Wolbert, Saxon & Middleton v. Warren

• Decision Date: 20 January 1984
• Docket Number: No. AQ-444,AQ-444
• Citation: 444 So.2d 511
• Court: Florida District Court of Appeals
• Parties: WOLBERT, SAXON & MIDDLETON, and Travelers Insurance Company, Appellants, v. Betty N. WARREN, Appellee.

Page 511

444 So.2d 511

WOLBERT, SAXON & MIDDLETON, and Travelers Insurance Company, Appellants, v. Betty N. WARREN, Appellee.

No. AQ-444.

District Court of Appeal of Florida First District.

Jan. 20, 1984.

Rehearing Denied Feb. 15, 1984.

E. Robert Williams and James H. McCarty, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellants.

Anthony J. Salzman of Bessent, Moddy & Salzman, Starke, for appellee.

THOMPSON, Judge.

In this appeal from a compensation order awarding payment of past medical bills, the employer/carrier (E/C) contend that the deputy commissioner (deputy) erred in finding that a compensable accident occurred. We agree that no accident occurred, and reverse.

The claimant is a legal secretary, office manager, and bookkeeper who suffers from chronic asthma. During the more than four years she worked with the employer law firm, she enjoyed a position of considerable responsibility and had an excellent working relationship as personal secretary to Mr. Wolbert, a partner in the firm. Although claimant has been an asthma sufferer since 1968, her illness was nondisabling and had always been well controlled with prophylactic medications prior to the events which led to the filing of her instant claim. In fact, until claimant was stricken by the asthma attack at issue here, she had never had an acute asthma attack and had never missed a single day's work because of her chronic asthmatic condition.

On the evening of Friday, November 27, 1981, the claimant undertook to balance and reconcile the employer's trust account ledger, which was a part of her regular duties. In the course of balancing the trust account, she discovered certain discrepancies and irregularities which led her to believe that Wolbert might have improperly withdrawn approximately $16,000 from the account funds. The claimant testified that over the week-end she experienced increasing difficulties with her asthma, and was required to repeatedly take medication. Upon arriving at work on Monday, November 30, 1981, the claimant approached Wolbert about the trust account problem. Wolbert indicated that he had to leave immediately for a hearing and told her he would discuss the matter with her when he returned. However, Wolbert did not return to the office that day even though his absence caused him to miss several scheduled appointments with clients. Because of Wolbert's refusal to explain the irregularities in the trust account, and because he appeared to be avoiding her, the claimant concluded that Wolbert was indeed responsible for the missing money, and that serious trouble lay ahead for Wolbert, his partners, and the employees of the firm. That night and during the early morning hours of December 1, 1981, claimant's asthma worsened to the point that her medications were not controlling it and she was having difficulty breathing. At approximately 8:00 a.m. on the morning of December 1, while on her way to see her doctor, the claimant again stopped at her office in order to attempt to speak with Wolbert about the trust account, but he again refused to talk to her and left the office. Claimant then proceeded to the doctor's office. The doctor's administrations failed to relieve her asthma attack, and she had to be hospitalized. Because of the severity of the asthma attack, claimant was required to remain in the hospital for five days, and for a period of several months thereafter required treatment and medication in excess of the treatment and medication regimen which had successfully controlled her asthma during the 13 years prior to the discovery of her employer's defalcations.

The claimant testified that she experienced tremendous emotional shock and strain upon discovery of the irregularities in the trust account, and that the emotional trauma of the discovery was exacerbated by the necessity of confronting Wolbert about the matter and by Wolbert's refusal to provide a satisfactory explanation as to why the money had been withdrawn from the trust account. She further testified that her worry concerning the future of Wolbert, whom she liked and respected, as well as her worry about the future of the firm and her fellow employees, had caused the unprecedented attack. However, claimant admitted that she had not been physically injured on the job, and our review of the record discloses absolutely no evidence that even the slightest physical trauma or impact occurred. Neither was there evidence that the discovery had caused or required claimant to engage in any unusual physical activity or exertion, or that claimant was exposed at any time to any sort of dust, fumes, or other airborne agents in the work place which might have brought on the attack.

