Mobley v. Jack & Son Plumbing

• Decision Date: 04 November 1964
• Docket Number: Nos. 33118,33170,s. 33118
• Citation: 170 So.2d 41
• Parties: Russell MOBLEY, Petitioner, v. JACK & SON PLUMBING and the Florida Industrial Commission, Respondents. Jacob and Antonet MILAVIC (Jack & Son Plumbing) and American Fire and Casualty Company, Cross-Petitioners, v. Russell MOBLEY and Florida Industrial Commission, Cross-Respondents.
• Court: Florida Supreme Court

Page 41

170 So.2d 41

Russell MOBLEY, Petitioner, v. JACK & SON PLUMBING and the Florida Industrial Commission, Respondents.

Jacob and Antonet MILAVIC (Jack & Son Plumbing) and American Fire and Casualty Company, Cross-Petitioners, v. Russell MOBLEY and Florida Industrial Commission, Cross-Respondents.

Nos. 33118, 33170.

Supreme Court of Florida.

Nov. 4, 1964.

Rehearing Denied Dec. 18, 1964

Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida, Industrial Commission.

O'CONNELL, Justice.

We have for our consideration a petition and cross-petition for certiorari, both seeking review of an order of the Florida Industrial Commission that reversed in part, and affirmed in part, an order of the deputy commissioner awarding workmen's compensation benefits to the claimant.

On June 1, 1960, petitioner-claimant, Russell Mobley, while employed as a journeyman plumber for Jack & Son Plumbing, sustained a compensable injury to his right elbow. The injury resulted in a condition diagnosed as 'lateral epicondylitis' of the right elbow. That is to say, an inflammation of the knuckle-shaped expansion of the end of the humerus (the bone of the upper arm). Schmidt, Attorneys' Dictionary of Medicine 272 (1962).

Claimant was furnished medical and surgical treatment by the carrier, and, beginning June 15, 1962, he was paid compensation for 10% permanent-partial disability of the right upper extremity on the basis of a scheduled injury. Thereafter, on July 2, 1962, claimant filed a claim for additional benefits.

The deputy commissioner found as a matter of fact that the claimant, in addition to suffering from 'chronic and recurrent lateral epicondylitis,' suffered from pain that extended into the 'lateral and posterior shoulder areas of the right upper extremity and right shoulder, and down into the right hand.' On the basis of the shoulder involvement, the deputy abandoned the theory of scheduled injury, and entered a compensation order awarding claimant 30% permanent-partial disability of the body as a whole. $On application for review, the Full Commission reversed the deputy saying that the 'only competent substantial evidence according with logic and reason shows that such injury is confined to the scheduled member.' The cause was remanded to the deputy with directions to determine the extent of disability of the scheduled member, i. e., the right upper extremity.

Although other questions are presented for determination, the principal dispute to be resolved is whether claimant has suffered an injury to the body as a whole, as the deputy found, or has sustained only a scheduled injury, as decided by the Full Commission. A decision on this question requires that we determine (1) whether there is competent substantial evidence to support the deputy's finding that the elbow injury also resulted in disability of the shoulder, and (2) if the evidence does support such a finding, whether, as a matter of law, the shoulder involvement creates an 'unscheduled injury' under Section 440.15(3)(4), F.S.A.

In this case the deputy was confronted with the conflicting testimony of two treating physicians. Dr. Baird, called by the carrier, testified that the claimant's injury was confined to the elbow, and that the shoulder difficulties were in no way connected to the elbow injury. He expressed the opinion that claimant's shoulder complaints could be caused by a nodule on the fourth finger of claimant's right hand. Dr. Baird stated that such a condition is very painful; that 'there is a radiation of pain all the way up the arm to the shoulder,' and 'although the patholgy is related to the finger, very frequently [these people] can't tell you where they hurt.' He concludud by asserting that the nodule on the finger problem was not related to the elbow injury.

The physician called by the claimant, Dr. Reinherz, was of the opinion claimant's shoulder problem was an indirect result of the injury to the elbow. He testified that the shoulder complaint was largely subjective, but that on three or four occasions he had felt 'kinks' (i. e., areas of spasm) in the posterior shoulder. He stated, further, it was his opinion that the weakness or 'disfunction' of the elbow caused over use of the shoulder with the resulting effect of weakness and pain in the shoulder.

Thus, we have diametrically opposed opinions from two, apparently, well-qualified doctors. Clearly, however, the deputy rejected the testimony of Dr. Baird, and accepted the theory advanced by Dr. Reinherz.

