author: Hull, J. Shea, J.,

text:
    Joseph Cleveland v. U.S. Printing Ink, Inc., et al.
    (14015)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Borden, Js.
    Argued December 4, 1990
    decision released March 26, 1991

      Robert E. Beach, Jr., for the appellants (defendants).

      Dennis A. Ferdon, with whom was Lori M. Serra, for the appellee (plaintiff).
   Hull, J.

The defendants appeal the decision of the Appellate Court affirming the decision of the workers’ compensation review division (review division) which affirmed the decision of the workers’ compensation commissioner for the second district (commissioner) granting the plaintiff’s motion to preclude. We affirm.

Although the facts are set forth in the decision of the Appellate Court; Cleveland v. U.S. Printing Ink, Inc., 21 Conn. App. 610, 575 A.2d 257 (1990); we discuss those facts pertinent to the issues. On March 11,1986, the plaintiff, Joseph Cleveland, a resident of New Jersey employed as a truck driver by the named defendant, U.S. Printing Ink, Inc., a New Jersey corporation, was injured during the course of his employment in the town of South Windsor. Thereafter, the plaintiff received workers’ compensation benefits for total incapacity under the New Jersey Workmen’s Compensation Act. On or about September 22,1986, the plaintiff mailed to the named defendant a notice of his injury and his intent to file a claim for benefits under the Connecticut Workers’ Compensation Act, General Statutes § 31-275 et seq. After the named defendant failed to file a timely notice of its intent to contest liability for the plaintiff’s claim, the plaintiff filed a motion, pursuant to General Statutes § 31-297 (b), to preclude the defendants from contesting liability or the extent of the plaintiffs disability. In response, the defendants challenged the jurisdiction of the commissioner to award benefits to the plaintiff. The commissioner determined that between Connecticut deliveries and driving through the state, the plaintiff spent 35 to 40 percent of his employment time in Connecticut. Furthermore, the plaintiff “ha[d] enough significant contacts with this state and . . . therefore Connecticut [had] an interest in applying its statutes for the protection of working men injured within its borders.” The commissioner thereupon granted the plaintiffs motion to preclude and ordered the defendants to accept liability for the plaintiffs claimed injury.

The defendants appealed the commissioner’s decision to the review division, which affirmed, concluding that the commissioner had made an appropriate factual finding about the plaintiff’s employment situs, and had correctly applied conflict of laws principles. Thereafter, the defendants appealed the review division’s decision to the Appellate Court, which also affirmed, concluding, inter alia, that: (1) Connecticut had an interest in compensating the plaintiff; (2) New Jersey had no legitimate interest in preventing Connecticut from awarding the plaintiff supplemental compensation; and (3) “the commissioner correctly applied the law . . . that the facts sufficiently supported his decision, and . . . the compensation review division correctly affirmed the decision.” Cleveland v. U.S. Printing Ink, Inc., supra, 617-18. We subsequently granted the defendants’ petition for certification to appeal to this court limited to the following issues: (1) “ ‘Did the Appellate Court properly conclude that because there was sufficient contact with Connecticut by the plaintiff truck driver and his employer, both being domiciled in New Jersey, to give this state jurisdiction, the Connecticut workers’ compensation law, both procedural and substantive, should apply? [and (2)] Should the Appellate Court have dismissed the appeal suo motu for lack of a final administrative determination?’ ” Cleveland v. U.S. Printing Ink, Inc., 216 Conn. 802, 577 A.2d 715 (1990).

I

We must first address the question of whether the Appellate Court should have dismissed the defendants’ appeal for lack of a final administrative determination. This question has two subparts: does the Appellate Court have jurisdiction to hear an appeal from the review division in the absence of a final decision; does the record in this case manifest the existence of a final decision? We conclude that a final decision is a jurisdictional prerequisite to an appeal and that there was such a final decision in this case.

The defendants claim that because the right of appeal from the review division to the Appellate Court is statutory; General Statutes § 31-301b; and because General Statutes § 31-301b nowhere states that the decision appealed from must be final, a final decision was not required in order for the defendants to appeal the decision of the review division. Practice Book § 2015 provides, however, that “[t]he practice and procedure for workers’ compensation appeals to the appellate court shall conform to the rules of practice governing other appeals to the appellate court . . . .” The practice and procedure of the Appellate Court require that, “[i]f a party is aggrieved by the decision of the court or judge . . . that party may appeal from the final judgment of the court or of such judge . . . .” Practice Book § 4000; see also Practice Book § 2000. “It is clear, therefore, that in order for a decision of the review division to be appealable under General Statutes § 31-301b it must be a decision which has the same elements of finality as a final judgment rendered by a trial court.” Timothy v. Upjohn Co., 3 Conn. App. 162, 164, 485 A.2d 1349 (1985); see also Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990); Matey v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989).

The plaintiff claims that the decision of the review division was a final decision appealable pursuant to § 31-301b. The defendants assert, to the contrary, that the decision is final only if the plaintiffs claim for workers’ compensation benefits is limited to a claim for incapacity benefits already received because otherwise, the plaintiff may still file a claim for specific benefits. We agree with the plaintiff.

“It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. Matey v. Estate of Dember, [supra, 629-30]; Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-12, 521 A.2d 566 (1987); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987); Rapasi v. Jenkins Bros., 16 Conn. App. 121, 122-23, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). . . . The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. Matey v. Estate of Dember, supra, 630.” Szudora v. Fairfield, supra. “A decision of the compensation review division is a final judgment if the claimant involved is entitled to temporary total disability benefits and the salary and period of time during which there was an inability to work are known.” Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 517, 578 A.2d 129 (1990), aff'd, 23 Conn. App. 805, 580 A.2d 1249 (1990).

It is undisputed that the plaintiff sustained an injury during the course of his employment for which he is entitled to receive total incapacity benefits. Furthermore, the period of the plaintiff’s disability, the plaintiff’s salary, the amount of workers’ compensation benefits the plaintiff had received in New Jersey and the amount of benefits he would receive under the Connecticut Workers’ Compensation Act are also undisputed. The proceedings on remand from the compensation review division, therefore, would be purely ministerial, requiring no exercise of independent discretion and no further taking of evidence. Moreover, because a future claim for specific benefits would require a separate proceeding before the commissioner, the possibility of such a claim does not affect the finality of the present decision of the review division. Accordingly, we conclude that the decision of the review division was a final decision appealable pursuant to § 31-301b.

II

We now turn to the substantive question concerning the applicability of Connecticut workers’ compensation law. Before addressing the substance of the defendants’ claim, we must first clarify the nature of the issue presented. Although the Appellate Court characterized the issue as one of subject matter jurisdiction; Cleveland v. U.S. Printing Ink, Inc., supra, 21 Conn. App. 614-16; the question of whether one state will award supplemental workers’ compensation benefits to a claimant who previously received benefits under the laws of another state is more appropriately deemed a question of conflict of laws. See Thomas v. Washington Gas Light Co., 448 U.S. 261, 278-86, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980); Simaitis v. Flood, 182 Conn. 24, 31, 437 A.2d 828 (1980); 1 Restatement (Second), Conflict of Laws § 181; 4 A. Larson, Workmen’s Compensation Law § 85.00, pp. 16-18-16-47. Indeed, although “ ‘the two [questions] usually coincide, since normally the rights created by the compensation act of one state cannot be enforced in another state . . Cleveland v. U.S. Printing Ink, Inc., supra, 21 Conn. App. 616, quoting 4 A. Larson, supra, § 84.00, p. 16-1; the question of jurisdiction ordinarily precedes the conflict of laws question, for only after the commissioner determines that he has authority to entertain the action does he proceed to the “choice” of whether to award benefits under our Workers’ Compensation Act or, rather, to defer to the earlier grant of benefits under the laws of another state. It is conflict of laws principles, therefore, that determine the merits of the defendants’ principal assertions.

