Caropreso v. Publix Super Markets

277 So. 2d 279, 1973 Fla. LEXIS 4479
CourtSupreme Court of Florida
DecidedMay 2, 1973
DocketNo. 41772
StatusPublished

This text of 277 So. 2d 279 (Caropreso v. Publix Super Markets) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caropreso v. Publix Super Markets, 277 So. 2d 279, 1973 Fla. LEXIS 4479 (Fla. 1973).

Opinions

BOYD, Justice.

This cause is before us on petition for writ of certiorari and cross-petition for writ of certiorari, to the Florida Industrial Relations Commission.

The claimant, petitioner herein, is a 41 year old man who had worked in grocery stores all his life. In 1966, he moved to Florida and went to work for the Respondent, Publix Super Markets, as a meatcut-ter. Prior to this time, the claimant was in perfect health and had never had any difficulty with his hands.

The claimant’s job required him to work eight hours a day, in a refrigerated room where the temperature was 40 to 50 de[280]*280grees and, frequently, to go into an icebox room in which the temperature was 34 degrees. More importantly, about half of his time (or four hours a day), he had to work with his hands immersed in ice or ice cold water. He continued to work in this manner for about two years, but by January, 1968, he had developed an infection in his hands which required hospitalization.

The claimant was treated by Dr. Warren, who diagnosed the claimant’s condition as periarteritis nodosa. The doctor discharged the claimant to return to work back in 1968, but told him to avoid getting his hands cold.

The claimant returned to work for Pub-lix in 1968 and requested that his job be changed because of the doctor’s advice. He was changed to the produce department, where he no longer had to work with his hands in ice, but still had to work in the room where it was 40 to 50 degees, go into the room where it was 34 degrees, and handle cold vegetables. The claimant continued working like this until February 9, 1970, when he could no longer continue because of the condition of his hands.

The claimant’s hands have turned blue, black, and are so distorted that he cannot use them. Dr. Warren described the claimant’s hands as functionless and 100% disabled for all practical purposes. An employment counselor stated that the claimant was now unemployable.

Dr. Warren, the treating physician, was the only medical witness. He testified that the claimant’s condition, periarteritis no-dosa, is a rare vascular, collagen disease involving auto immunity. The exact cause of this disease is unknown; about all that is known about it is that it is definitely aggravated by exposure to cold. Exposure to cold causes Raynaud’s phenomena, which is a vascular reaction in which the blood vessels of the hands close because of the cold, and this cuts off the blood supply so that cells die. In persons who have periarteri-tis nodosa, such death of cells is irreversible and eventually the exposure to cold causes so much cell loss that the flesh of the hands completely dies, and the hands become useless and must eventually be amputated.

In the claimant’s case, Dr. Warren was of the opinion that the claimant’s exposure to cold in his employment did not cause the periarteritis nodosa but that this exposure to cold “most certainly” aggravated the periarteritis nodosa to cause the claimant’s loss of use of his hands, and had he not been exposed to cold the periarteritis no-dosa would have remained dormant indefinitely. Dr. Warren further stated that this aggravation of periarteritis nodosa due to exposure to cold was a particular hazard of the claimant’s employment conditions at Publix.

The Judge of Industrial Claims found that :

“. . . the aggravation of the disease periarteritis was due to causes and conditions which are characteristic of and peculiar to the Claimant’s particular occupation. The nature of the Claimant’s work was specialized and required him to become exposed to cold and ice for prolonged periods of time. These conditions encountered were, to a large degree, beyond that prevailing in employment generally.
“. . . [T]he nature of the Claimant’s work was within reasonable medical certainty the contributory cause of the aggravation.”

The trial judge concluded that the claimant had suffered permanent total disability due to a compensable, occupational disease in terms of aggravation.

The employer-carrier appealed and the Full Commission, in a 2 to 1 decision, reversed the order of the trial judge. The majority of the Full Commission concluded that the claimant had suffered neither an occupational disease nor an accident, and they therefore denied and dismissed the claim.

[281]*281The dissenting Commissioner wrote:

“I do not agree with the opinion of the majority that this was not a case of aggravation of a pre-existing condition. I would affirm the decision of the Judge of Industrial Claims on the ground that the condition was the result of an aggravation of a pre-existing condition.

Respondents cross-petitioned this Court for a writ of certiorari on the basis of the following facts.

The Judge of Industrial Claims entered in his Order an award of attorney’s fees to the Claimant in the amount of $16,000.00. This award was made pursuant to affidavits filed by the Claimant’s attorneys indicating that a total of fewer than 50 hours total time was expended in the preparation and prosecution of the claim. Cross-petitioners assert that the claim involved no new or unusual points of law, and a factual situation which, although novel, was not complex or without similarity in prior cases. Cross-Petitioners applied for Review of the Order of the Judge of Industrial Claims, alleging as error, among other points, the excessive award of attorney’s fees, in conflict with the rules established in Lee Engineering & Construction Co. v. Fellows1 and Florida Silica Sand Co. v. Parker.2 The Full Commission reviewed and reversed the Order upon other grounds, but entered no ruling on this point of appeal. Cross-Petitioners urge this Court to consider and rule upon this additional point of law, arguing that the attorney’s fee award entered by the Judge of Industrial Claims does not comport with the standards set forth in the foregoing decisions and in Tampa Aluminum Products Company v. Watts.3

We have heard argument of the parties and reviewed the record and briefs. The Order of the Judge of Industrial Claims is supported by competent substantial evidence and should not have been reversed. Dr. Warren, the claimant’s treating physician, testified as follows:

“A. Yes, I am familiar with his typical day and I would think that most everything outlined here would be an aggravation to his hands with this condition.
“Q. Well, Doctor, if he did this over a continuous period of time, do you feel that this would in any way hasten or aggravate the disease you have diagnosed?
“A. I think it most certainly would. I think the more he is exposed to cold or trauma, the more difficulty he will have. .
“Q. Dr. Warren, but for the exposure to the cold and ice at Publix and this continuous exposure over a period of time, is it true that this disease may not have been aggravated and could have remained dormant for an indefinite period of time.
“A. Yes, although I don’t think his employment caused his disease. I think without this he may have remained dormant. I don’t have any idea as to how long.
“Q. Dr. Warren, do you have an opinion based on reasonable medical certainty or probability as to whether or not Mr.

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Related

Florida Silica Sand Co. v. Parker
118 So. 2d 2 (Supreme Court of Florida, 1960)
Worden v. Pratt and Whitney Aircraft
256 So. 2d 209 (Supreme Court of Florida, 1971)
Lee Engineering & Construction Company v. Fellows
209 So. 2d 454 (Supreme Court of Florida, 1968)
Czepial v. Krohne Roofing Company
93 So. 2d 84 (Supreme Court of Florida, 1957)
Tampa Aluminum Products Co. v. Watts
132 So. 2d 414 (Supreme Court of Florida, 1961)
Walker v. McDonnell Aircraft Corp.
231 So. 2d 210 (Supreme Court of Florida, 1970)
Dillow v. Florida Portland Cement Plant
258 So. 2d 266 (Supreme Court of Florida, 1972)

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277 So. 2d 279, 1973 Fla. LEXIS 4479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caropreso-v-publix-super-markets-fla-1973.