Disability Law

Employee's "Exposure" Claim Deficient Where No Evidence of Specific Chemical Involved or Level of Exposure

By David A. McCranie, Esq.

In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law.  Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance. . . 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" (emphasis added).

In Matrix Employee Leasing v. Pierce, decided on 6/18/2008, the First DCA reversed the order of the JCC which had found that the claimant had sustained a compensable exposure.  An IME physician, upon whose testimony the JCC relied, said that the claimant's respiratory problems were caused by her exposure to one of two chemicals.  He did not know, however, to which specific chemical the claimant was actually exposed, nor did he know the levels of any such exposure.  Therefore, the court concluded that there was "no competent substantial evidence" to support the JCC's finding that compensability of the respiratory problems had been established by "clear and convincing evidence."

A few other points about this case:  First, the court reiterated that in determining whether the "clear and convincing" standard was met below, the appellate court does not conduct a de novo review of the evidence; it reviews the record only to determine whether the record contains "competent substantial evidence" to meet the clear and convincing standard.

Second, this was not an "occupational disease" case, but the 2003 amendment to §440.151(2) contains identical restrictions.  Therefore, this case should be instructive in occupational disease cases as well.

Third, I continue to wonder whether cases like this raise the specter of employer tort liability.  That is, if the employee's injuries are not covered by the Florida Workers' Compensation Law, and assuming that there is a basis for tort liability, can the employer claim immunity from such liability under §440.11?  Previous decisions from the appellate courts suggest strongly that it cannot.

Full post as published by Florida Workers’ Compensation Law Blog on June 18, 2008 (boomark / email).