The defendants claim that the Appellate Court improperly concluded that because the plaintiff had sufficient contacts with Connecticut to support the commissioner’s subject matter jurisdiction, Connecticut workers’ compensation law should apply to the present case. According to the defendants, because the plaintiff has the most significant contacts with New Jersey, under conflict of laws principles, the law of New Jersey governs exclusively the plaintiffs claim for workers’ compensation benefits. We do not agree.

Historically, the employment contract determined whether a claimant might receive workers’ compensation benefits under our Workers’ Compensation Act. Morin v. Lemieux, 179 Conn. 501, 503, 427 A.2d 397 (1980); Pettiti v. Pardy Construction Co., 103 Conn. 101, 106-107, 130 A. 70 (1925); Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 460, 121 A. 828 (1923); Banks v. Howlett Co., 92 Conn. 368, 371, 102 A. 822 (1918); Douthwright v. Champlin, 91 Conn. 524, 526, 100 A. 97 (1917); Kennerson v. Thames Towboat Co., 89 Conn. 367, 371, 94 A. 372 (1915). An employee injured in the course of his employment was entitled to receive workers’ compensation benefits under our act as long as the employment contract pursuant to which he was employed was executed in Connecticut, regardless of where performance was rendered. Morin v. Lemieux, supra.

Nevertheless, despite the apparent clarity of a rule based exclusively on the place of the employment contract and the ease with which it could be applied to promote uniformity, simplicity and convenience, because we were concerned about “the impossibility of anticipating all the situations which [might] develop in this difficult feature of the compensation law, and of making ... an unvarying rule which shall cover all possible cases,” the rule was adapted where necessary to “best promote the interests of both employers and employees.” Hopkins v. Matchless Metal Polish Co., supra, 466-67; see also Banks v. Howlett Co., supra. Thus, in addition to providing workers’ compensation benefits to those employed pursuant to contracts executed within Connecticut, if an employee had been injured in Connecticut during the course of his employment but the employment contract had been executed in another state that did not give extraterritorial effect to its own workers’ compensation act, the contract was interpreted as having implicitly incorporated Connecticut’s Workers’ Compensation Act within its terms unless the act had been explicitly rejected by one of the parties. Hopkins v. Matchless Metal Polish Co., supra, 464. Likewise, if the sole and specific object of the foreign contract was employment in Connecticut, an employee injured in Connecticut had the option of receiving benefits under our act. Banks v. Howlett Co., supra.

In Pettiti v. Pardy Construction Co., supra, 108-109, we limited Banks v. Howlett Co., supra, to its facts because we were concerned about inconsistent application of the general rule. While our act had been interpreted to provide benefits to employees whose contracts were to be performed solely in Connecticut, those employees whose contracts were executed in Connecticut but performed solely outside its borders, were also afforded benefits under our act. Nevertheless, we thereafter discarded the place of contract conflict of laws approach for determining whether a claimant was entitled to receive benefits under our Workers’ Compensation Act as unduly restrictive in view of the remedial purpose of our workers’ compensation law. Simaitis v. Flood, supra.

In Simaitis, the plaintiff, a resident of Connecticut, had been hired and was principally employed in Connecticut by a Connecticut corporation; she was injured during the course of her employment in Tennessee. We concluded that “[although the contract choice of law rule is a certain one, easily applied . . . such a rule would serve to preclude the successive incremental awards sanctioned by Thomas v. Washington Gas Light Co., [supra]; Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947); Restatement (Second), 1 Conflict of Laws § 182, comment b; Restatement, Conflict of Laws § 403; 4 Larson, [supra,] § 85.60, pp. 16-29-16-30; because the employment contract is typically made in only one jurisdiction.” Simaitis v. Flood, supra, 27-28. Moreover, “an employee’s effort to maximize her compensation benefits and remedies would be frustrated because relief would be limited to that provided by the jurisdiction where the contract was made . . . [and] an employer [could] avoid the full extent of potential liability imposed by the Connecticut Workers’ Compensation Act simply by making the contract elsewhere. ...” Id., 28. We also declined to confine our conflict of laws analysis to the doctrine of lex loci delicti because “if this court were to adhere to a strict application of the place-of-the-injury rule, a Connecticut resident and employee of a Connecticut employer under a Connecticut contract, who was injured while on temporary business in another jurisdiction might be left with no tort remedy whatsoever if that other jurisdiction applied a different choice of law rule.” Id., 30.

Because both the due process interest analysis utilized by the United States Supreme Court to determine whether a state may constitutionally apply its workers’ compensation act to afford a claimant benefits; see Thomas v. Washington Gas Light Co., supra; 1 Restatement (Second), Conflict of Laws § 181; as well as the place of the employment relation approach; 4 A. Larson, supra, § 87.40; supported application of Connecticut workers’ compensation law, we concluded in Simaitis that the provisions of our act applied. Simaitis v. Flood, supra, 31. Since, however, both views compelled the same result, it was unnecessary to adopt a comprehensive conflict of laws rule for workers’ compensation cases. Id.

Recently, we observed our earlier recognition of the interest analysis of § 181 of the Second Restatement of Conflict of Laws for resolving conflict of laws issues in workers’ compensation cases. O’Connor v. O’Connor, 201 Conn. 632, 638, 519 A.2d 13 (1986), citing Simaitis v. Flood, supra, 32-33. Although O’Connor dealt with conflict of laws principles in a tort action rather than in a workers’ compensation case, we relied on Simaitis for the proposition that “we are not wholeheartedly committed to application of lex loci as the sole approach to choice of law in all torts cases. ’ ’ O’Connor v. O’Connor, supra.

By its own terms, however, § 181 of the Restatement is not dispositive of the issue presented. Section 181 merely “sets forth the situations in which it is permissible for a State to apply its workmen’s compensation statute. Whether the courts of a State will in fact apply its statute in any one or more of these situations depends ... on the language of the statute and on the way in which the statute is interpreted by the courts.” (Emphasis added.) 1 Restatement (Second), Conflict of Laws § 181, comment a, pp. 537-38.

