Lake v. Irwin Yacht & Marine Corp., TT-478

• Citation: 398 So.2d 902
• Decision Date: 04 May 1981
• Docket Number: No. TT-478,TT-478
• Court: Court of Appeal of Florida (US)
• Parties: Ethel LAKE, Appellant, v. IRWIN YACHT & MARINE CORP., and Underwriters Adjusting Co., Appellees.

Page 902

398 So.2d 902

Ethel LAKE, Appellant, v. IRWIN YACHT & MARINE CORP., and Underwriters Adjusting Co., Appellees.

No. TT-478.

District Court of Appeal of Florida, First District.

May 4, 1981.

Rehearing Denied June 2, 1981.

Julian M. Piper of Goldner, Reams, Marger, Davis, Piper & Kiernan, St. Petersburg, for appellant.

Kurt Preston Hampt of Jacobs, Robbins & Gaynor, St. Petersburg, for appellees.

ERVIN, Judge.

Ethel Lake, the claimant below, appeals a workers' compensation order which denied her benefits under either an exposure or occupational disease theory for a chronic bronchitis condition that she had allegedly incurred by inhaling toxic fumes during the course of her employment. In rejecting claimant's occupational disease theory, the deputy commissioner observed that the claimant had failed to meet the requirements established by Norman v. Morrison Food Services, 245 So.2d 234 (Fla.1971), and Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561 (Fla.1960). As to the exposure theory, he relied upon Host International, Inc. v. Fornos, IRC Order 2-3595 (November 15, 1978), and concluded that there was insufficient evidence in the record to establish that claimant's excessive exposure was the direct cause of her injury, and that the exposure subjected the claimant to more than the hazards confronting people generally. He also concluded that there was insufficient evidence both as to the length and nature of the exposure. Although we differ with the deputy commissioner's application of the law in rejecting the claimant's occupational disease theory, we concur with his ultimate conclusion on that point. However, we hold that the claimant has adequately proven an industrial exposure theory of recovery in accordance with the recently announced standards in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). Therefore, we reverse as to that theory.

The claimant was employed by Irwin Yacht and Marine Corporation, one of the appellees herein, beginning in 1967. She had never experienced any difficulty in breathing prior to this employment. During the course of her employment with Irwin Yacht, she performed a variety of tasks associated with building yachts, including cutting fiberglass and cleaning boats. Her employment duties caused her to be exposed to fumes from teak oil and acetone, as well as fiberglass dust. During July and August of 1977, she began having difficulty breathing, and then sought medical treatment. She was referred to Dr. Rosenburg, a specialist in internal medicine. He suggested that claimant refrain from working in the boat building business. The claimant complied with the doctor's instructions, but she continued to have lung-related problems such as heaviness of the chest and coughing up blood, which required her commitment to a hospital. During her hospitalization, Dr. Garby, a thoracic surgeon, performed a bronchoscopic examination on the claimant and took tissue samples as well as sputum cultures upon which medical tests were performed. In summary, these tests only established that claimant was suffering from bronchitis. They did not establish the cause of the bronchitis.

Dr. Garby testified that there was no known medical test which would positively identify chemically induced bronchitis. Dr. Rosenburg testified that a challenge test ¹ could identify whether a specific chemical was the cause of bronchitis, but apparently felt that such a test was not advisable. Even in the absence of such a test, it was Dr. Garby's opinion, based upon claimant's history, that claimant's chemical exposure was the most likely cause of her bronchitis. Dr. Rosenburg, relying on claimant's history, and the fact that claimant had completely recovered from her condition after permanently leaving the employ of Irwin Yacht, gave comparable testimony, additionally stating that the acetone chemicals and the use of fiberglass with paint chemicals are not commonly found in the environment but are more likely found with shipbuilders. Another physician, Dr. McDonell, testified that the chemicals the claimant was exposed to would have caused irritation to almost anyone at the concentrations at which she was exposed.

Significantly, there was no medical evidence that claimant's exposure to chemicals was not causally related to her bronchitis. The record did indicate that a staph bacteria was isolated in a sputum culture taken from the claimant. However, the medical testimony in the record clearly indicated that a bacterial infection was not the cause of claimant's bronchitis.

There is a great deal of overlap between the exposure and occupational disease theories in the instant case. Yet, as the holding in this case indicates, there are important distinctions between the two. As to exposure, in Festa v. Teleflex, supra, we established a three pronged test: (1) The claimant must have had a prolonged exposure; (2) a causal relationship must be established between the exposure and the injury or aggravation; and (3) claimant must establish that he or she has been subject to a hazard greater than that to which the general public is exposed. We have also recently announced in Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981), a four-factor test that must be proven by the claimant before he or she can recover 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 p. 1119).

Both tests share a common element of causation. Because of this commonality, Norman v. Morrison Food Services, infra, and Harris v. Josephs of Greater Miami, Inc., infra, are instructive as to either theory of recovery.

In Norman v. Morrison Food Services, 245 So.2d 234, 236 (Fla.1971), the court quoted with approval the following language in Harris v. Josephs of Greater Miami, 122 So.2d 561, 562 (Fla.1960):

In cases involving diseases or physical defects of an employee as distinguished from external occurrence to an employee such as an automobile accident claimant must prove a causal connection other than by merely showing that it is logical that the injury arose out of claimant's employment or that by a "preponderance of probabilities" it appears that it arose out of such employment. There must be some clear evidence rather than speculation or conjecture establishing a causal...