House v. Preferred Auto Leasing, A-C

• Citation: 10 Fla. L. Weekly 2290,476 So.2d 1337
• Decision Date: 02 October 1985
• Docket Number: No. BD-185,A-C,BD-185
• Parties: 10 Fla. L. Weekly 2290 Charles HOUSE, Appellant, v. PREFERRED AUTO LEASING & Lynn Underwriting Co. & General Rent-ar & American Mutual Insurance Co., Appellees.
• Court: Court of Appeal of Florida (US)

Page 1337

476 So.2d 1337

10 Fla. L. Weekly 2290

Charles HOUSE, Appellant, v. PREFERRED AUTO LEASING & Lynn Underwriting Co. & General Rent-A-Car & American Mutual Insurance Co., Appellees.

No. BD-185.

District Court of Appeal of Florida,

First District.

Oct. 2, 1985.

Rehearing Denied Nov. 7, 1985.

Joseph V. Barrs and Vicki L. Stolberg of Barrs, Williamson & Levens, Tampa, for appellant.

Kenneth L. Olsen of Miller, McKendree, Somers & Olsen, Tampa, for Preferred Auto Leasing and Lynn Underwriting Co.

Stephen L. Rosen and Scott B. Gorman of Morris & Rosen, P.A., Tampa, for General Rent-A-Car and American Mut. Ins. Co.

WIGGINTON, Judge.

Claimant brings this appeal from the deputy commissioner's order denying his claim for compensation benefits and medical treatment. The potential responsibility for payment of benefits fell to two employers, Preferred Auto Leasing and General Rent-A-Car. In his order, though, the deputy commissioner found neither employer to be responsible. We reverse that finding.

On November 1, 1978, while in the course of his employment with Preferred Auto Leasing, claimant suffered a compensable injury to his lower back. He came under the care of Dr. Robert Yamokoski who diagnosed a lumbosacral strain. Claimant reached maximum medical improvement on January 15, 1979, and was discharged from Dr. Yamokoski's care with a "resolved lumbar strain."

Claimant again sought treatment from Dr. Yamokoski on July 16, 1981, complaining that he still suffered back pain accompanied with severe pain radiating down his right leg. He mentioned no new accidents. Dr. Yamokoski arrived at an "unconfirmed diagnosis" of a probable lumbar disc problem causing sciatic irritation. X-rays revealed some narrowing of the L-5 and S-1 disc space.

Within one month of that visit, and without Dr. Yamokoski's knowledge, claimant sought treatment from the Palma Ceia Medical Clinic in Tampa where he had received treatment sporadically over the years, beginning in 1971 and 1972 for minor back injuries. The records from that clinic indicate a history recorded on August 14, 1981 of blackouts, fainting, and falls that claimant had been experiencing during the preceding two months. The only reference to claimant's employment with Preferred Auto Leasing was the comment, "Likes his work."

Also during this period and extending through 1982, claimant was experiencing marital problems culminating in a divorce. On February 12, 1982, following his divorce, claimant was hospitalized for psychiatric illness related to depression, being discharged on February 24. A history of no serious medical illnesses was recorded.

Claimant began working as a part-time mechanic for General Rent-A-Car in 1981, eventually leaving the employ of Preferred Auto Leasing altogether. He saw Dr. Yamokoski on March 1, 1983, complaining of low back pain and numbness in his right leg, the latter symptom having had its onset in 1980 or 1981. The doctor diagnosed claimant's condition as possible nerve root irritation on his right side emanating from a disc. Claimant later testified that the numbness had earlier caused him to fall upon exiting his automobile.

On March 26, 1983, during the course of his employment with General Rent-A-Car, upon alighting from a car while holding a tire on his shoulder, claimant's right leg collapsed causing him again to fall and to suffer injuries to his shoulder, wrist, and back. Claimant once more came under the authorized care of Dr. Yamokoski and received treatment until August of 1983, at which time the doctor was deauthorized by Preferred Auto Leasing. During an examination on July 18, Dr. Yamokoski diagnosed claimant's condition as being a possible lumbar disc protrusion or herniation. On deposition, however, he could not determine which of claimant's symptoms flowed from the 1978 compensable accident and which flowed from the 1983 accident, and was unsure of whether the first injury was the total cause of the March, 1983 fall.

Claimant has not returned to work since the March 26, 1983 accident.

Following a hearing on a claim for benefits, the deputy commissioner entered an order dealing with the issue of the responsibility of each employer separately. As to General Rent-A-Car, the second employer, the deputy denied the claim on the ground that claimant's fall "was idiopathic" and did not arise out of his employment. Specifically, the deputy found that "[n]o evidence was presented to show that the employment in any way created a greater hazard to the Claimant or that his injury in any way arose out of the employment. The fall was caused by a condition purely personal to the Claimant; his bad back and weak right leg[.]" We disagree with that finding and hold that the deputy improperly applied the rule of law relating to idiopathic conditions to the facts of this case.

The claim against General Rent-A-Car is controlled by Southern Bell Telephone and Telegraph Company v. McCook, 355 So.2d 1166, 1168 (Fla.1977), holding that when a claimant suffers from an idiopathic, or preexisting, condition which results in injury, the injury is compensable only if the claimant can show that it "arose out of" the employment by demonstrating that the employment in some way contributed to the risk or...