Doric Food Co. v. Allen

• Decision Date: 13 May 1980
• Docket Number: No. QQ-345,QQ-345
• Citation: 383 So.2d 316
• Parties: DORIC FOOD COMPANY and Fireman's Fund Insurance Company, Appellant, v. Elza Rayford ALLEN, Appellee.
• Court: Florida District Court of Appeals

Page 316

383 So.2d 316

DORIC FOOD COMPANY and Fireman's Fund Insurance Company, Appellant, v. Elza Rayford ALLEN, Appellee.

No. QQ-345.

District Court of Appeal of Florida, First District.

May 13, 1980.

C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellant.

Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.

MILLS, Chief Judge.

Doric Food Company and Fireman's Fund Insurance Company appeal an order of the Judge of Industrial Claims rejecting their Martin v. Carpenter defense and awarding workers' compensation benefits to Elza Rayford Allen. We reverse.

Martin v. Carpenter, 132 So.2d 400 (Fla.1961), is the landmark case involving an employer-carrier's defense against an otherwise compensable injury on the ground that the employee fraudulently procured employment by misrepresenting her physical condition. In that case, the Supreme Court held that compensation would be precluded under the following conditions:

". . . if there is shown to be a causal relationship between the injury and the false representation and if it is shown that (1) the employee knew the representation to be false, (2) the employer relied on the false representation, and (3) such reliance resulted in consequent injury to the employer."

In the instant case, Allen admits that there were false representations and they were knowingly and intentionally made. He was untruthful on his employment application; his medical history questionnaire; and, initially, on deposition in this claim.

As for the employer's reliance on the false representation, the unrebutted testimony is that the woman who took Allen's application scheduled an appointment for a pre-employment physical examination for him based on the answers in the application. She testified that had Allen answered the questions concerning prior back injuries and prior compensable injuries honestly, she would not have scheduled the examination but would have referred the application to her supervisor. Also unrebutted was the testimony of the doctor who had examined Allen twice. He stated that he performed only a cursory examination based on the representations in the medical history questionnaire and, he asserted, if Allen had ever indicated a prior back injury, he would have performed a more thorough examination.

There was also testimony by the Doric supervisor, Robert E. Miller, that he would not have hired Allen if he had known of the prior back injury. The record reveals an attempt by Allen to rebut the supervisor's testimony with testimony by a rehabilitation counselor. That witness stated that while he was looking for employment for another client who had a back injury, he contacted Doric Food and talked with Miller about employment possibilities for his client. Miller told him that he had never hired anyone with a back injury; but since the counselor told him there was some program which would allow him to keep his workers compensation rates low even if he hired someone with a prior back injury, he was willing to discuss the employment possibilities for the rehabilitation counselor's client.

This testimony does not rebut Miller's contention that he never would have hired someone with a prior back injury under the circumstances at issue here. In fact, it underlines the policy reasons announced in the Martin v. Carpenter decision:

"First, this Court, and others, have in construing the Act determined that there is a presumption that the 'employer takes the employee as he finds him.' Davis v. Artley Const. Co., 1944, 154 Fla. 481, 18 So.2d 255, and Borden's Dairy v. Zanders, Fla.1949, 42 So.2d 539.

"Except as limited by Sec. 440.151(1)(b) and Sec. 440.02(19) F.S.A. this presumption makes the employer responsible for compensation benefits to an employee who at the...