Wal-Mart Stores v. Tomlinson

• Decision Date: 24 October 1991
• Docket Number: No. 91-116,WAL-MART,91-116
• Citation: 588 So.2d 276
• Parties: STORES and Corporate Service Inc., Appellants, v. Pamela J. TOMLINSON, Appellee. 588 So.2d 276, 16 Fla. L. Week. D2745
• Court: Florida District Court of Appeals

Page 276

588 So.2d 276

WAL-MART STORES and Corporate Service Inc., Appellants, v. Pamela J. TOMLINSON, Appellee.

No. 91-116.

588 So.2d 276, 16 Fla. L. Week. D2745

District Court of Appeal of Florida,

First District.

Oct. 24, 1991.

Rehearing Denied Dec. 2, 1991.

Alfred J. Hilado, Steven S. Eichenblatt and John C. Bachman, Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.

Susan W. Fox of MacFarlane, Ferguson, Allison & Kelly, Tampa, and Dean Burnetti, H. Guy Smith, P.A., Lakeland, for appellee.

KAHN, Judge.

The Employer/Carrier (E/C) appeal an order of the Judge of Compensation Claims (JCC) awarding benefits to Pamela J. Tomlinson due to physical and mental injuries resulting from an industrial accident. The E/C argue that the JCC erred in finding that Tomlinson's mental condition was causally related to the industrial accident. We affirm.

On March 24, 1989, Tomlinson was stocking shelves at a Wal-Mart store when a container of Sani-Flush exploded, covering her face, hair and upper torso. As a result of this industrial accident Tomlinson developed asthma, sometimes characterized in the record as hyperactive airways disease. Tomlinson's doctors allowed her to return to work as long as she avoided fumes or bronchial irritants which cause asthma attacks. However, Tomlinson continued to suffer asthma attacks while working. ¹ On October 12, 1989, Tomlinson consulted Dr. Thomas McClane, a psychiatrist. Dr. McClane conducted a psychiatric evaluation and stated that at that time his diagnosis was mild agoraphobia and the only restrictions that she had were physical ones. When Tomlinson's emotional state continued to worsen she again consulted Dr. McClane, complaining of panic attacks, depression and suicidal thoughts on March 6, 1990. At this time Dr. McClane opined that Tomlinson's mental condition was related to the industrial accident and restricted her from working.

To be compensable, a mental injury must (1) be predicated on an actual physical injury and (2) not be remote from the accident. Superior Mill Work v. Gabel, 89 So.2d 794, 795 (Fla.1956). In other words, the mental injury must be the direct and immediate result of the industrial injury. The failure of the physical injury to be disabling does not affect the compensability of the mental injury. Prahl Brothers, Inc. v. Phillips, 429 So.2d 386 (Fla. 1st DCA 1983). There is also no specific time period for the manifestation of a mental injury. Greater Miami Academy v. Blum, 466 So.2d 1263 (Fla. 1st DCA 1985) (a nine month delay in the manifestation of a mental condition is not by itself proof of indirect causation).

Even though the full manifestations of Tomlinson's mental condition did not surface until almost a year after her physical injury, we find that the JCC did not err in the award of benefits. In the order granting Tomlinson's claim for benefits the JCC stated:

I find, because of the claimant's repeated asthmatic attacks while she was at work and exposed to any form of chemical fumes, etc., as documented in the history from the claimant as well as the medical testimony of Dr. McMicken, the claimant began to suffer from emotional difficulties.... I accept the opinion of Dr. McClane in his depositional testimony that these diagnoses were causally related to the claimant's industrial injury and exposure of March 24, 1989.

The JCC's finding is supported by competent substantial evidence in the form of Dr. McClane's deposition testimony. ² Causation is generally a question of fact. Antun Investments Corporation v. Ergas, 549 So.2d 706 (Fla. 3d DCA 1989). This court affords great deference to the JCC as a finder of fact. See Batka v. Duff's Smorgasbord, 560 So.2d 377 (Fla. 1st DCA 1990...