Case Law Update December 2019

This Update contains summaries of all relevant Appellate decisions usually for the preceding week, with comments on how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAH website. This Update contains summaries and links to relevant JCC decisions for the past week or so. 

HR Law Cases

 
JCC Clark (Ft. Myers)(Jonathan Cooley) – Denied authorization of return visit to Dr. Kagan based on SOL. Claimant sustained three work accidents, the last of which occurred 5/8/15. Claimant complained of pain in various body parts, mostly right shoulder and trapezius. Claimant’s PCP referred him to an orthopedic physician. Claimant never returned to the PCP after 7/15/15 for the DOA. Claimant saw orthopedic Dr. Kagan, had surgery, and was placed at MMI; his last visit was 3/19/18. Claimant filed a PFB on 5/1/19 for authorization of Dr. Kagan. E/C denied based on statute of limitations. Claimant acknowledged he knew about the statute and admitted he had not asked for care because he was not “thinking clearly.” Claimant also argued estoppel alleging the Employer knew about his shoulder problems and did not authorize care. JCC found Claimant did not show any of the three elements of estoppel by clear and convincing evidence.
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DCA Cases

The DCA issued two opinions on exposure cases rejecting findings of compensability that did not adhere to the statute’s strict burden on proof. 

City of Titusville/Johns Eastern v. Taylor, (Fla.1st DCA 11/27/2019) Toxic Exposure Claims/Clear and Convincing Evidence under F.S. s. 440.02(1) and s. 440.09(1) 
The DCA reversed the JCC’s finding that the claimant proved his fungal meningitis (FM) was caused by workplace exposure to Cryptococcus gattii (CG). The claimant cleared land for the City. Between April and August of 2015, he worked specifically cutting down trees, pulling roots and preparing a site for a concrete pad. In early August he experienced headaches and was diagnosed with fungal meningitis. He filed a PFB seeking compensability of FM due to “digging and hauling dirt over a three month period”. Following the E/C’s denial, the claimant’s IME (Harrison) testified the work could expose the claimant to CG, one spore could cause illness, and he did not believe the exposure occurred elsewhere. Although he testified testing the site would be fruitless, he stated the workplace was the “most likely” source of exposure, but it was “theoretically possible” it was inhaled elsewhere. The E/C IME (Licitra) testified CG is not ubiquitous and not endemic to the area. He stated incubation could be from two months to years, although one may inhale CG and be unaffected for long periods. He stated there was no clear and convincing evidence (CCE) that the exposure occurred at work. The JCC found the claimant sustained his burden even though “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.” He further found that determination of a quantifiable measurement of CG was immaterial because both experts testified that even one spore could result in FM. The DCA reversed, finding the JCC erred in excusing the claimant from establishing by CCE that the exposure was work related, and providing quantifiable proof of the level of exposure. The JCC also erroneously applied the alternative theory of prolonged exposure under Festa, which HR LAW’s 2011 Gibson v. Altman Contractors case specifically disallowed, as it cannot substitute for the higher burden found in F.S. s. 440.02(1). Although the claimant proved he was infected with CG which resulted in FM, the claimant failed to satisfy his burden of proof regarding occupational causation. The testimony that the workplace is the “most likely” source is insufficient. Although the opinion characterizes the Burden of Proof as Herculean, the DCA leaves it to the legislature to make any desired change. The concurring opinion suggested that direct proof of such exposures is simply not available in many exposure cases.

