FL Court Laments “Herculean Task” for Claimants in Toxic Exposure Claims
Acknowledging what it called “the Herculean task created by the heightened burden of proof for toxic exposure claims,” yet noting as well that it was for the Florida Legislature, not the courts, to craft the parameters pursuant to which workers’ compensation benefits would be paid, a state appellate court held that a Judge of Compensation Claims erred in finding that a claimant was entitled to workers’ compensation benefits arising from a diagnosis of fungal meningitis [City of Titusville v. Taylor, 2019 Fla. App. LEXIS 17914 (1st DCA, Nov. 27, 2019)]. The court stressed that the claimant failed to meet the burden of proof to establish by clear and convincing proof that his condition was caused by a workplace exposure to Cryptococcus gattii [see §§ 440.02(1) and 440.09(1), Fla. Stat.].
Background
Claimant filed a petition for benefits asserting that “digging and hauling dirt over a three-month period” resulted in his fungal meningitis condition. He sought, among other claims, a determination that his illness was compensable. The E/C denied the claim, contending in relevant part that there was an absence of medical evidence to substantiate that Claimant contracted the fungal meningitis at his place of employment.
Following a hearing, the JCC concluded that Claimant met his burden of proof under § 440.02(1). The JCC found persuasive that fungal meningitis results from inhaling the C. gattii fungus found in soil, trees, and decomposing wood, after the spores are disturbed and become airborne. Claimant had testified to those sorts of circumstances in his work with the employer. The JCC acknowledged that it could not be determined exactly when or where Claimant inhaled the fungus, the amount he inhaled, or whether such inhalation was on one or more occasions.
The 2003 Amendments
The appellate court observed that in 2003, the Legislature specifically amended the definition of “accident” to create a rebuttable presumption that injuries caused by exposure to a toxic substance are not compensable 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 [see § 440.02(1)]. Citing earlier precedent, the court added that “clear and convincing evidence” had been defined as an “intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.”
“Most Likely” Isn’t Sufficient
The appellate court noted that the JCC, utilizing expert medical testimony, had determined that Claimant “most likely” acquired the fungus in the course of his employment and that the medical evidence was sufficient to satisfy the heightened evidentiary standard in this case. The appellate court could not agree. Claimant had not introduced clear and convincing evidence that he had been exposed to the toxic substance at work. As indicated above, the appellate court readily acknowledged the Herculean task created by the heightened burden of proof for toxic exposure claims. The Legislature, however, had spoken.