The Restatement discusses three approaches taken by courts to determine the territorial application to be given to their local workers’ compensation statutes in the absence of explicit statutory authority. Id., comment b, pp. 539-40. According to these views, relief should be obtainable under the workers’ compensation act of the state (1) with the most significant relationship to the employment, or (2) with the most significant relationship to the contract of employment, or (3) whose local law would be applied to determine the parties’ rights and liabilities in tort. Id., comment b. Implementing the choices suggested by the Restatement and in conformity with the 1972 recommendation of the National Commission on State Workmen’s Compensation Laws, “[i]n the majority of states, the local statute will be applied if the place of injury, or the place of hiring, or the place of employment relation is within the state.” (Emphasis added.) 4 A. Larson, supra, § 87.00, p. 16-67; see also 1 Restatement (Second), Conflict of Laws § 181, comment b, p. 540 (court that adheres to one of three approaches discussed may on occasion adhere to another view in order to justify awarding relief to employee under its workers’ compensation laws). According to Professor Larson, this rule has introduced “a much greater degree of uniformity and compatibility . . . into this formerly-ragged area of the law.” 4 A. Larson, supra, § 87.11, p. 16-67. We conclude that the conflict of laws rule recommended by the national commission and Professor Larson, adopted in the majority of jurisdictions, is the rule best suited to serve the purposes of our Workers’ Compensation Act.

“ ‘The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.’ (Citation omitted.) Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The act is to be broadly construed to effectuate the purpose of providing compensation ‘for an injury arising out of and in the course of the employment regardless of fault.’ Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968) The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).” Mingachos v. CBS, Inc., 196 Conn. 91, 97-98, 491 A.2d 368 (1985).

Connecticut has an “interest in compensating injured employees to the fullest extent possible.” McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 622, 546 A.2d 893 (1988), aff’d, 210 Conn. 580, 556 A.2d 587 (1989); see also Simaitis v. Flood, supra, 28. “Regardless of where an employee first seeks an award of benefits, he or she is entitled to the maximum amount allowed to an individual under either comprehensive legislative scheme.” McGowan v. General Dynamics Corporation/Electric Boat Division, supra, 623. Furthermore, although the plaintiff in this case was able to obtain workers’ compensation benefits under the laws of New Jersey, the propriety of the rule we adopt today must be considered not only in light of the facts of this case but with an eye towards situations that are likely to arise in the future. See Carroll v. Lanza, 349 U.S. 408, 413, 75 S. Ct. 804, 99 L. Ed. 1183 (1955). Thus, while our adoption of this rule incidentally serves the plaintiff’s desire to obtain the maximum amount of benefits to which he is entitled, it, more importantly, protects those claimants who, because the various incidents of their employment and their injury are each linked to a different jurisdiction, may be at risk with respect to their eligibility for workers’ compensation benefits. See, e.g., House v. State Industrial Accident Commission, 167 Or. 257, 117P.2d 611 (1941) (plaintiff left without workers’ compensation remedy for injury sustained while working temporarily in Oregon; employment contract executed in Oregon, which used place of employment rule, and place of employment in California, which adhered to place of contract rule).

The remedial purpose of our Workers’ Compensation Act supports application of its provisions in cases where an injured employee seeks an award of benefits and Connecticut is the place of the injury, the place of the employment contract or the place of the employment relation. We conclude, therefore, that because the plaintiff sustained an employment-related injury in Connecticut, the Appellate Court properly concluded that the review division correctly affirmed the commissioner’s decision to apply Connecticut workers’ compensation law, specifically § 31-297 (b).

The judgment is affirmed.

In this opinion Peters, C. J., Glass and Borden, Js., concurred.

Shea, J.,

with whom Callahan and Covello, Js., join, dissenting. I agree with Part I of the majority opinion that the decision of the review division was final and thus appealable. I also agree with the conclusion reached in Part II that the plaintiffs contacts with Connecticut were sufficient to support the exercise of jurisdiction by the workers’ compensation commissioner in this state. Since Connecticut is an appropriate forum, it would follow that procedural provisions of our workers’ compensation statutes, such as the conclusive presumption of compensability created by General Statutes § 31-297, should apply.

I disagree, however, with the portion of Part II that holds the substantive provisions of Connecticut workers’ compensation statutes, which provide a higher level of benefits for an injured employee than those of New Jersey, to be the proper choice of law for the determination of a dispute over the amount of compensation to be paid by a New Jersey employer to its employee, who resides and spends most of his working time in that state. “The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties . . . .”1 Restatement (Second), Conflict of Laws § 145 (1). We adopted this principle in O’Con-nor v. O’Connor, 201 Conn. 632, 650-51, 519 A.2d 13 (1986), and abandoned the traditional doctrine of lex loci delicti. Workers’ compensation cases are classified as “wrongs” by the Restatement and thus present an “issue in tort.” 1 Restatement (Second), Conflict of Laws § 145 (1), and see §§ 181 through 185. The “most significant relationship” criterion would also be applicable if workers’ compensation rights were treated as part of the employment contract. Id., § 188 (1).

It cannot reasonably be contended that the relationship of Connecticut to the issue involved in this case, the amount of compensation the claimant should receive for his injuries, is more significant than that of New Jersey. The nexus with Connecticut is based upon the circumstance that his injury occurred in this state and that 35 to 40 percent of his employment time was spent in making deliveries within or in driving through this state in order to deliver ink at locations in other New England states. Presumably his working time in New Jersey was greater in amount. The plaintiff resided in New Jersey with his family. After the accident in which he was injured, he drove to a hospital in New Jersey for medical treatment, having received no such treatment in this state. His employer is located in New Jersey, where the employment relationship was created.

In Simaitis v. Flood, 182 Conn. 24, 34, 437 A.2d 828 (1980), this court approved the view of Professor Larson that “the applicable law in a workers’ compensation case is the law of the place of the employment relation, because ‘the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation.’ ” In Simaitis we rejected the rule of lex loci delicti as the governing choice of law principle, reasoning that its application “would bestow upon temporary visitors injured in Connecticut all the relief which the Connecticut compensation act affords, but deny that same relief to Connecticut residents injured while on temporary business outside the state, even when all other incidents of the employment . . . are in Connecticut.” Id., 29-30. By holding Connecticut law to supersede New Jersey law with respect to the amount of compensation to be paid in this case, the opinion implicitly overrules Simaitis sub silentio with respect to its implicit holding that the substantive law of the state with the most significant relationship should control and that the interest of a state in the employment relationship is more significant than any interest arising from the site of an accident. See O’Connor v. O’Connor, supra, 638.

The opinion does not weigh the relative interests of Connecticut and New Jersey in this workers’ compensation dispute. Implicitly it abandons the most significant relationship criterion for resolving a conflict of laws in workers’ compensation cases and substitutes a rule allowing a claimant to maximize his benefits to the extent permitted by any forum that may have jurisdiction.

It is a strange rule of law that would give to one party to a legal controversy the right to choose the rule of substantive law to be applied in deciding it simply because, as the claimant, he can select a forum in any state having a sufficient interest to satisfy jurisdictional requirements. Despite its incongruity with conflict of laws theory, however, the rule may be justified in circumstances where a significant interest of one of the potential forum states may be adversely affected if the law of another state under orthodox conflict principles must govern. For example, if New Jersey had provided no workers’ compensation for this claimant’s injury and he had required medical treatment in this state when he was injured, Connecticut would have a substantial interest in assuring payment of his medical expenses and other needed support while he remained here. The state having the more significant interest with respect to the medical payment aspect of workers’ compensation law must certainly be the one whose citizenry would have to bear those expenses in some way or other if they were not borne by the employer.

