Dean Jaye Const. v. Johnson By and Through Johnson

• Citation: 486 So.2d 664,11 Fla. L. Weekly 868
• Decision Date: 10 April 1986
• Docket Number: No. BG-244,BG-244
• Parties: 11 Fla. L. Weekly 868 DEAN JAYE CONSTRUCTION and Aetna Life and Casualty Company, Appellants, v. Elmer JOHNSON, deceased, By and Through Madelyn JOHNSON, his wife, Appellee.
• Court: Court of Appeal of Florida (US)

Page 664

486 So.2d 664

11 Fla. L. Weekly 868

DEAN JAYE CONSTRUCTION and Aetna Life and Casualty Company, Appellants, v. Elmer JOHNSON, deceased, By and Through Madelyn JOHNSON, his wife, Appellee.

No. BG-244.

District Court of Appeal of Florida,

First District.

April 10, 1986.

Rehearing Denied May 8, 1986.

Mark E. Hungate, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellants.

Anthony J. Diamond, of Diamond & Diamond, Fort Myers, for appellee.

PER CURIAM.

This cause is before us on appeal from a workers' compensation order awarding deceased temporary total disability benefits and statutory survivor's benefits. The issues presented are: (1) whether there is competent, substantial evidence to support the deputy commissioner's finding that exposure to urethane fumes was a contributing cause of deceased's October 23, 1980, heart attack; and (2) whether there is competent, substantial evidence to support the deputy's award of death benefits as a result of deceased's second heart attack four years after the first heart attack.

Deceased, a 58-year-old man with no history of cardiovascular difficulty, suffered a heart attack on October 23, 1980, while doing carpentry work at a construction site of a tourist attraction, "Treasures Under the Sea." Four years later, after reaching maximum medical improvement but never returning to work because he was unable, the deceased suffered another heart attack and died. Deceased had been working for three days prior to the initial heart attack in a room adjacent to one where workers were spraying urethane foam to create an undersea exhibit. Initially, the workers in the adjacent room were removed when the spraying began. Subsequently, when the spraying resumed, the workers were not told to leave, and the deceased remained. Ventilation was poor in both windowless rooms, and an exhaust fan was placed in the room where the spraying was done. The rooms were connected by double doors, which were disputed to be closed at all times. Over the three days of spraying, the deceased became ill, dizzy, and nauseous. No other workers suffered any ill effects. Dr. Danzig testified that the exposure to urethane fumes "certainly could have precipitated a myocardial infarction." However, Dr. Grau testified that the fumes had "no relationship at all" to the heart attack. No testimony was given on the cause of the second heart attack resulting in deceased's demise. The deputy found that "[t]he greater weight of the evidence suggests that claimant's exposure was, in some way, a contributing cause to his myocardial infarction," and he awarded deceased's spouse temporary total disability benefits from the date of collapse to the date of death and statutory survivor's benefits.

In accepting Dr. Danzig's testimony over Dr. Grau's, the deputy stated that "Dr. Grau was largely unable to render an opinion." Although Dr. Grau was unequivocal in his deposition testimony with regard to the cause of the heart attack, he was unable to opine whether the exposure affected the heart condition or whether the work deceased was doing was a precipitating or aggravating factor. Accordingly, the deputy's interpretation of Dr. Grau's testimony is supported and should not be disturbed.

Once competent, substantial evidence is established to support a finding of causation, a theory of compensability must issue under which the benefits can be conferred. The parties agreed that this is not a Victor Wine and Liquor v. Beasley, 141 So.2d 581 (Fla.1962), heart attack case, in which the claimant must prove the heart attack resulted from some unusual strain or overexertion not routine to the employment. Rather, this case is more akin to the line of cases in which an identifiable accident actually occurred, resulting in a heart attack. Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973); Wallen v. Salon of Music,...