Opinion
No. 90-573.
April 29, 1991. Rehearing Denied May 28, 1991.
Appeal from the Judge of Compensation Claims, Charles Vocelle, J.
Valerie A. Marshall and Janet M. Greene of Jeffery, Thomas Marshall, Maitland, for appellants.
David Wilson III, Winter Haven, for appellee.
Keener Construction Company and Cincinnati Insurance Company, the employer and carrier (E/C), appeal from an order of the judge of compensation claims (JCC) which awarded death benefits to the spouse of Johnnie L. Simpson (employee). The E/C raises two issues: (1) Whether the JCC erred in finding a causal relationship between the employee's death from lung cancer and a compensable occupational disease, and (2) whether the JCC erred in applying section 440.26, Florida Statutes (1989), in a case involving occupational disease. We find merit in both points on appeal and reverse the decision of the JCC.
On January 26, 1990, the JCC entered an order which, in pertinent part, provided:
5. The Employee, Johnnie Lee Simpson was employed by Keener Construction Company on December 14, 1983 as a laborer involved in various facets of the construction industry.
6. That the testimony of Jack D. Keener, owner of Keener Construction by deposition dated October 1, 1988 establishes that the employee was involved in construction that used materials that were composed of asbestos fibers.
7. That the deceased employee expired on April 2, 1988 as a result of (a) a poorly differentiated squamous cell carcinoma of the lung, (b) bilateral bronchopneumonia, (c) cardimegaly [sic] with left ventricular hypertrophy and right ventricular dilatation as a direct result of asbestos exposure as documented by the autopsy protocol dated April 3, 1988.
8. Workers' Compensation Law F.S. 440.151 establishes that compensability of diseases that are incurred as a risk of and in the course of employment, treating a resulting disablement or death as "the happening of an injury by accident."
9. That the testimony of medical experts in this matter is quite exhaustive including that of Drs': Stuart Brooks; John W. Foreman; Neal Newburg; Inga Himelright.
10. I have accepted the presumed facts in section 440.26 F.S. and have weighed those presumed facts against any opposing evidence [sic] in reaching my conclusion that presumptions are applicable herein. Thereby reaching the conclusion that the deceased had prolonged exposure during his employment of which the cumulative effect was his metastic [sic] lung carcinoma which is directly attributable to his duties and subjected him to a hazard greater than that of the general public.
The record reveals, however, that the conclusions concerning the employee's exposure to asbestos and cause of death are not supported by competent substantial evidence. In addition, the decision to apply the statutory presumption in the instant case is in direct conflict with section 440.151(1)(e), Florida Statutes (1989).
In Wood v. Harry Harmon Insulation, 511 So.2d 690 (Fla. 1st DCA 1987), this court stated that a claimant must prove four things in order to recover under an occupational disease theory. The first two items were: (1) That the disease must be actually caused by the employment conditions that are characteristic and peculiar to a particular occupation, and (2) the disease must be actually contracted during employment in the particular occupation.
Only one finding by the JCC addresses the conditions of the employment or the employee's specific exposure to asbestos. The JCC found that the testimony of Jack D. Keener established the employee's involvement with asbestos. The record reveals exactly the opposite.
Mr. Keener stated that very little asbestos has been used in the construction industry since 1983 (the time that Mr. Simpson was employed by Keener). According to Mr. Keener's testimony, Mr. Simpson was never directly exposed to asbestos. While Mr. Simpson was working for Keener, the company had only one job that utilized asbestos materials. That job was in Plant City and involved the use of roof panels which contained asbestos. Mr. Keener testified, however, that Keener's employees were not involved in the roof work, and this portion of the job was handled by a subcontractor. Mr. Keener also testified that Simpson may have worked on a job at a phosphate mine where asbestos materials may have been located. The construction job, however, involved erection of a metal building which did not contain asbestos. The building was not located in the vicinity of the metal tanks which may have contained asbestos material. He further stated that none of the employees of Keener Construction Company were ever involved in materials containing asbestos. This testimony clearly did not support the finding of the JCC regarding asbestos exposure.
Employer records indicated that Simpson never worked on the Plant City job and was, in fact, working on a job at Pleasure Island at Disney World at that time.
The only other evidence of exposure came from claimant's wife who said that in March of 1987, claimant came home covered with asbestos dust. It was not clear how she knew it was asbestos. Employment records indicate that claimant was working on a concrete job at Disney World where no asbestos was present. There was also a notation on a medical form that had been filed with Dr. Foreman that the claimant had worked in phosphate mines or had asbestos exposure. No evidence was presented to indicate when such exposure had taken place or which portion of the question was responded to.
