Yellow Cab Company v. Bisasky

Murphy, C.J., delivered the opinion of the Court. Louis Bisasky, a fifty year old taxicab driver, was held up at gun point by two passengers while operating his cab at 2:30 a.m. on July 28, 1965. During the course of the robbery, a gun was pressed against his head and one of the robbers threatened to kill him. After the robbery, Bisasky went to the police station and afterwards returned home, arriving at about 6:00 a.m. in a highly agitated state.

At 8:00 p.m. the same day — some eighteen hours after the robbery — Bisasky suddenly fell to the floor while in his home, the victim of a stroke. He was taken by ambulance to Union Memorial Hospital where he remained until August 15, 1965 under the care of Dr. Alfred Ossman. Bisasky was thereafter unable to work. He suffered another stroke in June of 1967 and was hospitalized for three weeks at St. Joseph’s Hospital.

He suffered a third stroke on January 7, 1968 and was again hospitalized at St. Joseph’s. On February 28, 1968, Bisasky was transferred to the Veterans Administration Hospital, where he died on March 8,1968. The employer and insurer, appellants herein, contested the Workmen’s Compensation claim made on Bisasky’s behalf for payment of medical expenses, and for temporary total and permanent total disability benefits. Appellants filed as issues in the case before the Workmen’s Compensation Commission (1) whether Bisasky sustained an accidental personal injury arising out of and in the course of his employment, and (2) whether the disability was the result of a compensable injury.

At a hearing held on July 15, 1969, Bisasky’s surviving widow, ap ⁴⁹⁵ pellee herein, orally requested permission to raise the additional issues of nature and extent of disability and payment for medical expenses. Appellants objected to the inclusion of these additional issues at the hearing. The Commission indicated that it would not consider the nature and extent of disability “at this time.” The hearing was eventually continued to obtain the testimony of medical witnesses, the Commission advising appellee that she could file other issues in the case. As a result, appellee formally raised as issues (a) the duration of Bisasky’s temporary total disability, (b) whether he was permanently and totally disabled prior to his death, and (c) payment for medical expenses.

Appellants raised an additional issue concerning the applicability of the statute of limitations. The hearing was resumed on November 26, 1969, at which time Dr. James Frenkil and Dr. Joseph Palmisano testified on appellee’s behalf, while Dr. Israel Weiner and Dr. Alfred Ossman testified on appellants’ behalf. Based on the issues before it, the Commission found that Bisasky sustained an accidental personal injury arising out of and in the course of his employment; that as a result thereof he was temporarily totally disabled from July 28, 1965 to May 1, 1966; that he was thereafter permanently totally disabled prior to his death; that the appellants were liable for all medical expenses as a result of the compensable injury; and that limitations were not applicable. Appealing from the Commission’s decision to the Baltimore City Court, appellants presented the same issues as had been formally raised before the Commission, except for that pertaining to the statute of limitations.

The appellants’ position was that Bisasky suffered a cerebral vascular accident in 1965 which was thrombotic in nature and in no way related to the holdup. Appellee’s position was that Bisasky suffered a cerebral hemorrhage in 1965, the competent producing cause of which was the emotional stress precipitated by the holdup. Appellants took the further position that no matter what the nature ⁴⁹⁶ of Bisasky’s cerebral vascular accident, his injury was not “accidental” within the meaning of the Workmen’s Compensation Law. 1 At the trial before a jury, appellants put in evidence the Union Memorial Hospital records covering Bisasky’s 1965 admission, after which they called Dr. Israel Weiner, a neurosurgeon, as an expert medical witness. Dr. Weiner had never treated Bisasky; his testimony was based on a review of the Union Memorial Hospital records.

