Phelps v. Gunite Const. & Rentals, Inc., 41626
| Decision Date | 21 June 1973 |
| Docket Number | No. 41626,41626 |
| Citation | 279 So.2d 829 |
| Parties | Edmond PHELPS, Petitioner, v. GUNITE CONSTRUCTION AND RENTALS, INCORPORATED, et al., Respondents. |
| Court | Florida Supreme Court |
Gerald Shapiro, Miami, for petitioner.
Edwin H. Underwood, Jr., and Albert A. Gordon of Underwood, Gillis & Karcher, Miami, for respondents.
This cause brings for review by certiorari an order of the Florida Industrial Relations Commission reversing in a 2--1 decision the Judge of Industrial Claims, who determined that claimant sustained an occupational disease known as contact dermatitis causing a 20% Permanent partial disability of the body as a whole. We granted certiorari without oral argument. F.A.R. 3.10(e), 32 F.S.A.
Claimant, petitioner herein, is a laborer who worked as a cement machine operator for Respondent Gunite Construction and Rentals, Inc. (hereinafter 'Gunite'). During this employment in June 1967, claimant developed a serious rash on various parts of his body. On several occasions, thereafter, claimant mentioned the rash to his foremen, but they said, use vaseline and 'you will be all right'. Even though this skin condition persisted, claimant worked for Gunite until November 27, 1968. On that date, claimant terminated his employment by advising his foremen that his skin irritation prevented him from continuing his work.
Approximately one year later on November 21, 1969, claimant went to Dr. Cirlin, a dermatologist, complaining about his skin disorder. Dr. Cirlin diagnosed claimant's condition as a form of contact dermatitis, to-wit: cement poisoning. The doctor attributed this disorder to claimant's employment involving contact with cement.
The Judge of Industrial Claims accepted and relied upon the medical testimony of Dr. Cirlin, finding that claimant suffered an occupational disease described as cement poisoning; that this ailment was causally and directly related to his employment with Gunite; and that claimant sustained a 20% Loss of wage earning capacity. In addition, the judge adopted Dr. Cirlin's opinion that claimant's condition is subject to recurrence upon future exposures. This latter finding was a crucial factor in the judge's order granting a permanent partial disability of 20% Of the body as a whole. Notwithstanding, the Commission in a split-decision reversed, declaring Dr. Cirlin's testimony inconclusive and that claimant did not satisfy his burden of proof for an occupational disease as required by Fla.Stat. § 440.151, F.S.A.
The central issue before us is whether the record contains the quantum of evidence necessary to support the Judge of Industrial Claims' finding that the claimant sustained a compensable occupational disease. In this connection, we recognize as we did in Norman v. Morrison Food Services, 245 So.2d 234 (Fla.1971), that Fla.Stat. § 440.151, F.S.A., requires a greater degree of proof to sustain a compensation order for an occupational disease in comparison to other types of workmen's compensation claims.
More specifically, in Brooks v. State Dept. of Transportation, 255 So.2d 260 (Fla.1971), we stated in concise language the criteria for establishing an occupational disease by saying claimant must prove: (p. 262)
'(1) that his disease is Caused by his employment;
'(2) that his employment shows a Peculiar hazard of such disease in excess of that posed by other forms of employment; and,
'(3) that the disorder is Not a common and Ordinary disease of life to which the general public is exposed.' (emphasis added)
The Commission's majority opinion based its reversal on the ground that claimant did not satisfy its burden to prove an occupational disease. In particular, the majority opinion found no evidence establishing a causal connection between claimant's employment and his cement poisoning. According to the majority, Dr. Cirlin's finding of causation was inconclusive for two reasons. First, Dr. Cirlin noted that once a person removes himself from contact with the offending substance, the dermatitis will clear up. In this context, Dr. Cirlin thought (during his examination) that claimant's present employment involved contact with cement. But claimant had actually terminated his employment at Gunite almost one year prior to Dr. Cirlin's examination, and his subsequent jobs did not include exposure to cement. Admittedly, Dr. Cirlin was mistaken as to when claimant quit his job as a cement machine operator. Even so, his medical opinion cannot be considered inconclusive due to this misunderstanding. We say this because his opinion is based upon other evidence. Upon learning claimant had discontinued his cement machine duties one year earlier, Dr. Cirlin did not alter his medical opinion. In fact, Dr. Cirlin testified that cement poisoning can linger even though an affected person removes himself...
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Collier v. Ranch House Restaurants, Inc., QQ-139
...that the cashier was at least the waitresses' ex officio supervisor. A line of cases holds such notice sufficient. In Phelps v. Gunite Corp., 279 So.2d 829 (Fla.1973), claimant told his foreman he was quitting because of continued skin irritation from his work. Hester v. Westchester General......
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OBS Co., Inc. v. Freeney, BD-331
...Contact dermatitis due to cement has long been recognized as an occupational disease in Florida. Accord: Phelps v. Gunite Construction and Rentals, Inc., 279 So.2d 829 (Fla.1973). Likewise, under pre-Wage Loss law, when an employee suffered "disability" as a result of an occupational diseas......