Martin Co. v. Carpenter, 40075

Decision Date26 July 1961
Docket NumberNo. 40075,40075
Citation132 So.2d 400
PartiesMARTIN COMPANY and Continental Casualty Company, Petitioners, v. Drucella CARPENTER and Florida Industrial Commission, Respondents.
CourtFlorida Supreme Court

H. Russell Troutman of Akerman, Turnbull, Senterfitt & Eidson, Orlando, for petitioners.

Jack C. Inman of Berson, Barnes & Inman, Orlando, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

O'CONNELL, Justice.

In this petition for certiorari the employer and its carrier seek review of an order of the Full Industrial Commission which reversed in part and affirmed in part an order of the deputy commissioner in which he denied and dismissed the claim of respondent, Drucella Carpenter.

For some twenty years prior to the date of the alleged accidental injury involved in this cause, claimant had experienced pains in her back. She had on several occasions during those years sought medical treatment for her back condition.

In 1948 she was examined and advised to wear a brace for her back. In 1950 while she was employed in Indiana as a riveter, she suffered with her back and was treated therefor but continued that employment until 1953. Thereafter she worked for another employer doing 'bench work' in an industrial plant and again had trouble with her back. She then came to Florida and performed 'bench work', but because this job required standing and bending it became 'too much' for claimant to the point she 'couldn't take it.' That employer would not change her to other duties so she quit that job in April 1957.

On October 3, 1957 she went to work for The Martin Company, the employer here involved. She worked at a seated job until May 1958. During this period her back continued to bother her but she lost no time. In May 1958 she was changed from seated work to work at a table, or bench, about waist high. This employment required that claimant stand and also that she bend over the table. She did not protest the change in work assigned to her. She testified that her back began to feel worse, i. e. that the pains in her back became sharper and she had pain in her legs, about an hour after she began her new duties; that two days later she went to the first aid station of the employer, complained of her pains and was given some pills; that she continued working at these duties for about two weeks, at which time she asked to be returned to seated work, which was done.

At this time claimant consulted Dr. Newton C. McCullough, who diagnosed her condition as spondylolisthesis, a congenital condition of the lumbar spine in which there is lack of fusion in posterior parts of a vertebra with bone being replaced by fibrocartilage.

Claimant continued working at her bench and although she received treatment from Dr. McCullough and Dr. Joseph G. Matthews her condition did not improve. Eventually in August 1958, Dr. Matthews performed an operation on claimant, removing a 'ball' or mass of cartilage which had formed around one vertebra.

Claimant was given a 90 day leave of absence by the employer. Near the end of this period the employer advised claimant that she must either return to work or be terminated from her employment.

Claimant contacted her doctor who told her she could return to work, which she did. She was assigned duties requiring standing and bending and after two days she contacted her doctor, advising him that she was having leg and back pains. He ultimately advised claimant that she could return to work, but only to perform light assembly work without standing for long periods.

When claimant advised the employer of the restriction on the work she was permitted to perform she was finally told that the employer 'would have to terminate me unless I could do 100 percent of the jobs.'

Thereafter on September 8, 1959 claimant filed the claim for compensation and medical benefits here involved. Petitioners controverted the claim and a hearing was held thereon. The claimant testified and produced in her behalf Dr. Bright McConnell, who neither examined nor treated claimant but who did answer hypothetical questions propounded to him. The deputy also had before him the depositions and reports of Drs. McCullough and Matthews.

At this hearing the petitioners introduced in evidence a 'Physical examination Record' dated October 1, 1957. The first portion of this document consists of questions which were answered by the claimant. She then signed that portion of the form certifying that her answers were true. The record shows that when claimant sought employment by the employer she was required to complete this document and submit to what appears to be a cursory physical examination as a condition precedent to employment.

The first question on the form asked if the applicant had ever been subject to various diseases and infirmatives including 'Back injury or Backache.' To this question claimant answered 'No.'