School District of Indian River County/Ascension Benefits et al v. Cruce, (Fla.1st DCA 11/27/2019) Toxic Exposure Claims/Clear and Convincing Evidence under F.S. s. 440.02(1) and s. 440.09(1) 
The DCA reversed the JCC’s finding that the deceased claimant’s death resulted from a workplace exposure to Cryptococcus neoformans fungus (CNF). The DCA found the JCC improperly determined the heightened causation standard in F.S.s. 440.02(1) did not require clear and convincing evidence (CCE) of the quantitative level of exposure, and that he substituted the less stringent, alternative Festa test to find compensability. The claimant worked as a School District groundskeeper from 1989-2015. In late 2014 he was asked to assist in cleaning out a maintenance building at a football stadium. The employee’s wife testified he came home covered in a foul smelling dust, which he allegedly said was “bird crap”. In November of 2014 he complained of headaches. His condition worsened, he was ultimately found via spinal tap to have CNF which resulted in a diagnosis of cryptococcal meningitis (CM), from which he ultimately passed away. Another groundskeeper in the maintenance building where the exposure allegedly occurred disputed the claimant’s version of events. He had his equipment in the building since 2010, ate his lunch in the building daily, noted the move the claimant was involved in lasted a couple of hours and reported no birds or bird excrement in the building. After the claimant’s illness, the building was examined but not tested, and employees were advised to avoid the building, which was later renovated. Claimant’s IME (Feldman) testified pigeon droppings could contain CNF, that cleaning could cause spores to become airborne and his inhalation most likely occurred cleaning out the building. He could not identify the actual levels nor did he know the smallest amount one could inhale to cause an infection. The E/C IME (MCCluskey) testified that CNF is ubiquitous, it could conceivably be inhaled, but there was no concrete evidence of exposure to pigeon droppings in the workplace, no testing re. the levels, and even if there were droppings this did not mean it contained CNF. The EMA (Callahan) hypothesized the most likely source of the infection was the employee cleaning out the building where the droppings were. The JCC found the claimant presented CCE of exposure, although he noted that although the time, location or amount of inhalation could not exactly be determined, nevertheless, the facts were “undisputed” that the sufficient level of spores were inhaled because the claimant developed CM. The DCA noted that F.S.s. 440.02(1) focuses on a “dose-response” relationship requiring (1) proof of actual exposure; (2) the levels of such exposure (dose) and (3) that such levels are capable of causing injury or disability. Although the JCC recognized the heightened standard, he reasoned that requiring quantitative testing of a ubiquitous fungus would create an impossible burden because the employee could not know when the exposure occurred. The DCA noted he misconstrued that although CF can be found anywhere, it is not present everywhere. They noted this seemed counterintuitive to not require evidence of a workplace presence, given that it could be anywhere else. The opinion states that prior DCA opinions condemned “broad assumptions and speculation” of a workplace source of exposure. Evidence of such causation must be more than it is merely logical. Again, the DCA disapproved of the JCC’s use of the lower Festa burden of proof, rejected in HR Law’s 2011 Gibson case, which has far greater evidence than this case. Finally, the DCA rejected the JCC’s implication that direct evidence of workplace exposure was unnecessary as there was no evidence of non-workplace exposure. This improperly shifted to the E/C the burden of proof, which is “wholly the employee’s and the E/C is under no obligation to produce evidence disproving the claim”.

Reynolds v. Anixter Power Solutions/Travelers, (Fla. 1st DCA 12/10/19 Compensability/Recreational Activities 
The DCA reversed the JCC’s denial of compensability for her ankle injury, which occurred while bowling at a paid work event. F.S. s. 440.092(1) provides that “Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.” The JCC accepted evidence that (1) the event was during work hours, (2) that the employer paid employees while there, and (3) the claimant was not told she could have remained at work or taken a vacation day. Further, the purpose of the event was both to improve morale and discuss next year’s goals. The DCA reviewed the question of law de novo, and noted that while the employer’s email invite could have been accepted or declined, that “electronic option” was insufficient to establish the event was voluntary. The fact that the event was during work hours and “to discuss goals” distinguished it from the 2005 Whitehead case which affirmed the JCC’s denial of compensability for a softball injury while “on call”. Finally, the DCA found the evidence satisfied the “required incident of employment” and “substantial and direct benefit to the employer” elements. The dissent would have affirmed, noting the claimant accepted the email invite and failed to show attendance was required or that the event provided a substantial direct benefit to the employer. A footnote remarked the actual email invitation was not introduced into evidence.

Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCW attorney if you have a question as to the finality and applicability of an Opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date