Ortkiese v. Clarson & Ewell Engineering

126 So. 2d 556
CourtSupreme Court of Florida
DecidedJanuary 18, 1961
StatusPublished
Cited by7 cases

This text of 126 So. 2d 556 (Ortkiese v. Clarson & Ewell Engineering) 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
Ortkiese v. Clarson & Ewell Engineering, 126 So. 2d 556 (Fla. 1961).

Opinion

126 So.2d 556 (1961)

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

Supreme Court of Florida.

January 18, 1961.
Rehearing Denied February 21, 1961.

*557 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."

*558 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 *559 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.
*560 "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.

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Bluebook (online)
126 So. 2d 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortkiese-v-clarson-ewell-engineering-fla-1961.