He noted the impression in the hospital record that Bisasky suffered a cerebral vascular accident, “probably thrombotic in nature.” He found this diagnosis supported by the fact that there was no bleeding in the fluid taken by a spinal tap done on July 28, 1965. Such a finding, Dr. Weiner testified, “tends to indicate that the stroke is not on the basis of a cerebral hemorrhage.” It was Dr. Weiner’s opinion, based on reasonable medical certainty, that Bisasky’s cerebral vascular accident “was caused by changes in the blood vessels of the type of hardening of the arteries, which is arteriosclerosis”; and that the stroke was wholly unrelated to the robbery. Dr. Alfred Ossman, an internist who had treated Bisasky during his hospitalization at Union Memorial, testified for appellants that Bisasky suffered a cerebral vascular thrombosis in 1965; that the emotional stress of the robbery did not cause the stroke, and that it was purely coincidental that the stroke occurred shortly after Bisasky had been robbed. Dr. Ossman based his opinion, in part, upon the fact that no blood was found in the spinal fluid taken from Bisasky on July 28, 1965.

Dr. Ossman, like Dr. Weiner, conceded the possibility that a hemorrhage could have occurred without blood being found in the spinal fluid. Both medical witnesses testifying for appellants made reference to Bisasky’s subsequent hospitalizations at 1 St. Joseph’s Hospital and testified with respect thereto. At the conclusion of appellants’ case, appellee intro ⁴⁹⁷ duced over objection the records of Bisasky’s second and third admissions to St. Joseph’s Hospital, after which she read into evidence, again over objection, the testimony of Dr. James Frenkil given before the Workmen’s Compensation Commission. Dr. Frenkil, a specialist in industrial and occupational medicine for twenty-five years, had never treated Bisasky.

He had, however, examined Bisasky’s Union Memorial Hospital records and, based on a hypothetical question put to him, answered over appellants’ objection that the emotional occurrence of the holdup “probably precipitated the cerebral vascular accident that occurred within the same day.” Dr. Frenkil characterized Dr. Ossman’s findings as “a good interpretation,” and said that while he didn’t know, “probably” no hemorrhage was involved because the spinal fluid was negative for blood. He did not agree, however, that emotional stress played no part in precipitating the stroke; he thought “it had a relationship to it.” Considering the clinical picture as a whole, Dr. Frenkil said that he could not say whether Bisasky had a thrombosis; that he could have had an embolism or a ruptured aneurysm ; and that he could have had a hemorrhage without any spread into the cerebral fluid. Asked on cross-examination how emotional upset could cause a thrombosis, Dr. Frenkil testified that with a sudden and severe emotional reaction, there is an increase in the adrenalin in the system which causes changes in the vascular activity, i.e., contractions or expansions of blood vessels. Dr. Frenkil restated his belief, which he said was based upon reasonable. medical certainty, that there was a relationship between the stroke and the robbery because of the closeness of the two events.

He concluded his testimony by saying: “I think there was, there is some relationship. I don’t think I’m the Almighty. It’s my guess.” The testimony of Dr. Joseph Palmisano, taken during the hearing before the Commission, was also read into evidence as part of appellee’s case. Dr. Palmisano, a gen ⁴⁹⁸ eral practitioner for fifteen years, had treated Bisasky for seven years prior to his first stroke; he did not treat Bisasky during his hospitalization in 1965 because he was out of the City at the time.

He testified that Bisasky was in generally good health prior to his stroke; that while Dr. Ossman had concluded that Bisasky’s stroke was “probably thrombotic,” the symptoms of a cerebral vascular accident, whether thrombosis or hemorrhage, were very much alike and that because of this, it was customary to use the term “probably” in referring to the cause. The witness stated that he could never be certain as to the cause of a cerebral vascular accident unless an autopsy was performed. Based on reasonable medical certainty, Dr. Palmisano testified that it was “entirely feasible” that the emotional stress of the holdup cáused Bisasky’s stroke; that by his use of the term “entirely feasible” he meant “it’s possible”; that the diagnosis of a cerebral vascular accident involved “a matter of clues”; that a hemorrhage had a sudden onset while a thrombosis had a slow onset; that as Bisasky’s stroke was sudden, he believed it “entirely feasible” that it was a hemorrhage and not a thrombosis. He said: “* * * it’s conceivable that his blood pressure could have risen high enough to leak into an artery.

