Ortkiese v. Clarson & Ewell Engineering

• Decision Date: 18 January 1961
• Citation: 126 So.2d 556
• Parties: Joseph D. ORTKIESE, Petitioner, v. CLARSON & EWELL ENGINEERING and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 556

126 So.2d 556

Joseph D. ORTKIESE, Petitioner, v. CLARSON & EWELL ENGINEERING and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

Jan. 18, 1961.

Rehearing Denied Feb. 21, 1961.

Raymer F. Maguire, Jr., of Maguire, Voorhis & Wells, Orlando, for petitioner.

Leon H. Handley of Gurney, McDonald & Handley, Orlando, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

DREW, Justice.

This cause is before the Court on petition for certiorari to review an order of the full commission entered on June 1, 1960, reversing an order of the deputy commissioner dated November 24, 1959, on the ground the findings of fact were not supported by competent substantial evidence which accorded with logic and reason and that the order did not accord with the essential requirements of the law within the meaning of United States Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741.

The question we have for decision is whether such reversal was justified in light of the holding of the Court in United States Casualty, supra, wherein we stated, at page 745:

'* * * We are of the opinion the 'substantial evidence' rule should be invoked in all cases. Even in cases which must be resolved upon a true appraisal of testimony of medical experts, the deputy commissioner's findings of facts should be upheld unless there is no competent, substantial evidence, which accords with logic and reason, to sustain them.' (Emphasis ours.)

The full commission in its order after briefly touching upon the factual background of the case ¹ stated:

'* * * It is well established that claimant cannot recover compensation based upon evidence which is speculative.'

However, it is to the order of the deputy commissioner that we must turn as the initial step for review since the deputy commissioner has adequately set out the facts relied upon to sustain the result in the instant case. Our review here is not in the capacity of a fact-finding body, but to ascertain whether findings which have been made are properly supported by the evidence. ²

Upon stipulation the parties agreed that the petitioner claimant sustained an industrial accident on April 30, 1957 arising out of and in the course of his employment, and that he was temporarily totally disabled from the time of the accident until on or about December 18, 1958, except for one short period in December of 1957. The parties further stipulated that, on or about December 18, 1958, claimant suffered a cerebral vascular accident.

The injury to the claimant was to his right knee which required two surgical operations and extensive physiotherapy subsequent thereto because of the failure of the surgery to correct the condition admittedly arising out of the accident. ³ The record supports the findings of fact made by the deputy regarding the medical testing technique utilized on the claimant out of which he developed a great fear. It was this testing apparatus which was used along with the regular electrical physiotherapy treatments which the operating surgeon stated was necessary for an 'intensive reeducation of the muscles' and to 'take the electrical potential of the muscles.'

The record reveals the testing device used was almost medieval in the exquisiteness with which it was able to elicit pain, blood, nervous tension and utter exhaustion. The following undisputed testimony by the claimant bears this out:

'A. * * * See the office where they give treatments is in the back. She said, 'Come up to my office,' so she take me up there, and I take my clothes off and lay down on the table, and she had a large machine there with an arm come out on it, and a disc she said, with a microphone hooked to it, and a needle about that long. (indicating)

'Mr. Maguire: Now, Joe----

'The Commissioner: Tell us * * * How long is that, Joe?

'The Witness: I would say two inches * * * I might be off a little on that * * * I would say two inches * * * with two wires to it. It led from this machine.

'She would take that needle and she would stick it in these leaders in my leg here. (indicating)

'Q. (By Mr. Maguire) Now when you say leaders what do you mean? A. Well the ham strings, and the muscles, and the nerves. In other words she would stand and watch and pick out a spot there where you could see a nerve. It is like you know like a pulse, you see a pulse beating, you know, and she would shove that needle right straight down through there. (indicating)

'Q. All the way down the whole length of the needle? A. Especially in the meat part of the leg right and then she would turn the machine on and it would register something on a chart she said.

'Q. Did you have any feeling of this, Joe? A. Feeling? Man, I had to grip both sides of the table to hold to it and after----

'By the Commissioner:

'Q. Did she put more than one at a time in you Joe? A. One.

