Zundell v. Dade County School Bd., No. 91-1848

CourtCourt of Appeal of Florida (US)
Writing for the CourtWOLF; JOANOS; WEBSTER; ERVIN, J., dissents with opinion with which ZEHMER; WEBSTER; ERVIN
Citation609 So.2d 1367
Parties79 Ed. Law Rep. 1160, 18 Fla. L. Week. D24 Warren ZUNDELL, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Services, Inc., Appellees.
Docket NumberNo. 91-1848
Decision Date15 December 1992

Page 1367

609 So.2d 1367
79 Ed. Law Rep. 1160, 18 Fla. L. Week. D24
Warren ZUNDELL, Appellant,
v.
DADE COUNTY SCHOOL BOARD and Gallagher Bassett Services,
Inc., Appellees.
No. 91-1848.
District Court of Appeal of Florida,
First District.
Dec. 15, 1992.

Steven M. Dunn of Dunn & Johnson, P.A., Miami, for appellant.

Steven Kronenberg and Sylvia A. Krainin, of Adams, Kelley, Kronenberg & Kelley, Miami Lakes, for appellees.

EN BANC

WOLF, Judge.

In this workers' compensation appeal, appellant/claimant, Warren Zundell, seeks reversal of an order of the judge of compensation claims (JCC) which denied his claim for benefits on the ground that appellant's injury, an internal cardiovascular failure, diagnosed as an intracerebral subarachnoid hemorrhage, was noncompensable because the injury failed to meet the test promulgated

Page 1368

by the Florida Supreme Court in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961), and Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978).

Appellant urges us to hold that, unless there is proof of a preexisting condition, a cardiovascular failure may be compensable without proof of an unusual physical strain or overexertion not routine to his job. 1 A holding of compensability on that basis and the facts of the instant case would require this court to make a number of substantial changes in existing law. Those changes would include (1) finding that proof of an emotional strain which may be routine to a particular job would be sufficient to demonstrate compensability of internal cardiovascular failures, (2) a requirement that an employer would have the burden of proof to demonstrate a preexisting condition prior to the employee having to prove the requisite conditions for compensability of an internal cardiovascular failure, 2 and (3) a determination that the failures of the internal cardiovascular system should be treated differently than heart attacks. We decline to make these substantial changes as we find no legal support for appellant's position. We therefore affirm the decision of the JCC.

Claimant recounted the facts pertaining to his injury during his deposition and later at the claims hearing. His testimony relating to the incident was identical in both instances, with the exception of one particular difference, as noted herein. Claimant testified at his deposition that on January 5, 1988, he was employed as a teacher in mathematics and in such capacity taught a ninth-grade class at Hialeah Junior High School. He stated that he was subject to a certain amount of stress from the school administrators for the reason that all teachers were to be evaluated that year based upon, among other things, the scores their students received on certain performance tests. On the date in question, one of his students entered class and engaged in various disruptive activities, including talking to other students, chewing gum, and other unauthorized behavior. After repeatedly attempting to get the child under control, claimant finally asked him to remove a large wad of gum from his mouth, and the student complied by throwing the gum "like a baseball into the waste can" and then screaming at the top of his lungs, "The gum is gone." Claimant promptly told him to report to the vice principal's office, to which request the child shouted, "You asked me to throw the gum away. I threw the gum away."

When Zundell attempted to escort the pupil to the office, the latter refused, stating that he intended to remain in class, at which point claimant announced, "You're not going back to my class." The child then replied that if he hit appellant, he would get into trouble. Appellant stated that he suddenly felt extremely tense because of the student's reaction. Later, after he had been taken to the disciplinary office, the student, without apparent authorization, returned to the classroom, and claimant was again forced to remove him to the school's disciplinary room. Shortly after returning to the classroom, appellant felt an unusual sensation come over him. He was unable to move his arms or stand up; he vomited and began to experience an excruciating headache. A rescue crew was immediately summoned, and claimant was taken by emergency vehicle to a local hospital. 3

Page 1369

Dr. Basil Yates, a neurosurgeon, testified that in his opinion, founded upon reasonable medical probability, the unusual confrontation between the student and claimant caused the claimant's subarachnoid hemorrhage. 4 Dr. Yates felt that the claimant did not suffer from a preexisting condition, and that the hemorrhage was caused by a sudden surge of blood as a result of an elevation of blood pressure precipitated by the emotional encounter with the student. The doctor primarily based his opinion on several arteriograms which failed to reveal any evidence of an aneurysm (a bulge in the arterial wall), arterial malfunction, or lesion. The doctor was asked, however, whether the arteriogram would reveal a prior weakening of vessels in his brain. He responded

You can't tell that. The only thing an arteriogram does is outline the arteries. If there is a bulge on the artery, you can see that, but you have no idea of the integrity of the walls.

Based upon this evidence, the JCC found

After reviewing the evidence, I find that this claim must be denied. Florida law requires that, in order for a cardiac or vascular failure to be compensable, it must be accompanied by either a physical trauma or a physical over-exertion not routine to the type of job duties to which the claimant was accustomed. There is absolutely no evidence that the claimant sustained any sort of physical trauma or touching. In fact, the claimant's testimony is uncontradicted that at no time was he touched by the disruptive student, nor did the disruptive student at any time even threaten to touch him, or make a violent gesture toward him. Both parties stipulated that the claimant sustained an internal failure of the cardiovascular system. In the absence of any evidence of a physical touching or physical over-exertion, I find that the claimant's internal cardiovascular failure must be deemed noncompensable. Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961); Richard E. Mosca & Company, Inc. v. Mosca, 362 So.2d 1340 (Fla.1978); Skinner v. First Florida Building Corporation, 490 So.2d 1367 (Fla. 1st DCA 1986).

