Brevard County Mental Health Center v. Kelly

• Decision Date: 21 October 1982
• Docket Number: No. AK-123,AK-123
• Citation: 420 So.2d 911
• Court: Florida District Court of Appeals
• Parties: BREVARD COUNTY MENTAL HEALTH CENTER and St. Paul Fire & Marine Insurance Company, Appellants, v. Marlene KELLY, Appellee.

Page 911

420 So.2d 911

BREVARD COUNTY MENTAL HEALTH CENTER and St. Paul Fire & Marine Insurance Company, Appellants, v. Marlene KELLY, Appellee.

No. AK-123.

District Court of Appeal of Florida,

First District.

Oct. 21, 1982.

Rehearing Denied Nov. 5, 1982.

C. Anthony Schoder, Jr. of Smith, Schoder & Rouse, Daytona Beach, for appellants.

Catherine A. Riley of Blumenthal, Schwartz & Riley, Titusville, for appellee.

MILLS, Judge.

The employer/carrier appeal the final order of the deputy commissioner awarding temporary total disability benefits and attorney's fees to claimant Kelly.

The employer/carrier raises the following issues:

I. Whether the deputy commissioner erred in finding that the claimant sustained "an accident" within the meaning of the act.

II. Whether the deputy commissioner erred in finding that claimant was temporarily totally disabled from July 3, 1980, through July 10, 1980.

III. Whether the deputy commissioner erred in awarding an attorney's fee which is out of proportion to the benefits secured.

IV. Whether the deputy commissioner erred in finding that the employer/carrier acted in "bad faith."

Claimant worked for Brevard County Mental Health Center for seven years as a medical records clerk. On the weekend of June 14-15, 1980, the employer's premises were recarpeted and the buildings were left closed without benefit of air conditioning. On Monday morning, June 16, when the claimant and other record employees arrived for work, the odor from the new carpet was so strong and offensive that normal breathing of the stale air caused the employees to have allergic reactions and varying degrees of discomfort.

The employer attempted to alleviate the problem by opening the doors and windows and allowing the employees to take frequent breaks outside the building. The following week, June 23-27, the odor began to dissipate but employees still took occasional breaks outside the building.

The claimant worked June 23, 24, and 25, but her symptoms persisted and she took off June 26 and 27. The claimant's condition improved over the weekend and she returned to work on Monday, June 30. During the week of June 30 the claimant worked Monday, Tuesday, and Wednesday, but again her symptoms persisted when she was around the carpet, and she did not return to work on Thursday, July 3.

During this third week following the carpet installation, the problem with regard to other employees had abated to the point that employees were no longer going outside the building to take breaks. It was during this third week that the employer asked Kelly to see an allergist. An appointment was scheduled with Dr. Leifer on July 10. Kelly did not return to work the week of July 7. By the time she saw Dr. Leifer on July 10, she was feeling well and had no symptoms. Dr. Leifer diagnosed claimant's condition as an allergic, chemical irritant reaction to some unknown ingredient in the carpet. The doctor prescribed various medications for claimant and instructed her to return to work to determine whether the medications would successfully alleviate her problems.

Kelly returned to work on Monday, July 14. On July 15 Kelly left after working six hours, complaining that her medications had not blocked her symptoms. She did not return thereafter. By July 17 the employer had received the allergist's report indicating that the claimant was to return to work and, if necessary, her primary work location might need to be relocated to avoid proximity to the new carpet. Kelly was advised that if she did not return to work on July 18 she would be suspended. When she failed to respond on the 18th, she was advised that if she did not come in to make arrangements for an alternative work location, she would be terminated on July 24. Kelly was contacted by her employer on July 21, but on the advice of her lawyer she refused to return. Kelly was terminated on July 24, 1980.

ISSUE I:

Although this case is novel on its facts, there is support for a finding of compensable accident based on a theory of exposure as defined by Festa v. Teleflex, 382 So.2d 122 (Fla. 1st DCA 1980). An analogous case comes from Mississippi. Hardin's Bakeries v. Ranager, 64 So.2d 705 (Miss.1953). There, a baker was allergic to a mitten he was required to use in handling hot pans of bread. The court held the baker was disabled from an accidental injury resulting from his exposure. This case is cited in the Florida case of Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla.1957), where a compensable accident was found under the exposure theory when a roofer subject to constant inhalation of dust and fumes developed acceleration or aggravation of his pre-existing tubercular condition. The Czepial case was in turn favorably cited in Festa. Using the Festa three-pronged test, the only element not clearly present is "prolonged" exposure. Even though the ten-day exposure period is relatively short when compared to the factual situation in other Florida exposure cases, it was...