Florida Power Corp. v. Stenholm, 90-2465

• Decision Date: 28 March 1991
• Docket Number: No. 90-2465,90-2465
• Citation: 16 Fla. L. Weekly 859,577 So.2d 977
• Parties: FLORIDA POWER CORPORATION, Appellant/Cross-Appellee, v. Frank STENHOLM, Appellee/Cross-Appellant. 577 So.2d 977, 16 Fla. L. Week. 859
• Court: Florida District Court of Appeals

Page 977

577 So.2d 977

FLORIDA POWER CORPORATION, Appellant/Cross-Appellee, v. Frank STENHOLM, Appellee/Cross-Appellant.

No. 90-2465.

577 So.2d 977, 16 Fla. L. Week. 859

District Court of Appeal of Florida First District.

March 28, 1991.

Rehearing Denied May 2, 1991.

Rex A. Hurley and William H. Rogner of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellant/cross-appellee.

Andrew G. Pattillo, Jr. and Jonathan D. Ohlman of Pattillo & McKeever, P.A., Ocala, for appellee/cross-appellant.

WIGGINTON, Judge.

Florida Power Corporation, the employer/self-insured, appeals from the final order of the judge of compensation claims finding compensable claimant's present condition known as cryptococcal meningitis. Claimant cross-appeals the judge's failure to award interest on past due medical bills. We affirm the issues raised on appeal but reverse on cross-appeal.

Claimant is 37 years old and began working for Florida Power in September 1976, with his primary work location being at the Crystal River plant in Ocala. Claimant was employed as a "casual" employee, meaning that he worked only during periods when at least a portion of the plant was closed for repairs. Consequently, claimant would work erratically during any given year, spending several weeks or months unemployed.

The evidence showed that the Crystal River site has five separate generators. Units 1, 2, 4, and 5 are fossil fuel plants. Their design is open, allowing access to pigeons that occasionally roost in the extreme upper regions of these massive 13 to 15 story buildings. Unit 3, however, is the nuclear plant with an entirely enclosed design.

According to claimant, his work assignments in 1988 included working in Plant 5 from March 28 to April 22; Plant 2 from April 22 through May 18; and Plant 1 from October 29 through November 17. Florida Power points out that the vast majority of claimant's employment was in Unit 3, or the nuclear plant, where he was not exposed to pigeons or their droppings. Nonetheless, it concedes that during the ten months preceding the onset of claimant's symptoms in October 1988, he had worked at least six weeks in areas containing pigeon feces.

On October 5, 1988, claimant began experiencing the early symptoms of cryptococcal meningitis. They began as flu-like symptoms but over the next few months grew in severity to the point where claimant was experiencing excruciating headaches and seizures. On March 5, 1989, he entered Shands Hospital and, after several diagnostic tests, was determined to be suffering from cryptococcal meningitis, an infection involving the covering of the brain and spinal cord, or the meninges, caused by a yeast, or fungus. This particular yeast has been found in soil, grain, fertilizer, flowers, corn, milk, peach juice, dust, and in pigeon feces. The disease is generally contracted by those having some predisposition toward the disease and it was suggested that an exposure to a single molecule, or one breath full, can trigger the onset of the disease in those particular people.

Dr. Utz, board certified in Internal Medicine and recognized as one of the foremost authorities on cryptococcal meningitis, testified on behalf of claimant and stated that cryptococcal neoformans are found most abundantly in nature in pigeon droppings, and that in no other identified site has the organism been cultured in consistent and frequent numbers, facts widely accepted in the medical literature. To that observation, Dr. Diamond, testifying on behalf of Florida Power, agreed.

It was shown through the medical testimony that infection of humans occurs primarily through inhalation of particles containing the live organism and the primary vector appears to be air currents. Cryptococcosis has a central focus in the lungs, and disseminates through the blood stream localizing in other sites of the body such as the meninges, thus causing this particular strain of meningitis.

Dr. Greer, claimant's treating physician and head of the Department of Neurology at the University of Florida College of Medicine, acknowledged that cryptococcal meningitis can be caused by a single molecule, or one specific exposure to the fungus, coinciding with the expressed view of Dr. Utz. Dr. Utz in turn confirmed the proposition that one who works in an environment in which he breathes the cryptococcal organism is at greater risk for cryptococcosis and cryptococcal meningitis than one who works in an environment in which he does not inhale such organisms.

