Norman v. Morrison Food Services

• Decision Date: 10 March 1971
• Docket Number: No. 39925,39925
• Citation: 245 So.2d 234
• Parties: Estelle NORMAN, Petitioner, v. MORRISON FOOD SERVICES and Morrison Assurance Company, and Industrial Relations Commission, Respondents.
• Court: Florida Supreme Court

Page 234

245 So.2d 234

Estelle NORMAN, Petitioner, v. MORRISON FOOD SERVICES and Morrison Assurance Company, and Industrial Relations Commission, Respondents.

No. 39925.

Supreme Court of Florida.

March 10, 1971.

Tom B. Stewart, Jr., of Evans & Stewart, Jacksonville, for petitioner.

James E. Cobb of Mathews, Osborne & Ehrlich, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the Order of the Florida Industrial Relations Commission reversing the award of compensation and dismissing the claim of petitioner herein.

The Commission found that there was insufficient evidence to establish a causal relationship between claimant's contact dermatitis and her employment. The sole question presented is whether claimant has met the burden of proof imposed for the establishment of a compensation claim based on an occupational disease.

After argument and on careful consideration of the briefs and record, we conclude that claimant has not sufficiently established a relationship between the contact dermatitis and her employment. Evidence, which would be adequate to establish other types of compensation claims, will not meet the requirements of Florida Statutes, § 440.151, F.S.A., relating to occupational disease, which statute is in pertinent part as follows:

'Occupational diseases.--

'(1) (a) Where the employer and employee are subject to the provisions of the workmen's compensation law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, his dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer and was actually contracted while so engaged, meaning by 'nature of the employment' that to the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations and is in excess of the hazard of such disease in such employment * * *.

'(e) The presumptions in favor of claimants established by § 440.26 ¹ of this workmen's compensation law Shall not apply to a claim for compensation for an occupational disease under this section.

'(2) Whenever used in this section the term 'occupational disease' shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment, and to exclude all ordinary diseases of life to which the general public is exposed.' (e.s.)

In Harris v. Josephs of Greater Miami, ² this Court affirmed denial of compensation to a beauty parlor operator who sought recovery for contact dermatitis, allegedly resulting from hair dyes and other substances used in her work, stating: ³

'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 connection between a claimant's injury and her employment.' (e.s.)

In Braden v. City of Hialeah, ⁴ claimant contracted skin cancers due to exposure to the sun during the course of her five years' employment by the City's recreational department as a lifeguard and swimming instructor at the City's swimming pools. Claim was filed for compensation for an occupational disease. The deputy commissioner awarded compensation benefits, the Full Commission reversed and this Court affirmed, stating: ⁵

'From the record we find debatable the issue of fact as to whether the petitioner's skin cancers were a direct result of exposure to the sun in her employment. During the period of her employment her work subjected her to an unusual degree of exposure to the sun which was intensified by reflection of sunlight from the waters of the swimming pools. The medical testimony in the record does not exclude the possibility that the type of pigmentation of petitioner's skin (she is a fair-skinned individual) and the chemistry of her body may have made her more susceptible to skin cancer than are the general average of persons subject to similar exposure in the same area. Furthermore, the testimony does not show that had petitioner not been employed as a life guard she would not have contracted skin cancers merely by exposure to the sun to which the average person in the area is habitually exposed. The testimony did not establish that her malady was related to the particular occupational hazard of her employment to the exclusion of her susceptibility to skin cancer under average conditions.'

This Court quashed an award of compensation based on a claim of dermatitis as an occupational disease in Screen Art Posters, Inc. v. Quinn, ⁶ holding:

'In the record before us we find no evidence to support the deputy's finding that claimant's dermatitis is an occupational disease within the statutory definition. There is no competent substantial evidence to show that any of the substances allegedly used by claimant in his work caused the dermatitis. The testimony of both doctors was that there was no functional disability of claimant's arms. The only limitition (sic) is that he should not expose himselfto any chemicals which could cause a recurrence of the dermatitis, the chemicals being unidentified.'

In Giglio v. Hillsborough County, ⁷ contact dermatitis was held not established as an occupational disease by a janitor whose hands were admittedly exposed to wet products, grease, detergent and janitorial supplies in his work.

In contrast to the Harris, Braden, Quinn and Giglio cases, supra, compare the evidence produced by claimant, a wet cook, to establish contact dermatitis as an occupational disease in Wesley's, Inc. v. Caramello. ⁸ This evidence included positive results of patch tests of two substances used by claimant in his work as well as supporting medical and lay testimony.

The record in the instant case is made up of the testimony of claimant and brief medical reports of two doctors. The evidence establishes that claimant suffered some form of...