Simmons v. Trinity Industries, 87-1450
| Decision Date | 04 August 1988 |
| Docket Number | No. 87-1450,87-1450 |
| Parties | 13 Fla. L. Weekly 1832 Jerry SIMMONS, Appellant, v. TRINITY INDUSTRIES and Employer's Casualty Company and Porter Plastics and Rockwood Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Appellant appeals the deputy commissioner's order denying his claim against both appellee employers for workers' compensation benefits. We affirm in part, reverse in part, and remand for further proceedings against appellees Porter Plastics and Rockwood Insurance Company.
Appellant injured his back in February 1986, in a work-related accident, while employed by appellee Trinity Industries. Although his treating physicians suspected a possible herniated disc, objective tests resulted in no such finding. Therefore, on May 23, 1986, the then treating doctor, Dr. McAuley, released appellant to return to work on June 2, with the statement at that time that he had reached maximum medical improvement with no permanent impairment and with no restrictions.
On May 23, appellant applied for work at appellee Porter Plastics, was hired, and began work on the night shift, during which he spent several hours stacking plastic pipes. According to his testimony, he suffered pain throughout the shift and could not even straighten up the next morning. Thereafter, he was diagnosed as having a herniated disc and has not worked since that time.
Appellant filed a claim seeking temporary total disability benefits from June 2, 1986 (appellee Trinity had paid temporary total disability benefits until that date) and continuing medical care. Appellee Trinity defended on the ground that prior to his May injury, appellant had reached maximum medical improvement from his February injury with no permanent impairment and that any medical condition he now suffers is due to his May injury at Porter Plastics. Porter Plastics defended the claim on the following grounds: (1) Appellant's employment there was fraudulently induced by his failure to reveal his condition on his employment application; (2) he suffered no accident on the job at Porter Plastics; and (3) if he did sustain an injury at Porter Plastics, it was merely a temporary aggravation of his preexisting condition caused by the Trinity accident.
We affirm the deputy commissioner's denial of appellant's claim against Trinity and its insurer due to our deference to his factual determination that the medical evidence established that appellant had reached maximum medical improvement "without a permanent impairment rating" from the February injury and did not have "a herniated disc or similar disabling condition" at the time he was released by Dr. McAuley on May 23, 1986. On that basis, he found appellee Trinity not to be liable for compensation benefits to appellant. Since appellant sought only medical and temporary benefits, the deputy properly did not rule on the permanent impairment issue, but merely made reference to the absence in the record of a permanent impairment rating. In that regard, we note that according to Dr. McAuley's March 1987 deposition testimony, appellant probably had disc, muscle, and ligament damage after the February injury and the May injury was "probably the straw that broke the camel's back"; his injury was "a cumulative injury," based upon reasonable medical probability. Thus, Trinity may be subject to liability for permanent benefits in the future.
The deputy made no finding as to whether a second accident in fact occurred. However, the record supports a determination that if a second injury occurred, Porter Plastics is subject to liability. Since apportionment of claims for temporary disability, medical benefits, and wage-loss benefits is barred by statute, § 440.15(5)(a), Hayward Trucking, Inc. v. Aetna Insurance Co., 445 So.2d 385 (Fla. 1st DCA 1984), in this circumstance the second employer, Porter Plastics, must bear...
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...employee "to make a full, not specifically solicited, disclosure of all of his particular shortcomings," Simmons v. Trinity Indus., 528 So.2d 1337, 1339 (Fla. 1st DCA 1988), or create a defense when the employer asks only "nonspecific broad questions as to physical condition on employment a......
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