Publix Super Markets, Inc. v. McGuire, No. 92-884

CourtCourt of Appeal of Florida (US)
Writing for the CourtMICKLE; WEBSTER, J., specially concurs with written opinion in which BARFIELD; JOANOS, J., dissents with written opinion in which ZEHMER, C.J., and ERVIN; ZEHMER, C.J., dissents with written opinion in which ERVIN; WEBSTER; JOANOS; ZEHMER
Citation629 So.2d 862
Parties18 Fla. L. Weekly D2220 PUBLIX SUPER MARKETS, INC. and Hartford Insurance, Appellants, v. Arleen J. McGUIRE, Appellee.
Docket NumberNo. 92-884
Decision Date12 October 1993

Page 862

629 So.2d 862
18 Fla. L. Weekly D2220
PUBLIX SUPER MARKETS, INC. and Hartford Insurance, Appellants,
v.
Arleen J. McGUIRE, Appellee.
No. 92-884.
District Court of Appeal of Florida,
First District.
Oct. 12, 1993.
Rehearing Denied Dec. 9, 1993.

Lynn H. Groseclose, of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Bradenton, for appellants.

Edward S. Eno, of Tanney, Forde, Donahey, Eno & Tanney, Clearwater, for appellee.

EN BANC

MICKLE, Judge.

The Employer/Carrier ("E/C") appeal a final order of the Judge of Compensation Claims ("JCC") finding a compensable accident and requiring the E/C to provide Arleen J. McGuire ("Claimant") with 1) temporary total benefits, to be paid in a lump sum, 2) unpaid medical expenses relating to Claimant's coronary artery spasm, and 3) remedial

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medical care and attention, and 4) requiring the E/C to reimburse Blue Cross and Blue Shield and Claimant for unpaid as well as paid medical bills. The JCC made no finding that Claimant "was subject to an unusual strain or overexertion resulting from a specifically identified effort not routine to the type of work [s]he was accustomed to performing at the time" she suffered the coronary artery spasm. Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla.1978). We conclude that the JCC erred, as a matter of law, in failing to apply the test from Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961) and Mosca. Accordingly, we must reverse and remand for further proceedings consistent with our holding. See Zundell v. Dade Co. Sch. Bd. and Gallagher Bassett Serv., Inc., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc) (affirming order denying claim for benefits, where intracerebral subarachnoid hemorrhage suffered by claimant/teacher during confrontation with student was not a compensable injury under Victor Wine and Mosca).

At issue is the applicability, to the instant facts, of the following rule promulgated by the Florida Supreme Court in Victor Wine, 141 So.2d at 588-89:

[W]e adopt the following rule for heart cases: When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.

In Mosca, the supreme court extended the applicability of this stricter test of compensability to "other internal failures of the cardiovascular system." 362 So.2d at 1341; University of Florida v. Massie, 602 So.2d 516, 521 (Fla.1992). In Zundell, which was decided subsequent to the date of the hearing in the instant case, we rejected the principle that "a pre-existing condition is a necessary element of proof" before the rigorous test from Victor Wine and Mosca can be applied. 609 So.2d at 1370. See Zundell, 609 So.2d at 1373 (Webster, J., concurring and dissenting in part). The case sub judice requires us to determine whether, as a matter of law, a coronary artery spasm is an "internal failure of the cardiovascular system" as contemplated in Mosca, so that the Victor Wine test applies.

At the time of the injury, Claimant was a five-year employee of Publix Super Markets, Inc., who worked part-time as a cashier in the Dunedin store. Additionally, she was employed by the City of Clearwater as a guard at a school crossing. Prior to the injury, Claimant was in good health but had a history of high blood pressure controlled by medication.

On October 26, 1989, Claimant reported to work at Publix around 4:00 P.M. and went directly to her cash register. Soon she observed Frank Kapocsi, a Publix district manager, standing in front of the store. Claimant testified she began to worry that Kapocsi was there in response to a letter Claimant had written to Publix upper management in Lakeland complaining that she had not received a pay raise to which she felt entitled. Shortly after noticing Kapocsi, Claimant received a telephone call at her register requesting her to report to the cash office at the front of the store. Kapocsi was waiting for her in the office, and shortly after the meeting began, Kapocsi asked the store manager, Mr. Myers, to join them.

The meeting was held in a small, 10 X 10-foot room and lasted about 30 minutes, during which time Claimant remained standing. Claimant testified she was nervous and upset, and that Kapocsi said her letter did not look good for him. About five minutes after she was summoned to the room, Claimant began experiencing chest pains that continued for the duration of the meeting. Claimant was afraid she would be fired because she had bypassed Kapocsi by writing the letter of complaint without first communicating her grievances to the local management.

Certain facts about the meeting are disputed. Claimant testified that during the meeting, she informed Kapocsi and Myers that she was having chest pains and felt bad. Judging from the tone of his voice, Claimant believed Kapocsi was angry. Kapocsi, however,

Page 864

testified that Claimant did not mention chest pains then. According to Kapocsi, other than exhibiting some ordinary nervousness, Claimant conducted herself well during the meeting. He recalled the atmosphere was cordial, and he testified the discussion concerned payroll, pay scale, and Myers' reasons for not giving Claimant a raise. Kapocsi explained the reason for not granting a pay raise then was that Claimant was inflexible in arranging a work schedule. Although Kapocsi acknowledged he would prefer employees to air complaints initially with their immediate supervisors, he said he was not upset with Claimant for writing the Lakeland office. As district manager, he responds frequently to similar concerns of employees. The JCC rejected Kapocsi's testimony that the atmosphere in the meeting was cordial, and we find competent substantial evidence to support the finding.

