Sch. Dist. of Indian River County/Ascension Benefits Ins. v. Cruce

Decision Date27 November 2019
Docket NumberNo. 1D17-3342,1D17-3342
Citation289 So.3d 36
Parties SCHOOL DISTRICT OF INDIAN RIVER COUNTY/Ascension Benefits Insurance and Solutions of Florida/Employers Mutual, Inc., Appellants, v. Edward CRUCE, Deceased Employee, and Nova Cruce, Widow and Natural Mother of Benjamin Cruce and Crystal Cruce, Dependent Minors, Appellees.
CourtFlorida District Court of Appeals

Gary M. Schloss of Hayes, Schloss & Alcocer, P.A., West Palm Beach, for Appellants.

Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellees.

M.K. Thomas, J.

The Employer/Carrier (E/C) challenges a final order finding Edward Cruce's (Employee) death resulted from a workplace exposure to cryptococcus neoformans fungus. In awarding compensability, the Judge of Compensation Claims (JCC) determined that the heightened standard for toxic exposure under section 440.02(1), Florida Statutes (2014), does not require proof, by clear and convincing evidence, of the quantitative level of exposure in all cases. Regarding the burden of proof for workplace causation, the JCC substituted the alternative standard for exposure under Festa v. Teleflex, Inc. , 382 So. 2d 122, 123 (Fla. 1st DCA 1980), for that of section 440.09(1). Because the JCC improperly applied the statutory provisions, we reverse.

I. Facts

The Employee worked as a groundskeeper for the Employer from 1989 until early 2015. Sometime between August and October 2014, the Employer instructed the Employee to move painting supplies and equipment from a storage shed in the football stadium to a storage area in a maintenance building. To facilitate the move, the Employee was obliged to clean out a portion of the maintenance building.

There was evidence that, on several days during this time period, the Employee came home from work covered in a smelly white dust. According to the Employee's wife, the dust was in his beard, nose, and on his lips. The Employee told his wife and daughter that the white dust was "bird crap" and that he was angry to be cleaning out an area containing dead pigeons, live bats, and rodents. In November 2014, the Employee began complaining of headaches. He sought treatment with his family doctor for ear and head pain and was hospitalized in mid-December 2014 when he became unresponsive while at the doctor's office. He was released from the hospital after a few days but re-admitted less than a week later when he collapsed at home. A spinal tap was performed that indicated the presence of budding yeasts that were morphologically consistent with cryptococcus fungus species. Two additional spinal taps confirmed a diagnosis of cryptococcal meningitis

. As a result of the meningitis, the Employee died on January 10, 2015.

When the Employee moved his equipment into the maintenance building, it was already being occupied by another groundskeeper, Mr. Simmons. Mr. Simmons had stored his equipment there since 2010. He went to the maintenance building daily for work tools and to eat his lunch. He assisted the Employee with rearranging the maintenance area to make room for the paint supplies and equipment. According to Mr. Simmons, the move lasted a couple of hours within one workday. He neither saw pigeons or birds nesting or roosting in the maintenance building area or around the stadium nor did he notice bird excrement in the storage area.

After the Employee became ill, the Employer's director of maintenance called an environmental contracting company for recommendations concerning pigeon feces he observed in the swale used for drainage under the stadium. He was advised the area could be sprayed with sealant, but the best course was to leave it undisturbed. The director testified he did not have any testing performed because he was told that the fungus was "prevalent in the environment." Nevertheless, he instructed employees to stay away from the area. The old stands of the stadium were subsequently demolished and rebuilt in 2015; renovations of the underground portion of the stadium, including the maintenance building, were ongoing as late as 2017.

Almost two years after the Employee's death, Claimants (the Employee's widow and two dependent children) filed petitions for benefits seeking death benefits, reimbursement of medical expenditures, and funeral expenses. In the pre-trial stipulation, Claimants requested a determination of whether the Employee suffered compensable injuries as a result of exposure to the cryptococcus fungus based on "prolonged exposure and/or repetitive trauma, and/or in the alternative, an occupational disease." The E/C defended on various grounds, including that the Employee's exposure injury to a toxic substance did not meet the requirements of section 440.02(1) and that Claimants had not satisfied their burden of proof that the Employee's death resulted from an occupational disease under section 440.151, Florida Statutes.

