Wiley v. Southeast Erectors, Inc., No. 89-1527

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS; SHIVERS, C.J., and MINER
Citation573 So.2d 946,16 Fla. L. Weekly 204
Parties16 Fla. L. Weekly 204 Janet Suzanne WILEY, Appellant, v. SOUTHEAST ERECTORS, INC. and Underwriters Adjusting Co. and Crims, Inc., Appellees.
Docket NumberNo. 89-1527
Decision Date15 January 1991

Page 946

573 So.2d 946
16 Fla. L. Weekly 204
Janet Suzanne WILEY, Appellant,
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

Page 947

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

Page 948

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...

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    ...was described by Dr. Hutchins at trial, i.e., identification of asbestos in building materials. See Wiley v. Southeast Erectors, Inc., 573 So.2d 946, 949 (Fla.Dist.Ct.App.), cert. denied, 582 So.2d 623 (1991) (chemical properties of Blaze Shield, a fire proofing protective coating, were det......
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