Wiley v. Southeast Erectors, Inc.

• Decision Date: 15 January 1991
• Docket Number: No. 89-1527,89-1527
• Citation: 573 So.2d 946,16 Fla. L. Weekly 204
• Parties: 16 Fla. L. Weekly 204 Janet Suzanne WILEY, Appellant, v. SOUTHEAST ERECTORS, INC. and Underwriters Adjusting Co. and Crims, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 946

573 So.2d 946

16 Fla. L. Weekly 204

Janet Suzanne WILEY, Appellant, v. SOUTHEAST ERECTORS, INC. and Underwriters Adjusting Co. and Crims, Inc., Appellees.

No. 89-1527.

District Court of Appeal of Florida First District.

Jan. 15, 1991.

W. Thomas Copeland, Kurt Andrew Simpson, P.A., Jacksonville, for appellant.

Daniel C. Shaughnessy, Coker, Myers, Schickel, Cooper & Sorenson, P.A., Jacksonville, for appellees.

JOANOS, Judge.

Claimant in this workers' compensation case appeals an order of the judge of compensation claims denying compensability of her claim for benefits based on an exposure theory. Claimant contends the judge erred in (1) finding that she failed to prove causation of her injury by work exposure, and (2) in finding that three of the pulmonary experts consulted on this case opined that claimant did not have silicosis. We reverse and remand for further proceedings.

The claimant was employed as a welder by Southeast Erectors from June 25, 1984, to October 8, 1985, and from April 8, 1986, to May 8, 1986. Claimant testified that she had no lung or breathing problems prior to her employment with Southeast Erectors. Moreover, from June 1984 until June 1985, claimant worked at various job sites for Southeast Erectors with no lung, breathing, or other health problems. However, in June 1985, claimant began working at a job site at Kings Bay, Georgia. At that time, she first came into contact with a product known as Blaze-Shield. Blaze-Shield is used as a fireproofing protective coating, usually on structural steel, but may be used on other parts of buildings as well. Blaze-Shield was being sprayed on certain areas at the Kings Bay job site. Claimant's duties involved chipping and cleaning the material off the metal beams with a chipping hammer and a wire brush, so the beams could be welded. In the cleaning process, the Blaze-Shield broke off in chunks and also generated dust. Claimant testified that at the end of each work day, she was covered with Blaze-Shield dust. She developed a rash on the areas of her skin which the dust touched. Despite the cleaning process, a residue of Blaze-Shield was left on the beams. Claimant testified that during the welding process, the residue produced smoke and fumes which were worse than in other welding situations.

Claimant first noticed breathing problems in July 1985, a month after she started working at the Kings Bay job site. She began to feel generally unwell, and developed a cough, an elevated temperature, and upper respiratory infections which stayed with her the entire time she worked at Kings Bay. At that point, claimant did not associate her health problems with exposure to the Blaze-Shield dust. Claimant's health problems worsened, and ultimately she contracted an upper respiratory infection which lasted for the duration of her employment with Southeast Erectors at the Kings Bay job site.

Claimant left Southeast Erectors in October 1985. During the ensuing period when she worked for other employers, her health improved slightly. Upon her return to Southeast Erectors in April 1986, claimant's health deteriorated. In May 1986, her employment was terminated due to low production. Claimant's testimony reflects that she was physically unable to do her job, due to breathing problems, weakness, and the fact that she tired easily. Claimant worked for another construction company from October 22 to 25, 1986, when her employment was terminated for lack of productivity. The record reflects that during her employment with Southeast Erectors, claimant smoked one and a half packs of cigarettes a day, and had done so for the preceding twenty-five years.

Mr. Newton, a chemist, was accepted as an expert in the area of identification of compounds and of changes in compounds, based on the application of heat or welding. Mr. Newton's analysis of Blaze-Shield indicated that the material consisted of mineral wool and glass wool constituents bound up in a calcium silicate base. Glass wool is a pure free silica, which can become air borne and breathed in, i.e., it can become "respirable." Silica is respirable when it falls into a five-micron particle or less. Mr. Newton testified that calcium silicate, which is the bonder surrounding the rock wool fiber, could be reduced into the five-micron and less category through manipulation, thereby rendering it respirable. He further stated that the rock wool or quartz glass fiber found in the sample he analyzed will occur as a long fiber greater than five microns in length and less than a micron in diameter, but under manipulation, the rock wool also can be broken into pieces smaller than five microns. Mr. Newton explained that his findings were based on the tests he conducted on a sample of Blaze-Shield, and that any determination of respirable silica actually discharged into the air at the job site would require testing of air samples taken at the job site while the work was in progress.

