Broward Indus. Plating, Inc. v. Weiby

Decision Date11 March 1981
Docket NumberNo. XX-125,XX-125
Citation394 So.2d 1117
PartiesBROWARD INDUSTRIAL PLATING, INC. and Risk Management Services, Inc., Appellants, v. Richard WEIBY and The Travelers Insurance Company, Appellees.
CourtFlorida District Court of Appeals

H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.

Richard A. Barnett of Krupnick & Campbell, Fort Lauderdale, for appellee Richard Weiby.

Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee Travelers Ins. Co.

THOMPSON, Judge.

The appellants challenge a workers' compensation Order, arguing in part that the Deputy Commissioner ("the Deputy") erred in finding that the claimant's illnesses were occupational diseases. We agree and reverse.

The claimant worked for the employer from April 1978 to May 1979. His job involved anodizing aluminum, which consisted of dipping aluminum into tanks that contained various chemical solutions. The claimant testified that the facility was poorly ventilated, and he complained that chemical fumes rose to his face and caused discomfort upon being inhaled.

The claimant stated that he never experienced respiratory problems until he began working for the employer. However, the record clearly shows that the claimant contracted bronchial asthma as a child and that he stated to two treating physicians that he had breathing difficulties in 1977 (i. e., prior to his work with the employer herein).

From December 1978 to July 1979, the claimant was hospitalized 5 times for examination and treatment of his respiratory difficulties. During each hospitalization, bronchial asthma was diagnosed by doctors. Dr. Sherman, an internal specialist, testified that numerous factors can cause such a condition to occur, and he could not say that the claimant's work conditions caused his bronchial asthma. However, Dr. Sherman essentially testified that those work conditions aggravated the claimant's respiratory problems.

In October 1979, the claimant's hands started to swell and turn numb. Dr. Porth, an orthopedic surgeon, diagnosed vasculitis, and he thought that this condition was a delayed but direct result of exposure to noxious gases at work.

In 1980, the Deputy entered his Order, finding in part that the claimant's bronchial asthma and vasculitis were occupational diseases.

Under § 440.151, Fla.Stat., the following elements must be proven by a claimant to show that he is entitled to compensation for an occupational disease:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;

(2) the disease must be actually contracted during employment in the particular occupation;

(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and

(4) if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.

See § 440.151(1)(a) and (2). See also Florida State Hospital v. Potter, 391 So.2d 322 (Fla. 1st DCA 1980); Cast Crete Corp. v. Duncan, 383 So.2d 245 (Fla. 1st DCA 1980). In determining whether the claimant has satisfied the preceding statutory requirements, there is no presumption that the claim for compensation comes within the provisions of the occupational disease statute. See § 440.151(1)(e). In this case, the claim did not fall within the provisions of that statute.

The claimant has failed to prove at least two of the foregoing elements. First, he has not shown that his occupation presents a particular hazard of bronchial asthma occurring so as to distinguish his occupation from usual occupations. Nor has he demonstrated that the incidence of bronchial asthma is substantially higher in his occupation than in usual occupations. These statements also apply to the claimant's vasculitis. *

Second, the claimant has not shown that the incidence of bronchial asthma, which is an ordinary disease of life, was substantially higher in his occupation than in the general public. In fact, the testimony of the plant's owner, the plant manager, and the claimant himself, readily indicate that no respiratory problems were experienced by other employees in the past or present. See Potter, 391 So.2d at 323.

While it is clear that the claimant's illnesses are not occupational diseases within the highly restrictive terms of § 440.151, Fla.Stat., the record does suggest the possibility that the claimant has suffered an aggravation of a pre-existing asthmatic condition, which would be governed by § 440.02(18), Fla.Stat. Similarly, the record does suggest the possibility that the claimant's vasculitis may be compensable under the exposure theory of accident discussed in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). We remand these matters to the Deputy for his consideration. See Duncan, 383 So.2d at 247.

The appellants have also raised two other issues that must be addressed herein. One issue is whether the Deputy erred in admitting into evidence the deposition of Dr. Patel. One day before this deposition was taken, the carrier's counsel first received notice of the deposition, and they informed claimant's counsel that they would be unable to attend. Despite this fact, claimant's counsel took Dr. Patel's deposition, noting that the carrier would be given an opportunity to depose Dr. Patel in the future. When Dr. Patel's deposition was offered into evidence, the carrier's counsel objected. The Deputy later admitted the deposition into evidence. The appellants argue that the Deputy's action was erroneous, and we agree.

Fla.R.Civ.P. 1.310(b) requires that reasonable notice of a deposition shall be given to all parties. Here, notice was given to the carrier one day before the deposition was taken. This notice was unreasonable, and Fla.R.Civ.P. 1.330(a) only allows a deposition to be used against a party who was present or represented at the taking of the deposition or who had reasonable notice of it. These factors are absent here. Moreover, the fact that the claimant's counsel offered to allow the carrier's counsel to take Dr. Patel's deposition is meaningless Dr. Patel was deposed by the claimant, and the carrier was denied an opportunity to cross-examine Dr. Patel. Finally, although Fla.R.Civ.P. 1.330(d) provides that "(a)ll errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice," this provision clearly relates to the contents of the notice not the time that the notice is served in.

Another issue raised by the appellants is whether the Deputy erred by ordering them to pay for various medical treatment which apparently was neither requested by the claimant nor reported by various doctors and hospitals. In this respect, the Deputy found that this...

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