INA Life Ins. Co. of New York v. Davis

• Decision Date: 07 October 1981
• Docket Number: No. 80-746,80-746
• Citation: 404 So.2d 397
• Parties: INA LIFE INSURANCE COMPANY OF NEW YORK, an insurance company authorized to do and doing business in the State of Florida, Appellant, v. Leona DAVIS, Appellee.
• Court: Florida District Court of Appeals

Page 397

404 So.2d 397

INA LIFE INSURANCE COMPANY OF NEW YORK, an insurance company authorized to do and doing business in the State of Florida, Appellant, v. Leona DAVIS, Appellee.

No. 80-746.

District Court of Appeal of Florida, Fifth District.

Oct. 7, 1981.

Monroe E. McDonald, of Sanders, McEwan, Mims & McDonald, Orlando, for appellant.

C. Clyde Atkins, Jr., of Musleh, Bond, Arnett, Atkins & Krehl, and Seymour H. Rowland, Jr., Ocala, for appellee.

SHARP, Judge.

INA Life Insurance Company of New York appeals from a final judgment entered by the lower court after a non-jury trial. The court held that the appellee, Davis, was entitled to recover benefits under INA's group accident insurance policy because she was permanently and totally disabled continuously following her injury, and thereafter for a period of twelve months. We agree with the lower court's findings under the circumstances of this case, and its judgment is affirmed.

The INA policy "Coverage B" for permanent and total disability for one year required that the disability result from a work-related injury and that it must "commence" within thirty days after the accident. It defined "permanent and total disability" as "the insured's complete inability to engage in any occupation or employment for which the insured is fitted by reason of education, training, or experience...." The issue in this case is whether Davis' six weeks effort to return to work following her injury broke the continuity of the required one year of disability under the policy or violated the requirement that the disability begin within thirty days after the accident. The facts in this case were not in substantial dispute.

Davis had been employed in banking as a clerk for twelve years, and at the time of her injury, she had worked as a credit clerk for three years at the Barnett Bank in Ocala. The job required her to handle books weighing up to twenty pounds, and to stoop, bend and lift files. Shortly before her accident she received a raise and a work evaluation which described her as being "good", "dependable," and "interested in her work." On April 26, 1977, Davis was helping another employee move a heavy tray. While bending, Davis caught the tray as it was falling and she immediately felt a burning pain in her lower back. She reported the injury to her Bank supervisors.

Over the next four months Davis, in an effort to obtain relief from the persistent back pain she experienced, consulted at least four doctors, and was referred to others. Her general practitioner, Dr. Parrish, diagnosed her problem as "severe back strain," and he testified she was unable to perform any work of any kind when he saw her on April 28, 1977 and May 6, 1977. He referred Davis to an orthopedic surgeon, Dr. Marsh, and did not treat her thereafter. In response to a question by appellant, Dr. Parrish testified he did not think Davis was totally disabled from doing any type of work. He based that belief on his observation that she returned to a less demanding job at the bank for a period of approximately six weeks beginning in late May.

Dr. Marsh testified that Davis was totally disabled from her injury when he saw her on May 11, 1977. At that time he thought she might improve enough to go back to work "in a week or so," but when he saw her a week later, he speculated she might have a herniated disc, which was gradually progressing, and which would not show up on her X-rays.

At the end of May Davis returned to work at the Bank. She had taken all of her sick leave and vacation time, and was told the Bank would not keep her job open much longer if she did not return. Davis was the primary wage earner in her family, she had always enjoyed working, and she was not feeling "too bad" at that point. She was put to work in the Collection Department. Her duties included answering the phone and looking up information in files. Other employees helped by bringing her the files to work on.

Although the physical demands of her new position in the Collection Department were minimized, Davis continued to suffer constant pain. She took pain medication, reclined in the employee lounge on her breaks, and commencing in mid-June, she saw an osteopathic physician, Dr. Wilson, every three days for treatments. Dr. Wilson testified her condition did not improve through mid- July. She was unable to climb stairs and drive a car because she was unable to use her right leg properly. In July Davis began missing days and half days at work because of her condition. In mid-July the Bank terminated her because her supervisors felt she was not able to do full-time productive work in the Collection Department.

On July 18, 1977, Davis consulted Dr. Faris, an orthopedic surgeon. He testified she was in "acute distress" and was experiencing muscle spasms. On July 20, 1977, tests revealed for the first time that Davis had a herniated lumbar disc. Surgery was performed in August. Following her surgery INA stipulated that Davis was totally and permanently disabled, within the meaning of the insurance policy. Dr. Faris testified that from July 18, 1977, Davis was continuously unable to work at any job because of the back injury.

In reviewing the lower court's determination that Davis was "continuously," and "permanently and totally disabled" after her injury, we must ascertain whether or not there was any competent and substantial evidence before the trial court to support that determination; ¹ and taking that view, construe the language of the policy in this case. ²

The kind of disability required for coverage under the INA policy had to prevent Davis from engaging in "any occupation or employment" for which she was "fitted by reason of her education, training, or...