Medical Monitoring Claim Upheld Under "Exposure" Theory
In Florida Power Corp. v. Brown (decided on 11/21/2003), the First District Court of Appeal held that a worker who had been exposed to but was not disabled from exposure to asbestos in the workplace was not entitled to have his employer pay for periodic monitoring of his medical condition. This was so, said the Court, because the under occupational disease statute (§440.151, Fla. Stat.), a condition becomes compensable only when it becomes disabling.
But in Huff v. Loral American Beryllium Co., decided on 8/31/2007, the Court reached a different result where the claimant proceeded on a different legal theory. Huff had been exposed to beryllium dust in the workplace and had developed "beryllium sensitivity" although he had not yet developed chronic beryllium disease. As an alternative to proceeding under the occupational disease statute, a worker may establish the compensability of a medical condition under the test set out in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980), by proving (1) a prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a pre-existing condition, and (3) that he has been subjected to a hazard greater than that to which the general public is exposed.
The Court concluded that Huff easily satisfied elements (1) and (3) of the Festa test. It also concluded that Huff had satisfied element (2) by evidence that he had developed a sensitivity to beryllium exposure and that he was no longer able to work around beryllium. Therefore, the Court reversed the JCC's order which had denied Huff's claim for periodic testing to monitor his condition.
