The Florida First District Court issued two decisions on November 27, 2019: School District of Indian River v. Cruce, 1D17-3342, and City of Titusville v. Taylor, 1D17-3814. The trial and appellate judges in each were identical, as was the core issue on appeal: the "standard of proof for toxic exposure" claims in Florida. Each decision included a special concurrence, and each is very explicit regarding the parameters of proof required by Florida's law.
Industrial exposure claims are often a matter of discussion at workers' compensation gatherings in Florida. I frequently hear lamentations about the heightened burden of proof that is set forth in section 440.151(1)(a), Florida Statutes. Both of the decisions cite section 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." (Emphasis added).
Taylor also cites section 440.09(1), Florida Statutes:
"In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence." (Emphasis added).
Neither cites the occupational disease parameters of section 440.151:
" . . . there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. . . . causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence." (Emphasis added).
In the first case, Mr. Cruce was instructed to "move painting supplies and equipment from a storage shed" to a different storage area. His wife testified that Mr. Cruce related the new storage area required cleaning and that he cleared it of dust, dead pigeons, live bats, and rodents. He repeatedly "came home from work covered in a smelly white dust," which he said was bird feces. After symptoms appeared, he was diagnosed with cryptococcal meningitis and passed away.
There was conflicting medical testimony regarding the causation of the meningitis, leading the trial judge to appoint an expert medical advisor (EMA). In Florida, the opinion of the EMA is "presumed to be correct unless there is clear and convincing evidence to the contrary." (Emphasis added). The survivors of Mr. Cruce argued that clear and convincing evidence supported the diagnosis and the occupational causation. The trial judge agreed, concluding as sufficient the proof Mr. Cruce was "exposed to pigeons and their droppings at the stadium worksite."
The Court disagreed. It explained that the language in section 440.02(1) creates a "dose-response" analysis. The injured worker must prove "actual exposure (ingestion or absorption); 2) the levels to which one is exposed (dose); and 3) that such levels are capable of causing injury or disability." It noted that the trial judge seemingly acknowledged that the law requires "quantitative testing" (how much one was exposed), but concluded that such a burden was "impossible" because "the employee could not know exactly when the exposure to the fungus occurred."
The Court reversed the conclusion that this exposure was compensable. It noted that the fungus in question "could be found anywhere." But, that the evidence did not support that it was, definitively, present at the workplace. That it could be anywhere does not necessarily mean that it was in the workplace. It also reiterated that the injured worker must prove that the exposure "occurred in the course and scope of the employment." It is not sufficient to prove that conversely "there was not evidence of non-workplace exposure."
In a concurrence, another judge reiterated the absence there of "the quantitative level of exposure." That is, "how much was the person exposed to in the workplace."
In Taylor, the injured worker was exposed to Cryptococcus gattii (C. gattii), and similarly contracted fatal meningitis. His occupation involved various tasks with equipment ranging from backhoe to shovel. In 2015 he was engaged in clearing a wooded area, which involved moving dirt. A physician who never examined Mr. Taylor concluded the work in the woods "could create an environment" in which he might inhale the spores. He similarly noted, "no convincing evidence that Claimant may have been exposed to C. gattii anywhere other than the workplace." This doctor opined that testing the workplace served no purpose because of the time that had passed since the exposure. He concluded that Mr. Taylor “'likely acquired' the exposure at the workplace."
The Employer/Carrier's Independent Medical Examiner (IME) concluded that this fungus is not usual in Florida (only one other case previously reported here). The incubation for this illness, he concluded, could be "from two months to years." The IME "could not reach a conclusion within a reasonable degree of medical certainty as to where Claimant was most likely exposed."
The Court reiterated that circumstantial evidence is not sufficient. That the work performed might be "an ideal environment for exposure to C. gattii spores" did not satisfy the statutory burden. It noted that the trial judge concluded "the experts could not specify the level of Claimant’s actual exposure," and that testing of the environment is futile because since the (alleged) exposure the environment will have changed.
The Court concluded that "clear and convincing" means "the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." It held that the trial judge had misapplied the law. It concluded that the employee had the burden of proving the presence, not likelihood, of the C. gattii in the workplace. The inference and implication that it was there the employee was exposed was insufficient under the law. "To hold otherwise, would be to ignore the heightened causation standard implemented by the Legislature."
Finally, the Court noted, "that workers’ compensation is a statutory matter and the Legislature has broad discretion in crafting the parameters of benefits due." That is, the definition of what is or is not compensable under the law is determined by the legislature and codified for all to see. There are those who perceive the constraints or definitions of workers' compensation as fairness for each worker and each employer in each case. Others see the question of fairness as a system-wide analysis, an overall fairness, that will therefore sometimes effect results an individual employer or employee may lament.
In a separate concurrence, another judge expressed being "constrained to concur" based upon previous decisions of the Court (stare decisis). But, noted that the statutory "direct proof of the level of" exposure is not available "in a great number" of cases, the judge expressed doubt therefore "that workers’ compensation is a viable alternative to the tort system." Therefore, the judge stated, "Either the court system or the Legislature must deal with this problem."
It is notable, perhaps, that no constitutional issues were raised by the parties in Taylor. In Cruce, the Claimants raised an argument of "an 'impossibility of proof' which violated the constitutional rights of equal protection, due process, and access to courts." However, those arguments were "abandoned . . . on appeal."
There will likely be an ongoing discussion of these cases. Some will focus on the equity of the outcomes, with survivors left with no recovery. One might lament that the expanse of workers' compensation is therefore not expansive enough. They might argue that there is no room for lines or barriers and that anyone who has a job and becomes ill or injured should have that burden shouldered by the employer. In 1960, the Florida Supreme Court held that “the fundamental purpose of workmen's (sic) compensation is to relieve society of the burden of caring for an injured employee by placing the burden on the industry involved.” Sullivan V. Mayo, 121 So. 2d 424 (Fla. 1960). Some might argue this can be accomplished only by shifting any and all potential for disability or death to the employer.
Others might argue that perhaps it is not appropriate for industry to shoulder the implications of "any and all" without proof of causation. They would likely concede that the causation of the disease in these cases was clear (something specific was inhaled, caused illness and death). But, they might argue that the evidence did not establish where the something was inhaled. They would perhaps support that if "something" could be inhaled anywhere, an employee should have to prove that "something" was employed at work to prevail.
In some parts, the decisions illustrate the broader grand debate that rages recently in conferences and gatherings regarding workers' compensation and its grand bargain. There are those who argue that workers' compensation covers too little and others contend it covers too much. In the macro sense, the fact that there are definitions and parameters will mean that some are included and others are not.
In that analysis, there will be some that perhaps argue the macro system is over-inclusive and others under-inclusive. As a system, examined in a macro perspective, will solace be found in a coverage of some quantity or population in the center? Or, will the two parties for which workers' compensation exists, employers and employees, be more concerned with the outliers, the exceptions, the instances in which an employer pays for injuries it questions or in which an employee receives nothing for an injury she/he is convinced was caused by work? The discussions will undoubtedly continue, and perspectives will disagree.
