Greetings, I had a request to do a refresher tip on Exposure claims in Florida. In this area, the law is fairly strong on our side (for once).
The typically claims I get questions about are exposure to fumes, cleaning supplies, construction odors, mold, etc…
It is the claimant’s burden to prove all 3 of these elements of the claim. If the claimant cannot prove all 3, then it is not compensable:
- Actual exposure to a specific substance (not just there was a bad smell, what type of mold); AND
- The levels to which they were exposed. (This requires air quality testing, no testing, not compensable in most cases) AND
- A doctor to state the level of exposure to that specific substance can cause their injury
There is caselaw that says if the employer cleans up the exposure before the claimant can have the area tested, so sorry, not compensable (unless there is a motion or court order on spoiliation but that is unusual).
The statute says the claimant must prove the Exposure by “clear and convincing evidence” a higher standard for the claimant to prove. Most other claims are the “more likely than not” standard of competent and substantial evidence.
Here is the Exposure statute, and as always keep the questions coming!
440.02 (1)…. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, 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.
If you need FL adjuster credits, please register for our upcoming CEU’s including the 4-hour law and ethics: https://eraclides.com/events/
We also have some great GA and TN webinars scheduled as well on our events page. https://eraclides.com/events/
Sincerely,
Morgan Indek | Managing Partner