In the order appealed, the deputy found that the emotional strain associated with the discovery of the trust account irregularities had caused an aggravation of claimant's pre-existing, nondisabling chronic asthmatic condition, and that the attack was compensable since it had been precipitated by a compensable accident. We are unable to agree with the deputy's implicit and unexplained conclusion that a compensable accident occurred.

The E/C argued below, and continue to maintain here, that an aggravation of an underlying pre-existing asthmatic condition should be considered analogous to an aggravation of a pre-existing cardiovascular condition, and should be ruled non-compensable when caused by mental or emotional stress alone, unaccompanied by any unusual physical strain or exertion. In discussing prior cases in which claims for compensation arising out of alleged work related aggravations of pre-existing cardiovascular conditions were held compensable, our Supreme Court has twice held:

These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment.

City of Miami v. Rosenberg, 396 So.2d 163, 165 (Fla.1981) (quoting Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla.1978)). For purposes of determining the compensability of an injury under our Workers' Compensation law, we are entirely unable to distinguish an internal failure of the pulmonary system caused solely by emotional stress from similarly caused internal failures of the cardiovascular system. Although in Rosenberg the court affirmed the finding of the Judge of Industrial Claims that there was "no evidence that the heart attack was caused by a specifically identifiable event," and although there was evidence in this case that a specific event precipitated claimant's asthma attack, in Mosca and in the numerous cases reviewed by the court in Mosca, the court consistently referred to the necessity of showing a "specifically identifiable effort " on the part of the claimant. Notwithstanding the reference in Rosenberg to a specifically identifiable event, we feel that the above-quoted passage from Rosenberg and Mosca makes it clear that there must be an accident in the usual sense of the word, or at the very least, some showing of a specifically identifiable physical strain, effort, exposure or event. Even if we were inclined to find that the reference in Rosenberg to an "event" represented a change in our Supreme Court's approach to the problem of exacerbations of pre-existing conditions by work related activities, the elusiveness of the concept of emotional strain, with the concommitant impossibility of consistently and correctly determining causation, would remain. In any event, the only medical evidence as to causation was a brief notation, appearing in the doctor's report, that "[h]er asthma attack could have been brought on due to her working under stress." (emphasis added). This speculative statement is clearly insufficient to establish causation. Kashin v. Food Fair, 97 So.2d 609 (Fla.1957); Newman Heating & Boiler Repair, Inc. v. Newman, 418 So.2d 1008 (Fla. 1st DCA 1982), pet. for rev. den, 429 So.2d 7 (Fla.1983). Because it is conceded that claimant's asthma attack was not precipitated by any physical condition to which she was exposed in the work place, and because it is conceded that no unusual physical effort or event occurred, we find that the compensation order herein appealed must be reversed.

NIMMONS, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge, dissenting.

I respectfully dissent. The deputy, after hearing and considering the testimony of claimant and her witnesses, concluded that the emotional strain experienced by claimant over a five-day period, during which she first discovered, and then attempted to confront her employer with a $16,000.00 shortage in the law firm trust account, amounted to an "accident" which aggravated claimant's pre-existing, but previously non-disabling asthmatic condition. In ruling that claimant's acute asthmatic attack was compensable, the deputy considered and rejected the e/c's contention that rules, formulated to meet specific and unique evidentiary problems peculiar to cases involving internal failures of the cardiovascular system, should be extended to apply also to an aggravation of the claimant's asthmatic illness. In my view the deputy's resolution of this case was a judgment call on his part and, in the absence of a showing of a lack of competent substantial evidence to support his findings, the order should be affirmed.

I am particularly concerned by the majority's holding, extending standards which have been routinely applied to cases involving internal failures to a case such as this, entailing nothing more than an aggravation of a pre-existing disease, heretofore chronic but low-grade, minor and...