Allen v. Maxwell Co., Inc.

• Decision Date: 02 February 1943
• Citation: 152 Fla. 340,11 So.2d 572
• Parties: ALLEN v. MAXWELL CO., Inc., et al.
• Court: Florida Supreme Court

11 So.2d 572

152 Fla. 340

ALLEN v. MAXWELL CO., Inc., et al.

Florida Supreme Court

February 2, 1943

Appeal from Circuit Court, Dade County; Paul D. Barns, Ross Williams, and George E. Holt, Judges.

David Lemelman, of Miami, for appellant.

McKay Dixon & DeJarnette, of Miami, for appellee.

CHAPMAN, Justice.

The sole question presented for adjudication on this appeal is whether or not the appellant, Joseph E. Allen, the employee, sustained a compensatory injury within the scope of his employment. The relationship of employer and employee is admitted on the record by counsel. Subsection 6 of Section 440.02, Florida Statutes 1941, defines the term 'Injury' as meaning personal injury or death by accident arising out of and in the course of employment, and such diseases or infections as naturally or unavoidably result from such an injury. Subsection 18 of Section 440.02 supra, defines the 'time of injury' as meaning the time of the occurrence of the accident resulting in the injury. Subsection 19 of the Section, supra, provides that where a pre-existing disease is accelerated or aggravated by an accident arising out of and in the course of employment only acceleration of death or the acceleration or aggravation of disability reasonable attributable to the accident shall be compensable.

The appellant, for approximately five years prior to September 30, 1940, was employed by The Maxwell Company, Inc., as a night watchman and upholsterer. When injured he was working as a watchman and received compensation of $15 per week and was 64 years of age. The appellant went into the basement of the building in which he was employed to start a pump to remove water from the basement of the warehouse when the lights were out, and in so doing fell over a chair and, 'I knocked the skin off my injured leg, place about as big as a quarter, but I didn't think it would be much.' He continued to work after September 30, 1940, until November 26th thereafter. He went to the hospital for treatment; and on July 30, 1941, he testified, 'I haven't been able to work since, been in bed three weeks yesterday.' The appellant is now permanently disabled. He had worked continuously for approximately five years prior to November, 1940. During the year 1937 the same leg was weak, swollen and painful, and being discharged from the hospital he returned to his work under instructions from a physician to wear a rubber stocking on this weak leg, which he was not doing at the time of receiving the alleged injury.

One of appellant's physicians testified that the right leg disclosed an abrasion and was inflamed, and an infection radiated from the abrasion and it was a recurrence of the old condition of the leg. It was his view that the abrasion would not disable, but an infection following the abrasion could disable, the appellant. Another of appellant's physicians diagnosed the trouble as dermatitis of the leg and the personal history disclosed a recurrence after two or three years. It was possible for the abrasion to set in motion this pre-existing ailment. A physician called for the employer and diagnosed the ailment as varicose veins, superinduced by obliteration of lymphatic glands, but failed to find evidence of trauma. The fourth physician was of the view that the disability was not the result of a traumatic injury sustained in September, 1940 but was traceable to faulty circulation of long standing. While the fifth physician concluded that the patient had varicose veins which prevented circulation and the tissues were of low vitality which easily invited infection. He diagnosed the ailment as infectuous dermatitis superimposed upon the varicose veins.

Counsel for appellant presents for adjudication the question viz: Where an employee had a pre-existing injury, which injury had healed and he was able to continue his work, but subsequently suffered an injury to the same area and, as a result, the employee was disabled so that he could not continue with any employment thereafter; under such circumstances, is the employee entitled to compensation under the Workmen's Compensation Law? It is admitted that the pre-existing physical condition of the appellant failed to interfere with the discharge of his duties as night watchman except for a few weeks during the five years period prior to September 30, 1940. The physical fitness of the applicant to discharge the duties of night watchman had never been questioned by the employer within the five year period of employment, and it is raised for the first time by the carrier when the applicant seeks compensation for his alleged injury. Two physicians corroborate the statement of the appellant to the effect that his leg disclosed trauma shortly after September 30, 1940.

Counsel for appellant contend that the physical fitness of the appellant to discharge the duties of his employment had, never been questioned, although he had, during a part of the time, a pre-existing physical condition, coupled with the injury sustained in the fall when discharging the duties of his employer, and the combination of these two causes produced the proximate cause of the appellant's disabilities and that under these conditions he should recover. The case of City of Lake land v. Burton, 147 Fla. 412, 2 So.2d 731, is cited. The facts therein disclosed that the decedent sustained an injury in the course of his employment and was thereby disabled, and continued to suffer intense pain and later was found dead in bed; and the record shows that the cause of death was not the injury sustained in the course of his employment, but to an over dose of medicine by the claimant voluntarily taken. There was an award for the claimant, and on appeal here this Court, in part, said:

'The record is clear that the injury caused the injured man to suffer great pain in the abdominal region and the suffering of such pain by the deceased caused the physician to prescribe, and the deceased to take, the narcotic. So, it is clear that there was direct causal connection between the injury and the death, even if death followed as the immediate result of taking the narcotic. It, therefore, follows that the taking of the narcotic was not an independent intervening cause but was the result of the original injury, and the employer and insurance carrier are liable under the Workmen's Compensation Act * * *.'

Likewise, 71 C.J. par. 358, page 604, is cited, viz.:

'* * * It is not necessary, in order for an employee to recover compensation as an injured workman, that he must have been in perfect health or free from disease at the time he received the injury. Every workman...