Massie v. University of Florida, BN-98

• Decision Date: 29 June 1990
• Docket Number: No. BN-98,BN-98
• Citation: 570 So.2d 963
• Parties: 64 Ed. Law Rep. 952, 15 Fla. L. Weekly D1726, 15 Fla. L. Weekly D2436 Emmett H. MASSIE, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management, Appellees.
• Court: Florida District Court of Appeals

Page 963

570 So.2d 963

64 Ed. Law Rep. 952, 15 Fla. L. Weekly D1726,

15 Fla. L. Weekly D2436

Emmett H. MASSIE, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management, Appellees.

No. BN-98.

District Court of Appeal of Florida First District.

June 29, 1990.

On Denial of Rehearing Sept. 27, 1990.

Terence J. Kann, Jacksonville, for appellant.

James E. Clayton, of Clayton, Johnston, Quincey & Ireland, Gainesville, for appellees.

PER CURIAM.

The original opinion in this cause was withdrawn on the court's own motion upon the vote of a majority of the active members of the court to consider the case en banc pursuant to rule 9.331, Florida Rules of Appellate Procedure. Upon consideration of the revised opinion set forth herein, a majority of the court voted to dissolve en banc.

Emmett Massie appeals a workers' compensation order denying his application for modification pursuant to section 440.28, Florida Statutes (1983). He contends that the deputy commissioner erred in ruling that he had not demonstrated either a change in condition or a mistake in a determination of fact entitling him to modification of the prior order denying compensability because the stress he was subjected to "was not to an extent greater than that to which the general public is exposed."

The material facts are not in dispute. In July 1979, when Massie began working for the University of Florida as head of the engineering department of the university television station, WUFT-TV, he had been diagnosed as having multiple sclerosis for several years, but this condition had remained essentially asymptomatic. After embarking on his employment at the university, claimant was regularly required to work overtime, often 10-12 hours per day After an evidentiary hearing, the deputy commissioner issued an order in February 1984 denying the claim for PTD, stating in part that the testimony:

and sometimes as much as 18 hours a day. He claims that his preexisting multiple sclerosis was aggravated and worsened because he was required to work unusually long hours and was subjected to unusually stressful pressures at work, specifying such things as high employee turnover rate, directions by the station manager to purchase equipment in violation of state law, conflicting job descriptions, relocation and rapid expansion of the station facilities, and an extended emergency caused by an airplane colliding with and destroying the station transmitting tower. His multiple sclerosis eventually worsened to the point that he could no longer function at work, and he was compelled to resign his position. Claimant then filed a claim for permanent total disability benefits (PTD), alleging that repeated exposure to the unusual mental and physical stresses and exceptionally long working hours associated with his employment aggravated his preexisting multiple sclerosis.

indicates that stress can accelerate or exacerbate multiple sclerosis, however, I find that the stress which the claimant testified to over a long period of time was not to an extent greater than that to which the general public is exposed, was not an exposure peculiar to and constituting a hazard of his employment operating upon the physical condition of the claimant.

(R. 407). The deputy commissioner further stated that an award of benefits based on job pressure and stress as claimed in this case would be against the philosophy of the Workers' Compensation Act because:

job pressure and long hours of work in and of itself have never been held to be factors which result in entitlements under the Workers' Compensation Act. Indeed, if job pressure and stress were compensable, there would be no end to compensable claims under the Act, as in today's world, all gainful activities are subject to the disease!

(R. 407). On this basis, the deputy commissioner ruled that claimant "has not suffered a compensable accident and that his permanent total disability is not covered under the Workers' Compensation Act." The order made no explicit reference to claimant's expert witness, Alan Pappas. ¹

The deputy commissioner's order was affirmed on appeal in Massie v. University of Florida, 463 So.2d 383 (Fla. 1st DCA), pet. for rev. denied, 472 So.2d 1181 (Fla.1985), upon the reasoning that Massie's evidence showed that the stress to which he was exposed was not a "hazard greater than that to which the general public is exposed." Id. at 384. This conclusion was premised primarily on certain testimony of claimant's expert witness, Alan Pappas:

Massie's job placement expert [Pappas] stated that stress was "inherent in technical areas" and that "stress at work causes everyone to have difficulties." He further stated that "stress on the job is not unusual," and that for engineers "stress was part of the normal responsibility" of the job. Massie offers no evidence to the contrary, saying only that the job stress at the University of Florida was greater than he ever had in a job. This contention does not support a finding that the stress was greater than the general public had in jobs, especially when considering that Massie came to the University from a sheltered work environment where "8 to 5" hours were strictly observed.

