Dixie Laundry & Standard Accident Insurance v. Wentzell

Chapman, J. The record here discloses that Herbert B. Wentzell, on September 4, 1936, and prior thereto, was employed in the capacity of an engineer by the Dixie Laundry at West Palm Beach, Florida, and received a salary of approximately $45.00 per week. While discharging the duties of employment a piece of lumber fell, striking him on the head and the blow rendered him unconscious. He *571 received medical aid, when it was determined that he had sustained a linear fracture of the skull, and it was later ascertained that he was suffering from an inguinal hernia. The attending physician advised that an operation was necessary for the correction of the hernia. The employee AVentzell returned to his work with the Dixie Laundry and the insurance carrier admitted its liability for four and four-sixths weeks of compensable disability and paid him therefor at the rate of $18.00 per week, or the total sum of $84.00. The attending physician was Dr. Lloyd J. Netto and his fees for professional services rendered AVentzell were paid by the insurance carrier and the files of the company closed. On October 5, 1938, Dr. Netto, who was employed by the insurance carrier, operated on AVentzell for the purpose of correcting the hernia sustained by him approximately two years prior thereto when the lumber fell on him and fractured his skull. The patient died on October 16, 1938, as a result of a coronary embolus superinduced by the operation for hernia. On April 7, 1939, Alice D. AVentzell, widow of the late Herbert B. AVentzell, filed a claim with the Florida Industrial Commission in which it was contended that the widow, as a matter of law, was entitled to compensation for: (a) medical expenses for the hernia operation; (b) funeral expenses; and (c) compensation for the death of her husband as a result of the accident occurring September 4, 1936. The insurance carrier controverted the claim on the grounds: (a) that no claim was filed within one year after the date of the last payment of compensation to the employee; (b) the death of Herbert B. AVentzell did not occur within one year after the alleged injury; (c) that his death did not follow continuous disability growing out of the *572 alleged injury; (d) and that the claim of the widow was barred by the statute of limitations. Considerable testimony on the issues made was taken before Walter E. Rountree, Deputy Commissioner for the Florida Industrial Commission, and, after the taking of the testimony, a finding was made to the effect that the death of Herbert B. Wentzell did not occur within one year after the alleged injury and his death did not follow continuous disability, and further that the widow was barred by the statute of limitations and an award was by the Deputy Commissioner denied and the claim-dismissed. An appeal therefrom was taken to the Circuit Court of Palm Beach County and a review thereof had before the Honorable C. E. Chillingworth, Circuit Judge. On June 5, 1940, the said circuit judge made and entered an order reversing the findings of the deputy commissioner dismissing the case and held the insurance carrier liable and directed that the Florida Industrial Commission hear further testimony concerning the amount to be awarded under the provisions of Section 16 of the Workmen-’s Compensation Act. From this order an appeal has been perfected to this Court and numerous reasons advanced for a reversal thereof. Alice D. Wentzell, the widow of the deceased, described the injuries received by her husband and observed by her and directed the attention of the physician to the condition of the lower part of the stomach near the groin, which the doctor subsequently diagnosed as a hernia. Her testimony recited an effort on her part, and others, to induce her husband to submit to an'operation, which he declined so to do, but was during the time receiving treatment for the hernia, which he elected to take rather than ■ be operated upon. This testimony covers the period of time after September 4,. 1936, until October 16, 1938, the date of his death. Other details were testified to by the widow and it is con *573 tended by counsel for the appellants that the testimony as given was contrary to the provision of Section 4372 C. G. L. and the decisions of this Court in the application, construction and interpretation thereof as h> transactions and communications with the deceased. We do not think the testi-' mony given by the widow and challenged on this record can be construed to mean transactions and communications had with a deceased person during his life time and against the interest of executors, administrators, heirs at law, next of kin, assignees, legatees, devisees or survivors of such deceased person, assignee or committee of .an insane person. We fail to find merit in the contention. The cited statute is wholly inapplicable. It is next contendéd that the testimony is insufficient to show or establish that the deceased was suffering from hernia which he received in the course of his employment within the meaning of Subsection (f) of Section 15 of Chapter 17481, Acts of 1935, Laws of Florida. ■ We have carefully examined the testimony adduced in the light of the contention here insisted upon and our conclusion is that there is an abundance of testimony to support the conclusions of the circuit judge and it is difficult to comprehend how any other conclusion could be reached when considering all the testimony. The testimony shows that deceased was injured on September 4, 1936, and died October 16, 1938, and that during the greater portion of this period he worked for the Dixie Laundry. It is here contended that the deceased was not continuously disabled within the meaning of Section 16 (a) of Chapter 17481, Acts of 1935, Laws of Florida, viz.: “If death results from the accident within one year thereafter or follows continuous disability and results from the accident within five years thereafter, the employer shall pay the reasonable funeral expenses, not to exceed $150.00.” *574 The hernia was one of the injuries received in the course of employment. The wife observed it shortly after the injury while bathing her husband and directed the injury to the attention of the physician, who diagnosed it as a hernia and suggested a correction could be had by an operation. The deceased was treated for the hernia by some other physician, who used the injection method. The latter treatment failed to effect a cure, when the wife and agents of the insurance carrier induced the deceased to submit to an operation, which deceased refused or declined to do for several months, and it is here contended' that during the period of this treatment for hernia there was not a continuous disability. We are convinced on this record that the deceased suffered from the hernia from the time of receiving it until the time of his death, but to determine whether or not there was partial or total disability it is unnecessary to pass upon it in the light of the statute,'which provides that if a “continuous” disability is the result of an injury and death occurs within “five years thereafter, the. employer shall pay. . . .” The fact that the deceased after the accident performed some work and received some compensation does not preclude a recovery on the part of the wife claimant when death occurs within the five-year period described in the statute. We fail to find error in the record and accordingly the order appealed from is hereby affirmed. Whitfield, Buford and Adams, J. J., concur. Brown and Thomas, J. J., dissent.