Workers’ Compensation Case Law Update – Toxic Exposure

January 29, 2020 by on News

In a pair of cases (in which the oral arguments were held at the 2018 WCI conference in Orlando), the First DCA upheld a heightened standard of proof for claims involving exposure to toxic substances under Florida Statutes section 440.02(1).  After these cases, claimants will certainly have a difficult time establishing compensability of such claims.

In 2003, the Florida Legislature amended the definition of "accident" in section 440.02(1), to impose a heightened standard of proof for toxic exposure claims as follows:

An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

440.02(1). Fla. Stat. (2003).

In the case of School District of Indian River v. Cruce, 44 Fla. L. Weekly D2877 (Fla. 1st DCA November 27, 2019), a groundskeeper came home from work covered in a smelly white dust, which he told his wife and daughter were bird droppings and that he had been cleaning out an area containing dead pigeons, live bats, and rodents. The claimant began complaining of headaches and sought treatment with his family doctor for ear and head pain.  He was hospitalized at one point when he became unresponsive while at the doctor's office. He was released from the hospital after a few days but re-admitted less than a week later when he collapsed at home. Further testing revealed findings consistent with cryptococcus fungus species. Two additional spinal taps confirmed a diagnosis of cryptococcal meningitis. As a result of the meningitis, the Employee died.

After the parties secured opinions from their IMEs followed by an EMA, the JCC found that the claimant was "exposed to pigeons and their droppings at the stadium worksite,” and determined that the claim was compensable.  The First DCA reversed, however.

The First DCA explained that Section 440.02(1) mandates a "dose-response" relationship requiring: 1) proof of actual exposure (ingestion or absorption); 2) the levels to which one is exposed (dose); and 3) that such levels are capable of causing injury or disability. The Legislature created a rebuttable presumption that injury or disease caused by toxic exposure is not an injury by accident arising out of employment.

In this case, the First DCA held that the JCC misconstrued the ubiquitous nature of the cryptococcus fungus in the sense that it can be found anywhere, not that it is present everywhere.  Moreover, the First DCA reiterated the holding of  Altman Contractors v. Gibson, 63 So. 3d 802, 803 (Fla. 1st DCA 2011) in that JCCs may not substitute the causation standard expressed in the Festa v. Telaflex repetitive trauma cases for the more exacting statutory causation standard for mold exposure claims under 440.02(1).

In the companion case of City of Titusville v. Taylor, 44 Fla. L. Weekly D2874 (Fla. 1st DCA November 27, 2019), compensability was likewise denied.  The claimant’s work included cutting down trees, pulling roots, hauling fill dirt, and otherwise preparing a worksite for installation of a concrete pad. The claimant worked on and off in this environment between April and August of 2015. During this time period, he began suffering from headaches. On August 3, the claimant was admitted to the hospital and diagnosed with fungal meningitis. The claimant’s IME agreed that the work he performed in the woods could create an environment in which he inhaled the C. gattii spores. According to the IME, an individual may become ill from inhalation of only one spore of C. gattii. The claimant’s IME questioned the claimant about his activities in his non-working hours. The doctor found no convincing evidence that the claimant may have been exposed to C. gattii anywhere other than the workplace.  The E/C’s IME opined that C. gattii is usually found in wooded areas in tropical or sub-tropical regions. His investigation and research revealed a wide range of possibilities regarding the incubation period for C. gattii, from two months to years.

In the final order, the JCC concluded that Claimant met his burden of proof under section 440.02(1). He found persuasive that fungal meningitis results from inhaling the C. gattii fungus found in soil, trees, and decomposing wood, after the spores are disturbed and become airborne. The JCC acknowledged, however, that "It cannot be determined exactly when or where [Claimant] inhaled the fungus, the amount he inhaled, or whether such inhalation was on one or more occasions."

The First DCA held that, while the claimant satisfied the requirements of section 440.02(1) regarding confirmation that the exposure to the specific substance (C. gattii), at levels to which the Claimant was exposed (single spore or more), can cause the injury or disease sustained (fungal meningitis), the claimant failed to satisfy his burden of proof regarding occupational causation.

The takeaway from these recent cases is their bolstering of the heightened burden of proof cases involving exposure to toxic substances and their rejection of circumstantial evidence alone in satisfying this burden.  In light of these cases, carriers have a strengthened bulwark against such claims. As a final cautionary note for employers, however, if such claims are denied as not being covered under the Act, claimants may opt to pursue civil remedies along with their lower burdens of proof and potentially greater damages awards.

Blake J. Hood
Direct: 904.493.3757

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