* * * However, because there was expert testimony that Massie's stress was not "unusual" and that job stress causes "everyone" to have difficulty, we must hold that the deputy's holding was supported by competent substantial evidence.

463 So.2d at 384 (emphasis added). This court denied Massie's motion for rehearing, and the supreme court denied review, 472 So.2d 1181 (Fla.1985).

On August 19, 1985, claimant timely filed an application for modification of the February 1984 order pursuant to section 440.28, which authorizes modification "on the ground of a change in condition or because of a mistake in a determination of fact." Claimant alleged that there had been a change in his condition and, alternatively, that the deputy commissioner and this court had made a mistake in a determination of the essential facts upon which the prior order was based. An evidentiary hearing on this application was held on March 24, 1986, at which claimant's job stress expert, Alan Pappas, testified that the deputy commissioner and this court had misinterpreted his testimony regarding whether the level of stress experienced by Massie in his job at WUFT-TV was excessive and unusual. Pappas explained that certain statements from his prior testimony had been misquoted, misconstrued, or taken out of context, especially in the appellate court's opinion, and he testified that he never stated nor intended to express the opinion that Massie's stress at his job was not unusual. He explained that the stress experienced by claimant was so unusual and excessive that he would rate it, on a scale of 1 to 10, as 8 or 9. Claimant's counsel then argued to the deputy commissioner that the previous order had been based on erroneous findings of fact regarding the stress issue, stating, "[claimant] had a pressure packed stressful job. Everybody that came here told the Court he did, yet the findings in the Court order were that it wasn't" (R. 439). The deputy commissioner responded, "I just don't think that the situation fits the, uh, philosophy of Workers' Compensation" (R. 439). When the claimant pointed out there was no support for the deputy commissioner's finding that the stress claimant experienced was not to "a greater extent than that which the general public is exposed," the deputy commissioner stated, "I know there's no support for it, but that's what I found" (R. 439). In the order issued April 30, 1986, the deputy commissioner ruled that "the claimant has not demonstrated that there is any new fact or change in condition, that there was no mistake of fact, that therefore the claimant is not entitled to a modification of the prior Order," and that "the filing of this second claim for benefits ... merely sought a redetermination of facts already litigated." (R. 464).

Claimant's first argument on appeal, that the deputy commissioner erred in failing to find a change of condition had occurred, is without merit. In an effort to prove that the aggravation of his multiple sclerosis was due to employment-related stress, claimant testified at the modification hearing that his condition had stabilized and not worsened significantly since he left his employment, thereby suggesting that relief of the job-related stress had caused his condition to enter what might be characterized as a state of remission. But claimant admitted that his condition had not changed materially since the previous hearing, i.e., that his condition had already stabilized at the time the first order was entered. Claimant's testimony, while potentially relevant to the claimed mistake of fact, does not prove a change in condition sufficient to require modification of the prior order. Hall v. City of Jacksonville, 443 So.2d 326 (Fla. 1st DCA 1983).

Claimant's contention that he sufficiently proved a mistake in a determination of fact that required modification is more difficult to resolve. The deputy commissioner, in his February 1984 order, found that claimant was permanently and totally disabled due to the effects of multiple sclerosis, and that stress can aggravate or accelerate this disease. Although the deputy commissioner stated in that order that "the stress which the claimant testified to over a long period of time was not to an extent greater than that to which the general public is exposed" (R. 407), the order makes no reference to the testimony of plaintiff's expert witness Pappas; the quoted statement was apparently based on the deputy commissioner's belief that periods of extraordinary stress are normal in everyday life, and that the level of stress In reviewing the original order on appeal, this court's opinion cited Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA) pet. for rev. denied, 388 So.2d 1119 (Fla.1980), for the rule of...