Montclair Homes, Inc. v. Thompson

138 So. 2d 305
CourtSupreme Court of Florida
DecidedFebruary 21, 1962
DocketNo. 31312
StatusPublished

This text of 138 So. 2d 305 (Montclair Homes, Inc. v. Thompson) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montclair Homes, Inc. v. Thompson, 138 So. 2d 305 (Fla. 1962).

Opinion

O’CONNELL, Justice.

In this workmen’s compensation case the claimant, Earl R. Thompson, was awarded additional compensation benefits in an order by a deputy commissioner which was affirmed by the Florida Industrial Commission, with one member dissenting. Petitioners are the employer, Montclair Homes, Inc., and its carrier, United States Fidelity and Guaranty Company.

Claimant was injured on June 18, 1958 while employed by petitioner as a carpenter. The blade of a power saw cut a gash in his left leg on the outer side, just above the knee. He was hospitalized immediately and treated by Dr. Leonard Hattaway. He remained in the hospital some 28 days.

On September 9, 1958 claimant returned to work with the petitioner, who had voluntarily furnished medical treatment and paid compensation for temporary total disability for the period from June 22, 1958 until September 9, 1958.

In June 1959, a year after the accident, claimant returned to Dr. Hattaway for treatment. At that time he had ulcers on his left leg, on the inner side just above the ankle. He informed the doctor the ulcers had been on his leg some three or four months, which would have meant they appeared some eight or nine months following the accident.

Claimant’s ulcers were treated by Dr. Hattaway for a period of time. In September 1959 claimant commenced treatments by Dr. W. F. Evans who on January 19, 1960 referred him to a general surgeon, Dr. C. A. Asters. Dr. Asters excised the ulcers and performed skin grafts over the area. As of the date of hearing before the deputy it appeared that the surgery and skin grafts were successful.

Petitioners controverted claimant’s claim for additional benefits on the ground the ulcers were not resultant from the accident of June 18, 1958.

[306]*306The deputy held a hearing on the claim and heard the testimony of claimant, Dr. Evans, Dr. Asters, and Dr. Hattaway, among others.

Dr. Hattaway expressed the opinion claimant’s ulcers were related in no way to the industrial accident but rather resulted from an arteriosclerotic vascular insufficiency. He was of the opinion this circulatory deficiency pre-existed the accident and based such upon the history given to him by the claimant and upon several objective tests which he made. He testified that claimant told him he had come to him, in June 1959, primarily because of cramps he suffered in both of his legs, and also because of the ulcers. Claimant told him he had suffered from the cramps for a period of time beginning prior to the accident.

Dr. Hattaway, who saw claimant several times each day he was in the hospital because of the cut, said that claimant related to him no sudden, excruciating pain in his left leg such as would have occurred had a blood clot lodged there and he could recall no complaints being made while claimant was hospitalized as to the area where the ulcers subsequently appeared. The doctor stated that when claimant returned to him in June 1959 with his complaints of leg cramps and ulcers, he, the doctor, reached the opinion the trouble was the result of the long standing circulatory disorder. As noted, he based this on several objective tests, besides claimant’s history, one being the fact the cramps appeared in both legs. Another test Dr. Hattaway performed was to feel claimant’s feet. He reported that in June 1959 they were cool to the touch and this fact indicated there was poor circulation of blood in the feet. He prescribed for claimant vasal dilators to improve that circulation.

Dr. Hattaway testified that when claimant returned to his office the following month he reported his legs were much better. The doctor found his feet were warmer to the touch.

This witness also testified that it was not possible for a blood clot, or embolus, other than one of microscopic size, to travel from the area of the cut on the outer side of the left leg to the area of the ulcers on the inner side of that leg.

Dr. Evans, claimant’s witness, disagreed with Dr. Hattaway on several points. He reached the conclusion claimant had no circulatory disorder, because claimant had related no history to that effect to him and when he saw claimant, claimant’s feet were warm to the touch. This was at a time subsequent to the time Dr. Hattaway prescribed the vasal dilators and subsequent to the time Dr. Hattaway had noted claimant’s feet no longer felt cool to the touch.

Dr. Evans disagreed with the other objective tests which Dr. Hattaway had employed to ascertain whether claimant had a circulatory deficiency.

It was Dr. Evans’ opinion that it was possible for a blood clot from the area of the cut to travel to the area of the ulcers. He said that claimant gave to him a history of experiencing a sudden, excruciating pain in his left leg, in the vicinity of the area where the ulcers subsequently appeared, three or four days after being hospitalized with the cut. He concluded claimant had sustained a vascular arterial accident, an embolus, which had come from the area of the injury.

Dr. Asters, who performed the surgery on claimant’s ulcers, shared the opinions of Dr. Evans, but was less positive, admitting to some uncertainty as to the cause of the ulcers.

Claimant’s testimony in some respects contradicted the histories he had purportedly given to both Dr. Hattaway and Dr. Evans. He said he first noticed the ulcers about the time he returned to work, which was September 1959, some three months after the accident. He did not testify that he had experienced, while in the hospital on the first occasion, any sudden onset of severe pain in the area where the ulcers later appeared.

[307]*307The deputy’s conclusion was that the industrial accident was causally related to the leg ulcers and he ordered the payment of additional compensation benefits.

Upon review, the commission affirmed, with one member dissenting. We are largely in accord with the dissenting member’s opinion, the bulk of which follows:

“I would agree with the majority of my colleagues if it were not for the fact that this case falls squarely within the doctrine enunciated by our Supreme Court in Arkin Construction Company v. Simpkins, Fla.1957, 99 So.2d 557. The essential point in the Arkin case is that if an expert witness’ conclusions are not based upon established fact, the conclusion must fall. To me, this is the essential point involved in this case. The Deputy, admittedly, in his Order bases his conclusions upon certain testimony adduced from Dr. Evans and Dr. Asters. For instance, he makes a finding of fact that Dr. Evans testified in his opinion the ulcerations were a result of a vascular accident in which an embolus originating from the area of the original injury in the thigh lodged in the area of the leg above the calf. Yet there is nothing in the record, first, to prove that an embolus did occur and/or, secondly, if an embolus did occur, same was caused from the accident. It is elementary then that such testimony is based upon pure speculation and supposition ; not only did the witness have to ‘guess’ that the disability was a result of an embolus, but he had to further 'guess’ that the embolus originated from the accident. It is patent that this testimony is nothing more than gross speculation and a valid conclusion cannot under the law enunciated in the Arkin case, stand upon testimony of this nature.

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Cite This Page — Counsel Stack

Bluebook (online)
138 So. 2d 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montclair-homes-inc-v-thompson-fla-1962.