And then later on that day it would rupture and cause a cerebral vascular accident.” Dr. Palmisano stated that a cerebral vascular accident may be of the hemorrhage type without a positive showing of blood in the spinal fluid; that Bisasky’s second stroke was diagnosed as an “inter-cerebral hemorrhage, hemorrhage with hypertension”; that the St. Joseph’s Hospital records for the second stroke showed a positive (for blood) spinal fluid; that the records of Bisasky’s third hospitalization showed that he had convulsions which “almost always goes along with hemorrhage”; that Bisasky’s second stroke was “very probably” hemorrhage and the third “almost certainly” hemorrhage; ⁴⁹⁹ and that because strokes are usually extensions of each other, the first stroke could also have been a hemorrhage. The St. Joseph’s Hospital records showed a diagnosis, as to the third stroke, of “cerebral vascular accident hemorrhage.” The diagnosis shown by the Veteran’s Administration Hospital records was “middle cerebral artery thrombosis, bilateral.” At the conclusion of the evidence, the court gave detailed instructions to the jury. It said that the “focal point” of the case concerned the type of stroke suffered by Bisasky shortly after the robbery; that for the jury to determine whether the stroke was “accidental” required it to determine what type it was; that the medical evidence adduced by appellants was that the stroke was a thrombosis and if this was believed the stroke had no connection with the robbery; that the medical evidence adduced by the appellee was that Bisasky’s stroke was of the hemorrhage type and was caused by the excitement of the holdup; that if this was believed by the jury, then Bisasky’s stroke wTas “accidental” under the Workmen’s Compensation Law. Appellants took no exception to these instructions.

The jury found in appellee’s favor on all issues. I Appellants claim that they were denied due process of law because the Workmen’s Compensation Commission failed to limit the issues decided by it to those initially raised by them and that, consequently, on appeal, the lower court erred in denying their pretrial motion to limit appellee’s opening argument, and the introduction of evidence, to that alone relevant to those issues, namely, (1) whether Bisasky had sustained an accidental injury arising out of and in the course of his employment, and (2) whether Ms disability was the result of a compensable accident. Appellants contend that both of these issues involve only the period of Bisasky’s first hospitalization at Union Memorial (from July 28, 1965 to August 15, 1965) and that had the hearing been limited to those is ⁵⁰⁰ sues, no evidence relating to Bisasky’s subsequent hospitalizations would have been admissible. In effect, appellants assert a right to limit the issues before the Commission and, on appeal from the Commission’s decision, to exclude from consideration the issues of extent and nature of any temporary total or permanent total disability sustained by Bisasky prior to his death.

To support their position, appellants place total reliance upon Bayshore Industries, Inc. v. Ziats, 229 Md. 69 . We find no merit in their contention. The issues formally presented to the Commission for adjudication were ultimately five in number, as previously outlined. Evidence pertaining thereto was adduced before the Commission and the Commission decided all issues before it.

The issues framed by appellants on appeal were four in number, also as previously outlined. They included those which they now claim should not have been heard either by the Commission or on the appeal. But nothing in Bayshore Industries supports appellants’ argument. In that case, the Commission ignored a stipulation between counsel to limit the issues at the hearing before the Commission.

The Court of Appeals deemed it necessary to give force to that agreement in order to protect the parties’ constitutional right to adequate notice of the issues to be determined. No such stipulation was involved in the present case. Indeed, it is perfectly clear that all issues were formally before the Commission; that the Commission considered and decided them; and that appellants were not surprised or afforded inadequate opportunity to meet such issues. Under these circumstances, we find no error in the lower court’s denial of appellant’s pretrial motion to limit the issues for decision.

II Appellants next claim that the trial court erred in receiving in evidence, over their objection, the St. Joseph’s Hospital' records relating to Bisasky’s hospitalizations subsequent to his hospitalization at Union Memorial. ⁵⁰¹ They claim that at the time the records were admitted, no proper foundation had been laid; that the authenticity of the records had not been established; that at most only that part of such records pathologically germane to the issues presented in the case would be admissible; and that in any event the records were not relevant to the issues in the case. Appellants claim that to permit such records in evidence was to