Bison Co. v. Shubert

• Decision Date: 03 September 1986
• Docket Number: No. BJ-475,BJ-475
• Citation: 11 Fla. L. Weekly 1899,494 So.2d 253
• Parties: 11 Fla. L. Weekly 1899 The BISON COMPANY and Northbrook Indemnity, Appellants, v. Francis Edward SHUBERT, Appellee.
• Court: Florida District Court of Appeals

Page 253

494 So.2d 253

11 Fla. L. Weekly 1899

The BISON COMPANY and Northbrook Indemnity, Appellants, v. Francis Edward SHUBERT, Appellee.

No. BJ-475.

District Court of Appeal of Florida First District.

Sept. 3, 1986.

Rehearing Denied Oct. 8, 1986.

Richard H. Weisberg, of Cooper, Rissman & Weisberg, Orlando, for appellants.

Dorothy Clay Sims, of Chalkley & Sims, Ocala, for appellee.

ERVIN, Judge.

The employer/carrier appeals from an order awarding temporary total disability and attendant care benefits, which was based upon the finding that claimant's accident arose out of and in the course of employment. We reverse.

Claimant injured his back on January 11, 1984, when he sneezed while reaching down three feet to open a bottom desk drawer at work. The medical testimony revealed that claimant had a pre-existing congenital abnormality of the spine that was aggravated by the accident at work. Claimant's pre-existing condition, however, was asymptomatic prior to the accident.

Claimant's employer, Bison Company, although primarily in the business of manufacturing vacuum cleaners, also manufactured and supplied various accessories for the cleaners, including shampoo, which was mixed and prepared at the plant. Claimant's job duties included taking monthly inventory, buying merchandise and materials, and inspecting the final products. The preparation of the shampoo, according to claimant, often caused the employer's facility to become dirty and dusty, forcing him to sneeze more frequently at work than at home. The vice-president of the employer denied that the work site was in the condition claimant described, but conceded that a lemon scent permeated throughout the plant while the shampoo was being made. Claimant's employment duties did not include the actual mixing of shampoo, and he admitted that he had not done anything unusual while reaching for the bottom desk drawer at the time of his injury.

This case is controlled by the rule announced by the Florida Supreme Court in Southern Bell Telephone and Telegraph Company v. McCook, 355 So.2d 1166, 1168 (Fla.1977), recognizing that when a claimant suffers from an idiopathic, or pre-existing condition which results in injury, the injury is compensable only if the claimant can show that it arose out of his employment. See also Medeiros v. Residential Communities of America, 481 So.2d 92, 93 (Fla. 1st DCA 1986); House v. Preferred Auto Leasing, 476 So.2d 1337, 1338-39 (Fla. 1st DCA 1985); Market Food Distributors, Inc. v. Levenson, 383 So.2d 726, 727 (Fla. 1st DCA 1980). We held in Medeiros, "An injury 'arises out of' employment when the employment necessarily exposes the claimant to conditions that substantially contribute to the risk of injury, conditions which the claimant would not normally encounter during his non-employment life." Id., at 93 (e.s.).

The case at bar is very similar in its facts to those in Market Food Distributing v. Levenson, where we held that the exertion required by the claimant to pull out a 20-30 pound desk drawer was no greater than one which he would necessarily encounter in...