Posted on January 31, 2009 by David McCranie

Workers Face Uphill Battle in Occupational Disease Cases

The 1/24/2009 edition of the New York Times carried this story about Ed Abney, a 53-year-old former tool and die worker who contracted Parkinson's disease after years of workplace exposure to trichlorethylene, a solvent formerly in widespread use in the United States.  The article highlights the difficulties workers face in proving that an "occupational disease" is really "occupational," that is, that it was caused by their exposure to some harmful substance at the workplace.

 

Though Mr. Abney's case is controlled by the Kentucky workers' compensation law, Florida employees face similar problems.  Florida's occupational disease statute says that it provides coverage only when there are "epidemiological studies showing that exposure to the specific substance involved, at the level to which the employee was exposed, may cause the precise disease sustained by the employee."  Even then, the employee must prove causation by a heightened evidentiary standard - clear and convincing evidence. 

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Posted on October 23, 2008 by David McCranie

"One Time Change of Physician", "Expert Medical Advisors", and "Major Contributing Cause"

When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion?  Yes, said the First DCA in Dawson v. Clerk of the Circuit Court - Hillsborough County, reversing the JCC who had concluded that in such circumstances the claimant's only recourse is to request an "independent medical examination."

 

In the same case, at the E/C's request the JCC had appointed an "expert medical advisor" to resolve a conflict between two physicians on the issue of whether the claimant's industrial accident was the "major contributing cause" of her shoulder injuries. [Section 440.13(9) authorizes the appointment of an expert medical advisor ("EMA") when there is conflict in the medical testimony].  The EMA had concluded that the claimant's shoulder injuries were not caused by her accident, and accordingly the JCC denied any treatment for those problems.  But the First DCA reversed, holding that an EMA should never have been appointed in the first place because in fact there was never any "conflict" in the medical testimony.  The court noted that the physician who gave the allegedly conflicting opinion on the issue of causation (1) had not been authorized by the carrier to treat the shoulder, (2) never examined the claimant's shoulder, and (3) did not review any diagnostic studies or or medical records pertaining to the claimant's shoulder.  Under these circumstances, there was insufficient evidence of a "conflict" on the issue of causation.

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Posted on October 23, 2008 by David McCranie

JCC May Not Rely Upon Lay Testimony in Deciding "Major Contributing Cause"

One of the changes wrought by the 2003 amendments to the Florida Workers' Compensation Law concerned the employee's burden of proving that his on-the-job accident is the "major contributing cause" of a given medical condition and the need for treatment of that condition.  Under those amendments, "[m]ajor contributing cause must be demonstrated by medical evidence only" (emphasis added).  See §440.09(1), Fla. Stat.

 

In Gallagher Bassett Services-Orlando v. Mathis, decided on 9/22/2008, the First DCA reversed the JCC's finding that the claimant's 2006 on-the-job accident was the "major contributing cause" of her cervical injuries.  The claimant's IME physician, upon whom the JCC had relied in making her finding, was unable to determine from his examination and the claimant's medical records whether her pre-existing cervical injuries were exacerbated by the 2006 accident.  Significantly, the court also noted that in making her findings on the "major contributing cause" issue the JCC could not rely upon the lay testimony of Mathis and her husband that her pain level increased significantly after the 2006 accident.

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Posted on September 9, 2008 by David McCranie

First DCA: New Rule for Heart Attacks Caused by Emotional Stress

My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment.  Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

 

  • HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL 

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing."  Id. at 587.  Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one.  "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment."  Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978). 

 

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury.  Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

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Posted on June 7, 2007 by David McCranie

Heart attacks now compensable without regard to "Victor Wine?"

For over 40 years, heart attacks and other "internal failures of the cardiovascular system" occurring on the job have generally not been compensable under the Florida Workers' Compensation Act.  Known as the "Victor Wine" rule (taken from the name of the case which decided the issue), it required the employee to demonstrate that his heart attack resulted from an "unusual strain or overexertion" not routine to the type of employment he was accustomed to performing - the purpose being to separate those heart attacks that were truly work-related from those that weren't.

 

In a footnote to this rececent decision, however, one panel of the First District Court of Appeal called into question whether the "Victor Wine" test remains good law.  The Court noted that under this 2003 amendment to the law, an employee must now prove that his on-the-job accident caused more than 50% of his injury and resulting need for treatment.  Requiring him to comply with the "Victor Wine" test as well, said the Court, "seems unduly burdensome and inappropriate."

 

Resolution of the issue will have to await another day, however.  Because the claimant's accident in that case occurred before 10/1/2003, the effective date of the statutory amendments, the Court concluded that it need not address the question.

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