City of Ft. Lauderdale v. Lindie, BI-318

• Citation: 496 So.2d 168,11 Fla. L. Weekly 2028
• Decision Date: 23 September 1986
• Docket Number: No. BI-318,BI-318
• Parties: 11 Fla. L. Weekly 2028 CITY OF FT. LAUDERDALE, Appellant, v. Ann LINDIE and Division of Workers' Compensation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 168

496 So.2d 168

11 Fla. L. Weekly 2028

CITY OF FT. LAUDERDALE, Appellant, v. Ann LINDIE and Division of Workers' Compensation, Appellees.

No. BI-318.

District Court of Appeal of Florida,

First District.

Sept. 23, 1986.

Rehearing Denied Nov. 5, 1986.

Gregory G. Coican, of Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberly, P.A., Ft. Lauderdale, for appellant.

Peter S. Schwedock, Miami, for appellees.

NIMMONS, Judge.

City of Ft. Lauderdale, the claimant's self-insured employer, appeals an order of the deputy commissioner finding claimant's Herpes Simplex I to have arisen from a compensable accident in the course and scope of employment. The employer contends that there was no competent substantial evidence of a causal connection between claimant's illness and her employment. We agree and reverse the award of benefits.

The claimant is a 40 year old paramedic/ambulance driver. The facts are essentially undisputed and are as appear in the deputy's order:

On November 24, 1984, Claimant, along with Lieutenant Donald Petrillo, were sent to Dixie Court in Fort Lauderdale to render aid to a pedestrian who had been struck by a motor vehicle. According to Ms. Lindie, the injured victim had suffered multiple lacerations on his face, had a running nose because he had been crying, appeared to have sores in the corners of his mouth, and was covered with blood.

In this particular situation, Claimant rendered immediate aid to the injured victim, including cleansing his wounds on his face and checking his head and face for any additional injuries which meant she was obliged to touch him about the face including an examination of his mouth. After the examination, and for a time after until she returned to the fire station, her hands were covered with the victim's blood and bodily fluids, including his mucous.

On the morning of November 24, 1984, before she went out on a call, Claimant Ann Lindie had sustained a small cut on her left hand, on her palm, said cut being treated with first aid cream at the time it occurred, but not being covered by any bandage later when she rendered aid to the victim. Some days later, on November 30, 1984, Claimant began noticing a small blister-like area in the site of her cut on the left hand and by December 2, it bothered her to the extent that she was obliged to go to the Plantation General Hospital Emergency Room for treatment.

After several attempts at treatment, Lindie was diagnosed as having Herpes Simplex I. She filed for workers' compensation benefits including temporary total disability benefits, medical care and attorney's fees. The employer denied compensability, contending that there was no adequate showing that the claimant's illness was caused by her exposure to the above-referred injury victim.

Two witnesses testified before the deputy commissioner--the claimant and Dr. Gewirtzman, her treating physician. In addition to the above facts, the claimant acknowledged that she was not an expert in Herpes or related disorders and was unable to say whether the lesions she saw on the pedestrian's face were caused by Herpes. Her physician testified that he could not say whether the pedestrian had Herpes. He also testified that the lesions on the pedestrian's face, as described by the claimant, are a common symptom of a number of disorders, including Herpes. The employer contends that there is not competent substantial evidence that the claimant contracted Herpes Simplex I from the injured pedestrian. We agree.

There must be clear evidence, rather than conjecture or speculation, to establish the causal connection between the disease and the employment. Harris v. Joseph's of Greater Miami, 122 So.2d 561 (Fla.1960). There is no evidence that the pedestrian actually had Herpes. ¹ As the deputy noted during the hearing, "It's speculation to say whether he had it or he didn't have it."

In City of Tamarac v. Varellan, 463 So.2d 479 (Fla. 1st DCA 1985), we reversed an award of benefits where a police academy trainee contracted hepatitis after training in an algae-filled swimming pool. In that case, although the algae-filled swimming pool was the best guess as to where the disease came from, there was no evidence that it actually contained the disease. Similarly, in Department of Corrections v. Lussier, 451 So.2d 968 (Fla....