Custom Architectural Metals v. Bradshaw

• Decision Date: 30 August 1993
• Docket Number: No. 92-603,92-603
• Citation: 623 So.2d 804
• Parties: 18 Fla. L. Weekly D1937 CUSTOM ARCHITECTURAL METALS, et al., Appellants/Cross Appellees, v. Vernon Keith BRADSHAW, Appellee/Cross Appellant, and Wal-Mart Stores, et al., Appellees.
• Court: Florida District Court of Appeals

Page 804

623 So.2d 804

18 Fla. L. Weekly D1937

CUSTOM ARCHITECTURAL METALS, et al., Appellants/Cross Appellees, v. Vernon Keith BRADSHAW, Appellee/Cross Appellant, and Wal-Mart Stores, et al., Appellees.

No. 92-603.

District Court of Appeal of Florida,

First District.

Aug. 30, 1993.

John T. Willett, Sharon Lee Stedman, and Daniel De Ciccio, De Ciccio & Broussard, P.A., Orlando, for appellants/cross appellees.

William G. Berzak, Orlando and Bill McCabe, Sheperd, McCabe & Cooley, Longwood, for appellee/cross appellant Bradshaw.

Rex A. Hurley and Scott B. Miller, Hurley & Rogner, P.A., Orlando, for appellees Wal-Mart and Corporate Service, Inc.

PER CURIAM.

Appellant, Custom Architectural Metals, appeals the order of the JCC denying apportionment of workers' compensation liability between appellant and appellee Wal-Mart. Appellee/claimant Vernon Keith Bradshaw cross appeals that portion of the JCC's order denying Bradshaw's claim for wage loss benefits for the period December 1990 through August 12, 1991. We reverse both the denial of apportionment and the denial of wage loss benefits and remand to the JCC for further proceedings.

In 1986, claimant, then 48 years old, was hired by appellant Custom as a general construction superintendent, supervising the installation of sheet metal awnings. Claimant testified that on July 21, 1989, at about 12:30 to 12:45 p.m., he went to a convenience store about a mile and a half from the job site to get ice and water for the men working under his supervision. He testified that it was normal for him to do this and that he had done so before. Claimant went directly from the job site to the store in a company vehicle. As he was filling a container with water and ice he was struck by a car which jumped the curb, pinning his left leg between the car's wheel and a brick wall. When he was extricated he was taken to the emergency room of a local hospital. According to emergency room records, claimant's primary injuries were to his left hand, left wrist, and left tibia/fibula. Thereafter he complained of knee pain.

Continuing to complain of knee pain, claimant returned to work after one week, though on crutches and limping. He saw a Dr. Huster on January 22, 1990, who diagnosed a contusion of the left knee with preexisting osteoarthritis. After persistent symptoms, claimant underwent an arthroscopic partial medial meniscectomy of the left knee in June 1990. He missed only about two weeks of work after surgery, but testified that the knee never did recover to its previous condition. After the surgery, claimant's knee would "give way" on occasion, causing him to fall. On September 21, 1990, Huster opined that claimant had reached MMI with a 3% permanent partial impairment to the body as a whole attributable to the industrial accident and resulting knee condition.

On December 12, 1990, claimant was terminated from his employment for what Mr. Davis, the president of Custom, termed "insubordination" which included making disparaging public remarks about a fellow employee and disregarding Mr. Davis' express instruction in the performance of a job at work. Claimant applied for unemployment compensation but was denied benefits on the ground that he was fired for misconduct.

Claimant sought employment as a construction supervisor but could not find work. Eventually, he took a job at Wal-Mart assembling bicycles, even though the job paid about one third of his former salary. Claimant began working at Wal-Mart in April, 1991. On August 12, 1991, claimant fell off a ladder which he was climbing while balancing an assembled bicycle on his left shoulder in an effort to hang the bicycle on a hook in the ceiling as he had been instructed to do. He stated that he climbed the ladder by leading with his right foot on each rung and pulling himself up with the right leg because his left knee was not strong enough to pull him up, or lift his weight:

I would always lead with my right, because my left knee wasn't strong enough to pull me up, or lift my weight up when I was going up.

Claimant stated that his left knee just "gave away" and he fell to the ground. In the fall, he suffered multiple fractures in his left ankle and a fractured left wrist. Claimant underwent surgery to repair the fractures and reached MMI about 8 months after the accident with a 15% to 20% permanent impairment rating to the body as a whole.

In his order, the JCC found the first accident suffered while in the employ of appellant Custom to be compensable. The JCC denied claimant's request for wage loss benefits from 12/90 through 8/12/91 for lack of a causal connection between claimant's wage loss and the accident. The JCC further found that claimant's second accident suffered while in the employ of appellee Wal-Mart was the direct and proximate result of his first accident and knee injury, and that claimant's employment with Wal-Mart did not create any increased risk for claimant's knee to give way. Therefore, the JCC ordered the first employer, Custom, to reimburse Wal-Mart for all benefits paid by Wal-Mart after 9/20/91.

On appeal, Custom argues that the JCC erred in allocating liability for indemnity and medical benefits to Custom alone. ¹ In the cross appeal, claimant Bradshaw argues that the JCC erred in denying his claim for wage loss benefits.

Where ... there exists a controversy between two insurance carriers as to which one is liable for the claimant's benefits, the allocation of responsibility between the carriers is based upon the extent to which each accident contributed to the claimant's need for medical care and disability benefits. Sauer Indus. Contracting Inc. v. Ditch, 547 So.2d 276, 277 (Fla. 1st DCA 1989); Atkins Const. Co. v. Wilson, 509 So.2d 1185, 1187 (Fla. 1st DCA 1987); Section 440.42(3), Florida Statutes. As a general rule, a claimant's employment contributes to his injury when there is some causal connection between the injury and the employment, when the claimant's injury has its origin in some risk incidental to the employment, or when the injury flows from the employment as a natural consequence. Hillsborough County School Bd. v. Williams, 565 So.2d 852, 853 (Fla. 1st DCA 1990).

CNA Ins. Co. v. Kemper Ins. Co., 596 So.2d 81 (Fla. 1st DCA 1992).

CNA v. Kemper, and the cases cited therein require a causal connection between the claimant's employment and second industrial injury in order to justify apportionment of liability among carriers. For example, in Sauer v. Ditch, claimant first sustained a back injury while working with scaffolding and subsequently attained MMI. Claimant later suffered subsequent back injuries while moving a pump and carrying pipe for a second employer. In Sauer,...