This claimant, however, received no medical treatment in Connecticut, but drove himself to a hospital emergency room in New Jersey. There is no dispute about payment of his medical expenses or his eligibility for workers’ compensation benefits to the extent provided by New Jersey law. The claimant has already received this allowance. The only remaining issue is whether this court should defer to New Jersey’s primary interest in setting the appropriate level of compensation benefits to be paid by a New Jersey employer to a resident employee who spends most of his working time in that state. I fail to perceive what interest of Connecticut can justify overriding New Jersey’s determination of the appropriate level of compensation benefits for New Jersey employers and their employees.

The majority argues that Connecticut has an interest to assure that out-of-state employees who suffer compensable injuries within our borders receive the maximum benefits available when this state is chosen as the forum, regardless of New Jersey’s great interest in setting the benefit levels to be paid by New Jersey employers to their employees, which undoubtedly have an impact on labor costs in that state. If maximization of the claimant’s recovery is the appropriate conflict of laws criterion in workers’ compensation cases, one may well inquire why it should be confined to this area of the law, as the majority presumably intend, rather than extended to other actions, such as ordinary tort litigation, in which similar conflicts arise. Should Connecticut thus become a mecca for claimants from all corners of the world, provided there exists a sufficient jurisdictional basis for our courts to entertain the litigation?

The majority’s argument for maximizing the claimant’s benefits as the governing conflict of laws principle is not advanced by referring to the “remedial purpose of our Workers’ Compensation Act,” because the New Jersey act undoubtedly has the same remedial purpose. All legislation is remedial in that it is intended to change existing law, but there is not the slightest suggestion in our Workers’ Compensation Act that it was intended to supersede similar statutes of other states having more significant interests in the employment relationship simply because our enactment provides higher benefits.

Accordingly, I dissent.

       Travelers Insurance Company, the employer’s insurer, is also a defendant.

       General Statutes § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of the claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court.”

       The defendants also claim that application of Connecticut law (1) failed to afford the judicial proceeding in New Jersey the full faith and credit to which it is entitled under article four, § 1, of the federal constitution, and (2) was fundamentally unfair and a denial of due process, because there is no similar preclusion provision under the law of New Jersey, which the defendants expected to govern their obligations. The defendants failed to raise their constitutional claims in their appeal to the review division and, therefore, they were not properly preserved for subsequent review by the Appellate Court. This court is not bound to consider claims not properly raised below. Practice Book § 4185. We, therefore, decline to address these claims.

       The Second Restatement of Conflict of Laws § 181 provides that “[a] State of the United States may consistently with the requirements of due process award relief to a person under its workmen’s compensation statute, if (a) the person is injured in the State, or (b) the employment is principally located in the State, or (c) the employer supervised the employee’s activities from a place of business in the State, or (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen’s compensation under the rules of §S 187-188 and 196, or (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen’s compensation act of the State, or (f) the State has some other reasonable relationship to the occurrence, the parties and the employment.”

       The dissent concludes that because “[wjorkers’ compensation cases are classified as ‘wrongs’ by the Restatement and thus present an ‘issue in tort,’ ” pursuant to § 145 (1) of the Second Restatement of Conflict of Laws, the rights and liabilities of the parties in workers’ compensation cases are determined by the law of the state which has the most significant relationship to the occurrence and the parties. We disagree. Chapter seven of the Restatement of Conflict of Laws discusses the general topic entitled “Wrongs.” 1 Restatement (Second), Conflict of Laws pp. 411-12. Within the general topic, the following subtopics are delineated along with their applicable provisions: torts; §§ 145-174; actions for death; §§ 175-180; and workers’ compensation; §§ 181-185. Id. We conclude, therefore, that because the Restatement views conflict of laws issues in tort and workers’ compensation actions as distinct, § 145 is not applicable to workers’ compensation cases.

       “Twenty-two jurisdictions cover all in-state injuries.” 4 A. Larson, Workmen’s Compensation Law § 87.13, p. 16-72. They are as follows: Alabama, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Washington, Wisconsin and the District of Columbia. Id., § 87.13, p. 16-72 n. 9. The following six jurisdictions exclude coverage if there is coverage in another state and if that state grants reciprocity: California, Mississippi, Montana, Nevada, Rhode Island and South Dakota. Id., § 87.13, p. 16-72 n.13.

       The dissent, citing Simaitis v. Flood, 182 Conn. 24, 34, 437 A.2d 828 (1980), states that according to Professor Larson, “ ‘the applicable law in a workers’ compensation case is the law of the place of the employment relation ....’” We note that in Simaitis, the comments of Professor Larson were interpreted too broadly. Although Larson states that “[o]f the three original theories on extraterritoriality—tort, contract, and employment relation—the last is the most relevant to compensation theory and the least artificial”; 4 A. Larson, Workmen’s Compensation Law § 87.41, p. 16-114; he notes that, in practice, the rule can be unworkable, concluding that while the place of the injury and the place of the contract are relatively easy to identify, “the whereabouts of a relation between two people has a somewhat more mystic quality.” Id., § 87.42, p. 16-118.

       The only “choice of law” questions in workers’ compensation cases on which the Second Restatement of Conflict of Laws explicitly takes a position are with respect to actions for tort or wrongful death by an employee who is eligible for a workers’ compensation award. 1 Restatement (Second), Conflict of Laws §§ 184, 185.

       The rule espoused by the majority will also make it difficult for insurers to underwrite workers’ compensation coverage for employers whose employees travel out-of-state frequently, because the level of benefits to be underwritten will be uncertain.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Carrie Wasfi et al. v. Shashi Chaddha et al.
    (13882)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued January 11
    decision released March 26, 1991

      William F. Gallagher, with whom, on the brief, were William R. Davis, Nicola E. Rubinow and Cynthia C. Bott, for the appellants (plaintiffs).

      Ronald D. Williams, with whom was Ronald D. Williams, Jr., for the appellee (named defendant).

      Augustus R. Southworthlll, with whom, on the brief, was Nancy P. Maxwell, for the appellee (defendant Frank J. Riccio).
   Shea, J.

The named plaintiff, Carrie Wasfi, sued the defendants for medical malpractice in the diagnosis and treatment of an acoustic neuroma. Specifically, she claimed that the defendant Shashi Chaddha, a radiologist, had negligently failed to detect the presence of an acoustic neuroma when he performed a CAT scan on her in May, 1981, and that the defendant Frank J. Riccio, an otolaryngologist, had negligently failed to diagnose and treat the acoustic neuroma in October, 1982, after she reported a sudden hearing loss. The neuroma, and its subsequent surgical removal in 1983, caused total hearing loss in Wasfi’s right ear, facial paralysis, hemiparesis of the left side, and voice loss. After a twenty-day trial, the jury returned verdicts in favor of the defendants. Wasfi appealed, claiming numerous errors in the trial court’s instructions to the jury. We affirm the judgment.

The jury could reasonably have found the following facts. Since childhood, Wasfi had suffered from diabetes. At various times between 1977 and 1981, she had experienced visual and other problems linked to diabetes and had undergone hospital treatment.

