Kulick v. Entertainment Publications, Inc.

• Decision Date: 26 September 1995
• Docket Number: No. 93-3529,93-3529
• Citation: 667 So.2d 303
• Parties: 20 Fla. L. Weekly D2224 Andrew KULICK, Appellant, v. ENTERTAINMENT PUBLICATIONS, INC. and CNA Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 303

667 So.2d 303

20 Fla. L. Weekly D2224

Andrew KULICK, Appellant, v. ENTERTAINMENT PUBLICATIONS, INC. and CNA Insurance Company, Appellees.

No. 93-3529.

District Court of Appeal of Florida First District.

Sept. 26, 1995.

An appeal from an order of the Judge of Compensation Claims; Kathleen R. Hudson, Judge.

Brian J. Anthony, of Hughes, Rardon & Rodriquez, Tampa, for Appellant.

Joseph P. Ludovici, of Fox & Grove, St. Petersburg, for Appellees.

CORRECTED OPINION

JOANOS, Judge.

The claimant in this workers' compensation case appeals an order of the judge of compensation claims (JCC), denying and dismissing with prejudice the claim for workers' compensation benefits. The dismissal with prejudice was predicated on the JCC's finding that claimant failed to file the claim within two years of the date of accident.

On June 19, 1992, claimant filed a claim for compensability of his left knee injury, seeking compensation benefits from June 1, 1992, and continuing, and medical treatment for repetitive injury to claimant's left knee occurring during more than ten years of employment with the employer. Claimant's job duties as a sales representative involved driving many miles each year. From 1981 until 1988, claimant drove automobiles equipped with a manual transmission. In 1988, he purchased an automobile equipped with an automatic transmission.

The record reflects that claimant's introduction to knee problems came relatively early in his life. In 1967, the then fifteen-year-old claimant underwent right knee surgery for a high school football injury. In 1983, Dr. Miller, a Minneapolis orthopedic surgeon, performed arthroscopy with debridement to claimant's left knee. In 1988, Dr. Miller performed surgery on both of claimant's knees. Claimant remained under Dr. Miller's care until 1989, for what appears to have been ongoing or repeat knee problems. In 1989, claimant moved to Florida. In 1991, Dr. Oliver, a specialist in orthopedic surgery and sports medicine, began treating claimant's knee problems. Dr. Oliver performed surgery on claimant's right knee in 1991.

Claimant sought workers' compensation benefits only with respect to his left knee. In April 1992, he wrote to Dr. Miller in Minneapolis, requesting a medical opinion concerning his left knee condition. ¹ Dr. Miller, who had treated claimant for knee problems over a ten-year period, attributed his left knee problem to years of driving involving the repetitive use of a clutch. He opined that claimant's right knee symptoms were "simply an extension of his past right knee pathology," which originated with the high school football injury.

On December 5, 1992, claimant underwent an independent medical examination performed by Dr. Callahan, an orthopedic surgeon. In Dr. Callahan's view, the action of driving with a clutch would make claimant's left knee symptomatic and hasten the changes, but it would not cause them. Dr. Callahan opined that the "deleterious part of that activity was the prolonged sitting. That increases patellar femoral contact forces."

The JCC viewed claimant's letter to Dr. Miller as an indication that claimant possessed knowledge in 1988 as to the cause of his left knee condition, and had the obligation to report the injury at that time. The JCC reasoned that claimant made the connection between his use of a manual transmission and the increased erosion in his left knee cap in 1988, when he underwent a surgical procedure on his left knee, then switched back to an automatic transmission. Reasoning from this sequence of events, the JCC determined that 1988 was the effective accident date, making the claim filed in 1992 time barred, and denied and dismissed the claim with prejudice. The order on appeal made no mention of Dr. Callahan's opinion.

To recover under a repetitive trauma theory, a claimant must show (1) prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a pre-existing condition, and (3) that he has been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must demonstrate a series of occurrences, the cumulative effect of which is injury. Alvarez v. City of Tampa, 647 So.2d 301, 303 (Fla. 1st...