Department of Corrections v. Lussier, AV-166

• Decision Date: 12 June 1984
• Docket Number: No. AV-166,AV-166
• Citation: 451 So.2d 968
• Parties: DEPARTMENT OF CORRECTIONS, Avon Park Correctional Institute and Division of Risk Management, Appellants, v. Maurice LUSSIER, Appellee.
• Court: Florida District Court of Appeals

Page 968

451 So.2d 968

DEPARTMENT OF CORRECTIONS, Avon Park Correctional Institute and Division of Risk Management, Appellants, v. Maurice LUSSIER, Appellee.

No. AV-166.

District Court of Appeal of Florida First District.

June 12, 1984.

Rehearing Denied July 18, 1984.

Kurt Preston Hampp, of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellants.

Kimberly S. Brush, of W. James Kelly, P.A., Lakeland, for appellee.

WIGGINTON, Judge.

The employer/carrier appeal from the deputy commissioner's order awarding benefits, in which the deputy found a causal connection between claimant's employment and his condition of chronic hepatitis. We reverse.

Claimant was a dentist employed at the Avon Park Correctional Institute when it was first diagnosed that he suffered from Non A Non B hepatitis. In pursuing his claim for compensation benefits, it was claimant's position that he contracted the disease from a prison inmate, on whom claimant had performed dental surgery. It was alleged that at the time claimant was treating him, the inmate was suffering from an acute case of hepatitis. Claimant developed symptoms of hepatitis approximately three months later. The deputy based his finding of causal relationship on the deposition testimony of claimant's treating physician, Dr. Dabir Ahmad Siddiqui, a gastroenterologist, who, in response to a hypothetical question, replied,

If the man on whose tooth Dr. Lussier worked had a viral hepatitis and if within the time limit described Dr. Lussier does show signs, symptoms or evidence of hepatitis with clear-cut contact, then I think a cause and effect relationship can be made.

Unfortunately, Dr. Siddiqui's opinion presumed a fact yet to be proved, and not later proven, and for that reason, was an insufficient foundation on which the deputy could base his conclusion of causal connection.

According to the medical testimony, and it was uncontradicted in this regard, for claimant to have contracted Non A Non B hepatitis from the inmate, the inmate would necessarily have had to have been suffering from that same strain. However, during the time that the inmate was ill with hepatitis, no blood tests were performed to establish from what particular type of hepatitis the inmate suffered. Moreover, it was also undisputed that there was no way within reasonable medical probability to test for Non A Non B hepatitis. Non A Non B hepatitis may be diagnosed only through the process of exclusion; that is, one can only diagnose Non A Non B hepatitis if there is laboratory evidence of hepatitis, but no serological evidence of either type A or type B hepatitis. ¹ Later blood tests performed on the inmate revealed signs of his having had both type A and type B hepatitis in the past.

Consequently, it was vital to claimant's case that he prove that the inmate suffered from Non A Non B hepatitis. There being absolutely no medical evidence attesting to that fact ever presented, Dr. Siddiqui's opinion was insufficient to that end, as it was nothing more than a conclusion based on a fact not in evidence. An expert's opinion "is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion." Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960); see also Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957).

Accordingly, claimant's case and the deputy's conclusion were based on little more than a "preponderance of probabilities." As to...