Publix Super Markets, Inc. v. McGuire, 92-884

• Citation: 650 So.2d 151
• Decision Date: 07 February 1995
• Docket Number: No. 92-884,92-884
• Parties: 20 Fla. L. Weekly D372 PUBLIX SUPER MARKETS, INC. and Hartford Insurance, Appellants, v. Arleen J. McGUIRE, Appellee.
• Court: Florida District Court of Appeals

Page 151

650 So.2d 151

20 Fla. L. Weekly D372

PUBLIX SUPER MARKETS, INC. and Hartford Insurance, Appellants, v. Arleen J. McGUIRE, Appellee.

No. 92-884.

District Court of Appeal of Florida,

First District.

Feb. 7, 1995.

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

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

EN BANC OPINION ON REMAND

MICKLE, Judge.

This case is before us on remand from the Supreme Court of Florida, McGuire v. Publix Super Markets, Inc., 640 So.2d 1079 (Fla.1994), for reconsideration in accordance with the principles set forth in Zundell v. Dade Co. Sch. Bd., 636 So.2d 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 judgment of the supreme court, and same shall accompany our mandate to the lower tribunal. Having reviewed the instant record in light of the rule of law set forth in Zundell, 636 So.2d at 8, we find competent substantial evidence to support the decision of the judge of compensation claims (JCC) in favor of Arleen J. McGuire (Claimant). Accordingly, we affirm the JCC's order.

The pertinent facts supporting the claim are as follows. On October 26, 1989, Claimant reported to her part-time job at Publix Super Markets, Inc. (Employer) around 4:00 P.M. and went directly to her cash register. Prior to that date, Claimant had sent a letter of complaint to Employer's president concerning a raise that other employees (but not Claimant) received. Soon after Claimant's arrival at work, Employer's district manager (Mr. Kapocsi), whom Claimant had never met, asked her to attend a meeting in the grocery store's 10' x 10' front office. The store manager (Mr. Myers) also was at the meeting. Claimant, who feared that she would be fired for writing the letter and going beyond her immediate supervisor, was upset and appeared nervous. She remained standing and began experiencing chest pains about five minutes after the meeting started. Within 20-30 minutes, Claimant returned to her register but was unable to work due to the uninterrupted chest pains. She was admitted on the same day to the hospital, where she received treatment from an internal medicine specialist, Dr. Naman.

Claimant remained hospitalized until November 3, 1989, and was diagnosed by Dr. Naman as having suffered an injury to her heart muscles secondary to coronary artery spasms. She was off work completely until early January 1990. Claimant filed a claim for payment of medical expenses, benefits, penalties, interest, costs, and an attorney's fee. Employer/Carrier (E/C) defended on the basis that Claimant had not sustained an accident or incurred a disease arising out of and in the course of employment.

Section 440.02(16), Florida Statutes (1989), defines "injury," in pertinent part, as "personal injury ... by accident arising out of and in the course of employment." "Accident" means "only an unexpected or unusual event or result, happening suddenly," and the statutory definition expressly excludes "[a] mental or nervous injury due to fright or excitement only." Sec. 440.02(1), Fla.Stat. (1989).

Given the supreme court's express citation to Zundell in the instant mandate, and our belief that the factual similarities between the two cases merit consideration, we include the pertinent facts. In Zundell, the claimant, a high-school teacher, suffered a hemorrhage of the brain while engaged in a heated verbal exchange with a disruptive student. Zundell sought workers' compensation benefits for the incident, but the JCC relied on the standard set forth in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), and denied the petition. In Victor Wine, the supreme court adopted 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." Id. at 588-89. See also Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978) (extending the Victor Wine rule to preexisting conditions contributing to internal failures of the cardiovascular system in general). In the appeal brought by Zundell, sitting en banc we issued a divided opinion rejecting "the theory that a preexisting condition is a necessary element of proof prior to applying Victor Wine and Richard E. Mosca", and affirming the order. We certified the question of whether an employee is required to prove the existence of a preexisting condition in heart attack cases and "internal failure" cases as a prerequisite to the test for compensability established in Victor Wine and Richard E. Mosca. Zundell v. Dade Co. Sch. Bd., 609 So.2d 1367 (Fla. 1st DCA 1992).

The supreme court rephrased the question in Zundell as whether the Victor Wine rule ever can apply to "cardiovascular injuries occurring on the job when competent substantial medical evidence shows no evidence of a preexisting condition relevant to the injury." Zundell, 636 So.2d at 9. The supreme court held that "if the injury was of a type that could be exacerbated by a preexisting condition," a claimant must bear "the initial burden of showing that no relevant preexisting condition existed or at least that none can be medically detected." Id. at 12. Once a claimant has presented evidence indicating the absence of a preexisting condition, the burden then shifts to the employer to demonstrate the existence of a preexisting condition. Upon a finding that no such condition is present, the JCC then should...