The presence of pigeon droppings at the Crystal River plant was observed by the judge herein while inspecting the site at the request of the parties. It was also described in the testimony of coworkers concerning the work conditions in 1988, and confirmed by claimant's testimony. Claimant described his direct contact with the droppings and his presence at and beneath places where such droppings were disturbed by actions of his fellow employees. No evidence was presented that with the exception of his employment, claimant had any indicated exposure to pigeon droppings or to the risk of inhaling the cryptococcal organisms derived therefrom.

On the question of whether the source and cause of claimant's cryptococcal meningitis was an organism inhaled by him while in the course of his employment, the degree of probability was addressed by the opinions of Doctors Greer and Utz. They characterized the causal connections as "reasonable," "logical," "reasonably probable," and based in part on the magnitude of claimant's exposure in the work place as compared to the potential elsewhere. According to Dr. Utz, the exposure and subsequent incubation of the disease occurs over a period of weeks or months. Thus it was his conviction that the causal connection between claimant's work-connected exposure and the disease was unimpaired by the hiatus of weeks or months between claimant's last direct and substantial exposure to pigeon droppings and the appearance of symptoms.

In answer to the suggestion that an absence of cases of cryptococcal meningitis in other similarly exposed workmen in the same environment cast doubt upon the claimant's claim, both Dr. Utz and Dr. Greer stated that likely there had been many mild cases of pulmonary cryptococcosis among his coworkers. The advancement of cryptococcosis beyond the subclinical stage to a more serious variety is often marked by the patient who has some impaired or otherwise defective immune or defense mechanism. In only about half of such patients can it be determined what the defect is; in others, like claimant, such impairment is presumed.

In his order, the judge of compensation claims postulated that the two possible theories for recovery would be either occupational illness or exposure. Concluding that, based on the evidence, cryptococcal meningitis does not meet the qualifications of an occupational disease, the judge found that claimant could nonetheless recover on an exposure theory. It is with this conclusion that Florida Power takes exception. Although agreeing with the judge that cryptococcal meningitis is not a disease compensable as an occupational disease under section 440.151, Florida Power maintains the judge nonetheless erred by applying the exposure theory of accident here where the facts demonstrate that such theory is inapplicable.

In so arguing, Florida Power suggests that the exposure doctrine necessarily contemplates the effect on the body of repetitive trivial traumas which are not significant enough to produce a discernible or visible result until the passage of time, citing to Alpert, Florida Workers' Compensation Law (4th Ed.), section 6-6. Florida Power goes on to urge that the fundamental premise of the exposure doctrine is that repeated or prolonged exposure to a force or a substance causes the injury. Worden v. Pratt and Whitney Aircraft, 256 So.2d 209 (Fla.1971). Thus, its position is that the exposure doctrine does not apply unless prolonged exposure is shown before the onset of the disability. In turn, Florida Power stresses the medical testimony and articles submitted into evidence below showing that cryptococcal meningitis is not caused by prolonged exposure but may be caused by inhalation of a single molecule of the fungus encountered anywhere in the environment.

Although many of the relevant "exposure cases" do indeed involve recovery on the basis of prolonged exposure, we must nonetheless disagree with Florida Power's restrictive premise that prolonged exposure is essential to recovery. In advancing its view, as noted above, Florida Power seizes on an observation by Mr. Alpert in his scholarly work on Florida's Workers' Compensation Law regarding the relationship between repetitive trivial traumas and the exposure doctrine. In fact, the observations made by Mr. Alpert on Florida's exposure cases when read in their entirety would certainly not exclude claimant's exposure in the instant case. Significantly, Mr. Alpert states:

The Florida Act provides benefits for injury by accident and occupational disease.

It does not provide benefits for exposure to deleterious substances or conditions. However, the courts have engrafted a so-called exposure doctrine upon the Act. What is actually being discussed is the effect upon the body of repetitive trivial trauma which trauma is not significant enough to produce a discernible or visible result until the passage of time or cumulative injury. In the desire to label what does not need labeling the nomenclature of exposure has developed. Perhaps it would be more appropriate for the courts to discard the label. The compensable so-called exposure cases should involve an unexpected or unusual event or result, happening suddenly, whereas the noncompensable cases should not. The unusual event or result may not be measurable at the time of injury (by our present scientific instruments) but at some point in time, measurement becomes possible and at that point we...