In 1981, Wasfi sought treatment for recurring headaches from her family physician, Joseph Sciarrillo. Sciarrillo ordered X rays, a CAT scan and an electroencephalogram (EEG). Chaddha was the radiologist who performed the CAT scan. Chaddha later testified that he had not been fully informed of Wasfi’s symptoms prior to evaluating the CAT scan results. In any event, Chaddha reported to Sciarrillo that the CAT scan result was normal. Sciarrillo prescribed headache medication for Wasfi, which had some positive effects.

In October, 1982, Wasfi noticed sudden loss of hearing in one ear when she attempted to use the telephone. She went to Joseph Riccio, an otolaryngologist, told him of the hearing loss, and also reported headaches, a recent cold and “lightheadedness.” Riccio conducted some office tests and told Wasfi that the hearing loss might be viral (related to her cold) or vascular (related to her diabetes). He recommended “carbogen therapy,” a treatment involving inhalation of a mixture of carbon dioxide and oxygen intended to open a blocked ear vessel. Riccio arranged for other practitioners to perform the therapy and advised Wasfi to contact him after the therapy was complete. Had Wasfi reported continued hearing loss following such treatment, he would at that time have recommended a CAT scan.

Wasfi discussed the suggested carbogen therapy with her husband. After the discussion, she decided not to undergo the carbogen therapy. Wasfi did not inform Riccio of her decision and did not contact him again, although her hearing did not improve. Six months after her visit to Riccio, she began to experience severe headaches. After a month of the headaches, in May, 1983, she returned to her family physician, Sciarrillo. When a second CAT scan revealed the presence of a tumor, Sciarrillo immediately had her admitted to a hospital, where the neuroma was removed.

At the trial, experts on both sides testified concerning, inter alia, the propriety of Riccio’s prescription of carbogen therapy prior to ordering a CAT scan. The thrust of Riccio’s evidence was that when a patient suffers a hearing loss that may be caused by dozens of nonthreatening conditions, doctors routinely attempt to screen out such conditions before ordering a CAT scan, which would be used to detect a more serious cause for the hearing loss; that if carbogen therapy is successful in restoring hearing, it would also rule out more serious causes for the hearing loss; and that Riccio’s decision to recommend carbogen therapy before ordering a CAT scan was only an application of this standard practice. In addition, Riccio’s counsel elicited expert testimony to the effect that the timing of the CAT scan—before carbogen therapy or after carbogen therapy—was a matter of professional opinion as to which physicians differed. Finally, both defendants offered evidence that by the time Wasfi came to Riccio for treatment, no CAT scan would have made a difference, for the damage had already been done.

The trial court included in its charge to the jury specific instructions on (1) “intervening cause” and (2) “schools of thought” as they affect the standard of care. After the charge was given, court adjourned for the weekend.

When court resumed, the parties presented their exceptions to the charge. Wasfi excepted to the “schools of thought” charge as unwarranted by the evidence, and all parties excepted to the instruction on intervening cause. Persuaded by some of the exceptions, the trial court gave a revised instruction on the subject of proximate cause in an attempt to eliminate the problems with the earlier charge on intervening cause. It did not revise or delete the instruction on “schools of thought.” It explained the verdict forms, which provided for a general verdict as to each defendant, but no special interrogatories were submitted. The jury began deliberating that day.

The next day the jury requested clarification of the intervening cause instruction. In response, the court told the jury to disregard the second instruction and issued a third and final instruction on intervening cause. Introducing the third charge, the judge said “I’m going to go back in part to my original charge.” Wasfi’s and Riccio’s counsel both took exception to that statement as well as to other parts of the charge. After deliberating another day, the jury returned general verdicts in favor of Riccio and Chaddha. On appeal, Wasfi challenges the trial court’s charges on(l) “schools of thought” and (2) intervening cause.

I

Wasfi contends that the trial court improperly gave an instruction on “schools of thought” when there was no evidence that Riccio had adhered to and acted according to the dictates of a particular school of medical thought distinct from that followed by her own expert witnesses.

The trial court included the disputed instruction in its first charge to the jury, and did not revise it in giving the subsequent curative instructions. The disputed instruction followed a lengthy general instruction on medical malpractice, including the applicable standard of care. After this instruction, the trial court discussed the claims against each doctor. As to Wasfi’s claims against Riccio, the trial court stated:

“Now as to Dr. Riccio who undertook treatment of Mrs. Wasfi in his capacity as otolaryngologist, it is his alleged failure to properly diagnose and order proper follow-up studies when he saw Mrs. Wasfi in his office on October 29th, 1982, which is the gravamen of their claim against him. In essence, however, this claim is substantially the same as that presented against Dr. Chaddha. That is the failure to timely and skillfully diagnose her ailment. Consequently the same principles of law that apply to Dr. Chaddha relating to a physician’s duty to properly diagnose a patient’s ailment apply with equal force to Dr. Riccio.”

The court then gave the challenged instruction:

“There is, however, one specification of negligence that is peculiar to Dr. Riccio. That specification appears in paragraph 8e of the third count of the complaint and is in essence a claim that Dr. Riccio prescribed a course of treatment that was unsuited for Mrs. Wasfi’s condition.

“There has been testimony in this case that Dr. Riccio elected a certain course of treatment for Carrie Wasfi’s condition as he understood it in 1982, to wit: carbogen therapy. There has also been testimony that another course of treatment should have been undertaken and that is ordering a CAT scan. Now there may be more than one established system of diagnosis and treatment. While the law recognizes that there are different schools of thought in this regard, it does not favor or give exclusive recognition to any particular system of diagnosis and treatment over another.

“The law is that a physician is not bound to use any particular method or medical school of thought in diagnosing his patient. When a physician of ordinary skill and learning recognizes several methods of diagnosis as proper, the defendant may adopt any such methods without subjecting himself to liability [for] an unfortunate result so long as such method of diagnosis is consistent with the skill, care and diligence ordinarily had and exercised by other specialists in his field in like cases at that time he undertook that function. Thus, if you were—if there were several established methods of diagnosis recognized at the time Dr. Riccio saw Mrs. Wasfi in his office on October, 1982, the test is not whether Dr. Riccio adopted a method another doctor might not adopt, but whether the method he did adopt was one that was in compliance with the standard of care, skill and diligence required of the particular school of thought embracing that method.

“Therefore, you must decide whether or not the carbogen therapy prescribed by Dr. Riccio for Wasfi was an established diagnostic modality under any recognized school of thought or in cases such as Mrs. Wasfi presented to him in October of 1982. If you find by a fair preponderance of the evidence that carbogen therapy was not consistent with any established diagnostic modality for cases such as Mrs. Wasfi’s, then it would be negligent for Dr. Riccio to employ it on Mrs. Wasfi. If, however, you conclude that such a diagnostic modality was an established modality for treating patients in like cases, by ordinarily prudent radiologists [sic] in October of 1982, then Dr. Riccio was not negligent in using it.”

