Cycenas v. Sarasota Coca Cola Bottling Co., AP-285

• Decision Date: 08 November 1983
• Docket Number: No. AP-285,AP-285
• Citation: 440 So.2d 39
• Parties: Edward CYCENAS, Appellant, v. SARASOTA COCA COLA BOTTLING COMPANY and Fireman's Fund Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 39

440 So.2d 39

Edward CYCENAS, Appellant, v. SARASOTA COCA COLA BOTTLING COMPANY and Fireman's Fund

Insurance Company, Appellees.

No. AP-285.

District Court of Appeal of Florida,

First District.

Nov. 8, 1983.

Rehearing Denied Nov. 29, 1983.

John H. Thompson, IV, of Earle & Thompson, St. Petersburg, for appellant.

John J. O'Riorden of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.

JOANOS, Judge.

The deputy commissioner erroneously determined that a causal relationship was shown between claimant's misrepresentation on his employment application and his subsequent work related injury and that the employer/carrier's defense pursuant to Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961), was established. Therefore we reverse.

In order for the Martin Co. v. Carpenter defense to apply there must be a medical relationship between the present injury and the misrepresented physical condition resulting from an undisclosed prior injury, see Higgins v. Trigil Repair, Inc., 436 So.2d 222 (Fla. 1st DCA 1983). There is no competent substantial evidence to support the deputy commissioner's conclusion that such a causal relationship existed. That both injuries involved claimant's back is not sufficient to show causal relationship, and the medical testimony does not indicate a causal relationship.

Before he began working for employer on June 30, 1981, claimant worked eight to ten hours a day as a backhoe operator. In May, 1981, he began developing a backache around noon each day. He reported to a hospital emergency room physician that he thought he had lifted a ramp incorrectly and caused the problem. The emergency room physician diagnosed muscle spasm and gave claimant some medication and a back supporter to wear. After missing two days of work, claimant returned to his job and worked until he was laid off on June 25, 1981. Claimant said a week after he went to the emergency room the back pain was gone and he had no more problems at work.

Claimant applied for work with employer on June 26, 1981. The job he sought was that of a route salesman, which involves transporting bottles of the product into buildings, removing empty bottles, and driving a truck. On the application form claimant indicated he had never worn a back brace and never had back trouble or a back injury or ailment. After a physical examination, during which the examining physician was unaware of claimant's previous back trouble, claimant went to work for employer. On September 10, 1981, claimant was injured when he slipped and fell while climbing out of his truck to make a delivery. Claimant continued to work until September 16, when he could no longer bend over due to severe pain in his right hip and leg. The company physician diagnosed a bruise. Claimant still continued to work, but his back problem became worse. On his own he went to a chiropracter who treated him and sent him to Dr. Lascelle, an orthopedic physician. On October 13, 1981, Dr. Lascelle diagnosed a herniated disc as a result of the September 10, 1981 accident, and eventually performed surgery. In his deposition Dr. Lascelle said he could not say the problem he treated claimant for surgically was related to claimant's previous back problem. He noted that the physician who treated claimant for the problem he had in May, 1981, had not mentioned any neurological symptoms in her report. The company physician said had he known of claimant's previous problem his opinion of whether claimant was able...