As we have repeatedly held, it is not for us, nor the Commission, to assess the probative force of the medical testimony. In United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741, 745 (Fla.1951), we said:

'The fact-finding arbiter is usually in a better position than the reviewing body to judge the ability, experience and reputation of the various so-called expert witnesses who appear personally before him and to determine the weight which should be given their testimony. * * * Even in cases which must be resolved upon a true appraisal of testimony of medical experts, the deputy commissioner's findings of fact should be upheld unless there is no competent, substantial evidence, which accords with logic and reason, to sustain them.'

The acceptance and rejection of the medical testimony rests with the deputy, and his discretion should not be disturbed unless the medical testimony itself fails to meet the test of the substantial evidence rule. See Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957). We fail to see how it can be said that the testimony of Dr. Reinherz, as to the causative factor of the shoulder problem, is so unreasonable that it does not comport with logic and reason. Therefore, we are of the opinion that the Commission failed to observe the conpetent, substantial evidence rule in its examination of this record, and its order on this point must be quashed.

We move now to the matter of whether claimant's shoulder disability can give rise to an 'unscheduled injury,' or, in other words, an injury to the body as a whole.

We have consistently recognized the rule that if a scheduled injury produces disability or incapacity in some other member or portion of the body, not included in the specific schedule, the claimant is not restricted to benefits related only to the scheduled injury. Little River Bank & Trust Company v. Neal, 154 So.2d 809 (Fla.1963); Trieste v. Anchell, 143 So.2d 673 (Fla.1962); Jewell v. Wood, 130 So.2d 277 (Fla.1961); Hernandea v. De Carlo, 116 So.2d 429 (Fla.1959); Kashin v. Food Fair, Inc., 97 So.2d 609 (Fla.1957).

The employer and the respondent Commission rely heavily on our decision in Little River Bank & Trust Company v. Neal, supra, as authority for their position. The facts there were: Claimant had suffered an injury to her thumb with a resulting loss of its motion. The award made by the deputy commissioner compensated claimant on the basis of a residual disability of the hand. This Court reversed, saying that a thumb function loss could not be coverted into a hand loss, because the statutory schedule of injury to, and loss of, specific parts of the body reflected the legislative consideration of the economic and functional relationship of the thumb to the whole hand. On that basis, we held that the legislative prescription must be followed and the injury be confined to the thumb.

The decision in the Neal case, in no fashion, indicates a retreat from the rule announced above. On the contrary, the rule was expressly reaffirmed therein when we said:

'* * * unless it be shown that a scheduled injury produces disability or incapacity in some other member or portion of the body, administrative agencies and the courts are bound to follow the legislative prescription for scheduled injuries.' At 810 of 154 So.2d. (Emphasis added.)

The instant case is clearly controlled by our decision in Kashin v. Food Fair, Inc., supra. In the Kashin case we held that an injury to the thumb and fingers of a hand with a resulting shoulder-hand syndrome, or causalgia, affecting the use of the shoulder was properly determined to be a nonscheduled injury to the body as a whole, rather than a scheduled injury to the hand. In Hernandez v. De Carlo, supra, we again considered the shoulder as distinct from the arm, and held an injury affecting the shoulder warranted a finding of a body as a whole injury, rather than a scheduled injury to the arm.

Therefore, since we have found there is competent substantial evidence in the record to support the deputy's finding that the injury to claimant's arm also produced a disabling condition of the shoulder, we conclude that the deputy was correct in awarding compensation on the basis of an unscheduled injury.

We note here that the deputy, in making his award on the basis of loss of wage earning capacity, seems to have complied with the prescriptions set down in Ball v. Mann, 75 So.2d 758 (Fla.1954). We cannot say the award of 30% permanent partial disability is without support in the record.

We go then to the next question presented by the claimant.

Claimat was treated by three doctors. The last to treat him, Dr. Reinherz, was not authorized by the employer-carrier to treat claimant, and failed to file the reports required by Section 440.13(1), F.S.A. Nevertheless, the deputy ordered the employer-carrier to pay Dr Reinherz for his services. The Full Commission reversed this portion of the deputy's order on the double ground that (1) the services were not authorized by the employer-carrier, and (2) the doctor failed to submit the reports required by the the statute.

Section 440.13(1), F.S.A. provides that no claim for medical services furnished by a physician of the employee's own choice is valid and enforceable unless the physician shall, 'within ten days following the first treatment * * * furnish to the commission and to the employer a report of such injury and tratment on...