Opinion
No. QQ-139.
February 21, 1980. Rehearing Denied March 25, 1980.
David F. Roemer, Coral Gables, for appellant.
Frank M. Hamilton, of Fleming, O'Bryan Fleming, Fort Lauderdale, for appellees.
Appellant, who had a pre-existing back injury, began working for a Ranch House Restaurant in November 1973. One day in 1974, while waiting tables, she lifted a tray, carried it to the back of the restaurant, and felt a severe popping in her back. She reported the incident to the cashier, who told her to go to a hospital. Ultimately, appellant was diagnosed as having a herniated lumbar disc; she had surgery in June 1974. A neurological surgeon who saw her in 1978 gave her a twenty percent permanent partial disability to the body as a whole, fifteen percent of which he attributed to her accident.
The judge of industrial claims denied benefits on three grounds, which constitute the bases for this appeal: appellant's claim for benefits listed the date of accident as March 21, 1974, yet her initial treating physician and the hospital records show May 1974 as the actual date of injury; all the permanent disability was caused by the pre-existing condition and two subsequent automobile accidents; and the initial physician's files contain no history of an accident at the restaurant.
We affirm as to the third ground. The physician simply said his notes showed no history of the restaurant accident, but he added that he simply could have left out reference to the accident when he made his notes. The doctor's records do not refute that there was an accident; they simply fail to confirm one.
Appellant's first two points however, demonstrate error. It is true that the claim lists an incorrect date. It is also true, however, that, the day after the accident, appellant notified the cashier, and the cashier had her fill out a report and go to the hospital. This evidence was uncontradicted by appellees, as was testimony that the cashier was at least the waitresses' ex officio supervisor.
A line of cases holds such notice sufficient. In Phelps v. Gunite Corp., 279 So.2d 829 (Fla. 1973), claimant told his foreman he was quitting because of continued skin irritation from his work. Hester v. Westchester General Hospital, 260 So.2d 505 (Fla. 1972), involved notice to a nursing supervisor. And in Drew v. Wellman-Lord Engineering Co., 166 So.2d 136 (Fla. 1964), claimant told his general foreman he had suffered an accident, and the next day he repeated this information to his immediate foreman. In the instant case, despite the erroneous date on the claim for benefits, appellant's report to the cashier was notice to the appellees.
As to the second point, essentially the only basis for finding no compensable disability is that if no accident occurred at the Ranch House on March 21, 1974, no accident ever occurred there. By contrast, the record contains appellant's testimony that she could perform all her duties before the accident, her account of reporting it to the cashier, the initial physician's statement that if there had been an accident, it would have aggravated appellant's pre-existing back condition, and, most telling, the neurosurgeon's testimony that fifteen percent of appellant's twenty percent permanent partial disability was "referable to the May of '74 accident and the subsequent surgery." The record thus contains competent, substantial evidence to support appellant's claim but no competent, substantial evidence to support appellees' contrary position.
Affirmed in part and reversed in part.
I respectfully dissent. The majority opinion, in this instance, confuses notice and what I perceive as a due process problem. A claim for benefits was filed on January 27, 1975 for an accident that allegedly occurred on March 21, 1974. The employer's first report of injury lists the date of accident as 3/21/74. Both the request for pre-trial conference and the notice of hearing set forth 3/21/74 as the date of accident. It was the testimony of Mrs. Collier that the day after her accident she was taken to Bethesda Hospital for emergency treatment and given an appointment to see Dr. Jones the next day. The hospital records indicate that she was seen on May 23, 1974 and are in accord with Dr. Jones' records which reflect that she was seen by him on May 24th. The carrier's attorney, at the final hearing, interposed the following objection:
MR. HAMILTON: Judge, I am going to interpose an objection right now. She said May 24. We are here today about an accident 3-21-74. That is on the notice of claim. That is the alleged accident date. There is no reported accident, to my knowledge, in the file of May 21, 1974. From this lady's testimony she went to the emergency room at Bethesda Hospital the day following the incident and then the next day or day following, she went to Doctor Jones. She tells us it was the 24th of May. I can only conclude there is an attempted amendment of the day of accident to May 21, 1974 and we are not here on an accident of May 21, 1974.
THE JUDGE: Here's the original claim letter filed by Charles Daniels.
Q (By Mr. Roemer) Who is Janet Kennedy?
A I think she was the manager or cashier, at that time. She moved from a different position from cashier to managing. I don't recall if Janet Kennedy was the one that sent me.
MR. ROEMER; The records are to the dates that Claimant testified to. I think the date of accident which was filed upon is correct according to what information I have available to me. We would have to go by that particular date or dates.
Q (By Mr. Roemer) Did you say you had two accidents?
MR. HAMILTON: March 21, 1974 is the accident for which the claim was filed.
MR. ROEMER: You said 2 —
MR. HAMILTON: That was a substitution of counsel. There were two dates foreign to me.
THE JUDGE: They apparently were in error.
MR. ROEMER: Well, the information contained in the claim letter, 3-21-74, is the one that was filed and that was the one reported and apparently is the correct date.
MR. HAMILTON: I will go into it on cross examination.
THE JUDGE: The claim letter will be received and marked as Judge's Exhibit No. "1."
It is clear that the claimant chose not to amend her claim, but persisted in her assertion that the date of accident filed upon was correct. The employer/carrier justifiably focused on this date and tailored their defense accordingly. There was no showing that the carrier knew, or should have known, prior to final hearing that it was being called upon to defend against a May, 1974 accident. The employer's first report of injury dated July 22, 1974 (approximately two months after the May hospitalization) lists the date of accident as March 21, 1974 and is consistent with the carrier's statement that their defense was geared to that date. The claimant failed to prove that a compensable accident occurred on March 21, 1974. No claim has been filed for a May accident and the carrier's objection to being forced to defend against such an accident was timely and well-taken. The deputy commissioner, under these circumstances, correctly denied benefits and the order should be affirmed. I would caution, however, that a misstated date of accident will not in every instance result in a denial of benefits. Another set of facts could dictate a different conclusion but, based on the evidence in this case, the order should be affirmed.