Opinion
April 20, 1951. Rehearing Denied May 21, 1951.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Edward B. Quinan and Lucille Snowden, Miami, and Wendell C. Heaton, Tallahassee, for appellants.
Blackwell, Walker Gray, Miami, and James Messer, Jr., Tallahassee, for appellees.
The claimant-appellant, John H. Wesley, was employed as a paint mixer and general handy-man for approximately eight years prior to the time of the disability in question. He left his employment because of illness on February 24, 1949, and thereafter consulted several physicians to locate the cause of his illness, but with no success. Finally, on May 25, 1949, he was admitted to the Dade County Hospital for treatment under a diagnosis of lead poisoning made by the resident physician there, and was discharged on June 8, 1949. He was subsequently examined by another physician, at the request of the insurance carrier. This physician reported, under the date of July 5, 1949, that "at this time the patient is apparently in good physical condition, feels fine, has no complaints, and is apparently able to return to work." His report also states, however, that there was no evidence that the claimant had suffered from chronic lead poisoning, on the basis of which the insurance carrier denied compensation benefits to the claimant.
The Deputy Commissioner took testimony on the controverted claim on September 20, 1949, and found that the claimant was injured as the result of chronic lead poisoning, an occupational disease common among painters (and, in fact, commonly known as "painters' colic"), which had arisen out of and in the course of his employment. He thereupon awarded the claimant compensation benefits, and his award was affirmed by the Florida Industrial Commission. Upon appeal to the Circuit Court of Dade County, the order of the Full Commission was reversed on the ground that "the appellee-claimant has not carried the burden of proving that he was suffering from an occupational disease as is required by law," from which order of reversal the claimant has appealed.
The appellant has posed the following question: "Do the facts as shown by the record reveal that the appellant has carried the burden of proving that he suffered from an occupational disease, as required by Section 440.151, Florida Statutes 1949 [F.S.A.]?" Subsection (e) of this section denies to a claimant who seeks compensation for an occupational disease the presumption that his claim comes within the provisions of the Workmen's Compensation Law, as provided by Section 440.26, Florida Statutes 1949, F.S.A. But there is no presumption in favor of any claimant that the injury arose out of and in the course of his employment, Ft. Pierce Growers Ass'n v. Storey, 155 Fla. 769, 21 So.2d 451; and, in discussing the question of whether claimant had carried his burden of proving that the injury was suffered in the course of his employment, this court said, in Crawford v. Benrus Market, Fla., 40 So.2d 889: "Much of the evidence of the claimant was denied by the carrier, in fact, it may be admitted for argument that the numerical strength of the evidence supports the decree appealed from, but the probative effect of the evidence is not determined by counting noses. In a case like this the probity of the evidence is for the Industrial Commission to determine and their finding should not be reversed unless shown to be clearly erroneous." We think this rule is entirely appropriate to the determination of the question of whether claimant has carried his burden of proving that he suffered from an occupational disease.
In the instant case, as in the Crawford case, supra, the evidence was conflicting on the question of whether claimant had lead poisoning. Both the Deputy Commissioner and the Full Commission chose to believe the testimony of the resident physician at the hospital, who examined claimant at the time he was actually ill and suffering, rather than that of the physician employed by the insurance carrier, who examined him after he had been treated for lead poisoning and found him "in good physical condition".
We have not overlooked the testimony of the resident physician at the hospital that he placed a question mark beside his diagnosis report of "chronic lead poisoning", and that there was some doubt in his mind as to the correctness of the diagnosis, on account of the fact that the laboratory tests failed to show a stippling of the red blood cells. He further testified, however, that although a finding of basophilic stippling would have been conclusive as to the correctness of his diagnosis, a diagnosis of lead poisoning on the basis of other symptoms which he found in claimant was accepted practice even in the absence of a finding of basophilic stippling. We are not persuaded that the testimony first above mentioned — which was obviously the result of an excess of caution because of the lack of conclusive symptoms of lead poisoning — made it compelling on the triers of the facts to hold for naught his positive testimony that he did, in fact, make a diagnosis of lead poisoning, that he administered to claimant the treatment prescribed for such ailment, and that claimant responded immediately and successfully to such treatment. We think the evidence was ample to show that claimant was suffering from lead poisoning, and that the Deputy Commissioner and Full Commission did not err in so holding.
We have considered the question of the sufficiency of the notice given by claimant to his employer. This was a factual question, determined in claimant's favor by the triers of the facts, and we are unable to find anything in the record to justify a reversal of their decision in this matter.
For the reason stated, the judgment appealed from should be and it is hereby
Reversed.
SEBRING, C.J., and CHAPMAN and ADAMS, JJ., concur.