Food Machinery Corp. v. Shook, AK-411

• Citation: 425 So.2d 163
• Decision Date: 07 January 1983
• Docket Number: No. AK-411,AK-411
• Parties: FOOD MACHINERY CORPORATION and National Union Life Insurance, Appellants, v. Delmis SHOOK, Appellee.
• Court: Court of Appeal of Florida (US)

Page 163

425 So.2d 163

FOOD MACHINERY CORPORATION and National Union Life Insurance, Appellants, v. Delmis SHOOK, Appellee.

No. AK-411.

District Court of Appeal of Florida,

First District.

Jan. 7, 1983.

Rehearing Denied Feb. 9, 1983.

Bernard J. Zimmerman and Michael M. O'Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.

Richard R. Roach, Jr., of Woods, Murray & Roach, P.A., and Lex Taylor, Lakeland, for appellee.

LARRY G. SMITH, Judge.

The employer/carrier cites several alleged errors in the deputy commissioner's award of permanent partial disability for claimant's noise-produced hearing loss. We affirm.

The evidence was sufficient to meet the three-pronged test of Festa v. Teleflex Inc., 382 So.2d 122 (Fla. 1st DCA 1980). ¹ First, the claimant worked for twenty-three years in a one-room, seven hundred foot long machinery-filled manufacturing plant. This was prolonged exposure. Secondly, Dr. Barranco, an eye, ear, nose and throat specialist, found from tests he performed that claimant had nerve damage resulting in approximately 36.2 percent hearing loss in both ears, a significant portion of which was due to long term noise exposure. In addition, the claimant established that before his work with Food Machinery Corporation, the employer, he was not exposed to any unusual or excessive noise trauma in his work, and both claimant and his wife verified that he was exposed to no unusual or excessive noise trauma during his off-hours. ² Thus causal relationship was established. Thirdly, the building where claimant worked contained, among other things, ten-foot and twenty-foot shears used to cut thick steel plates. When these shears operated, the whole building shook. Claimant's work consisted of building forms for concrete. He spent all day pounding steel sheets with a ten-pound sledge. In his immediate area, in the center of the building, were fifteen to twenty welding machines and twenty air grinders. The workers welded seams on the steel forms, then turned the sheets over to grind the welds smooth. There were also gasoline-powered forklifts operating in the building. Claimant worked on structural assembly for about twenty-one years. During his last two years, he assembled popsickle machines made of stainless steel. The claimant testified that it was the noisiest place he had ever seen in his life. ³ Thus, exposure to a noise hazard greater than that to which the general public is exposed was established.

We conclude that causal relation was established by "clear evidence," as mandated by Harris v. Joseph's of Greater Miami, 122 So.2d 561, 562 (Fla.1960). Here there was medical evidence, based upon tests, that the claimant's hearing loss was due to noise trauma. ⁴ The fact that Dr. Barranco could not specify the specific incident or type of noise which caused the claimant's condition is immaterial. ⁵ The "logical cause" doctrine, which is generally applicable with respect to other types of injuries, is applicable here. As to "logical cause," generally, see Fisher v. Carroll Daniel Fisher Construction Co., 212 So.2d 289 (Fla.1968); Logan v. Poe's Hardware & Rentals, 381 So.2d 1170 (Fla. 1st DCA 1980); and see, also, Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981), which impliedly, though not expressly, relied upon the logical cause doctrine to establish causation in an exposure case. ⁶

The E/C challenge the deputy commissioner's finding that the absence of noise level tests is not fatal to the claimant's case. The E/C contend, correctly, that the burden of proof rests upon the claimant to come forward with noise level tests, if such evidence is required to prove his claim. We agree with the E/C's position with respect to the burden of proof, but we do not agree that the deputy commissioner improperly shifted this burden. First, the E/C have not provided us with any legal authority to the effect that proof of excessive noise levels can be made only by scientific tests. The claimant's description of the plant's machinery and operations "leaves no doubt," according to the deputy commissioner's finding, that the noise factor in the claimant's work place exceeded that to which the general public is exposed. While the subject of noise levels would undoubtedly be an appropriate one for expert testimony, we are not convinced that it is one that necessarily requires expert testimony. See, Law Revision Council Note--1976, Florida Evidence Code, Section 90.702, Florida Statutes Annotated, Vol. 6C, page 195: "If the issue involves a matter of common knowledge about which the ordinary layman would be capable of forming a correct judgment, expert testimony is not admissible. If the triers of fact have a general knowledge of a matter, but an expert's testimony would aid their understanding of the issue, it would be admissible." Secondly, we note that the E/C presented no evidence to refute the claimant's testimony on this issue. Accordingly, the determination of whether or not the noise level to which claimant was subjected exceeded that to which the general public is exposed was a matter within the authority of the deputy commissioner to decide; based upon all the evidence.

The E/C next contend that the claim for benefits was untimely because the claimant failed to file his claim within the two-year period prescribed by Section 440.19, Florida Statutes. The evidence on this issue was somewhat conflicting, and the resolution of those conflicts was a matter for the deputy commissioner. Dr. Barranco first saw the claimant on June 1, 1979. The claimant's original claim was filed on April 22, 1981, listing the date of accident as "NA." Although it appears that an accident date of "1-17-79" was "penciled in" on this form, it was denied that this date was inserted by the claimant, or his attorney. Claimant's attorney filed a renewal of this claim on August 31, 1981, listing an accident date of June 1, 1979. In addition to this irregularity, it appears that a complete diagnosis of claimant's condition was delayed by complications resulting from his Meniere's disease. ⁷ The deputy commissioner found that it was June 1, 1979 before the claimant reached a...