Nelson v. Circus Supply & Hardware Co.

JAMES T. VOCELLE, Chairman and JAMES CAMERON, Commissioner. This cause came on to be heard on the claimant’s application for review of an order dated December 22, 1955 denying claim for compensation and other benefits, and the employer and carrier’s motion to dismiss the application for review. The facts in the instant cause are not in dispute. On June 9, 1955, claimant rode to work with his foreman, who parked the automobile under a tent on the premises of the employer. Shortly thereafter, and approximately five minutes prior to the time he was to commence work, claimant opened the door of the automobile, stepped out, placing his right foot on the ground and then putting his left foot on the ground. He immediately collapsed, and as a result of the fall suffered comminuted fractures of the left femur at the head and neck of the femur. The deputy commissioner, found, inter alia, that “claimant’s injury conclusively did not result from an accident which arose ‘out of’ his employment.” Prior to discussing the merits of the claimant’s application for review, we shall discuss the employer and carrier’s motion to dismiss the application on the basis that the grounds for review are not stated concisely. Section 440.25(4), Florida Statutes 1955, provides, inter alia, that the application for review must state concisely the grounds upon which the appellant relies and that consideration of the commission will be confined solely to the grounds so presented. Rule no. 4 of the rules of procedure before the full [69] commission [4 Fla. Supp. at p. 237] adopts the language of the statute. Rule no. 11 provides that the cause shall be dismissed upon motion of any interested party for failure to comply with rule no. 4. The claimant’s grounds for review are as follows — “Petitioner represents that the findings and provisions of said order are contrary both to the law and evidence in the cause and that the deputy commissioner erred in not awarding proper compensation.” In claim ifcS-75388, Louis Skrobiek v. Pioneer Growers.Cooperative, decision file #2-402 [9 Fla. Supp. 46], the commission denied a motion to dismiss in an almost identical situation. In the Skrobick case we discussed in detail the reasons for denying the motion to dismiss, and cited Johnson v. Johnson, Fla. 1946, 28 So. 2d 438, as authority in support of our position in denying the motion. In the instant cause we reaffirm the reasons as stated in the Skrobiek case, and on authority thereof the employer and carrier’s motion to dismiss is denied. It appears, as stated before, that the parties agree on the essential facts of this cause, and, as stated by the deputy in his order —“The employer/carrier concedes that the injury arose in the course of the claimant’s employment, but contends that it was not the result of an accident which arose out of such employment; ***.” In support of his ruling, the deputy cites Protectu Awning Shutter Co. v. Cline, Fla. 1944, 16 So. 2d 342, and quotes from Larson’s treatise on Workmen’s Compensation Law, section 12.14. In the Protectu case the claimant was an old man subject to fainting spells, and during the Course of his employment he fell and fractured his skull on the concrete floor. In affirming an award of compensation by the circuit court, the Supreme Court stated— “The fact that Cline suffered from heart disease, which no doubt caused him to fall, does, not preclude recovery. The chances are he might have fallen and sustained a fatal injury in his own home, yet it is less likely had he remained in the quiet of his own home, for without the physical exertion encountered in his work by a man of his age and physical condition, the chances of his falling were less likely.” (Emphasis supplied.) Mr. Larson’s analysis of the principle governing idiopathic falls is entirely consistent and compatible with the principle enunciated above. Larson states in his text, section 12.14, at page 169 — “In summary: the only principle on which the effects of falls, caused by internal weakness or disease, can be made attributable to the employment is the idea that the environment supplied a hazard which, added to the idiopathic fall, produced the ultimate injury. Whether or not, in the light of recent cases, it may be correct to say [70] that the majority of the newer cases permit recovery even when the fall is to a level hard floor, this should not be taken to mean that the necessity for showing some contribution by the employment to the risk has altogether disappeared.” (Emphasis supplied.) It is interesting to note the later cases cited in the supplement to Larson’s treatise. In Employers Mutual Liability Insurance Co. v. Industrial Acc. Commission (Cal. Dis. Ct. of App. 1953), 253 P. 2d 737, it was held that an idiopathic fall on a cement floor was not a special risk of employment. Two other cases are also cited which deny claim for compensation when injuries are suffered as a result of idiopathic falls, i.e., Dasaro v. Ford Motor Co. (1952), 280 App. Div. 266, 113 N.Y.S. 2d 413, and Montanari v. Lehigh Portland Cement Co. (1953), 282 App. Div. 1082, 126 N.Y.S. 2d 180. In Foxworth v. Florida Industrial Commission, Fla. 1955, 86 So. 2d 147, our Supreme Court in discussing the Protectu v. Cline case, supra, stated — “In the Cline case we upheld recovery for effects of a fall caused by the heart attack of the claimant who as a result fractured his skull on the concrete floor. This decision is justified on the basis that the hardness of the floor was an increased hazard attributable to the employment, but that case represents the outer limits of the doctrine. To extend the rule further would be to eradicate completely the statutory requirement that the injury must be one arising out of the employment. The employment in some manner must contribute an increased hazard peculiar to the employment.” (Emphasis supplied.) We are of the opinion that the deputy commissioner was correct when, as a matter of fact and law, he determined that there was no increased hazard connected with the employment at the instance of the fall and therefore said injury by accident did not “arise out of the employment.” Having considered the cause upon the record and oral arguments of counsel, it appearing that the deputy’s findings of fact are supported by competent substantial evidence, which accords with logic and reason, and that his order accords with the essential requirements of law within the meaning of U.S. Casualty Co. v. Maryland Casualty Co., Fla. 1951, 55 So. 2d 741, the deputy commissioner’s compensation order dated December 22, 1955 is affirmed.