Seizing upon the trial court’s use of the term “schools of thought,” Wasfi assumes that the foregoing charge purported to summarize the principle that the law will not judge between different medical “schools of thought” so long as a physician acts according to the standards within that “school.” Force v. Gregory, 63 Conn. 167, 171, 27 A. 1116 (1893). She contends, correctly, that such a charge on “schools of thought” would be improper where, as here,- no evidence was offered that Riccio adhered to a “recognized school of good standing, which has established rules and principles of practice for the guidance of all its members, as respects diagnosis and remedies, which each member is supposed to observe in any given case.” 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 214, p. 345; see Katsetos v. Nolan, 170 Conn. 637, 652, 368 A.2d 172 (1976); Geraty v. Kaufman, 115 Conn. 563, 571, 162 A. 33 (1932); Force v. Gregory, supra; Bryant v. Biggs, 331 Mich. 64, 73-78, 49 N.W.2d 63 (1951); but see Furey v. Thomas Jefferson University Hospital, 325 Pa. Super. 212, 224-25, 472 A.2d 1083 (1984) (different schools of thought exist where competent medical authority is divided).

Riccio offered no evidence that his conduct was in accordance with such a distinct “school of thought.” Instead his evidence tended simply to show that whether, after a tentative diagnosis of a viral or vascular cause for hearing loss, it was proper to recommend carbogen therapy prior to a CAT scan was a matter of professional opinion—in other words, within the normal range of professional discretion exercised by competent otolaryngologists.

Despite the unfortunate use of the term “schools of thought,” we believe that the trial court did not instruct on “schools of thought,” but instead, correctly stated the settled principle that “where the treatment or procedure is one of choice among competent physicians, a physician cannot be held guilty of malpractice in selecting the one which, according to his best judgment, is best suited to the patient’s needs.” Ball v. Mallinkrodt Chemical Works, 53 Tenn. App. 218, 224, 381 S.W.2d 563 (1964); O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975); 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 216; see also Meier v. Ross General Hospital, 69 Cal. 2d 420, 434, 445 P.2d 519, 71 Cal. Rptr. 903 (1968); Huffman v. Lindquist, 37 Cal. 2d 465, 473-75, 234 P.2d 34 (1951).

Because the court included language appropriate to an instruction on the “schools of thought” doctrine, the charge may have been confusing to lawyers, to whom “schools of thought” is a term of art. There is no reason, however, to believe that the jury suffered from any such linguistic preconceptions. Taken as a whole, the charge adequately conveyed to lay persons the principle that physicians may choose between alternative acceptable methods without incurring liability solely because that choice may have led to an unfortunate result.

In the context of her attack on the charge as a “schools of thought” instruction, Wasfi contends that even the principle of acceptable alternatives requires, as a predicate, that the physician first make a “careful diagnosis.” This contention assumes that there may be acceptable alternatives of treatment, but that only one correct method of diagnosis is possible. Thus, she argues that failure to order a CAT scan was a failure to diagnose and that carbogen therapy was an incorrect method of diagnosis, to which the schools of thought principle could not apply.

We ean perceive no reasoned basis for recognizing a physician’s latitude in selecting alternative acceptable methods of treatment, but denying him the same latitude in selecting alternative acceptable methods of diagnosis, or, in the words of the trial court, “diagnostic modalities.” So long as a method is approved by the profession as a whole, or there is an unresolved conflict within the profession concerning the wisdom of the method, it matters not that the method is used for diagnosis rather than treatment.

The “diagnostic modality” used by Riccio was to try carbogen therapy before, not after, a CAT scan. Riccio elicited testimony from Wasfi’s expert, Gale Ramsby, chief of cardiovascular radiology at the University of Connecticut Health Center, that it would not be unusual for a physician to rule out a viral or vascular cause for hearing loss before ordering a CAT scan, or to recommend therapy and weigh its results before considering a CAT scan. Dirán Mikaelian, an otolaryngologist, another of Wasfi’s experts, admitted that he had testified at his deposition that whether Riccio’s conduct breached the standard of care was “a matter of opinion,” although he insisted at trial that the CAT scan should be performed before prescribing carbogen therapy. Clarence Sasaki, chief of the department of otolaryngology at the Yale University School of Medicine, testified that while a CAT scan was recommended at some point, it might not be ordered at all if other preliminary therapy was successful. The testimony of these experts constituted sufficient evidence that Riccio’s “diagnostic modality” was within the range of acceptable medical options so as to justify the court’s charge.

Wasfi contends that our holding will open a “Pandora’s Box,” shielding a defendant physician from liability every time experts differ concerning his choice of techniques. We disagree. After the plaintiff has presented a prima facie case, the defendant physician who claims that he employed one of several alternative methods accepted within his profession has no less a task than any defendant physician: to offer credible expert evidence that his conduct was accepted within the profession, and to persuade the jury to believe that evidence. It is true that an instruction on alternative acceptable methods may tempt jurors to decide that both sets of experts are right, instead of forcing them to make a difficult choice between opposing experts. The difficulties faced by lay jurors when evaluating expert evidence are, however, endemic to our system of trial by jury. We presume that the jury will abide by its duty to make a thoughtful, reasoned decision, applying its common sense and logic to the evidence presented. Cf. State v. Artis, 198 Conn. 617, 623, 503 A.2d 1181 (1986) (Healey, J., concurring). In this case, the jury would certainly have been justified in concluding that there was a difference of opinion within the profession regarding the timing of a CAT scan for a patient afflicted with a sudden unilateral hearing loss. We do not know, of course, whether the jury found that such a difference of opinion existed, or whether it simply believed Riccio’s course of action was the only right course of action, since no special interrogatories were submitted to the jury.

II

In addition to the supposed “schools of thought” charge, Wasfi challenges all three instructions on intervening cause, even though the judge specifically told the jury to disregard the two earlier charges. Since those instructions were withdrawn we need consider only the final instruction, upon which the jury is presumed to have relied. State v. Cobb, 199 Conn. 322, 329, 507 A.2d 457 (1986); State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 301, 254 A.2d 473 (1968). That supplemental charge is set forth in the footnote.

Wasfi first claims that the third charge invited the jury to consider the doctrine of intervening cause as a basis for excusing Riccio from liability for his negligence when it was unquestionably inapplicable to him. Because Wasfi never consulted Riccio until eighteen months after the CAT scan performed in May, 1981, it is clear that Chaddha’s alleged negligence in interpreting the CAT scan could not constitute an intervening force that would attenuate the causal relationship between any negligence on the part of Riccio and any harm therefrom suffered by Wasfi. “An intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” (Emphasis added.) 2 Restatement (Second), Torts § 441 (1).

We disagree with Wasfi, however, that the portion of the third charge cited in support of her claim should be construed as making any negligence of Chaddha a ground for a verdict in favor of Riccio. The jury was told that “[rjather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence.” (Emphasis added.) While not a model of clarity, this statement may reasonably be viewed as indicating that Riccio could “only escape” liability for his negligence if the consequences thereof were not reasonably foreseeable, regardless of any negligence on the part of Chaddha.

