Silvera v. Miami Wholesale Grocery, Inc.

• Decision Date: 15 January 1981
• Docket Number: No. 56685,56685
• Citation: 400 So.2d 439
• Parties: Ramiro SILVERA, Petitioner, v. The MIAMI WHOLESALE GROCERY, INC., The Home Indemnity Company and The Industrial Relations Commission, Respondents.
• Court: Florida Supreme Court

Page 439

400 So.2d 439

Ramiro SILVERA, Petitioner, v. The MIAMI WHOLESALE GROCERY, INC., The Home Indemnity Company and The Industrial Relations Commission, Respondents.

No. 56685.

Supreme Court of Florida.

Jan. 15, 1981.

Rehearing Denied July 28, 1981.

L. Barry Keyfetz of Keyfetz & Poses, Miami, for petitioner.

Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for respondents.

PER CURIAM.

Ramiro Silvera suffered a heart attack in the course of his employment with Miami Wholesale Grocery, Inc. His claim for workmen's compensation benefits was accepted by a Judge of Industrial Claims, but denied by the Industrial Relations Commission based upon our recent decision of Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978). Silvera asks us to hold that his heart attack occurred within the guidelines for compensability expressed in Richards, Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978), and Tintera v. Armour & Co., 362 So.2d 1344 (Fla.1978).

The unchallenged facts with respect to Silvera's heart attack are set forth in the order of the Judge of Industrial Claims:

Claimant's customary work with the employer herein was that of a sales representative. The preceding day a ship, the Nopal Shore arrived in the port late. Ordinarily ships arriving late would be loaded the following day. However, the ship had radioed in earlier that day indicating their arrival and expected departure early the following morning. Accordingly, claimant commenced filling their order initially involving loading cases of beer and liquor which he did not customarily do, but under the circumstances in order to fill the order was required to do. He thereafter journeyed to the port at approximately 5:00 o'clock P.M., waited approximately forty five minutes until the ship was completed docking and thereafter went on board. Although customarily the ship's crew is to do the loading of provisions, in this case upon docking the ship's crew went on shore and the loading was left to be accomplished by claimant and the steward. This particular ship had somewhat more personnel than the other ships serviced and it was accordingly a larger order. Although claimant in the past on occasion had helped with some loading, this was not a customary part of his work. He and the steward with some assistance from co-employee, Walter McComas loaded the provisions and liquor. The loading took several hours and thereafter McComas and claimant had to obtain for the Captain a special order to wit: a cooler. This particular Captain was on this occasion a difficult individual to deal with and very demanding. They obtained the cooler, waited sometime for return of the Captain in order to collect the money and that did not take place until approximately 11:00 o'clock P.M. Claimant thereafter returned to his place of employment to obtain his car, arrived home at approximately 12:00 midnight and thereafter after approximately four hours sleep was up the next morning in order to be at the Miami River at approximately 6:30 A.M. 7:00 o'clock A.M. to see what ships had arrived and needed any provisions. Claimant was exceptionally tired from the unusual ordeal the preceding night which because of the particular circumstances required that he worked very late in the evening which was not customary for him. After remaining approximately one half hour at the Miami River he proceeded to his place of employment and unfortunately had a flat tire. He had to change that, thereafter proceeded to his place of employment, learned that apparently the Captain was screaming about some portion of the order not filled, this particular account was one of the larger accounts and claimant felt his job was on the line if he did not please this individual. He proceeded out to the port in his exhausted state, was justifiably upset in that he had worked so hard and so long to please the Captain and the Captain nevertheless was dissatisfied with the services which was expressed to claimant by his general manager. Upon getting to the gang plank of the ship, McComas told claimant the Captain did not want to see him and was blaming claimant for alleged failure to complete the order. Immediately upon being advised thereof claimant according to his co-employee whose testimony I accept appeared very upset, got red in the face, claimant complained of chest pain, commenced feeling bad, attempted to make one other short stop at the Port, was feeling worse and got back to the employer's premises where he collapsed and was taken to the hospital. (emphasis added.)

The sole issue properly before us is whether Silvera's heart attack was "caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing." ^* The Industrial Relations Commission held that it was not, presumably because there was no "specifically identifiable effort." Miami Wholesale Grocery argues for the correctness of the Commission's ruling, noting that in Tintera, Mosca and Richards, the claimants were denied compensation for the similar absence of a specifically identifiable physical effort.

The record indicates, as the underscored findings of the Judge of Industrial Claims show, that loading activity preceding Silvera's attack was unusual to the performance of his duties for Miami Wholesale Grocery. The medical testimony presented for Silvera also identified emotional concerns, as opposed to physical effort, as a precipitating cause of Silvera's heart attack. This testimony, which was accepted by the Judge of Industrial Claims, also found a close nexus between the heart attack and Silvera's physical and emotional exertion, both causally and temporally.

The issue posed by these facts is whether Richards requires a precise correlation between physical effort and the onset of a heart injury, and whether an "effort" encompasses a combined physical and emotional sequence which is identifiable apart from normal work pressures. We hold that it does not require a precise temporal correlation, and that the specifically identifiable effort may be a causally related emotional and physical sequence which is independent of normal work pressures.

To be compensable, the "identifiable effort" associated with the onset of a heart attack must be job-related and must stem in part from some non-routine physical exertion. It may, however, involve psychological pressures closely associated with the physical activity. On this record, we conclude that the Commission misapplied our decisions in holding that Silvera's heart attack was not compensable as a matter of law. The award of the Judge of Industrial Claims was correct and should be reinstated.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVERTON, ENGLAND and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

ALDERMAN, J., dissents with an opinion.

BOYD, Justice, dissenting.

Once again we are faced with the question of whether compensability can be found upon the fact that the claimant's "myocardial infarction was precipitated by a series of...