Barash v. Thrifty Super Market

• Decision Date: 01 October 1957
• Docket Number: No. 57-97,57-97
• Citation: 97 So.2d 154
• Parties: Harry BARASH, Petitioner, v. THRIFTY SUPER MARKET and the Florida Industrial Commission, Respondents.
• Court: Florida District Court of Appeals

Page 154

97 So.2d 154

Harry BARASH, Petitioner, v. THRIFTY SUPER MARKET and the Florida Industrial Commission, Respondents.

No. 57-97.

District Court of Appeal of Florida, Third District.

Oct. 1, 1957.

Rehearing Denied Oct. 21, 1957.

Kelner & Lewis, Miami, for petitioner.

Dixon, DeJarnette, Bradford & Williams, Miami, for Thirifty Super Market, and Burnis T. Coleman and Rodney Durrance, Tallahassee, for the Florida Industrial Commission, respondents.

CARROLL, CHAS., Chief Judge.

We are asked to issue a writ of certiorari to review a decision of the Florida Industrial Commission affirming a deputy commissioner's order of January 4, 1957, denying a claim for disability compensation and medical benefits. Petitioner, a 72 year old man, was stricken with a heart ailment diagnosed as a myocardial infarction, the discomfort of which began while he was doing some work involving lifting of egg crates weighing between 50 and 70 pounds.

The deputy commissioner heard and considered the testimony of three doctors. On the question, important to this case, of whether the type of heart injury which this man appeared to have suffered could be related to his exertion, opinions of two of the doctors were affirmative. The opinion of the third doctor, which was negative on that point, was accepted and acted upon by the deputy commissioner. After stating certain other factual findings, his order included the following:

'In the light of this quite divergent medical opinion, and after considering the authorities cited and having further considered fully the factual situation in the instant case in the light of the testimony adduced, it is the further finding of the Deputy that:

'3. The myocardial infarction sustained by the claimant while in the employ of Thrifty Super Market was not an accident within the meaning of the Compensation Act, but rather was the continuing and natural progression of arterioscleratic heart disease, unconnected with and not casually related to or induced by the act of claimant in lifting the crate of eggs on the day in question.'

It was argued, on behalf of petitioner, that the finding quoted above was not supportable on the evidence, and that the deputy commissioner was not at liberty to accept and follow the medical opinion of one doctor as opposed to the opinion of two other doctors. The weight and effect to be given findings of the deputy commissioner were explained by the Supreme Court in U. S. Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741; City Ice & Fuel Division v. Smith, Fla.1852, 56 So.2d 329; Town of Crescent City v. Green, Fla.1952, 59 So.2d 1; State Road Department of Florida v. Peoper, Fla.1952, 62 So.2d 34; American Airmotive Corp. v. Moore, Fla.1952, 62 So.2d 37; Hamilton v. Cummer Sons Cypress Co., Fla.1954, 70 So.2d 554.

In the Hamilton case, the Supreme Court, speaking through Mr. Justice Terrell, stated at page 555:

'When the deputy commissioner made his findings of fact he was confronted with this conflicting evidence which as a whole is about as contradictory as comes before us. But the Deputy Commissioner, not this Court, must resolve such conflicts, and his findings will be sustained if there is 'competent, substantial evidence, which accords with logic and reason, to sustain them.' United States Cas. Co. v. Maryland Cas. Co., Fla., 55 So.2d 741, 745; Town of Crescent City v. Green, Fla. 59 So.2d 1. In the more recent case of Wilson v. McCoy manufacturing Co., Fla., 69 So.2d 659, 665, this Court held that it would determine whether or not the proceedings accord with the essential requirements of law and if found to meet that test it would determine...