Medical Testimony

Claimants' independent medical examiner (IME), Dr. Feldman, is an internal medicine and infectious disease specialist. He testified cryptococcus neoformans are commonly found in pigeons and sometimes in fertilizers, dust, bat blood, soil, and birds other than pigeons. According to Dr. Feldman, cryptococcus spores can survive for years in bird droppings. He agreed that cleaning an area with bird feces could cause the spores to become airborne and more easily inhaled. Dr. Feldman suggested that the Employee's duties as a groundskeeper created a greater risk of infection. He ultimately opined that the Employee's infection was the direct result of his exposure to pigeon stool containing high levels of fungus, which exposure most likely occurred when he was cleaning out a storage area in the football stadium as there was no evidence of exposure elsewhere. He testified that the Employee inhaled enough of the cryptococcal neoformans spores to become ill, but he could not identify the actual level of the fungus spores causing his illness and did not know the smallest amount necessary to cause infection. He thought it was extremely unlikely that only one spore would be inhaled in any given case but nevertheless, he believed it possible to develop infection from inhalation of only one.

Dr. McCluskey, the E/C's IME, is an occupational medicine physician with a PhD in toxicology. He testified that cryptococcus neoformans fungus is ubiquitous, or found virtually everywhere, and is present in the soil throughout the United States. It grows particularly well on collected pigeon feces or "guano." However, he found no data on the infection rate in pigeons in the United States. According to Dr. McCluskey, exposure and infection from inhalation of fungus is very common, although the development of meningitis

is relatively rare. Nevertheless, the fungus particles must be very small or virtually invisible to be capable of inhalation deep into the lungs.

Dr. McCluskey found no concrete evidence that the Employee was exposed to pigeon feces. Furthermore, the worksite was not tested, and no evidence demonstrated the actual presence of or levels of cryptococcus neoformans fungus at the workplace. In his opinion, no expert could determine when or where the Employee was exposed or why he developed the disease process at that particular time. Further, Dr. McCluskey testified that the presence of bird feces or guano at the workplace would not change his opinion because "simply seeing some bird-related guano does not necessarily mean that it contains cryptococcus neoformans."

Dr. Callahan, an internal medicine doctor with a fellowship in infectious diseases, served as the expert medical advisor (EMA) pursuant to section 440.13(9), Florida Statutes.1 He testified that cryptococcal meningitis

is most commonly contracted through lung infection when the spore is aerosolized and inhaled. According to Dr. Callahan, it is generally accepted by the medical community that cryptococcal neoformans spores can be found in soil, dust, bat guano, and pigeon feces. Cleaning an area with infected pigeon feces will sufficiently aerosolize the spore to begin the disease process, but to be infected, the feces must come from a pigeon that is a carrier of the fungus. He did not know the smallest spore concentration that would cause infection; however, given the size of the spore, "a very small amount" would be required. He hypothesized that the most likely etiology of the Employee's infection was exposure to pigeon feces while cleaning out the storage area of the old stadium.

Final Hearing and Final Order

At the final hearing, the parties presented the expert testimony and contradictory lay testimony concerning the presence of pigeons, feces, and other potential sources of the fungus at the workplace. Claimants argued that clear and convincing evidence confirmed that the Employee was exposed to a toxic substance, cryptococcus neoformans, at work and at levels that can cause, and did cause, his cryptococcal meningitis

.2 Claimants further asserted that the standard of proof for injuries caused by mold and fungus exposure under section 440.02(1) required an "impossibility of proof" which violated the constitutional rights of equal protection, due process, and access to courts.3 At the hearing, Claimants raised for the first time the affirmative "defenses" of spoliation of evidence, estoppel, or avoidance, arguing that the requisite testing was not possible due to passage of time and the destruction of the workplace facility. The E/C objected to the affirmative defenses as untimely.4

The E/C argued that the alleged exposure—including the presence of pigeons—was not established by clear and convincing evidence, and Claimants did not otherwise satisfy all of the requirements of section 440.02(1).

In awarding compensability, the JCC determined that Claimants had presented clear and convincing evidence, as required by sections 440.02(1) and 440.09(1), of repetitive or prolonged exposure in the form of a single dose exposure at work sufficient to...

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