'Q. One at a time? A. Uh-huh, put it in here and pulled it out. (indicating) And what hurt so doggone bad or hurt a lot worse she would put the needle in here and then she would lift the needle up. (indicating)

'She would pull it up just a little bit and then she would look over on that bloomin' thing and watch that machine, and, brother, I am telling you you had it.

'Q. (By Mr. Maguire) Joe, can you tell the Commissioner what effect did it have on you? A. Well when I got up after I got the sweat wiped off of my forehead and getting the blood wiped off of legs with the towel I would be just like that.

'Q. Now what is 'just like that', Joe? This record doesn't show 'just like that'. A. So nervous I couldn't hardly stand up, and I would get my crutches and get on them and get out.

'Q. How long did this test take, Joe? A. Around an hour to an hour and fifteen minutes.

'By the Commissioner:

'Q. How many times did she put the needle in you, Joe, do you have any idea, once? A. I would say 25 or 30 times each time I went in.

'Q. Each leg? A. Uh-huh.

'Q. And they put the needle in you 25 times in each leg--A. (interposing) This is right.

'Q. (finishing) in other words 50 times at a sitting? A. About that. I asked her a question after she gave me the first treatment there with the needle. I questioned her close. I said, 'Doc, what in the world are you doing that for?' and she said she wanted to check the strength of all the muscles, and leaders, and all, she called them some names I can't pronounce, and I says, 'Why mess with this leg here when I can pick up 35 pounds with it?'

'Q. (By Mr. Maguire) Now which leg are you talking about, Joe? A. I said, 'Why mess with my good leg, my left leg? Why do I have to go through all the punishment with that leg?' and she said, 'I want to compare the two legs.'

'Q. Joe, did this treatment you are talking about, this poking of needles into your leg, did that make you nervous? A. Nervous? Man, you couldn't * * * I couldn't hardly lay on that table.

'Q. Joe, every time I have asked you about your nerves you have always said, 'Man,' or 'Oh, boy.' Well that doesn't tell me anything of what you are talking about. A. I will say, yes sir, it sure did.

'Q. After the treatment was over what did you do, the first time that she gave you this test? A. After it was over I sat there a while then I got up and went home and went straight to bed. I had to. I was so nervous that I couldn't * * * I couldn't sit up. I mean I was just plumb exhausted.

'It seemed like I didn't have one ounce of strength left.'

Such an electrical treatment was given the claimant on December 16, 1958 according to the deputy and two days later claimant reported back upon directions for another treatment with a 'stinger type machine' which, according to the claimant, made him jump from the table due to electrical shock. ⁴ On December 18, 1958, claimant having reported for further electrical shock treatment and after the physiotherapy had commenced, it was discovered the claimant had an involvement of his right arm and leg and was partially unable to speak.

Claimant's condition was diagnosed as a cerebral thrombosis by Dr. J. Cornall Howarth, a neurosurgeon called by the respondent as a witness. He stated that the condition was an obstruction to one of the blood vessels in the brain and gave a direct answer to the following question:

'Q. This cerebral thrombosis could have occurred by virtue of the physical thereapy treatment he was taking and that causing him to be excited and irritable and anxious and causing high blood pressure and thereby causing high cerebral thrombosis, that would be just as likely as your finding the arteriosclerosis in this man and just as well as you finding this clotting situation that you say this man has? A. Yes that is true.

'Q. In other words, the physical thereapy, we have here three alternatives, physical thereapy and high blood pressure and cerebral thrombosis, is [it] could have just as easily and logically occurred by that chain of events could it not Doctor? A. Yes it certainly could, that is true.'

The doctor at another time testified:

'Well I would have to put it this way, that if Mr. Ortkiese was a person who was going to have a cerebral thrombosis he would be somewhat more likely to have it after going through a period of stress like this but if he was not susceptible to cerebral thrombosis he might have gone through this and a good deal more without having it.'

The deputy had before him an orthopedist, a neurosurgeon, the claimant and claimant's wife. The orthopedist admitted he was not trained in vascular diseases, and therefore there was no disputed testimony whatever regarding the accident, the treatment, and the subsequent deleterious effects giving rise to the claimant's present condition. Not only was it undisputed but it was unanswered. The carrier did not overcome the proof offered by showing that another cause of the condition was more logical and consonant with reason. ⁵

We have held that a trauma is an injury, wound, shock, or 'the resulting condition or...