At the conclusion of the hearing the deputy commissioner stated that he denied the claim on two points: (1) the falsification by the claimant of the 'Physical Examination Record' as such pertained to back injury or backache and (2) the claimant suffered no accident.

In his order which followed the hearing, the deputy found the facts to be substantially as set forth above. Among other things he also found, based upon the testimony of Dr. McConnell given in response to a hypothetical question, that 'the claimant's pre-existing spondylolisthesis was aggravated by her employment with The Martin Company.' He stated that in spite of his finding of aggravation, the work activities in which she was engaged leading to the onset of more severe pain in her back and legs 'did not constitute an accident within the meaning contemplated for this term under the Florida Workmen's Compensation law.' This statement was followed by 'Specifically, I do not consider the activities performed during the period of time on the standing job to have been anything to which the public generally is not ordinarily exposed, and that the fact that she continued on with this work, even after the onset of the increased pain, did not constitute an accident under the * * *' case of Firestone Tire & Rubber Company v. Hudson, Fla.App.1959, 112 So.2d 29.

In his order the deputy stated that the falsification of the Physical Examination Record was sufficient to overcome the presumption that the employer takes an employee as he finds him.

The deputy thereupon denied and dismissed the claim.

Claimant made application to the Full Commission for review of the deputy's order and the employer-carrier made a cross application for review directed only to the deputy's finding that the claimant's preexisting condition was aggravated by her employment.

The Full Commission entered its order in which it found that the deputy was correct in finding that claimant's pre-existing condition was aggravated by her employment but reversed the deputy on his finding that this aggravation did not constitute an accident, holding that it did. The Full Commission remanded the cause to the deputy with directions to determine the degree and amount of aggravation

This petition for certiorari followed.

The employer and carrier assert three questions.

First, they contend that the deputy was correct and the Full Commission in error in reversing the deputy's finding that claimant suffered no accident.

Second, they contend that the claimant is not entitled to workmen's compensation benefits because she misled the employer on a material matter which had a causal relationship to her alleged injury.

Third, they contend that the deputy erred in finding that claimant's pre-existing condition was aggravated by her employment and that the Full Commission likewise erred in sustaining this finding of the deputy.

We shall consider these points in order.

There is no evidence in the record to indicate that the claimant in any way suffered 'an unexpected or unusual event or result, happening suddenly' as accident is defined in F.S. § 440.02(19), F.S.A.

Standing and bending over a work bench at a 45 degree angle, as claimant testified she was required to do for an hour before the increased pain in her back and legs began, cannot be classified as an unusual event. Nor did any event occur or the pain begin or happen suddenly. It is not contended that the infirmity of the back, which is the basis of the claimant's pain, happened suddenly. She had suffered with it for more than 20 years.

Nor can it be argued that the pain which claimant suffered was an unexpected or unusual result, happening suddenly. Claimant from many years experience knew that such activity would produce the identical result which her employment brought about. She had been forced to quit her previous employment for such reason.

The deputy made no finding that the claimant suffered any sprain or for that matter any unexpected or unusual event or result, happening suddenly. Claimant suffered no fall, misstep, sudden twisting or wrenching of her back. There was no 'breaking, herniating, or letting go, with an obvious sudden mechanical or structural change in the body' as accident is defined in 1 Larson on Workmen's Compensation, Sec. 38.20.

In his order the deputy relied upon the law announced in the Firestone case, supra, a decision which we hereby approve. We think he was correct in doing so and in holding as he did that aggravation in itself will not in a case such as this furnish the necessary 'unexpected or unusual event or result, happening suddenly.'

The Full Commission in its order distinguished the Firestone case, supra, from the case at bar on the theory that in that case the claimant continued at the usual employment after warning signs of his heart condition, while in the instant case the standing and bending job was not the usual work of the claimant. We think this difference immaterial to the basic question, i. e. whether there was an unexpected or...

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