The last sentence of the charge, stating that Riccio’s negligence “would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff,” (emphasis added) was obviously jumbled, but it certainly does not refer to Chaddha or imply that Chaddha’s negligence could be a basis for excusing Riccio. This incomprehensible last sentence was not called to the attention of the court by anyone, nor did any party except to the third charge on the ground that it made Chaddha’s negligence a basis for excusing Riccio from liability. Such an exception had been voiced after the first charge, which abstractly posed the intervening cause issue of “whether physician A’s negligence was an intervening cause between physician B’s negligence and the resulting harm or vice versa; and thus determine whether one or the other of the physicians would be relieved from liability for his acts.” (Emphasis added.) The second charge, which was in accordance with Wasfi’s request, made no reference that could possibly be construed to suggest that Chaddha’s negligence could excuse Riccio, nor was any exception taken in that regard. Evidently the parties did not believe that such a basis for finding Riccio not to be liable was implicit in the third charge, because no such exception was taken. The failure of a party to except specifically to a defect in the charge, of course, precludes reliance upon it as a basis for reversal. Practice Book § 315. Wasfi’s request to charge, which referred to circumstances under which Chaddha would be liable for the consequences of Riccio’s possible negligence, cannot be deemed to have preserved this issue for review, because the request, if given, would not have cured the defect now claimed in the charge, and was otherwise flawed. Accordingly, we reject Wasfi’s claim that the jury was sufficiently misled by the charge to find in favor of Riccio on the ground that Chaddha’s negligence was an intervening cause.

Wasfi also claims that the third charge was defective because its references to reasonable foreseeability as a limitation upon liability for a negligent act were erroneous. At trial she excepted “again to the language dealing with foreseeability,” having raised a similar objection to the first charge.

The focus of Wasfi’s criticism of the references to foreseeability is not that such a concept is wholly irrelevant to the causal relationship between a negligent act and the harm flowing therefrom for which a defendant may be held responsible, but that the wording of the charge implied that the “precise damages” or “particular injury” suffered by Wasfi had to be reasonably foreseeable. Reviewing the third charge as a whole, as we must; Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1976); we are not persuaded that it conveyed to the jury the impression that either defendant should be excused from liability for his negligence simply if he could not reasonably have foreseen the precise nature or extent of the harmful consequences that actually were suffered by Wasfi. In this charge the jury was told that “a defendant is not liable if the plaintiffs harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff’s resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was the same general nature as the foreseeable risk created or increased by the physician’s negligence.” (Emphasis added.) The court instructed more specifically that, “if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his failure to skillfully diagnose the acoustic neuroma . . . neither physician would escape legal responsibility for those injuries or harm.” (Emphasis added.)

Wasfi, in excepting to “the language dealing with foreseeability” in the third charge, also claimed “that the error that was made [in the first charge] on the subject matter is one that cannot and has not been corrected.” We disagree. The first charge at some points had phrased the foreseeability element of proximate cause in terms of producing “a result which was not reasonably foreseeable” and foreseeing “the condition or conditions that Mrs. Wasfi claims to have suffered,” and an appropriate exception was taken. We are convinced that the third charge did not contain these infirmities and sufficiently stated the test we have used for determining proximate cause, “whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); see Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).

Another claim of error in the jury instructions is that the withdrawal of the second charge, which virtually adopted Wasfi’s request verbatim, deprived her of a charge on the principle that a defendant whose negligence is a substantial factor in producing an injury is liable “for damages caused by the negligence of a doctor in treating the injury which the tort-feasor caused, provided the injured party used reasonable care in selecting the doctor.” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596, 356 A.2d 873 (1975). The evidence in this case, however, provided no basis for applying this principle, because it is undisputed that Wasfi never followed the course of treatment recommended by Riccio and her condition was not made worse as a result of her contact with him. The court properly withdrew this charge because it was inapplicable to the evidence and would only have confused the jury on the issue of intervening cause, which the court purported to address. Furthermore, we must infer from the verdict in favor of Riccio, in which we have found no flaw, that the jury found that he had committed no wrongful act that resulted in any harm to Wasfi. Even if this request of the plaintiff were appropriate, therefore, its omission would have been a harmless error.

Wasfi’s final claim is that the third charge did not contain language to indicate that, for an intervening force to excuse a person from being liable for harm that his negligence would other-wise be deemed a substantial factor in producing, it must entirely supersede the operation of the antecedent negligence. The third charge included the instruction that “a defendant is not liable if the plaintiff’s harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff’s resulting condition and produces a result which was not reasonably foreseeable by the defendant.” We agree that this charge was deficient in failing to inform the jury that the “independent source” must be of such great causal significance as to attenuate the effect of the prior negligence to the extent that it can no longer be regarded as a substantial factor in producing the harm involved. See Kiniry v. Danbury Hospital, 183 Conn. 448, 455-56 n.2, 439 A.2d 408 (1981); D’Arcy v. Shugrue, 5 Conn. App. 12, 24-25, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985); 2 Restatement (Second), Torts §§ 441-453. This deficiency, however, was never mentioned in any of the exceptions taken to the third charge as required. Furthermore, since this aspect of the charge concerned only whether Chaddha’s negligence had been superseded by that of Riccio, whom the jury verdict has necessarily exonerated, the omission relied on by Wasfi would constitute a harmless error. Unless Riccio were a wrongdoer who had proximately caused harm to Wasfi, his actions could not have been an intervening cause in any event. Corey v. Phillips, 126 Conn. 246, 255, 10 A.2d 370 (1939); D’Arcy v. Shugrue, supra; see W. Prosser & W. Keeton, The Law of Torts (5th Ed. 1984) § 44.

The judgment is affirmed.

In this opinion the other justices concurred.

       The other plaintiff in this case was Carrie Wasfi’s husband, Amr. He sought damages for loss of consortium based upon the same facts alleged by his wife. Throughout this opinion, the name “Wasfi” refers to Carrie Wasfi.

       An“acoustic neuroma” is “a progressively enlarging, benign tumor within the auditory canal arising from the eighth cranial (acoustic) nerve.” R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 496.

       A “CAT scan” or computerized axial tomography (sometimes referred to as a “CT scan”) is defined as “the gathering of anatomical information from a cross-sectional plane of the body, presented as an image generated by a computer synthesis of x-ray transmission data obtained in many different directions through the given plane”; Stedman’s Medical Dictionary (24th Ed.) p. 1459; in other words, an X ray that shows more than just bones.

       An otolaryngologist is a physician specializing in “that branch of medicine concerned with medical and surgical treatment of the head and neck, including the ears, nose and throat.” R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 520.

       Wasfi also brought suit against her family physician, Joseph Sciarrillo, and against St. Vincent’s Medical Center, on account of its alleged agency relationship with Chaddha. She withdrew her complaint against Sciarrillo before trial and the court directed judgment for St. Vincent’s. She has not appealed from the directed judgment.

       “Hemiparesis” is defined as “muscular weakness or partial paralysis affecting one side of the body”; R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 333; or “slight paralysis affecting one side only.” Stedman’s Medical Dictionary (24th Ed.) p. 631.

