United Elec. Co. v. Myers

• Citation: 134 So.2d 7
• Decision Date: 28 July 1961
• Docket Number: No. 40084,40084
• Parties: UNITED ELECTRIC COMPANY and the American Insurance Company, Petitioners, v. Sarah J. MYERS and The Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 7

134 So.2d 7

UNITED ELECTRIC COMPANY and the American Insurance Company, Petitioners, v. Sarah J. MYERS and The Florida Industrial Commission, Respondents.

No. 40084.

Supreme Court of Florida.

July 28, 1961.

On Rehearing Oct. 18, 1961.

Monroe E. McDonald, of Sanders, McEwan, Schwarz & Mims, Orlando, for petitioners.

Berson, Barnes & Inman, Orlando, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

O'CONNELL, Justice.

Sarah J. Myers, the claimant below and respondent here, filed a claim for death benefits against United Electric Co., the employer of her deceased husband, William B. Myers.

The deputy commissioner found that the decedent had, on November 20, 1959, suffered a compensable accident when a pike pole struck him on the head; such accident materially aggravated a pre-existing tumor in decedent's brain, which tumor was quiescent and non-disabling prior to the accident; and that the combined effects of the tumor and the aggravation resulted in deceased's disability and subsequent death on January 28, 1960.

The deputy commissioner awarded the claimant-widow full death benefits. He ordered the employer-carrier to pay all hospital and medical expenses for treatment of the decedent's compensable injury, reimburse the claimant widow for funeral expenses, pay the costs of the proceeding, and to pay attorney's fees in the sum of $3,500.

The full commission affirmed the order of the deputy and the employer and carrier brought this petition for certiorari contending that: (1) there was no competent substantial evidence to support either the deputy's finding that the decedent suffered a compensable injury or his finding that the decedent's death was caused, accelerated or contributed to by any such accident; (2) if decedent's pre-existing tumorous condition was only aggravated and death accelerated by such accident the employer-carrier can be required to pay only for acceleration of death reasonably attributable to the accident; (3) it was error to order the employer-carrier to pay hospital and medical expenses because the decedent never requested the employer to furnish same as required by Sec. 440.13, F.S.A.; and (4) that there was no competent substantial evidence to support an award of $3,500 attorneys' fees.

The evidence as to the occurrence of a compensable injury is simple and we find that it was adequate to support the deputy's finding thereon.

The evidence showed that decedent while assisting in the installation of a 35 to 40 foot pole was struck on the left side of the head, shoulder and hand by a falling pike pole. The pike pole was being used to steady the larger pole while it was being set into position.

A written statement given by decedent detailing the accident was admitted into evidence. One of decedent's fellow workers testified that he was working by decedent's side; he was looking down when the pike pole fell and did not see it strike decedent; when it fell he looked up and saw that the fallen pike pole was resting across decedent's hand on the pike pole that he and decedent were holding; he asked decedent if he was hurt and decedent replied 'No I am all right, it hit me across the head'; and that the falling pole had cracked a plastic shield on one of decedent's fingers.

The decedent's written statement as corroborated by the above testimony was admissible in evidence under Sec. 440.29(1), F.S.A., and the two together were adequate to support the deputy's finding that there was a compensable accident.

The question of the causal connection between decedent's death and the accident and related questions are more involved.

The injury to decedent did not knock him down or cause him to lose consciousness. Nor did he report it to his employer for several weeks. He continued working the remainder of the day on which the accident occurred and for several days thereafter, the number not being clear in the evidence.

Six days after the accident, while at home, decedent suffered an attack of some nature during which he evidenced inability to talk, weakness of the muscles of the mouth accompanied by drooling, twitching of the left eye, and incoordination.

A physician was called and after examination he placed decedent in a hospital for observation.

This physician found no evidence of any contusion, abrasion or injury to decedent's head, nor did decedent mention to him the pike pole striking him six days earlier, although he did mention it to one of his doctors at a later date.

Decedent improved in the hospital and was released with instructions to take certain medications designed to aid circulation of blood to the brain.

Decedent was thereafter hospitalized twice more. He died in the hospital on January 28, 1960.

During the interim between the first entry into the hospital and his death various tests were made on decedent in an effort to determine the cause of his condition. It was determined that decedent probably had a space occupying mass in the right parietal region of his brain. A craniotomy was performed. A large tumor was found in the right temporal parietal region of the brain. The tumor had infiltrated the brain and therefore was not of the sort that could be removed. The decedent died shortly after this operation.

Dr. Hoff, who examined decedent, ordered the various tests, and performed the craniotomy, testified that the immediate cause of his death was 'the tumor or the swelling within the tumor.' The deputy, as above stated, found that the combined effects of the pre-existing tumor and the aggravation thereof by the accident involved here resulted in decedent's death.

There was competent evidence in the record through the testimony of Dr. Hoff, a neurosurgeon, to support the deputy's finding that there was a causal relationship between decedent's death and the accident.

Dr. Hoff testified that under the facts presented, i. e. decedent's having no prior history of symptoms of brain tumor, a blow to the head, followed within six days by an attack with the symptoms above recited and subsequent similar symptoms not recited herein, the blow to the head 'played a role in the aggravation' of his symptoms but he said he could not tell how great a role. He explained that while the symptoms were caused by the tumor '* * * the precipitation and aggravation at that time I think, rather, I believe the trauma played a role in bringing them on at that time, I don't believe I could say more than that.' He also testified that '* * * the problem of the nature which he (decedent) had one would normally anticipate that at some time in the future he would have developed symptoms * * *.'

At the hearing before the deputy Dr. Hoff reaffirmed statements made in a deposition prior to trial to the effect that there was no '* * * definite evidence that the growth of the tumor was necessarily expedited in its development by the trauma.'

The deputy was obviously concerned with the effect of Dr. Hoff's testimony for he asked him to explain his statements that while the growth of the tumor was not necessarily aggravated or expedited by the trauma, the trauma could be said, with reasonable medical certainty, to be the cause of the symptoms.

In response to the deputy's questions Dr. Hoff again...