Opinion
No. AC-309.
February 2, 1982.
Appeal from the Deputy Commissioner, David L. Trask.
Jerry V. Wilkey, Coral Gables, for appellants.
Michael D'Agostino, Miami, for appellees.
We affirm a workers' compensation order in which the deputy commissioner found the claimant's heart attack compensable and awarded medical benefits in addition to temporary and permanent total disability.
Folgueral is a 57-year-old immigrant with a sixth grade education and limited knowledge of the English language. He worked as a hotel valet, farm hand, chauffeur and ice cream maker in Cuba and Spain before coming to this country and finding work as a lens polisher. Eventually he was employed by Joy Footwear as a box maker, working his way up to the position of cutter's helper and, finally, cutter. On the day of the injury, Folgueral was forced to lift and truck an approximately one-hundred pound roll of fabric by himself, unassisted by his assigned helper who, the claimant testified, abused and intimidated him, threatened him with violence and openly refused to assist. Shortly after the lifting incident, Folgueral experienced chest pains and shortness of breath. He was taken to a hospital where the treating physician diagnosed a heart attack, later opining that the threats and lifting were the proximate cause of the myocardial infarction.
Preliminarily, we agree with the deputy that Folgueral's injury was compensable. The claimant established that the circumstances surrounding his heart attack fell within the parameters of Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla. 1981). See also Victor Wine Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1961). The combined testimony of Folgueral and his physician supported the deputy's finding of temporary total disability.
The carrier argues reversible error occurred in the deputy's award of the treating physician's bills since the doctor failed to meet the reporting requirements of Section 440.13(1), Florida Statutes (Supp. 1980). We affirm the deputy commissioner because the record clearly reflects that the doctor did not realize the injury was work-related, and he submitted bills to another carrier, which paid them. This receipt of payment led the doctor to believe he had done all the reporting that was required. As primary physician, his treatment of Folgueral necessarily continued. A confused legal situation or complex factual circumstances may constitute good cause for failure to file section 440.13 reports. Hardware Mutual Casualty Company v. Sutton, 197 So.2d 502 (Fla. 1967).
Finally, the carrier urges that the award of permanent total disability must be reversed on the ground that Folgueral only looked for jobs which were beyond his physical abilities. However, the record does not support the carrier's position. Folgueral testified that he applied for certain available delivery jobs but was refused employment due solely to his heart problems. Although the doctor placed limitations on Folgueral's walking, lifting and driving, the carrier adduced no evidence that the delivery positions would exceed those limitations.
Accordingly, the compensation order is AFFIRMED.
ROBERT P. SMITH, Jr., C.J., concurs.
MILLS, J., concurs in part and dissents in part, with written opinion.
I agree with the majority that the deputy's finding that claimant's heart attack was compensable should be affirmed. Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla. 1981), and Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1961). Otherwise, I disagree with the majority and would reverse.
There is no direct medical testimony that claimant was totally disabled from 3 January 1978 to 20 June 1978. There is no evidence that he made a good faith work search for jobs within his physical limitations during that period. Therefore, I would reverse this finding on authority of Monex Corp. v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980).
The doctor admits that he did not comply with the reporting requirements of Section 440.13(1), Florida Statutes (Supp. 1980). I would reverse the deputy's requirement that the employer/carrier pay this bill because the deputy did not excuse the filing requirements as required by Section 440.13, Florida Statutes (Supp. 1980).
A claimant cannot be found to be permanently totally disabled if he fails to make a good faith work search. Exxon Company U.S.A. v. Alexis, 370 So.2d 1128 (Fla. 1978). In this case, claimant only sought three jobs as a delivery man which is clearly outside his doctor imposed physical limitations. I would reverse this issue because of this deficiency in claimant's proof.