Soloff v. U-Totem, Inc. of Broward

• Decision Date: 16 December 1971
• Docket Number: No. 40908,INC,U-TOTE,40908
• Citation: 257 So.2d 31
• Parties: Louis SOLOFF, Petitioner, v.OF BROWARD et al., Respondents.
• Court: Florida Supreme Court

Page 31

257 So.2d 31

Louis SOLOFF, Petitioner, v. U-TOTEM, INC. OF BROWARD et al., Respondents.

No. 40908.

Supreme Court of Florida.

Dec. 16, 1971.

Rehearing Denied Feb. 14, 1972.

Israel Abrams, Miami, for petitioner.

Jerry V. Wilkey, Coral Gables, J. Franklin Garner and Kenneth H. Hart, Jr., Tallahassee, for respondents.

ERVIN, Justice.

By petition for writ of certiorari we have for review a decision of the Florida Industrial Relations Commission reversing a modification order of a Judge of Industrial Claims.

The claimant, Petitioner Louis Soloff, was injured in 1965 when he suffered a heart attack while employed by Respondent U-Totem, Inc. His injury was found to be compensable, and he was awarded 50 per cent permanent Partial disability of the body, apportioned as 30 per cent attributable to the industrial accident and 70 per cent due to a pre-existing arteriosclerotic heart disease. No appeal was taken from this decision.

In 1966 claimant filed a petition for modification seeking additional permanent disability based upon a change in condition under F.S. Section 440.28, F.S.A. Thereunder, after hearing, the Judge of Industrial Claims increased claimant's disability to 75 per cent of the body as a whole. The Judge retained the 30 per cent/70 per cent apportionment. This Order was reversed by the Industrial Relations Commission, and this Court denied certiorari. (Soloff v. U-Totem, Fla.1968, 216 So.2d 2)

Subsequently, claimant suffered two additional heart attacks, one in December 1967 and the other in December 1968. Claimant then filed another petition for modification. The Judge of Industrial Claims found claimant had 'suffered a change of condition within the meaning of Florida Statute 440.28, F.S.A., and is Permanently and totally disabled from an earning capacity standpoint since the second myocardial infarction on December 31, 1967.' (Emphasis added.) The Judge continued to apply the 30 per cent apportionment figure. In reaching his conclusion that a change of condition had occurred, the Judge made the following findings of fact:

'On December 21, 1967, the claimant suffered a second myocardial infarction and thereafter on December 16, 1968, the claimant suffered a third myocardial infarction. Such myocardial infarctions were documented objectively by E.K.G. Dr. Willner was of the opinion that claimant's second and third infarctions, as well as a circulatory abnormality in his legs, were causally related to claimant's compensable condition, while Dr. Franz Stewart's report reflected the opinion that the second and third infarctions were a progression of claimant's arteriosclerotic heart disease which preexisted claimant's compensable injury.

'In resolving this conflict on the question of causal relationship, I choose to accept the opinions of Dr. Willner, the claimant's treating physician throughout. Where Dr. Willner's opinions conflict with those of Dr. Stewart, the opinions of Dr. Stewart are rejected.'

The Industrial Relations Commission reversed this award. In reaching this conclusion, the Commission said:

'The fact that the claimant's first myocardial infarct may have made the claimant more susceptible to subsequent heart attacks due to the worsening of his fundamental arteriosclerosis does not, in our opinion, constitute a change in condition within the meaning of Workmen's Compensation Law. The evidence here presented to us is cumulative and cannot be a basis for an award. As stated in our previous Order of January 29, 1968:

'. . . the claimant's change in condition, if any, is due to the normal progress of his pre-existing cardiovascular disease which is not in any way causally related to his industrial accident . . .'

In Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963), the Supreme Court, in commenting on cumulative evidence, stated:

'. . . As we have said on several occasions, it is not sufficient to support a modification under either provision by merely producing cumulative evidence."

While this Court in Sauder did say modification could not be based solely upon cummulative evidence, we went on to...