Opinion
July 11, 1950. Rehearing Denied July 24, 1950.
Appeal from the Circuit Court, Broward County, George W. Tedder, J.
Harold B. Wahl, Jacksonville, Dan M. Byrd and E.W. Smith, both of Atlanta, Ga., and Loftin Wahl, Jacksonville, for appellant.
Brown Dean, Miami, for appellees.
This case grew out of an accident which resulted in an injury to Patricia P. Pinkerman, one of the appellees herein. Her claim was for benefits under Chapter 440, Florida Statutes 1941, known as the Workmen's Compensation Law.
Compensation benefits were voluntarily paid to Mrs. Pinkerman and medical expenses were also voluntarily paid in the total sum of $3,307.37. Thereafter, Mrs. Pinkerman was rated for permanent partial disability. The employee, Mrs. Pinkerman, then gave notice, of need of additional medical attention and of further disability, which was denied by the employer. A claim for workmen's compensation benefits was filed August 26, 1948, at which time claim was made for a readjustment of the compensation payments and for medical benefits. This claim has been controverted by the employer in its entirety, both as to the question of liability for this claimed injury and, also, with reference to any medical benefits.
After hearing of all evidence an award in favor of the claimant was entered by Deputy Commissioner James R. Knott on April 22, 1949, adjusting the payments of compensation and awarding reimbursement for medical expenses incurred after the refusal of the employer to pay the same. An appeal from this award was taken by the employer to the Florida Industrial Commission which sustained the award of the Deputy Commissioner by an order of affirmance entered on August 8, 1949. An appeal from the order of the Florida Industrial Commission was taken by the employer to the Circuit Court of the Fifteenth Judicial Circuit, Fort Lauderdale, Broward County, Florida, which Court affirmed the Florida Industrial Commission by order dated December 2, 1949. From the affirmance by the Circuit Court the employer has brought this appeal.
Counsel for appellant contend that the Florida Industrial Commission under Section 440.13(3) (a), Florida Statutes 1941, as amended, F.S.A., does not have jurisdiction to require an employer to reimburse an employee for medical expenses in excess of $1,000 in the absence of an order by the Commission, issued prior to the time such expenses were incurred, requiring the employer to furnish additional medical attention. The appellant is of the opinion that the language of the statute is so clear and definite as to permit but one construction i.e., that the authority of the Commission to order the employer "to furnish" additional treatment as the nature of the injury or the process of the recovery may require, may be exercised prospectively only and that the Commission is given no power under the statute to issue an order which is retrospective in effect.
We must agree with counsel for appellant in their technical, grammatical construction of Section 440.13(3) (a), Florida Statutes 1941, F.S.A., when viewed in isolation but we cannot follow their suggestion that the foregoing provision of the statute is jurisdictional nor that the legislative intent should be gleaned from this or any other single or dissociated provision. We have consistently held that we must determine the legislative intent upon a consideration of the entire act and that "Workmen's Compensation laws should be construed liberally in favor of the claimant and all doubts resolved in their favor * * *." Fidelity Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496.
The proviso to the effect that "the industrial commission may on its own initiative or upon the application of any party in interest, order the employer or insurance carrier to furnish such additional treatment as the nature of the injury or the process of recovery may require" is procedural in character and under normal conditions should be followed, but it may be waived by the employer.
Indeed, the purpose of such provision was to protect the employer from fraudulent claims for additional medical attention or from claims wherein additional medical attention might be unwarranted and unnecessary. Since the statute permits the Industrial Commission on its own initiative, or upon the application or any party in interest, to order the employer to furnish such additional treatment, as the nature of the injury or the process of recovery may require as a benefit or protection to the employer, he should be deemed to have waived such benefit or protection when, as in this case, he voluntarily furnishes for medical expenses a sum in excess of $1,000 without previously insisting upon a strict compliance with the statute.
In the case of Foster v. Cooper, 143 Fla. 493, 197 So. 117, 118, we said:
"As we construe it, the requirement of the statute, supra, to the effect that no claim for medical, surgical or other remedial treatment should be valid and enforceable against the employer, unless, within twenty days following the treatment, the physician giving such treatment furnish to the employer and the Commission a report of such injury and treatment on a form prescribed by the Commission, may be waived by the employer by conduct such as is shown to have existed in this case. The purpose of the statute is to protect the employer from the imposition of unfounded and fraudulent claims, but where the employer in person orders the treatment of the injured employee without limitation and thereby assumes the obligation to pay for the same, the necessity for the notice by presenting the claim to the employer and to the Commission does not exist."
