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2019 Case Law Update: Denial of Compensability of Short-Term Respiratory Exposure Claim

Florida
September 12, 2019
November 21, 2019
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On October 17, 2019, the Florida First District Court of Appeal addressed whether the Judge of Compensation Claims (JCC) erred in denying Mr. Blanco’s Petitions for Benefits seeking workers’ compensation benefits, after he was exposed daily— for a short period of time— from November 24, 2017 through December 4, 2017, to concrete dust while working for Creative Management Services, LLC setting up the Art Basel show at the Miami Convention Center. See Blanco v. Creative Management Services, LLC/Tech. Ins. Co., 2019 Fla. App. LEXIS 15637.   Mr. Blanco asserted that this daily exposure to the concrete duty exacerbated his underlying chronic obstructive pulmonary disease.  Id.  The JCC did not find this credible.  The JCC also agreed with the expert medical examiner’s opinion that the claimant’s respiratory condition was caused by his seventeen year history of smoking.  Id.  “The JCC concluded that Blanco failed to meet his burden to show that he suffered an accident from exposure ‘in the course and scope of his employment.’”  Id.    

The Florida 1st DCA affirmed the Judge of Compensation’s order denying workers’ compensation benefits.  Id.    Mr. Blanco asserted five arguments challenging the Judge of Compensation’s order, however, the Florida 1st DCA wrote “only to address his arguments about the admission of expert testimony and the evidence supporting the JCC’s order denying benefits.”  Id.    

Mr. Blanco asserted that the JCC should have excluded the employer/carrier’s independent medical examiner’s medical opinions of Dr. McCluskey (even though his report was properly authenticated via deposition.)  Id.    The doctor opined that the major contributing cause of the claimant’s respiratory condition was his seventeen year smoking habit (“rather than his alleged exposure to debris during the eleven days he worked for CMS.”)  Id.    

Dr. McCluskey testified that he was “board-certified in occupational medicine and ha(d) a PHD in toxicology.”  Id.    He also testified about his extensive experience in determining the cause of exposure injuries like Blanco’s alleged injury.”  Id.  Despite same, the claimant challenged Dr. McCluskey’s medical opinions because he was not a board certified internist or pulmonologist.  Id.    

The Florida 1st DCA opined that Mr. Blanco “ignore(d) that Dr. McCluskey is a board-certified occupational medicine specialists with extensive experience in exposure cases leading to pulmonary problems.”  Id.   The Florida 1st DCA cited to the Florida Supreme Court’s decision in Chavez v. State, 12 So.3d 199, 2015 (Fla. 2009.)  Id.  “Under the rule of evidence, ‘[a] witness may be qualified as an expert through specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge.  Even though Dr. McCluskey was not board certified as a pulmonologist, his board certification in occupational medicine, his extensive training, and experience in exposure cases established his qualifications to opine on the dispute issue of causation.” Id.    

Mr. Blanco also argued that the Judge of Compensation Claims should have stricken “Dr. McCluskey’s IME report as untrustworthy per se.”  Id.  In denying same, the JCC found the IME report admissible under the business records exception. Id. citing Heckford v. Fla. Dept. of Corrections, 699 So2d 247 (Fla. 1st DCA 1997.)  The claimant cited to McElroy v. Perry, 753 So.2d 121, 125-126 (Fla. 2d DCA 2000) to assert that Dr. McCluskey’s report was “prepared solely for litigation” and therefore “fell in the suspect category of trustworthiness as identified by Professor Ehrhardt in Florida Evidence Section 803.6 at 695 (1999 ed.) Id.    

The Florida 1st DCA disagreed with the claimant’s argument based on three reasons: “First, Chapter 440 specifically provides for the selection of IME doctors to resolve disputes…Second, the admissibility of medical opinions in workers’ compensation disputes is limited to certain providers, which includes IME doctors…Third, the McElroy court expressed a concern about the effect of an IME report, which may be cumulative, on a jury; in workers’ compensation cases there is no jury and the JCC, the factfinder, is also the one who determines the admissibility or trustworthiness of the evidence.” Id. citing Florida Statutes Sections 440.13(5)(a) and 440.13(5)(e)(2017.)  Therefore, the Florida 1st DCA opined that in accepting Dr. McCluskey’s medical opinion regarding major contributing cause, the JCC did not err.  Id.    

Based upon Blanco, if you intend to dispute an exposure claim (which are on the rise,) make sure (as the employer/carrier did in this claim) that you select an independent medical examiner who has specialized knowledge, training, or education in the relevant field, and note that such expertise need not necessarily be limited to academic, scientific, or technical knowledge. It is the physician’s experience and training as a whole which is critical, as opposed to a simplistic inquiry whether or not the physician is board certified in a particular area.  Said IME report will be admissible to assist in resolving your workers’ compensation dispute before a Judge of Compensation Claims.