal examination of the employee and a collective evaluation of certain medical reports not in evidence. In those circumstances we held that it was improper to permit Dr. Vargas to state an opinion that was derived in part from facts not in the record when he stated his opinion. Id. at 503, 199 A.2d at 302.

Although not extensively articulated in the Young case, the essential objection to permitting an expert to offer an opinion on the basis of reports that are not in evidence

"seems to be that the (factfinder) is asked to accept as evidence the witness' inference, based upon someone's hearsay assertion of a fact which is, presumably, not supported by any evidence at the trial and which therefore the (factfinder) has no basis for finding to be true." McCormick, Evidence § 15 at 34 (2d ed. 1972).

The circumstances under which Dr. Sturim testified in this case and Dr. Vargas in the Young case, however, are substantially different. Here Dr. Sturim was an attending or treating physician who had even performed surgery on the employee, while in the Young case Dr. Vargas was a forensic expert who, although called upon to testify about Young's condition, had merely examined but not treated him. The difference between the two situations is significant because there is a substantial body of authority holding that an attending or treating physician may base his opinion in part upon the statements of other medically trained personnel if they are used to supplement his own observations of the person or situation in question. Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637, 641-42 (1962); Atchison, Topeka & Santa Fe Railway v. Preston, 257 F.2d 933, 936 (10th Cir. 1958); Metropolitan Life Ins. Co. v. Osborne, 286 Ky. 301, 305-07, 150 S.W.2d 479, 481-82 (1941); Pachek v. Norton Concrete Co., 160 Mont. 16, 21-22, 499 P.2d 766, 769 (1972); State v. Best, 89 S.D. 227, 239-41, 232 N.W.2d 447, 455 (1975); New Jersey Zinc. Co. v. Cole, 532 S.W.2d 246, 250 (Tenn.1975); Sundquist v. Madison Railways, 197 Wis. 83, 87, 221 N.W. 392, 393 (1928); McCormick, Evidence § 15 (2d ed. 1972); Rheingold, The Basis of Medical Testimony, 15...