Disability Law

Date of 'Last Injurious Exposure' Governs Which Carrier Pays for Occupational Disease

By David A. McCranie, Esq.

Cases involving an "occupational disease" often present thorny issues of compensability and insurance coverage.  Fidelity and Guar. Ins. Co. v. Polk County, Case No.2D08-3377, decided by the Second DCA on August 14, illustrates the point well.

Zola Ann Ross worked as a registered nurse for Polk County from 1981 to May 1994, and during that time she was exposed to the Hepatitis C virus.  But because of the long gestation period of the virus, she was not diagnosed with hepatitis until 1999 and did not become disabled from it until April 2000.  When her employment with Polk County ended in 1994, the county was insured by FMIT.  But by the time she became disabled in April 2000, the county had changed its insurance carrier to Fidelity.  So which insurance carrier had to pay Ross's benefits? 

The trial court said that Fidelity had to pay.  The court relied on the well-established principle that the "date of accident" in an occupational disease case is the date the worker becomes disabled from the disease.  Thus, the court reasoned, Fidelity should pay because it was the carrier on the risk when the accident occurred.

But on appeal, the Second DCA reversed and said that FMIT must pay the benefits.  The court pointed out that §440.151(5) says that the employer or carrier on the risk when the employee was "last injuriously exposed" to the disease must pay all of the resulting workers' compensation benefits.  Here, Ross's "last injurious exposure" to the Hepatitis C virus occurred in 1994, when FMIT was on the risk.

"Inside Baseball" types will also be interested in the jurisdictional aspect of this case.  The First DCA in Tallahassee has exclusive statewide jurisdiction over all appeals from orders of the judges of compensation claims.  So how did the Second DCA have jurisdiction over this case?  Because after the JCC ordered Polk County to provide benefits to Ross and that order was affirmed on appeal [see Polk Co. Bd. of Co. Comm'rs v. Ross, 911 So.2d 854 (Fla. 1st DCA 2005)], Polk County filed a declaratory judgment action [see §86.011, Fla. Stat.] in the Polk County circuit court seeking a determination as to which of its carriers had to pay.  Because Polk County lies within the territorial jurisdiction of the Second DCA, that court had jurisdiction to hear the appeal from the trial court's order.

Full post as published by Florida Workers’ Compensation Law Blog on August 21, 2009 (boomark / email).