CHARLES WARMAN, PETITIONER,
v.
METROPOLITAN DADE COUNTY, A QUALIFIED SELF-INSURER, AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS

Fla. | 1969-11-25
No. 38152
ERVIN, C. J., and ROBERTS, DREW and ADKINS, JJ., concur.
228 So. 2d 908 Florida Supreme Court (1969) Positive Treatment
Cited by 8 cases

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Synopsis

This workers' compensation case involves a 54-year-old heavy equipment operator who suffered a heart attack while engaged in unusual shovel work. The Florida Supreme Court reversed the commission's dismissal and reinstated the judge's award, holding that substantial evidence supported a causal connection between the claimant's employment activity and his myocardial infarction.


Holding

The Court held that there is competent substantial evidence supporting the deputy judge's award. The heart attack was causally related to the claimant's employment, and the shovel work constituted unusual exertion under the circumstances since the claimant rarely performed such digging tasks, customarily having laborers assigned to him for such work.


Key Quotes

“There is competent substantial evidence supporting the deputy's award under the law as announced in Victor Wine & Liquor, Inc. v. Beasley, 141 So. 2d 581 (Fla.1962).”

The Court's holding regarding the standard of review and its conclusion that sufficient evidence supported the claimant's award.

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Facts & Procedural History

On February 20, 1967, Charles Warman, a heavy equipment operator for Metropolitan Dade County, was grading a roadside when his grader struck a concret…

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Opinion of the Court
BOYD, Justice.

BOYD, Justice.

This ca.use is before us on petition for writ of certiorari to review the Order of the Full Commission reversing the Judge of Industrial Claims and dismissing the claim.

Claimant, a 54-year-old heavy equipment operator, suffered a heart attack on February 20, 1967. On that day he had been grading the side of the road for approximately an hour after lunch when his “Hubert grader” ran into what proved to be a concrete spillway overgrown with grass and weeds. Claimant got a shovel and began digging and chopping weeds away in order to see what he would have to do to complete the job. A square-edged shovel and a broom were carried on the grader for occasional use in removing loose dirt thrown on a driveway or sidewalk. After about five or ten minutes of digging in the pit rock surface, claimant felt a pain in his chest. He stopped, rested and then began to dig again. The pains got stronger and he had a temporary blackout. Help was called and claimant was taken to the emergency room of the hospital where acute severe myocardial infarction was diagnosed.

The Judge of Industrial Claims found that the heart attack was causally related to claimant’s employment and that the activity preceding the attack constituted unusual exertion. He awarded claimant 70% permanent partial disability of the body as a whole.

The Full Commission reversed and dismissed the claim on the grounds that the opinions of the expert witnesses as to the causal relationship between claimant’s employment and his heart attack were based on facts and inferences which are not supported in the evidence. The Full Commission also stated that chopping weeds with a *909shovel for five or ten minutes could not be classified as unusual strain or exertion which is not routine to the type of work customarily performed by a “bulldozer operator.” The claimant testified without contradiction that he rarely used the shovel carried on the grader, that by “rarely” he meant:

“It only happens maybe once a year. Generally, like I said when I built the 79th Street Parkway, the laborer I had then was assigned to me two years straight every day. After the labor shortage when they wouldn’t assign me a laborer, they would assign me a truck driver * *

In another place, claimant testified:

“I very rarely use the shovel. In fact I generally have assigned to me a laborer or a truck driver who takes care of the shoveling or broom work and put signs on the road for the safety of us.”

Dr. Bernard Halperin, an internist, testified that the heart attack was causally related to the digging episode. Dr. Halper-in’s testimony was based on a substantially correct history of the events preceding the attack. He testified claimant told him that he did not ordinarily do heavy digging and that immediately before the heart attack claimant “had a square shovel and he was digging into the embankment to see what was in the embankment that stopped the machine. It was like dirt, rock, grass and coral. * * * He was digging away an embankment into a ridge.”

The Full Commission discredited Dr. Halperin’s testimony on the ground that the Doctor believed claimant was digging an embankment into a ridge. An examination of the Doctor’s entire statement, set out in part above, shows he sufficiently understood the extent and nature of claimant’s exertion.

Medical evidence from other doctors relating the heart attack to claimant’s work-connected activities were based in part on misunderstanding of the history related by claimant.

We have examined the record and briefs and heard argument of the parties. There is competent substantial evidence supporting the deputy’s award under the law as announced in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962).

Accordingly, the petition for certiorari is granted, the Order of the Full Commission is quashed and the cause remanded with directions to reinstate the Order of the deputy.

Petition for attorney’s fees is granted in the amount of $350.

It is so ordered.

ERVIN, C. J., and ROBERTS, DREW and ADKINS, JJ., concur.


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Citator

Cited By

  • Richard E. Mosca & Co., Inc. v. Mosca, 362 So. 2d 1340 (Fla. 1978)
    …perated buses with manual transmissions. We held that the activity in which claimant was engaged at the time of the incident was usual and the alleged overexertion was routine to his type of work. The claimant in Warman v. Metropolitan Dade County, 228 So. 2d 908 (Fla.1969), a heavy equipment operator, suffered a’heart attack after digging in an embankment around his grader. While grading the road, he ran into a concrete spillway overgrown with grass. He got a shovel and commenced to dig and chop away the we…
  • …occasion does claimant engage in any outside activity, that outside activity is not routine to the job the claimant is accustomed to performing.2 See [*262] Yates v. Gabrio Electric Co., 167 So. 2d 565 (Fla.1964); Warman v. Metropolitan Dade County, 228 So. 2d 908 (Fla.1969) (Supreme Court held that a bulldozer operator who suffered a heart attack after approximately ten minutes of shoveling was involved in an activity constituting an unusual exertion where the evidence revealed that the employee used the sho…
  • Stinson v. Stroh's Brewing Co., 540 So. 2d 893 (Fla. 1st DCA 1989)
    …generally required only once every six months. In my judgment it is impossible to conclude that a job required to be performed only twice over the course of a year constitutes “routine” activity.2 See also Warman v. Metropolitan Dade [*896] County, 228 So. 2d 908 (Fla.1969) (bulldozer operator who suffered a heart attack after approximately ten minutes of shoveling was involved in activity constituting unusual exertion where evidence revealed that employee used the shovel carried on the grader only once a ye…

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