It is admitted that the employer voluntarily exceeded the $1,000 limitation which it now seeks to apply and the evidence shows that it had not advised the employee of such fact. At the time notice of the requirement of further medical attention was given to the employer it refused to furnish same because it was already paying compensation benefits to the employee — not because the employee had failed to secure an order from the Industrial Commission.
Although as aforestated, we agree with appellant's construction of Section 440.13 (3) (a) when considered only in the light of definitions and grammatical construction of the words used in that detached proviso, we do not believe that such construction is consonant with the true purpose of the statute when considered in its entirety. In the case of Protectu Awning Shutter Company et al. v. Cline, 154 Fla. 30, 16 So.2d 342, 343, we said:
"The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense."
Actually such over-all aim or intent would be thwarted and serious consequences to the injured employee might result if a claimant in urgent need of additional medical attention should be required in all cases to seek and obtain an order from the Industrial Commission before securing such additional medical attention. Particularly might such results ensue if, as in this case, it appears that the employer's refusal to afford additional medical expenses is based upon its contention that "it does not appear that we should authorize further medical attention for a disability that is being compensated in accordance with the law" and the employer also takes the position that "* * * the facts do not justify the conclusion that the Mayo operation cured anything which grew out of the accident." It must be assumed that the Industrial Commission would not issue an order under such circumstances without first deciding the question of liability. We cannot be persuaded to the view that the claimant must wait for a final determination of the question of the employer's liability before obtaining additional medical attention which might be urgently needed for complete or partial recovery.
Counsel for appellant also argue that there is no positive evidence that the accident produced the disc condition which necessitated the operation performed at the Mayo Clinic. They insist that the award was based upon pure speculation and conjecture of doctors (who did not even examine the employee until a year after the operation which had been performed subsequent to the accident) rather than upon the sworn testimony of the specialists who performed the first operation. Our answer to this contention is that there is competent, substantial evidence which sustains the findings made by the Deputy Commissioner and the award predicated thereon.
Dr. Keiser, one of the specialists to whom counsel referred and who was a witness on behalf of the employer, testified in part, as follows:
"Q. If it is believed advisable to perform an exploratory operation to find a disc and the operation is performed but no disc is found at the time of the operation but that, thereafter the same pains and disability continue and, thereafter, a second operation is performed at which time a disc is found in the same area, isn't it reasonable to assume that the disc failed to make its appearance at the first operation and merely was present at the time of the second operation? A. Yes, it did not protrude at the first operation but did at the second.
"Q. So that operating and not finding the disc at the time of the operation doesn't mean that there was not a disc injury, does it? A. No.
"Q. If there was no history given or knowledge on the part of the claimant in this case, Mrs. Pinkerman, that she had strained, or slipped or twisted or had a discomfort other than she had experienced as a result of the operation doesn't that strengthen your opinion that the disc had remained with her and was actually present when you operated but merely was not visible and that the disc continued in effect and developed to such an acute stage that the operation in 1948 was necessary?
* * * * * *
"A. Yes, I would say yes."
Dr. J. Grafton Love of the Mayo Clinic who performed the final operation, gave the following testimony:
"Q. I would like to put this question to you doctor; assuming that Dr. Keiser as a result of his examination of Mrs. Pinkerman in June '47 decided that she had a protruded intervertebral disc, and that upon operation by him no protruded disc was found, and assuming that following the operation Mrs. Pinkerman continued to have the same symptoms and complaints of pain which had existed prior to her operation, and that because of the continuance of these complaints Mrs. Pinkerman had subjected herself to the attention of the Mayo Clinic physicians and surgeons and that thereafter, on July 30th, 1948, had been operated upon and had a protruded intervertebral disc removed by you: In your opinion, doctor, did the protruded disc result from the accident of October, 1946, when Mrs. Pinkerman's chair collapsed, or she fell out of the chair while in the employ of the Southern Bell Telephone Telegraph Company, as she stated in her history to you of this injury? A. Yes.
"Q. Is it not reasonable to assume that this protruded disc was present but not observed at the time Dr. Keiser operated on Mrs. Pinkerman in June of '47. A. Yes."
The evidence is somewhat conflicting but much of it, which apparently was believed by the Deputy Commissioner, was not entirely speculative and conjectural in character. Such testimony readily lends itself to the construction that reasonable probability existed for the conclusion that the employee's condition resulted from the original accident of October 9, 1946.
The burden of showing that error was committed by the Circuit Court in entering the order from which this appeal was prosecuted is upon the appellant. It has failed to carry that burden. The order entered by the Circuit Court of the Fifteenth Judicial Circuit affirming the previous order of the Florida Industrial Commission is hereby affirmed.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.