Thomas v. Carter Fruit & Produce Co., 31285
| Decision Date | 07 February 1962 |
| Docket Number | No. 31285,31285 |
| Parties | Arthur THOMAS, Petitioner, v. CARTER FRUIT AND PRODUCE CO., Kaler Produce Company, Hartford Accident & Indemnity Co., Southern General Insurance Co., and The Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Allen Clements, Miami, for petitioner.
Lally, Miller & Hodges and H. Jack Miller, Miami, for Carter Fruit & Produce Co.
Welsh, Cornell, Pyszka & Carlton and Douglas M. Carlton, Miami, for Kaler Produce Co.
Burnis T. Coleman and Patrick H. Mears, Tallahassee, for The Florida Industrial Commission, respondents.
This is a petition for writ of certiorari directed to the Florida Industrial Commission by the claimant to review an order of the full commission which reversed an order of the deputy commissioner awarding claimant compensation against Carter Fruit and Produce Co.
The petitioner-claimant suffered an injury to his right elbow as a result of an 'accident' on March 10, 1958, while employed by Kaler Produce Company when he slipped and fell while lifting a 100 pound bag of potatoes, and the bag of potatoes fell on his arm, which was resting on the steel body of a produce truck. The deputy commissioner made an award based upon a finding of six weeks temporary total disability and no permanent disability.
In January, 1959, the claimant went to work for Carter Fruit and Produce Co., and worked until March, 1959. On October 28, 1959, a claim was made against Carter for temporary partial disability resulting from accidental injury alleged to have been sustained by claimant in February, 1959, in the course of his employment with Carter. On October 28, 1959, claimant also made a further claim against Kaler alleging that his disability resulting from lifting bags in the course of his employment with Carter was either a manifestation of the symptoms of the original accident to his elbow while working for Kaler, or constituted a new injury arising out of and in the course of his employment with Carter during February, 1959, which had aggravated a pre-existing condition.
The deputy commissioner by his compensation order found in part:
'That claimant injured his right elbow in March 1958 in the course of his employment with Kaler Produce Company and re-injured his right elbow in February 1959 in the course of his employment with Carter Fruit and Produce Company; said injuries being both by accident arising out of claimant's employment at each time.
'That as a result of the 1958 accident claimant was temporarily and totally disabled for a period of six weeks for which he was paid proper workmen's compensation by the carrier, Southern General Insurance Company, at the rate of $35.00 per week.
'That as the result of the 1959 accident claimant was temporarily and totally disabled for a period of ten weeks for which he is entitled to workmen's compensation at the rate of $35.00 per week.
'That as the result of the combined effect of the two aforesaid accidental injuries to claimant's right elbow claimant has sustained a permanent partial disability of ten percent loss of use of right arm entitling claimant to workmen's compensation for twenty weeks at the rate of $35.00 per week.
'That 75% of claimant's permanent partial disability resulted from the original accidental injuries of 1958 and 25% of claimant's permanent partial disability resulted from the subsequent accidental injury of 1959.
'That in the compensation Order heretofore entered in the case of Claim No. Y-66851, a mistake in the determination of fact was made in that claimant did not recover from the 1958 accidental injury without permanent disability; that at the time of the entry of said compensation Order on July 25, 1958, Dr. John E. Burch, the attending orthopedist, was of the opinion that claimant would have no permanent disability as the result of the accident of 1958; that on May 11, 1960, Dr. John E. Burch, after treating the claimant further, was of the opinion that claimant had a permanent partial disability of 10% loss of use of right arm due to the two accidental injuries of 1958 and 1959 and that claimant had a resultant permanent partial disability of 7.5 percent loss of use of right arm attributable to the 1958 accidental injury and a resultant permanent partial disability of 2.5 percent loss of use of right arm attributable to the 1959 accidental injury; that on May 11, 1960, Dr. Francis W. Glenn was of the same opinion as that of Dr. Burch in reference to claimant's permanent partial disability caused by the 1958 accidental injury to dlaimant's right arm
'That claimant while lifting a hundred pound bag of potatoes for Kaler Produce Company in March, 1958, slipped and fell backwards on a metal floor striking his right elbow on the floor and injuring same.
'That claimant while working for Carter Fruit and Produce Company in February 1959 again injured his right arm in lifting heavy sacks of potatoes and strained the extensor muscles of the right elbow thereby aggravating the pre-existing condition of the claimant's right arm known as 'tennis elbow' caused by claimant's fall on said elbow in 1958.
'That at the time claimant was injured in 1958 his average weekly wage was $70.00; that at the time claimant was injured in 1959 his average weekly wage was $60.00; that claimant's rate of compensation is therefore $35.00 per week.
'That though claimant has reached maximum degree of recovery from said accidental injuries and is working his 'tennis elbow' may require further medical treatment. According to Dr. Burch 'these 'tennis elbows' are subject to recurrence and no one can predict when it will flare up again'.'
Kaler and its carrier did not apply for a review of the order of the deputy commissioner but Carter and its carrier did, and contended that the claimant did not sustain an injury by 'accident' while employed by Carter. The full commission found that there was no competent substantial evidence to support the finding of the deputy commissioner that claimant sustained an 'accident' while employed by Carter and reversed the deputy commissioner by striking from his award all provisions requiring Carter to pay workmen's compensation benefits, and affirmed the findings of the deputy commissioner as to the payments to be made by Kaler.
The first question to be decided is whether or not the claimant sustained an injury by 'accident' while employed by Carter. We quote the following excerpts from the claimant's testimony upon which the order of the deputy commissioner finding an 'accidental' injury while employed by Carter in 1959 was based.
'
'
'Q. 100-pound bags?
'Q. Up until the time you went to work for Carter, had you put your right arm to the test of lifting 100-pound bags all day long?
'A. Not all day long, no, sir, because I...
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