At the conclusion of the meeting, Claimant was permitted to return to her cash register. When she reported feeling pain and discomfort, Claimant was sent to the employees' room to sit down. Her son was called to take her to the hospital after several employees opined that Claimant might be having a heart attack.

An internal medicine specialist, Dr. Naman, treated her in the emergency room. Claimant, 57 years old, described the development of chest pain of 8 on a 1-to-10 scale, radiating to her back. She gave the doctor a history of the onset of pain during a heated argument with her supervisor at work concerning a pay raise. By deposition, Dr. Naman testified that the results of blood work and repeated cardiograms revealed the presence of enzymes indicating heart damage. On the basis of the blood work, Dr. Naman initially thought Claimant had suffered a heart attack, a condition that he defined as the death of a muscle in the heart. A subsequent catheterization revealed 30-50% blockage of the left anterior descending, and 50% blockage of the circumflex, arteries. Such blockages, normally caused by plaque, were deemed mild to moderate in Claimant. The catheterization did not reveal any complete blockage. The doctor opined that Claimant would not have much potential for a heart attack due to the extent of the blockage alone. On the basis of the catheterization and blood work, Dr. Naman said that at some point, Claimant probably had sustained a coronary artery spasm. His opinion was that her coronary artery spasm was not caused by arterial blockage or plaque. Based on the history provided by Claimant, Dr. Naman opined that the most likely reason for, or event most likely precipitating, the coronary artery spasm was the emotional episode at the meeting.

On the issue of causation, the JCC stated as follows:

The logical cause doctrine in this case supports the claimant's position that the coronary artery spasm arose out of and was in the course of the claimant's employment with Publix because of the fact that the chest pains started during the meeting with Mr. Kapocsi and Mr. Myers on the store premises and cotinued [sic] without interruption until the hospitalization, and further, that the heart catheterization and Dr. Naman's testimony showed that the claimant would not have had a heart attack based or caused by blockage and that the most likely cause of the claimant's problem was a coronary artery spasm caused by the incident at work. There was no contrary evidence submitted [by] the employer/carrier. Therefore, the claimant's testimony and that of Dr. Naman establish within a reasonable degree of medical probability, the cause of the coronary artery spasm.

As the JCC's determination of causation is supported by competent substantial evidence in the record, that finding will not be disturbed on appeal. Dixie Lime & Stone Co. v. Lott, 196 So.2d 422, 423 (Fla.1967).

The JCC having found that Claimant had suffered a coronary artery spasm, the two key issues at hearing were 1) whether Claimant sustained an accident or disease arising out of and in the course of her employment, and 2) what was the appropriate rate for average weekly wage and compensation, in view of Claimant's working two jobs on the date of her injury. Only the first issue was raised on appeal.

Claimant maintained, and the JCC found, that under Florida law, "coronary artery

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spasms have historically been treated differently from heart attacks and have been found to be compensable, even if there is no unusual physical exertion or associated accident." The JCC based that determination on our decision in Citrus Central, Inc. v. Gardner, 466 So.2d 369 (Fla. 1st DCA 1985). The claimant, Gardner, usually worked as a forklift operator at a sheetmetal fabrication company, but several times a month was required to relieve production line workers banding the finished sheetmetal. While engaged in the latter activity, he experienced sharp pains and was...

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5 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...without antecedent publication of panel decision on remand from McGuire v. Publix Super Markets, Inc., 640So.2d 1079 (Fla.1994), quashing 629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. ......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...antecedent publication of panel decision on remand from McGuire v. Publix Super Markets, Inc., 640 So.2d 1079 (Fla.1994), quashing 629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA......
  • Publix Super Markets, Inc. v. McGuire, No. 92-884
    • United States
    • Court of Appeal of Florida (US)
    • February 7, 1995
    ...8 (Fla.1994). In compliance with the mandate of the supreme court, which quashed our decision in Publix Super Markets, Inc. v. McGuire, 629 So.2d 862 (Fla. 1st DCA 1993), and remanded for further proceedings, we hereby set aside our prior opinion and adopt, as our own, the opinion and judgm......
  • McGuire v. Publix Super Markets, Inc., No. 82619
    • United States
    • United States State Supreme Court of Florida
    • May 12, 1994
    ...Trohn, Groseclose & Guinlan, Bradenton, for respondent. PER CURIAM. We review the decision in Publix Super Markets, Inc. v. McGuire, 629 So.2d 862 (Fla. 1st DCA 1993), in which the district court of appeal certified a question of great public importance. Art. V, Sec. 3(b)(4), Fla. The certi......
  • Request a trial to view additional results
5 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...without antecedent publication of panel decision on remand from McGuire v. Publix Super Markets, Inc., 640So.2d 1079 (Fla.1994), quashing 629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. ......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...antecedent publication of panel decision on remand from McGuire v. Publix Super Markets, Inc., 640 So.2d 1079 (Fla.1994), quashing 629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA......
  • Publix Super Markets, Inc. v. McGuire, No. 92-884
    • United States
    • Court of Appeal of Florida (US)
    • February 7, 1995
    ...8 (Fla.1994). In compliance with the mandate of the supreme court, which quashed our decision in Publix Super Markets, Inc. v. McGuire, 629 So.2d 862 (Fla. 1st DCA 1993), and remanded for further proceedings, we hereby set aside our prior opinion and adopt, as our own, the opinion and judgm......
  • McGuire v. Publix Super Markets, Inc., No. 82619
    • United States
    • United States State Supreme Court of Florida
    • May 12, 1994
    ...Trohn, Groseclose & Guinlan, Bradenton, for respondent. PER CURIAM. We review the decision in Publix Super Markets, Inc. v. McGuire, 629 So.2d 862 (Fla. 1st DCA 1993), in which the district court of appeal certified a question of great public importance. Art. V, Sec. 3(b)(4), Fla. The certi......
  • Request a trial to view additional results

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