Exxon Co. v. Alexis, 52556

• Citation: 370 So.2d 1128
• Decision Date: 07 December 1978
• Docket Number: No. 52556,52556
• Parties: EXXON COMPANY, U. S. A., Petitioner, v. Paul ALEXIS and Industrial Relations Commission, Respondents.
• Court: United States State Supreme Court of Florida

Page 1128

370 So.2d 1128

EXXON COMPANY, U. S. A., Petitioner, v. Paul ALEXIS and Industrial Relations Commission, Respondents.

No. 52556.

Supreme Court of Florida.

Dec. 7, 1978.

Barry A. Pemsler, of Jabara & Richard, Coral Gables, for petitioner.

John G. Tomlinson, Jr., of Williams, Tomlinson & duFresne, Coral Gables, for respondents.

SUNDBERG, Justice.

By petition for writ of certiorari we are asked to review an order of the Industrial Relations Commission affirming an order of the Judge of Industrial Claims which found, Inter alia, that respondent/claimant sustained a forty percent loss of wage-earning capacity, despite claimant's failure to attempt to obtain employment after having reached maximum medical improvement. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27, Florida Statutes (1975). In accordance with Florida Appellate Rule 3.10 e. we have dispensed with oral argument.

The claimant, Paul Alexis, was employed by petitioner, Exxon Company, U.S.A., as an automobile mechanic. On May 8, 1974, during the course and in the scope of his employment, claimant suffered injuries when a tire rack collapsed. Petitioner accepted the accident as compensable, furnishing medical treatment and temporary total disability compensation benefits for the period from May 9, 1974, through November 13, 1974.

The claimant was initially treated by Dr. Sarnow on May 10, 1974, for a lumbo sacral sprain and aggravation and acceleration of a preexisting degenerative spondylosis and dextroscoliosis. Dr. Sarnow admitted claimant to the hospital where he remained from May 11, 1974 to May 15, 1974. Following his discharge from this initial hospitalization, claimant was reemployed by petitioner in a supervisory position. After a short period, however, petitioner terminated claimant's employment. Claimant continued under the sole care of Dr. Sarnow until July 9, 1974, approximately two months after the accident. On that date, Dr. Sarnow diagnosed a right inguinal hernia which, he opined, was causally related to the accident. Dr. Sarnow immediately referred claimant to Drs. Cantwell and Grovestein for treatment of the hernia. On August 28, 1974, Dr. Sarnow concluded that claimant had reached maximum medical improvement with regard to the lumbo sacral sprain and aggravation of the preexisting injuries, and discharged the patient from treatment. However, from October 3, 1974, to October 9, 1974, claimant was again hospitalized and surgery was performed for repair of the right inguinal hernia by the referral physician, Dr. Cantwell.

Claimant thereafter filed a claim for, Inter alia : (1) temporary total benefits from May 8, 1974, the date of the accident, to the date of maximum medical improvement; (2) six weeks statutory hernia benefits pursuant to Section 440.15(6), Florida Statutes (1973); (3) a permanent partial disability of the body as a whole rating, based upon a permanent physical impairment and/or diminution in wage-earning capacity; and (4) payment of outstanding medical and hospital bills incurred for surgical repair of his right inguinal hernia. In response to this claim petitioner posited, in relevant part, that: (1) claimant had reached maximum medical improvement on August 28, 1974, and, therefore, an overpayment of temporary total disability compensation benefits, which were paid until November 13, 1974, had occurred; (2) claimant's hernia was not causally related to the accident of May 8, 1974; (3) claimant had not sustained permanent physical impairment or a loss of wage-earning capacity as a result of the accident; (4) the outstanding medical bills were not authorized pursuant to Section 440.13, Florida Statutes (1973).

Pertinent to our review are the following portions of the order of the Judge of Industrial Claims:

6. I find, based upon the testimony of Dr. Melvin Sarnow, the claimant's attending and treating physician, that as a result of his industrial injury of May 8, 1974, the claimant suffered a lumbo sacral sprain; an aggravation and acceleration of a pre-existing degenerative spondylosis and dextroscoliosis, an abnormal rotation of the lumbar spine; and a right inguinal hernia. I find that as a result of the acute low back injury, as well as the aggravation and acceleration of the pre-existing diseases of the lumbar spine, that the claimant was temporarily totally disabled from May 9, 1974, to August 28, 1974, the date I find he reached maximum medical improvement, pursuant to the testimony of Dr. Melvin Sarnow. Since the claimant was paid temporary total disability benefits through November 13, 1974, pursuant to the stipulation entered into between the parties, I find that he is not entitled to additional benefits for this class of disability.

7. I find that on October 3, 1975, the claimant underwent surgical repair of a right inguinal hernia at Miami Dade General Hospital by Dr. William H. Cantwell. I find, based upon the testimony of Dr. Melvin Sarnow, the claimant's authorized attending and treating physician, that the hernia necessitating this hospitalization and surgical repair was causally related to and a direct result of the claimant's industrial injury of May 8, 1974. Accordingly, I find that the employer is responsible for payment of the hospital and medical bills occasioned by this surgery, including the charges for the claimant's confinement at Miami Dade General Hospital from October 4, 1974 to October 9, 1974; the surgical bill of Dr. William Cantwell; and the bill of the anesthetist, Dr. Larry Morehead. In making my findings of fact in this regard I am not unmindful of the fact that the claimant's hernia was not clinically demonstrated until July 9, 1974, approximately two months after the accident. Although the statute requires the overt manifestations of a hernia to appear suddenly, I find, based upon the explanation and testimony of Dr. Sarnow, that the presence of the claimant's hernia was masked by the severity of his low back pain and it was not until this condition started to improve, following two months of intensive therapy and treatment, that the claimant was able for the first time to focus his attention to a localized area of pain in his right inguinal region. It was at this point that clinical examination revealed the presence of the hernia and Dr. Sarnow referred him to Drs. Grovestein and Cantwell for the necessary surgical repair. Accordingly, I find that the claimant suffered a compensable hernia on May 8, 1974, and is entitled to payment of hospital and medical bills incurred for treatment of the hernia plus six weeks specific compensation benefits. I find, however, that since the employer paid temporary total disability benefits past the date of maximum medical improvement that they are entitled to a credit for this overpayment against statutory hernia benefits due and owing the claimant.

8. I find, based upon the testimony of Dr. Melvin Sarnow, that as a result of the acute lumbo sacral sprain and aggravation and acceleration of the pre-existing degenerative spondylosis and dextroscoliosis suffered by the claimant in his industrial accident, that he reached maximum medical improvement on August 28, 1974, suffering a 10%...