Ultimately, claimant came under the care of Dr. Sharpe, a pulmonary specialist. During Dr. Sharpe's treatment, additional pulmonary function studies were performed and x-rays were taken. Dr. Sharpe diagnosed claimant's condition as an intermediate case of acute silicosis. She distinguished claimant's condition from ordinary or chronic silicosis which develops over a ten to thirty year period, explaining that some people, claimant included, have an idiosyncratic response to inhalation of small particle silica. According to Dr. Sharpe, such persons either die within a short period of time after exposure, or develop a severe fibrosis very rapidly. Dr. Sharpe said her diagnosis of claimant's condition was based on (1) the temporal relationship between claimant's exposure to the product containing silica and the onset of disease, (2) the pulmonary function studies, and (3) claimant's clinical picture. The doctor determined the silica component of Blaze-Shield by reference to a Material Safety Data Sheet which in turn referenced a document known as CAS Number 14808-60-7, containing a listing of the components of Blaze-Shield. Dr. Sharpe described Blaze-Shield as an attempt to make a safe asbestos.

The medical testimony in this case established that claimant's lung problems are restrictive in nature. A restrictive pattern is associated with disease silicosis, as opposed to the obstructive pattern usually associated with cigarette smoking. Three pulmonary specialists, Drs. Sharpe, Schoonover, and Jackler, determined that the claimant's pulmonary problem was primarily restrictive in nature. Dr. Schoonover recognized that claimant's condition was consistent with silicosis, but on the basis of the existing data, he could not state with certainty that claimant has silicosis. In a similar vein, Dr. Jackler determined that claimant's pulmonary function tests are inconsistent with test results attributable solely to cigarette smoking. He declined to diagnose claimant's condition as acute silicosis, because he did not think one episode of massive exposure would sustain the type of fibrotic reaction claimant manifested.

Dr. Anderson, who testified on behalf of employer/carrier, reviewed the medical reports, tests, and Dr. Sharpe's deposition, but did not examine claimant. Dr. Anderson found no evidence of silicosis in claimant's chest x-ray. ¹ He opined unequivocally that claimant does not have silicosis.

With regard to the causation issue, it is fundamental that a workers' compensation claimant must establish that the injury for which recovery is sought is related to the employment, Gadsden County Board of Public Instruction v. Dickson, 191 So.2d 562, 565 (Fla.1966); Metric Constructors, Inc. v. Chiles, 429 So.2d 1292, 1293 (Fla. 1st DCA 1983), and when the injury at issue involves disease or physical defect, evidence of causation must be shown by something more than that it is merely logical that the injury arose out of the claimant's employment. Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960). That is, causal relationship must be shown by clear evidence rather than speculation or conjecture. Id.; Norman v. Morrison Food Services, 245 So.2d 234, 236 (Fla.1971); Gadsden County Board of Public Instruction v. Dickson, 191 So.2d at 564-565; Martin Marietta Corp. v. Glumb, 523 So.2d 1190, 1193 (Fla. 1st DCA 1988); Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981).

This is not to say that causal relationship requires absolute proof, to the exclusion of reasonable inferences. For example, in Meehan v. Crowder, 158 Fla. 361, 28 So.2d 435 (1946), the court rejected the employer/carrier's contention that causation in that case was based on conjecture, noting that "[c]onjecture may be said to be a supposition without a premise of fact." 28 So.2d at 437. The supreme court found that the compensation award in Crowder rested upon an inference of liability which was sustained by the premise of facts to be found, i.e., that claimant was well immediately preceding August 9, 10, and 11, and was sick soon after. During those three days, he was exposed to a highly dangerous solution which would cause the kind of illness which he developed. The court concluded that "[t]he evidence show[ed] a natural sequence of events based on facts from which liability can be inferred." Id.

To establish a causal relationship between work and injury under an exposure theory, a claimant must demonstrate that:

(1) he or she has had a prolonged exposure,

(2) a causal relationship between the...