Kashin v. Food Fair, Inc.

• Decision Date: 31 July 1957
• Citation: 97 So.2d 609
• Parties: Samuel KASHIN, Petitioner, v. FOOD FAIR, Inc., American Mutual Liability Insurance Co., and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 609

97 So.2d 609

Samuel KASHIN, Petitioner, v. FOOD FAIR, Inc., American Mutual Liability Insurance Co., and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

July 31, 1957.

On Rehearing Oct. 18, 1957.

Julius Ser and Kaplan & Ser, Miami, for petitioner.

Clemon J. Ehrlich and Blackwell, Walker & Gray, Miami, for Food Fair, Inc., and American Mut. Liability Ins. Co.

Burnis T. Coleman and Rodney Durrance, Tallahassee, for Florida Industrial Comm.

Writ of certiorari denied.

On Rehearing Granted

THORNAL, Justice.

We consider on rehearing granted a petition for certiorari filed by Kashin, an employee-claimant, seeking review of an order of the Florida Industrial Commission which reversed an order of the deputy commissioner who had found Kashin to be permanentiy and totally disabled as the result of a compensable injury.

We must determine whether there was competent substantial evidence to sustain the findings of the deputy commissioner and further whether the full Commission ruled correctly in dismissing the claim of the employee.

On November 10, 1952, Kashin, a sixty-nine-year old carpenter, served the distal portions of the four fingers and thumb of his left hand as the result of a skill saw accident arising out of and in the course of his employment by Food Fair Stores, Inc. Surgery was performed by a Dr. Holmes who removed the damaged portions of the fingers and thumb leaving only short nubs. About thirty days after the accident Kashin complained to the doctor that he was suffering shoulder pains. X-rays were taken to ascertain whether arthritis was present. There was none. Dr. Holmes discharged Kashin on March 13, 1953, with the conclusion that he had reached maximum medical recovery and that the shoulder pains resulted from immobility following the accident. Two and one-half years later, on October 7, 1955, Kashin consulted Dr. Haverfield and complained that pains radiated up into his left arm and should and that he could do nothing with his left hand. Dr. Haverfield found that the tips of the finger nubs were sensitive to pressure, and that he had very little hand mechanism with which to make any kind of grip. However, he was of the view that the shoulder pains were not related to the accident and that the man should be rated on the basis of the total disability of the hand itself.

On November 4, 1955, Kashin consulted Dr. Barrett, another neurosurgeon. Dr. Barrett reported that the man still had a shoulder condition, and that he had definite limitations of elevation and motion in his left shoulder. It was his view that there was a causal relationship between the accident and the left shoulder condition. When Dr. Barrett testified before the deputy commissioner there was testimony as to a subsequently determined heart condition. When so advised he expressed the opinion that regardless of the cardiac condition, the man's shoulder condition would of itself be disabling 'to a degree.' Dr. Barrett performed a stellate block on the left shoulder but this operation had admittedly questionable results. He referred Mr. Kashin to a Dr. Neal, an orthopedic surgeon, who administered some fourteen physiotherapy treatments. Dr. Neal was of the opinion that Kashin was suffering from a shoulder-hand syndrome which resulted from the amputation of the fingers and thumb of the left hand. He testified that he would be inclined to rate Kashin's disability as to his left arm only, rather than to the body as a whole. About a week prior to the hearing before the deputy commissioner, Mr. Kashin consulted a Dr. Rosenblum who specialized in internal medicine and cardiology. This doctor was of the view that Kashin was suffering from a cardiac condition which was, in his opinion, probably brought on by the loss of blood and shock at the time of the original injury, supplemented by inactivity following the injury. The doctor on cross-examination conceded that he had no idea as to the extent of loss of blood Kashin had suffered. He was further of the opinion that Kashin was suffering a causalgia of the left arm involving the left shoulder girdle. In his opinion Kashin could not work at the time of the hearing and, as to the extent of disability, he stated that 'the trauma could be said to make a difference between sickness and health in this man.' This was the only testimony which even remotely related the heart condition to the accident.

Kashin himself testified that he had no strength in his left arm, that he continued to have pains in his shoulder which were not quite as bad since he took the physiotherapy treatments, and that he noticed the heart condition coming on two or three months before the hearing which was begun on August 1, 1956. He exhibited his arm to the deputy who noted in his findings that the left arm was atrophied sufficiently to be detected. Kashin also demonstrated physically the restrictions in motion of his left arm and shoulder.

The deputy found that the heart condition was the product of the accident and further that the employee suffered a permanent total disability because of the shoulder-hand syndrome. He rated him as permanently and totally disabled and awarded him compensation on the basis of total permanent disability of the body as a whole.

The matter was reviewed by the full Industrial Commission, the majority of which found that there was no competent substantial evidence to support the deputy on any score. The full Commission entered an order reversing the deputy and directing the dismissal of Kashin's claim. The matter comes to us for review by petition for certiorari. Upon our original consideration of the case we were of the view that the full Commission ruled correctly and certiorari was denied. A petition for rehearing was filed and granted without rearguments. We now have the matter under consideration on rehearing.

The contentions of the petitioner Kashin are that the full Commission undertook to weigh and evaluate the evidence and the credibility of the witnesses and disregarded 'the substantial evidence rule.' He contends that he is entitled to compensation for permanent total disability of the body as a whole as distinguished from a permanent partial disability rating based on the loss of a hand.

The respondents contend that there was no competent substantial evidence to support the conclusions of the deputy that Kashin suffered a permanent total disability either because of the heart condition or because of the shoulder-hand syndrome.

It should be pointed out that Kashin originally was compensated for total disability from the time of the accident to March 14, 1953, when he was discharged by Dr. Holmes as having reached maximum medical recovery, and thereafter he was compensated for 175 weeks on the basis of the total loss of use of his left hand. The matter later came before the deputy commissioner on Kashin's petition filed July 10, 1956, claiming that he did not reach maximum recovery on March 14, 1953, nor had he reached maximum recovery at the time of the filing of the petition. He claimed in the alternative that if maximum recovery was reached at some point then his permanent partial disability rating should be based on the body as a whole rather than the left hand.

The contention presents for our consideration whether compensation should be allowed for permanent partial disability for the loss of a hand under Section 440.15(3)(c), Florida Statutes, F.S.A., or whether it should be allowed under Section 440.15(3)(u), Florida...