Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

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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In Sanders v. City of Orlando, decided on 9/25/2008, a case I discussed here, the Florida Supreme Court has held 5-2 that the judges of compensation claims do have jurisdiction to vacate or set aside lump-sum settlement agreements which had previously been entered into pursuant to the terms of §440.20(11)(c), Fla. Stat., reversing the decision of the First DCA which had held to the contrary.  [The case was originally styled Flamily v. City of Orlando, but Mr. Flamily died during the litigation, and therefore the personal representative of his estate was substituted].

 

To summarize the facts briefly, Mr. Flamily was employed by the City of Orlando as a firefighter.  He developed heart problems which, by virtue of §112.18(1), Fla. Stat. (the "Heart-Lung" Bill), were presumptively caused by his employment.  Those problems eventually resulted in his permanent total disability, and in December 1996 Flamily agreed to settle his right to future compensation benefits from the City for a lump sum.  The settlement documents signed by the parties at the time contained language stating that Flamily "waived any future workers' compensation claims that were either known or unknown" at the time of the settlement.

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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."

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A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment.  And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he was presumed to be permanently totally disabled.  Note that this was a pre-10/1/2003 case so that the firefighter was entitled to an award of permanent total disability benefits if he met the test for disability used by the Social Security Administration.  Butler v. City of Jacksonville.

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Unless a petition for benefits is filed within two years from the date of accident, or within one year from the date that the employer last pays compensation or furnishes medical treatment, whichever occurs later, the statute of limitations will expire on a Florida workers' compensation claim. In Troche v. Geico, however, decided on 10/5/2007, the First DCA relied upon a long line of previous decisions and held that in cases involving "repeated trauma," "exposure," or "occupational disease," the statute of limitations never expires so long as the employee continues to be exposed to the harmful conditions which caused his disability in the first place because each exposure in effect constitutes a "new accident."

 

The claimant in Troche had developed carpal tunnel syndrome in both wrists as a result of using his computer at work.  The carrier established a 1999 accident date and provided some brief medical care thereafter, but the claimant did not file his petition for benefits until 12/4/2003, well after the limitations period ordinarily would have expired.  The evidence showed, however, that he continued to be employed and exposed to the harmful conditions on the job until September 2003.  Therefore, said the First DCA, his petition was timely.  You can read the JCC's order here.

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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.

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An "occupational disease" becomes compensable under the Florida Workers' Compensation Act only when the condition becomes "disabling," either totally or partially, not necessarily when the disease is merely diagnosed. What if a firefighter diagnosed with hypertension which is compensable because of the presumption afforded by the "Heart-Lung" bill (§112.18, Fla. Stat.) misses a few days of work because of the condition, but the employer elects to pay his full salary for those days?  Is he still "disabled?"

 

Yes, said the First DCA in City of Kissimmee v. Simpson, decided on 8/31/2007, in which it affirmed this order from the JCC, and in which it relied upon its earlier decision in City of Mary Esther v. McArtor which held the same.  

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Suppose an employee contracts an occupational disease which has naturally occurring periods of exacerbation and remission.  In Orange County Fire Rescue v. Jones, the First DCA held 2-1 that each of those periods of exacerbation can constitute a new and separate "accident."

 

Why is this important?  Well, for one reason, the parties' substantive rights in a workers' compensation case are governed by the law in effect on the date of the "accident."  In this case Mr. Jones, a firefighter, had initially contracted Hepatits C in 1992 when the Florida Workers' Compensation Act provided for the payment of "wage loss" benefits upon attaining maximum medical improvement (MMI).  But those benefits were only payable where the employee had some actual loss of earnings resulting from his accident or disease.  In this case, Mr. Jones returned to work full time as a firefighter after attaining MMI so he didn't qualify for any wage loss benefits.  His disease thereafter went into a period of remission.

 

By the time his disease flared up in 1997, the law had changed.  In 1994, the legislature repealed the previous "wage loss" provisions and provided instead for the payment of "permanent impairment" (PI) benefits upon attaining MMI.  Unlike wage loss benefits, PI benefits are payable without regard to economic loss.  And following the 1997 flareup, Mr. Jones once again returned to work as a firefighter full time.  Therefore, under the Court's ruling, Mr. Jones' 20% impairment rating following his 1997 flareup resulted in an extra 60 weeks' worth of PI benefits that he wouldn't have gotten had his rights been governed by the 1992 law.

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The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla.  It will be codified as s.112.1815, Fla. Stat.

• EFFECTIVE DATE  

The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law."  Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date.  See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).

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Very few workers' compensation cases make it all the way to the Florida Supreme Court, but this one has.  It’s a complicated tale.

 

Mr. Flamily, the claimant here, was a firefighter for the City of Orlando who contracted Hepatitis C. (By way of background, since 1995, firefighters and other “first responders” have benefited from a special statute which says that, when a firefighter contracts that disease, it’s presumed that he contracted it as a result of his employment). Mr. Flamily actually retired in 1996 due to disability resulting from heart problems. He settled his workers’ compensation claim arising out of those heart problems later that year for a lump-sum payment of $110,750.00. (There’s another special statute that makes heart problems of firefighters and other law enforcement personnel compensable under the Florida Workers’ Compensation Act without having to comply with the “Victor Wine” rule).

 

Anyway, although Flamily’s Hepatitis C wasn’t diagnosed until 2000, he was convinced that he had contracted it during his employment with the City (Understandable, really, given the nature of firefighters’ work and the long incubation period usually necessary before symptoms of the disease appear). Trouble was, by the time he was diagnosed, he was no longer an employee of the City. And then there was that pesky 1996 settlement agreement where he had settled all potential work-related claims against the City.

 

 

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