Archive for August 16, 2008

Florida Workers’ compensation and exposure cases

Posted in Workers' compensation on August 16, 2008 by leslie@lawyertampa

One of the amendments to the 2003 workers compensation statute in Florida was to change the standard for proving exposure cases.  An exposure case is any case in which a worker is exposed to a substance that can cause harm.  Just about any chemical, hazardous or not, can inflict damage depending on the concentration of the chemical and the duration of exposure.

Most workers have an exposure to a known chemical.  In some cases, like a firefighter entering a burning building, there may be an exposure to an unknown substance.  In either case, the employee bears the burden of proving exposure to a substance in sufficient concentration and for a sufficient duration to cause the harm suffered.  In many cases the worker can prove what he/she was exposed to, perhaps even the duration, but it is the concentration that is often difficult, if not impossible to prove.

Unless your work place is monitored for air quality or you wear a personal monitoring device, the ability to prove concentration is almost non-existent, and yet that is precisely what the injured worker must do.  In order to prove this element, scientific or medical testimony is required.  That testimony must prove up the duration/concentration requirements and must prove it by clear and convincing evidence, which is a higher standard than the normal competent and substantial evidence required in every other case.

This type of scientific evidence may require re-creating the workers’ actual work place incident or using empirical evidence common to the industry.  Regardless, this type of testimony is expensive.  So unless the worker requires lasting, expensive medical care, the attorney involved in the claim is unlikely to put up the $5,000 to $10,000 required to pull an environmental or toxicological expert into the fray.  It is just cost preclusive to try to prosecute minor exposure cases under the current statute.

Before the changes in 2003, the court had some ability to use the logical cause doctrine.  If you got a spray in the face of chlorine gas and developed a breathing problem you never had before, 1 + 1 = 2.  You could draw an inference.  Now you would have to prove the concentration you got sprayed with and under most situations this is all but impossible.  This is why they call them “accidents”.

If you’ve been exposed and the insurance carrier wants to deny your claim, get some quality assistance right away.  Both from a pulmonologist and a lawyer.

Advertisements