       Thus, before giving the disputed instruction, the trial court charged the jury on the standard of care in medical malpractice cases: “Now medical malpractice can be defined simply as the unskillful treatment by a physician, and in consequence a person is injured. Physicians are liable for professional negligence if they fail to exercise that degree—that degree of skill, care and diligence ordinarily had and exercised by physicians engaged in the same line of practice at the time of the act or omission in question. Of course, in this case, the lines of practice we are concerned with are radiology with respect to Dr. Chaddha and otolaryngology or ear, nose and throat specialist with respect to Dr. Riccio.
      * ** *
      “[I]t was the duty of the defendant physicians to exercise reasonable care, skill and diligence—with emphasis on the word reasonable—in diagnosing the illness with which Mrs. Wasfi was afflicted while a patient under their professional care. That duty was fulfilled if each of the defendants exercised that degree of care, skill, and diligence which such medical specialists ordinarily had and exercised in such cases at that time.
      * * *
      “The standard of care is not concerned with what may be the ideal care and treatment in a particular case, but rather the law requires only that an ordinary degree of skill, care and diligence be exercised or given commensurate with that had and exercised in the specialty in which the physician in question practices. As you can see, whether we’re talking about Dr. Chaddha today or Dr. Riccio, it is not the result that is important in determining whether or not the physician was negligent. It is the physician’s conduct as it relates to the standard of care which is the subject of your examination.
      * ** *
      “In this case, there has been expert testimony regarding both the standard of care regarding CAT—of reading CAT scans in connection with the diagnosis of tumors and in particular the diagnosis of acoustic neuromas by radiologists in 1981. There has also been expert testimony regarding clinical diagnosis and care by otolaryngologists of patients presenting symptoms such as those presented by Mrs. Wasfi in October of 1982.
      “However, although you may rely on the experts to tell you what the proper standards are in this case, it is still up to you, using that standard as a guide, to measure and determine what the facts are. You the jury must determine from all of the conflicting evidence and opinions whether or not this—in this case Dr. Chaddha or Dr. Riccio or both of them as the case may be failed to comply with or measure up to the appropriate standard of care; and if you find that either or both of them deviated from that standard of care, then you must determine whether or not that deviation was a proximate cause of Carrie Wasfi’s injuries, disabilities and losses.”

       The charge in some places uses the terms “treatment” and “diagnosis” interchangeably. The evidence indicated that carbogen therapy is a practical method of removing the symptom of hearing loss. There are many causes of hearing loss, not all of them known. If hearing loss was originally caused by, for example, a temporary condition no longer present, such as a virus, the carbogen therapy may eliminate the hearing loss by opening blocked aural passages. If the hearing loss is caused by a more permanent or serious condition, carbogen therapy cannot eliminate it. Thus, as to temporary conditions, carbogen therapy may be a system of “treatment”; as to more serious, permanent conditions, carbogen therapy serves as a diagnostic tool by screening out other causes of the hearing loss. Riccio made a tentative diagnosis that Wasfi’s hearing loss was originally caused by a virus or resulted from her diabetes. He prescribed carbogen therapy (1) to treat the symptom and (2) to diagnose the cause. He did not claim to have used the therapy to treat the cause itself, in this case, the acoustic neuroma.

       Without such latitude, physicians may resort to “defensive medicine” such as unnecessary and sometimes hazardous testing (e.g., excessive numbers of X rays). See 3 F. Harper, F. James & O. Grey, Torts § 17.3 n.6; note, “Rethinking Medical Malpractice Law in Light of Medicare Cost-Cutting,” 98 Harv. L. Rev. 1004, 1012-13 (1985).

       “The law of intervening cause is this: One whose negligence in the first instance creates or increases the risk of harm is not relieved from responsibility for such harm by the fact that someone else contributes to that harm by another act of negligence so long as the resulting harm suffered was reasonably foreseeable by the defendant. On the other hand, a defendant is not liable if the plaintiff’s harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was [of] the same general nature as the foreseeable risk created or increased by the physician’s negligence.
      “Therefore, if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his failure to skillfully diagnose the acoustic neuroma and you also find that Dr. Riccio could in 1982 similarly foresee that Mrs. Wasfi was likely to suffer similar consequences that she did in fact suffer as a result of his professional negligence, then neither physician would escape legal responsibility for those injuries or harm. Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio’s negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff.”

       Wasfi cites the last two sentences of the third charge. “Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio’s negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff.”

       Wasfi’s request to charge was as follows: “Negligence of Medical Provider as Intervening Cause
      “Under our law, a tortfeasor, or someone who has negligently caused injury to another, cannot escape liability for the consequences of his action, even if the injured party obtains medical care and treatment that worsens, rather than improves, her condition. If the defendant’s negligence is a substantial factor, or proximate cause, in producing the plaintiffs injuries, then it matters not that a physician who treats these injuries failed to use appropriate skill and medical care. The injured plaintiff who has exercised reasonable care in the selection of a physician is not responsible for his unskillful treatment of the case, but may recover from him who is responsible for his primary injury, the damages caused through an aggravation, or failure to provide proper treatment for, the underlying injury by the treating doctor. Thus, under the circumstances of this case, should you find that Dr. Chaddha caused injury to Carrie Wasfi by reason of his negligent failure to diagnose her acoustic neuroma, and should you find that Carrie Wasfi exercised reasonable care in her selection of Dr. Riccio to treat the hearing loss that developed as the result of growth of the undiagnosed tumor, Dr. Chaddha will be responsible for all injuries caused to Carrie Wasfi as the result of his negligence in interpreting the CT scan of May 22, 1981, even though Dr. Riccio may have failed to act properly in his diagnosis or treatment of the patient. Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596 [356 A.2d 873 (1975)]; Wright v. Blakeslee, 102 Conn. 162, 167-168 [128 A. 113 (1925)].”
      The second charge, which conformed to this request, was not withdrawn until after the jury asked for a “rereading” of the intervening cause part of the charge. Chaddha’s attorney had objected to this charge, pointing out that it never defined “what an intervening act is or how an intervening act of someone else might supersede the negligence of someone who was first in line.” We agree that this request, as well as the charge based thereon, did not adequately explain the circumstances under which the possible negligence of Riccio might supersede that of Chaddha, because the element of foreseeability as a limitation on Chaddha’s liability was entirely omitted.

       Practice Book § 315 provides as follows: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Our conclusion that the third charge did not suggest to the jury that Chaddha’s negligence, if any, might be an intervening cause such as to excuse Riccio from liability does not obviate the need to discuss the claim relating to foreseeability. The charge made foreseeability a limitation on the causal relationship between the possible negligence of each physican and the harm sustained by the plaintiff, apart from the issue of intervening cause.

       See footnote 12, supra.

       The trial court prefaced its second charge with the folio-wing remarks: “Ladies and gentlemen, it’s been brought to my attention by the attorneys that one of the charges that I gave to you was somewhat long and somewhat confusing. So I’m going to recharge you on the subject and the subject that we were talking about was intervening cause. Now I want you to disregard all that I said about intervening cause and the law of intervening cause and I want you to follow the law as I give it to you now.”

       In Kiniry v. Danbury Hospital, 183 Conn. 448, 455-56 n.2, 439 A.2d 408 (1981), this court implicitly approved a charge on intervening cause in a physician malpractice case as follows: “ ‘Therefore, even though you might find that the defendant, Dr. [F], was negligent in one or more of the particulars alleged in the complaint, if you find that Dr. [F]’s negligence ceased to be a substantial factor in producing Mr. [K]’s death and that the negligence of Dr. [M] had so superceded that of Dr. [F], that Dr. [M], without the negligence of Dr. [F] contributing to any material degree, was the real cause for Mr. [K]’s death, then the negligence of Dr. [F] would not be a proximate cause of Mr. [K]’s death, if you find Dr. [F] was negligent, and the defendant, Dr. [F], would not be liable to the plaintiff.’ ”