Appellant appeals this determination. It is undisputed that the factual determinations in the JCC's order are supported by competent substantial evidence. The dispute is one concerning the application of Victor Wine and Richard E. Mosca.

A claimant in all compensation cases must satisfy three elements of proof in order to establish a compensable injury: (1) That the worker suffered an accident, (2) that the accident occurred during the course of employment, and (3) the accident arose out of the employment. Southern Bell Tel. and Tel. Co. v. McCook, 355 So.2d 1166 (Fla.1977). At issue in the instant case is the "arising out of employment" or causation element. This component must be established by showing a causal connection between the employment and the injury. Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980).

The supreme court has determined that because of certain unique factors in cases which involve heart attacks and internal failures of the cardiovascular system, the causation element must be proven in a

Page 1370

particular fashion. 5 Victor Wine, supra; Richard E. Mosca, supra.

In Victor Wine, the supreme court held that for a heart attack to be compensable, the claimant must show that he or she was subject to unusual strain or overexertion not routine to the type of work that the employee was accustomed to performing. In Richard E. Mosca, the court further determined that

1) Heart attacks and internal failures of the cardiovascular system are to be treated in the same manner for the purposes of establishing the causation element in compensation cases, and

2) "Emotional strain is too elusive a factor independent of any physical activity in determining whether there is a causal connection between a heart attack or other failure of the cardiovascular system and claimant's employment."

Richard E. Mosca, supra at 1342. The claimant and the minority, however, would urge us to find that cardiovascular failure, allegedly precipitated by emotional stress, may be compensable because Victor Wine and Richard E. Mosca are distinguishable; the facts in those cases reveal that there was some kind of preexisting condition prior to the compensable incident. We reject the theory that a preexisting condition is a necessary element of proof prior to applying Victor Wine and Richard E. Mosca for the following reasons:

1) Requiring proof of a preexisting condition is contrary to the very reason for establishing a special test for determining compensability in heart attack and cardiovascular cases;

2) There have been a number of decisions from this court which have applied Victor Wine and Mosca without any mention of a preexisting condition; and

3) There have been no cases which hold that an employer has an initial burden of proof prior to applying the Victor Wine standard.

In Tintera v. Armour & Co., 362 So.2d 1344, 1346 (Fla.1978), the supreme court approved the reasoning of the Industrial Relations Commission which found that

Victor Wine is premised upon recognition of the fact that a great portion of our work force comes upon the work scene with heart defects that would result in heart attacks in any event.

In many of these cases, the existence of a preexisting heart or cardiovascular defect may be difficult or impossible to establish. In a number of cases, it is apparent that the incident would not have occurred without the undetectable defect, and notwithstanding the existence of such a prior defect, it is difficult, if not impossible, to directly attribute the injury to emotional stresses. See Richard...

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6 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. S......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. S......
  • Publix Super Markets, Inc. v. McGuire, No. 92-884
    • United States
    • Court of Appeal of Florida (US)
    • October 12, 1993
    ...and remand for further proceedings consistent with our holding. See Zundell v. Dade Co. Sch. Bd. and Gallagher Bassett Serv., Inc., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc) (affirming order denying claim for benefits, where intracerebral subarachnoid hemorrhage suffered by claimant/teac......
  • Zundell v. Dade County School Bd., No. 81057
    • United States
    • United States State Supreme Court of Florida
    • March 10, 1994
    ...ESTABLISHED IN VICTOR WINE & LIQUOR, INC., V. BEASLEY 1 AND RICHARD E. MOSCA & CO., INC., V. MOSCA 2? Zundell v. Dade County School Bd., 609 So.2d 1367, 1371 (Fla. 1st DCA 1992). We rephrase the question as Whether the rule announced in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 ......
  • Request a trial to view additional results
6 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. S......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 636 So.2d 8 (Fla.1994); Jones v. S......
  • Publix Super Markets, Inc. v. McGuire, No. 92-884
    • United States
    • Court of Appeal of Florida (US)
    • October 12, 1993
    ...and remand for further proceedings consistent with our holding. See Zundell v. Dade Co. Sch. Bd. and Gallagher Bassett Serv., Inc., 609 So.2d 1367 (Fla. 1st DCA 1992) (en banc) (affirming order denying claim for benefits, where intracerebral subarachnoid hemorrhage suffered by claimant/teac......
  • Zundell v. Dade County School Bd., No. 81057
    • United States
    • United States State Supreme Court of Florida
    • March 10, 1994
    ...ESTABLISHED IN VICTOR WINE & LIQUOR, INC., V. BEASLEY 1 AND RICHARD E. MOSCA & CO., INC., V. MOSCA 2? Zundell v. Dade County School Bd., 609 So.2d 1367, 1371 (Fla. 1st DCA 1992). We rephrase the question as Whether the rule announced in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 ......
  • Request a trial to view additional results

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