McCall v. Dick Burns, Inc.

408 So. 2d 787
CourtDistrict Court of Appeal of Florida
DecidedJanuary 14, 1982
DocketYY-494
StatusPublished
Cited by19 cases

This text of 408 So. 2d 787 (McCall v. Dick Burns, Inc.) 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
McCall v. Dick Burns, Inc., 408 So. 2d 787 (Fla. Ct. App. 1982).

Opinion

408 So.2d 787 (1982)

John R. McCALL, Appellant,
v.
DICK BURNS, INC. and Federal Insurance Company, Appellees.

No. YY-494.

District Court of Appeal of Florida, First District.

January 14, 1982.

*788 Emil Jaczynski, Fort Lauderdale, for appellant.

Frank M. Hamilton of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees.

ERVIN, Judge.

Appellant John R. McCall suffered a myocardial infarction (heart attack) while on the job, but his workmen's compensation claim[1] was found to be noncompensable, because the heart attack was the result of a pre-existing heart disease and not due to an unusual, non-routine strain or over-exertion. The deputy commissioner's order also appears to suggest that there was not a precise temporal correlation between the time of McCall's exertion and his disabling heart attack. We reverse the determination that the heart attack was not compensable and remand this case for further proceedings.

The record indicates that fifty-five year old John McCall had worked in construction oriented jobs most of his life, including among other things, as a welder and a master mechanic. Although McCall and his personal physician testified that he had never suffered from a known previous heart condition, post-injury examinations by other doctors indicated that McCall had been subject to coronary artery disease. The disease was non-disabling, but it was becoming progressively worse, causing his arteries to become blocked.

Approximately eight months before suffering his heart attack, McCall was successful in obtaining work with appellee Dick Burns, Inc., a construction equipment company. McCall testified that he was hired as a master mechanic and equipment supervisor and that his actual duties included supervision of company mechanics and equipment *789 damage assessment.[2] According to the testimony of one of the people that he supervised, his normal duties apparently involved hard work, but he clearly was more of a supervisor than a laborer.[3]

On Tuesday, February 13, 1979, McCall and a crew of workers commenced work on a large outrigger that extended from a crane for the purpose of support. The outrigger had a 3.5 inch diameter bolt with a hole in it. The bolt was frozen, and McCall ordered his crew to place a bar through the hole for leverage. After using a lubricant to loosen the bolt and a sledge hammer on the leverage bar, the bolt still wouldn't move. McCall told his crew to attempt loosening the bolt by hand with the bar.

The workers strained so hard on the bolt that one of them stood aside after severely straining his back. At this point McCall assisted his crew by lifting up and down on the bolt with a sudden jerking action for ten minutes. Suddenly, McCall felt a ripping pain across his chest, lasting ten minutes. McCall testified that he had never engaged in this type of work or such strenuous work.

Although the pain subsided, he continued having burning, aching pains for the rest of the day. His pains continued on Wednesday and Thursday morning. He went home Thursday during the noon hour and then drove his pick-up truck to Miami on business. By the time that he reached his destination he was in such pain that he couldn't even get out of the truck. Subsequently he was taken home and then to his family doctor at the hospital where he remained for twelve days.

The deposition testimony of three doctors was presented to the deputy. The deputy cited testimony by McCall's personal physician, Dr. Anthony Vento, who diagnosed an acute inferior wall myocardial infarction with a secondary congestive heart failure, all of which stemmed from the pre-existing arteriosclerotic heart disease. Dr. Henry Cooper, a heart specialist, agreed, finding a relatively infinitesimal inferior wall infarction. He believed that the claimant suffered no permanent disability due to the infarction. Dr. Cooper's testimony discounted any relationship between McCall's physical activities and the infarction. He noted that the pain suffered by McCall was angina caused by stress, but it was merely temporary in nature, subsiding within a few minutes after the stress was halted.

On the other hand, the deputy also cited the findings of Dr. Orlando Maytin, another heart specialist. He indicated that the heart disease was the partial cause of the infarction. However, he noted that unusual stress could have triggered the infarction. Based on a hypothetical question and within reasonable medical probability he stated that the heavy lifting actions could easily have triggered McCall's infarction. The testimony of the medical experts seems hopelessly in conflict, and while the deputy gave a comprehensive written recitation of the doctor's testimony, it appears he did not *790 make specific findings as to whether McCall's physical exertion medically caused his problems.