A review of the autopsy report indicates that the report did not establish that the cause of death was related to asbestos exposure. In addition, the overwhelming medical evidence indicated (1) that there were no objective signs of asbestos exposure (no asbestos fibers found in the lungs); (2) that the type of cancer which caused claimant's death (metastasis carcinoma of the lung with undifferentiated squamous cell carcinoma) was not normally associated with asbestos exposure; (3) that the period of exposure was too closely related in time to the onset of the disease to allow for the development of the cancer. None of the treating doctors indicated that the cancer was related to asbestos exposure. The only testimony in support of the connection between exposure and the disease came from a doctor who only reviewed medical records (Dr. Newburg) and never examined the claimant. The doctor gave a somewhat equivocal opinion concerning this relationship.
The doctrine of last injurious exposure as set forth in § 440.151(5), F.S. (1989), is inapplicable in the instant case as there is a lack of competent evidence to support any injurious exposure in either decedent's last employment with Keener Construction Company or any prior employment. A careful reading of the statute indicates that the doctrine is only brought into play where there is evidence of several injurious exposures which may have contributed to the occupational disease.
This opinion is somewhat equivocal in that the doctor did not know the extent of the asbestos exposure, and he testified that exposure is one of the important variables in determining whether the suspected cancer is related to asbestos. At one point he stated, "I think the only thing I can say is that he died as a result of lung cancer which may have been related to asbestos exposure. But the information that I have in the records . . . did not give me any information as to the amount of asbestos exposure he had."
In light of the lack of evidence related to exposure and the opinion of at least three doctors that the disease was not caused by asbestos exposure, it is not apparent from the record why the JCC accepted the opinion of Dr. Newburg. The order is, therefore, deficient in failing to articulate why the overwhelming medical evidence was not accepted. Curry v. Miami Dolphins, 522 So.2d 1010 (Fla. 1st DCA 1988).
If the lack of support for accepting Dr. Newburg's opinion was the only reason for reversal, we would remand for further findings; but in light of the entire record in the instant case, reversal with directions is more appropriate.
Finally, section 440.151(1)(e), Florida Statutes (1989), states:
The presumptions in favor of claimants established by s. 440.26 of the Workers Compensation Law shall not apply to a claim for an occupational disease under this section.
Without any apparent legal authority or without citing any reason, the JCC applied the statutory presumption to the instant case in spite of the cited language. The application of this presumption contained in section 440.26 in this case was error.
We reverse and direct the JCC to enter an order finding that the disease in the instant case was not compensable.
ALLEN, J., concurs.
ERVIN, J., dissenting with opinion.
I respectfully dissent. The rule is firmly established that the judge of compensation claims' findings and conclusions, even in the face of conflicting evidence, will be affirmed if such findings and conclusions are permitted by any view of the evidence and its permissible inferences. Gomez v. Neckwear, 424 So.2d 106, 108 (Fla. 1st DCA 1982) (en banc). The question then is whether there was any evidence supporting the judge's finding of a causal relationship between the employee's death from lung cancer and his employment. In my judgment there was.
The majority rejects the judge's finding that the decedent was exposed to asbestos during his employment with the employer/carrier (e/c). The record discloses that Jack D. Keener, the owner of Keener Construction Company, when asked whether the decedent had ever worked at any phosphate mine sites where asbestos was used, replied that he remembered a job site at which the tanks were lined with asbestos, but he did not recall whether Simpson had worked on that particular site. If this were the only evidence pertaining to the question of whether the decedent was exposed to asbestos during his employment with Keener, I could agree with the majority that there was no competent, substantial evidence supporting the crucial finding. The inference that Simpson may have been involved in the use of materials that were composed of asbestos fibers, however, is supported by other evidence.
The employee's wife testified that her husband told her that he had been exposed to asbestos and that he knew this because a foreman had told him so. Mrs. Simpson's hearsay testimony was not objected to and the rule is clear that in an absence of a proper objection, the hearsay evidence becomes competent proof of the facts recited. Rinker Materials Corp. v. Hill, 471 So.2d 119, 120 (Fla. 1st DCA 1985). Additionally, Mrs. Simpson stated that her husband had come home with asbestos on his clothing during a one-month period either in March or September 1987, a time when she believed that her husband was installing insulation on behalf of the employer in a Publix supermarket located in Haines City. The company's time records reflect that Simpson worked at a Publix store from January through February and from June through September 1987. In my view, this testimony, along with that of Mr. Keener, constitutes competent, substantial evidence from which the judge below could quite properly base a finding that claimant had been exposed to asbestos during his employment with appellant.
