Roseboom v. H.T. Constructors, Inc., BS-231
| Decision Date | 25 May 1988 |
| Docket Number | No. BS-231,BS-231 |
| Citation | 13 Fla. L. Weekly 1254,527 So.2d 234 |
| Parties | 13 Fla. L. Weekly 1254 James P. ROSEBOOM, Appellant, v. H.T. CONSTRUCTORS, INC., and Maryland Casualty Company, and H.B.S.A. and American International Adjustment Company, Appellees. |
| Court | Florida District Court of Appeals |
Richard I. Cervelli, Naples, for appellant.
Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellees, H.T. Constructors, Inc. and Maryland Cas. Co.
Elizabeth A. Pooley of Mitcham, Weed, Barbas, Allen & Morgan, Tampa, for appellees, H.B.S.A. and American Intern. Adjustment Co.
Claimant appeals from an order denying his claim for temporary total disability benefits, physician bills and continuing medical care. We reverse.
The claimant testified that in August of 1985, while working for appellee H.B.S.A. as a carpenter on a construction site, he fell while carrying a piece of construction equipment. The light valance he was carrying weighed between two hundred and three hundred pounds and landed across his hip, pinning him. The accident was not immediately reported because the claimant did not feel at the time that he had suffered any serious injury. But the accident was witnessed by another employee and by claimant's foreman, who lifted the valance off of him. Approximately ten days later, appellant began to experience pain in the groin and hip area, which persisted from then on, although he was still able to work.
On June 9, 1986, while employed with appellee H. T. Constructors, the claimant slipped and fell on his right side at work and immediately experienced severe pain in his right hip area. He has not worked since this accident, which was promptly reported. Dr. Onkey, an orthopedic surgeon who examined the claimant after this accident, diagnosed appellant's problem as a collapsed femoral head produced by a long-standing condition of avascular necrosis. The doctor testified that appellant is in need of a total hip replacement, that the avascular necrosis itself was not "produced" by either accident, and that if one assumes the truth of appellant's testimony (i.e. the occurrence of the first fall and the onset of symptoms thereafter) the first accident aggravated the condition and the second accident "could have" aggravated it.
We conclude that we must reverse the order dismissing the claims arising out of the accidents on August 5, 1985 (employer H.B.S.A.), and June 9, 1986 (employer H.T.), because the record before us supports only the conclusion that both accidents contributed causally to some degree, by way of aggravation or acceleration, to claimant's temporary disability and medical needs. Apportionment issues, other than division between carriers, appear to be premature absent any determination of a permanent disability claim. See section 440.15(5)(a), Florida Statutes.
The consolidated claims were for medical care and temporary total disability benefits from June 9, 1986, to the date of hearing on February 9, 1987. Both carriers asserted that claimant's need for medical care and his disability from avascular necrosis were not "caused, aggravated or accelerated" by the successive accidents, and, as to employer H.B.S.A., that there was a lack of timely notice of the 1985 accident.
The order found in material part that:
The claimant ... has worked throughout his life as a carpenter and general construction worker.
In August of 1985, while working for the first employer, he was carrying a light fixture when he tripped and twisted. He suffered a puncture injury to his knee and had complaints of pain in the leg and hip. This was not reported to the employer, although a foreman saw him fall and helped him up.... Some week to ten days after this fall, the claimant testifies he had pain in the groin and hip which persisted....
Shortly thereafter the Claimant left this job and was unemployed for the next five to six months. He and some relatives were doing substantial repairs on his family home. In March of 1986, he returned to work; this time for the Barry Company. In June of 1986, he slipped [at work] and fell on his right side....
The claimant has a long standing condition of avascular necrosis in the hip. The femoral head has collapsed and the claimant presents himself at the hearing on crutches. He is in need of a total hip replacement....
I accept Dr. Onkey's opinion that the 1986 fall was not the competent and producing cause of the claimant's ailment.
With respect to the 1985 accident, there is no medical evidence to support a conclusion that this fall, if it occurred, caused the claimant any injury. Furthermore, I find that the failure to report it was prejudicial to the interests of the employer/carrier and that the claimant obviously had an ongoing disease process which was untreated after the first alleged injury. (e.s.)
Although the deputy's conclusion numbered in the quote above (that the 1986 accident did not produce claimant's "ailment") is supported by evidence that the avascular necrosis disease process antedated both accidents, that conclusion does not address the issue before the deputy as to whether that accident contributed causally to the temporary total medical disability which immediately followed that fall. There is no evidence that the preexisting avascular necrosis caused the 1986 fall--instead the order, supra, in substance accepts the testimony that claimant worked regularly for several months before June 9 when he slipped on sawdust, fell on his right side, and was thereafter unable to stand without great...
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