Crown Diversified Indus. Corp. v. Prendiville

• Decision Date: 10 December 2018
• Docket Number: No. 1D17-4802,1D17-4802
• Citation: 263 So.3d 103
• Parties: CROWN DIVERSIFIED INDUSTRIES CORP. and Liberty Mutual Insurance Company, Appellants, v. Eileen PRENDIVILLE, Appellee.
• Court: Florida District Court of Appeals

263 So.3d 103

CROWN DIVERSIFIED INDUSTRIES CORP. and Liberty Mutual Insurance Company, Appellants,

v.Eileen PRENDIVILLE, Appellee.

No. 1D17-4802

District Court of Appeal of Florida, First District.

Dates of Accidents: April 26, 2016; June 27, 2016

December 10, 2018

Rehearing Denied January 22, 2019

Edward C. Duncan III of Law Offices of Amy L. Warpinski, Fort Myers, for Appellants.

Wayne Johnson of DeCiccio & Johnson, Maitland, for Appellee.

Per Curiam.

In this workers' compensation case, the Employer/Carrier (E/C) appeal the order of the Judge of Compensation Claims awarding Eileen Prendiville benefits for her alleged injury caused by exposure to mold in the workplace. We agree with the E/C's first argument and reverse because the JCC admitted the opinion testimony of Dr. Powers, Prendiville's independent medical examiner, which was not competent evidence.

Background

Prendiville worked for several years as an administrator in her employer's resort complex in Clermont. In 2015, she developed symptoms of sinus infection, cough, voice loss (dysphonia ), bronchitis, and swelling of the legs (lymphedema ). Prendiville had never experienced these symptoms before 2015. Due to similar complaints from a co-worker, an environmental study was performed in the workplace in August 2015. The study revealed no elevated microbial spores in the air of the areas tested, but the surface swabs indicated spores of several different molds, including Curvalaria. Prendiville subsequently testified that she smelled and saw what appeared to be mold in her personal office and other areas of the workplace; she also took photographs.

In 2016, Prendiville underwent allergy testing in which she reacted positively to various allergens including selected weeds, trees, grasses, animals, and molds. The molds previously identified in the 2015 environmental study were among the numerous molds to which Prendiville had an allergic reaction. She later testified that she was led to believe that mold exposure at work was the cause of her medical problems because her symptoms were worse at work and better when she was away from work. In December 2016, Prendiville filed a petition for benefits. The E/C denied compensability of any workplace injury and the matter proceeded to hearing before a JCC.

In the final order, the JCC found that Prendiville satisfied her burden of proving mold exposure at work as the major contributing cause of her injury via the testimony of Dr. Powers. Dr. Powers testified that he is board certified in family practice. He admitted that he does not generally treat patients who have been exposed to mold/fungi and that he had never previously treated a patient like Prendiville whose condition is "more extreme." He holds no specialized licensing in mold exposure, infectious disease, toxicology, or any related field, and he never claimed to be an expert on mold-related injuries or diseases. Although Dr. Powers examined Prendiville in July 2016, he did not complete his report until November 2016 because it "required a lot of research" and he had never previously researched mold exposure. As a part of his research, Dr. Powers consulted with Dr. Uppal, an infectious disease doctor in New York who specializes in mold exposure, and reviewed the medical records of Prendiville's co-worker who had similar symptoms.

Ultimately, Dr. Powers opined that Prendiville was exposed to mold in the workplace and that this exposure was the major contributing cause of Prendiville's symptoms. During this testimony, the E/C raised multiple objections along with a general standing objection "to any of the doctor's opinions based on improper predicate and improper foundation, [and] lack of evidence of actual mold exposure." At the conclusion of cross-examination, the E/C placed a general objection on the record challenging the doctor's expertise "under ... section 90.702." The E/C also objected to the doctor's reliance on the co-worker's medical records as hearsay.

Approximately a month before the final hearing, the E/C unsuccessfully moved to strike Dr. Powers's opinion evidence as based on a lack of competent substantial evidence. The E/C asserted that there was no evidence of any kind of exposure, resulting in a "fallacy leap" in the logic of the doctor's opinion, and that the co-worker's medical records were irrelevant.

Standard of Review

A JCC's decision to admit evidence is reviewed for abuse of discretion. See King v. Auto Supply of Jupiter, Inc. , 917 So.2d 1015, 1017 (Fla. 1st DCA 2006) (holding that a JCC's admission of evidence is reviewed for abuse of discretion). In addition, the Florida Evidence Code applies to workers' compensation proceedings. See Alford v. G. Pierce Woods Mem'l Hosp. , 621 So.2d 1380, 1382 (Fla. 1st DCA 1993).

Discussion

On appeal, the E/C raise several challenges to the JCC's admission of Dr. Powers's opinion testimony based primarily on the application of the rules of expert testimony under the Florida Evidence Code. We conclude that the JCC abused his discretion by admitting the expert testimony over the E/C's objections because it was based on improper bolstering and lacked a sufficient factual foundation.

The problems with Dr. Powers's testimony stem from the evidentiary requirements set forth in sections 90.704 and 440.09(1). Section 440.02(1), Florida Statutes (2016), provides, in pertinent part, that an injury or disease caused by exposure to a toxic substance, such as mold, "is not an injury by accident...