Recent DCA Opinion Provides Refresher on Florida’s Exposure Standards in Workers’ Compensation Claims

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By: Ya’Sheaka Campbell Williams, Partner, Tampa

In Festa v. Teleflex, Inc., the First DCA outlined the elements that a claimant must prove in order to recover under the exposure theory of an accident: (1) Prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a pre-existing condition, and (3) being subject to a hazard greater than that to which the general public is exposed. Festa, 382 So.2d 122 (Fla. 1st DCA 1980). FS 440.02(1) provides that an 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.

In ­D’Avanza for Kathryn Taylor v. Air Canada/Liberty Mutual Insurance Company, (1D15-2629) the claimant sought compensability of an alleged work place accident and asserted that she was exposed to salmonella from contaminated food served by the employer, Air Canada. Air Canada served food to celebrate its anniversary in the Tampa location. Some of the items included lox, crab-balls, and sandwiches. It was undisputed that she consumed the food. However, no one else got sick following the event. A few days after consuming the food at work, she was found unconscious in her condominium and was diagnosed with a brain hemorrhage. The claimant argued that because she suffered with a suppressed immune system and high blood pressure, the allegedly contaminated food interacted differently with her system and caused her to suffer a brain hemorrhage.  She underwent brain surgery and a second surgery in which a permanent shunt was installed in her brain. She was subsequently transferred to a rehabilitation facility where she sustained a second hemorrhage and is now severely incapacitated.

The claimant filed a workers’ compensation claim seeking compensability of the exposure, brain hemorrhage, and subsequent brain hemorrhage at the rehabilitation facility. The claimant asserted a temporal relationship between when she ate the food and when she became ill. Doctors testified that the claimant’s exposure occurred at work based on an assumption that the Health Department opined that the claimant’s exposure occurred at work. Rather, the Health Department’s report only outlined potential exposure sites to include the food, her cats, or other food that she bought and consumed prior to consuming the food at work. None of these items were tested to confirm that the items may also have contained salmonella. As such, Judge Lorenzen found that a temporal relationship was not sufficient to find compensability, and denied the claim. The claimant appealed the decision and the First DCA issued an order per curium affirming Judge Lorenzen.

The claimant bears the burden to prove that exposure occurred in the workplace in order for a claim to be found compensable. Additionally, an exposure claim has a different standard of proof. Exposure must be proven by clear and convincing evidence, not major contributing cause. This is a very difficult standard for claimants to meet, so many exposure claims may be denied at the onset. When conducting an initial analysis of a claim, ensure that the correct standard is utilized when making a determination on the compensability of an exposure claim. If there is any doubt as to causation, the claim should most likely be denied. As always, please feel free to contact any of our offices during the initial investigation for a legal opinion.