Herb's Exxon v. Whatmough

487 So. 2d 1169, 11 Fla. L. Weekly 989
CourtDistrict Court of Appeal of Florida
DecidedApril 29, 1986
DocketBG-418
StatusPublished
Cited by9 cases

This text of 487 So. 2d 1169 (Herb's Exxon v. Whatmough) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herb's Exxon v. Whatmough, 487 So. 2d 1169, 11 Fla. L. Weekly 989 (Fla. Ct. App. 1986).

Opinion

487 So.2d 1169 (1986)

HERB'S EXXON and Peninsular Fire Insurance Company, Appellants,
v.
John R. WHATMOUGH, Appellee.

No. BG-418.

District Court of Appeal of Florida, First District.

April 29, 1986.

Walter E. Beisler, of Beisler & Beisler, West Palm Beach, for appellants.

John C. Randolph, of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellee.

WIGGINTON, Judge.

Before us is an appeal from a workers' compensation order wherein the deputy commissioner found that claimant had suffered two accidents, and that claimant's left iliac artery occlusion was causally related to the compensable accident of November 28, 1980. Accordingly, the deputy ordered the employer/carrier to pay or reimburse claimant for all medical bills incurred for the treatment of the occlusion by Dr. Alpert and related medical providers. We affirm.

On December 30, 1980, claimant filed a notice of injury showing the date of accident as being either November 28 or November 29, 1980, and describing the accident as follows: "It had to happen when lifting cases of oil, or tires — had to move some cases in order to take inventory on 11/29/80 plus prior times." (Emphasis supplied). Claimant described the injury as "pain in L1 area of back, after on my feet for a period of time my left leg gives out from under me." He filed his claim on February 12, 1981, indicating the date of accident as being November 29, 1980, and the cause of injury as the lifting of cases of oil and tires while taking inventory. Again, claimant described the injury as involving the lower area of his back, with his left leg giving out from under him after his having been on his feet for a period of time. On the basis of the notice of injury and claim, the employer/carrier voluntarily paid compensation and medical benefits.

In June 1983, approximately two and one-half years following the claimed accident, claimant underwent arterial bypass surgery. The final diagnosis revealed that claimant had been suffering from an occluded left iliac artery which had caused the dysfunction of his left leg. Dr. Alpert, *1170 the physician who performed the surgery, later opined that the occlusion resulted from an alleged fall at work on November 28, 1980, of which claimant had informed Dr. Alpert when he was relating to him all of the circumstances leading to the onset of his pain on November 29, 1980. The carrier, still paying compensation benefits and providing medical care for the back injury described in the notice of injury and original claim for compensation, controverted the medical care for the occluded iliac artery on the basis that the condition was "unrelated to the accident of 11-28-80". (Emphasis supplied).

At the hearing before the deputy commissioner, claimant's attorney argued that the employer/carrier had been on notice of claimant's left leg problems from the beginning through the notice of injury and the initial claim, the subsequent history given to Dr. Alpert of claimant's fall and blow to his back, and Dr. Alpert's relating of the occlusion to that event. In contrast, the employer/carrier essentially took the position that claimant's story of the fall was unbelievable. Their attorney pointed out that claimant had failed to mention a fall during his first deposition taken in February 1981 and "suddenly" related a "new history" of a fourteen-foot fall from a ladder to his treating physicians in 1982 and 1983. The employer/carrier were finding it "impossible to believe" that until June 1983 all of claimant's treating physicians "would overlook an occlusion of the iliac artery and that suddenly that problem would be diagnosed and it would relate all the way back to November 28th of 1980." The deputy found that claimant had suffered two compensable accidents — the fall of approximately twelve feet from a ladder on November 28, 1980, that did not immediately produce any specific physical complaints but which caused the occlusion, and an incident on November 29, 1980, when claimant injured his back while lifting a case of oil.

In response to the deputy's finding of two accidents, the employer/carrier filed a motion for rehearing, raising a statute of limitations defense under section 440.19, Florida Statutes (Supp. 1980). Employer/carrier pointed out that claimant had filed only one claim for benefits; that in his deposition taken February 25, 1981, claimant had claimed injury by accident from only one incident, the lifting of a case of oil; that no claim was ever filed alleging multiple accidents. Employer/carrier argued that the statute of limitations had run as to the alleged November 28, 1980, accident since no benefits were paid as a result of the fall from the ladder and no claims for benefits were made prior to the discovery of the occlusion of the left iliac artery in June of 1983. The motion for rehearing was summarily denied.

On appeal the employer/carrier raise two issues: (1) whether there is competent and substantial evidence to support the deputy's conclusion that claimant sustained two accidents, and (2) whether the statute of limitations would bar an award of benefits for the November 28, 1980, accident.

Clearly, issue one is affirmable. Claimant's testimony and the medical evidence support the deputy's conclusion of a second accident resulting in the occluded artery. Cf. Winter Park Memorial Hospital v. Brown, 452 So.2d 116 (Fla. 1st DCA 1984).

Issue two merits further discussion. Section 440.19(2)(b), Florida Statutes (Supp. 1980), provides:

All rights for remedial attention under this section shall be barred unless a claim therefor which meets the requirements of paragraph (d) is filed with the division within 2 years after the time of injury, except that, if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury, a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer... .

In the instant case, the employer/carrier voluntarily paid compensation and medical benefits based on a notice of injury and *1171 claim describing an injury to claimant's back with left leg dysfunction as a consequence of lifting cases of oil or tires while taking inventory. Those payments were predicated on the treatment claimant received for lower back pain. While the medical reports indicated an awareness of claimant's left leg weakness, no independent significance was accorded that condition by the authorized physicians.

In January, 1982, while being examined by Dr. Ford, an employer/carrier authorized physician, for the first time claimant related a history of an eleven- or twelve- foot fall onto boxes at the employer's business on November 28, 1980. During that visit, claimant again complained of pain in the left lower extremity, with his left lower extremity "going out on him." On October 3, 1982, for the second time, claimant described the fall during a visit to Dr. Brimfield, another authorized physician, during which he explained that he suffered no specific pain from the fall until the following day when the pain manifested itself in his back. Despite this new history of a fall, however, neither physician, in his reports to the employer/carrier, related claimant's left lower extremity weakness to any injury other than the back injury possibly arising from the twisting and lifting incident. The occlusion was not discovered until June 1983 resulting in the surgery for which claimant now seeks payment.

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Bluebook (online)
487 So. 2d 1169, 11 Fla. L. Weekly 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbs-exxon-v-whatmough-fladistctapp-1986.