The deputy did find that the heart attack was not compensable, primarily based on the testimony of the claimant and that of one of the claimant's laborers, Gordon DeVore. Relying on DeVore's testimony the deputy commissioner found that McCall always worked on heavy equipment which is heavy work, and therefore, it was difficult to view McCall's exertion as unusual. The deputy also determined that the myocardial infarction occurred at a time when McCall wasn't performing any heavy duties. These findings all seem to relate to the lack of the existence of a legal causal connection between McCall's work and heart attack.

That both a medical and legal cause for claimant's heart attack must be established and supported by competent substantial evidence seems apparent from a review of numerous Supreme Court decisions on the subject of compensable heart ailments.[4] This is essential in cases such as the one before us because of evidence of the prior weakness of McCall's heart due to the non-disabling heart disease.

The reasoning behind the requirement of both a legal and medical causation analysis in heart cases, as well as in pre-existing disease cases, stems in good part from the view that the natural progress of a disease might precipitate a collapse during working hours. In such cases absent proof of some identifiable effort on the job which within reasonable medical probability can be said to have a causal connection to the collapse, there arises serious doubt that the collapse was either accidental or causally related to the employment. See 1B Larson, Workmen's Compensation Law § 38.83 at 7-257 to 7-261 (1980).

Consequently, the underpinning of compensable heart attacks in the Florida workmen's compensation setting is that the heart attack must stem, at least in part, from some specifically identifiable physical activity. Silvera v. Miami Wholesale Grocery Company, 400 So.2d 439, 441 (Fla. 1981).

However, not any physical activity is sufficient to sustain a finding of compensability, especially in cases involving a pre-existing heart disease.

When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.

Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 588-589 (Fla. 1962). This constitutes the test for legal causation. Proof of this point is geared toward satisfying the requirement that the injury is one "arising out of the employment." § 440.09(1) Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Coca-Cola Bottling Co. v. Perdue
955 So. 2d 73 (District Court of Appeal of Florida, 2007)
Harper v. Sebring International Raceway, Inc.
886 So. 2d 288 (District Court of Appeal of Florida, 2004)
Vadala v. Polk County School Board
822 So. 2d 582 (District Court of Appeal of Florida, 2002)
Louisiana Pacific Corp. v. Harcus
774 So. 2d 751 (District Court of Appeal of Florida, 2000)
Closet Maid v. Sykes
763 So. 2d 377 (District Court of Appeal of Florida, 2000)
Ex Parte Trinity Industries, Inc.
680 So. 2d 262 (Supreme Court of Alabama, 1996)
State, Division of Hotels/restaurants v. Cole
664 So. 2d 291 (District Court of Appeal of Florida, 1995)
Brasington Cadillac-Oldsmobile v. Martin
641 So. 2d 442 (District Court of Appeal of Florida, 1994)
Zundell v. Dade County School Bd.
609 So. 2d 1367 (District Court of Appeal of Florida, 1992)
Walker v. Friendly Village of Brevard
559 So. 2d 258 (District Court of Appeal of Florida, 1990)
Daniels v. Office Mart Holding Corp.
548 So. 2d 828 (District Court of Appeal of Florida, 1989)
Stinson v. Stroh's Brewing Co.
540 So. 2d 893 (District Court of Appeal of Florida, 1989)
Broadfoot v. Albert Hugo Ass'n, Inc.
478 So. 2d 863 (District Court of Appeal of Florida, 1985)
City of Opa Locka v. Quinlan
451 So. 2d 965 (District Court of Appeal of Florida, 1984)
Wolbert, Saxon & Middleton v. Warren
444 So. 2d 511 (District Court of Appeal of Florida, 1984)
Matson v. Hobeau Farms, Ltd.
438 So. 2d 945 (District Court of Appeal of Florida, 1983)
Smith v. Crane Cams, Inc.
418 So. 2d 1266 (District Court of Appeal of Florida, 1982)
City of Pompano Beach v. Sanders
415 So. 2d 840 (District Court of Appeal of Florida, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
408 So. 2d 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccall-v-dick-burns-inc-fladistctapp-1982.