The majority also alludes to the fact that none of the treating physicians indicated that the cancer from which the employee suffered was related to asbestos exposure. However, Dr. Inga Himelright, one of Simpson's treating physicians, referring to Cecil's Textbook of Medicine, stated that asbestos exposure is associated with an increase in all types of lung cancer. Moreover, she testified that squamous cell carcinoma, the type of lung cancer for which Simpson was diagnosed, could be caused by asbestos exposure. When the above testimony is combined with that of Dr. Newburg, a specialist in internal medicine, a discipline that includes oncology, who opined that the employee's lung cancer was probably related to both tobacco and asbestos exposure, I consider that medical causation was adequately established.
In reaching its conclusion that there was no medical evidence supporting the finding that the cause of the employee's death was related to asbestos exposure, the majority also states "that the period of exposure was too closely related in time to the onset of the disease to allow for the development of the cancer." Majority opinion, at 1139. In so concluding, the majority has misinterpreted the effect of the last-injurious-exposure rule, codified at Section 440.151(5), Florida Statutes, (1989). This rule provides that once it is determined that claimant has a compensable occupational disease, "the employer in whose employment the employee was last injuriously exposed to the hazards of such disease . . . shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier[.]"
The record discloses that Keener Construction Company employed Mr. Simpson from December 14, 1983 through October 1987, and that Simpson first sought medical treatment for his disease, which was subsequently diagnosed as lung cancer, in September 1987. Although there is a conflict among jurisdictions that have addressed the question of the amount of exposure necessary to determine whether the substance can be deemed injurious, the traditional rule is that as long as there was some exposure of a kind which could have caused the disease, the last insurer at risk is liable for all disability associated with the disease. 4 A. Larson, The Law of Workmen's Compensation § 95.26(a), at 17-191-192 (1990). In his text, Professor Larson cites Wood v. Harry Harmon Insulation, 511 So.2d 690, 693 (Fla. 1st DCA 1987), review denied, 520 So.2d 584 (Fla. 1988), in which this court stated that in order to meet the second criterion of an occupational disease — the requirement that the disease must be actually contracted during employment in the particular occupation — it is not necessary for a claimant to prove that the last injurious exposure to the hazard actually caused the disease; the claimant need only prove that the employer against whom benefits were claimed was the employer at the time of the employee's last injurious exposure. It is immaterial that the employee may have actually contracted the disease while working for a prior employer. Later, in Wuesthoff Memorial Hospital v. Hurlbert, 548 So.2d 771, 774-75 (Fla. 1st DCA 1989), we reaffirmed the above rule, stating: "A specific incident of exposure need not be proven if, as in the case at issue, all elements of the occupational disease test have been proven." More recently, in Florida Power Corp. v. Stenholm, 577 So.2d 977 (Fla. 1st DCA 1991), we observed that "it is not the prolonged nature of the exposure that is determinative . . . [of the issue whether the employee was injuriously exposed to a harmful substance], but rather the issue of whether the exposure arose out of and in the course of employment, and was of such an extent as to take it out of the realm of hazards to which people in general are exposed." The court continued that "a single exposure certainly would present no obstacle to compensability given adequate evidentiary proof of causation and facts satisfying the requirement that the hazard be greater than normal." Id. at 981. Thus, an injurious exposure may be satisfied "by a showing of any exposure — either a single dose exposure or a repeated exposure." Id.
Although the majority at bar concedes that the medical evidence relating to the cause of claimant's lung cancer was conflicting, it nevertheless reverses the order outright and directs that an order be entered finding that the disease was not compensable. This conclusion in my judgment is incorrect. The Florida Supreme Court has long since stated that whether a claimant has carried the burden of proving that he suffered from an occupational disease is a question that could correctly be decided by the trier of fact upon conflicting evidence and any such finding should not be reversed unless shown to be clearly erroneous. Wesley v. Warth Paint Hardware Co., 52 So.2d 346 (Fla. 1951). This court in numerous cases has similarly stated that it is the function of the judge of compensation claims to determine the credibility of witnesses and accept the testimony of one physician over others; and that his discretion in this regard should not be disturbed unless the medical testimony fails to meet the test of the substantial evidence rule. Koulias v. Tarpon Marine Ways, 538 So.2d 130 (Fla. 1st DCA 1989); Aino's Custom Slip Covers v. DeLucia, 533 So.2d 862 (Fla. 1st DCA 1988), review denied, 544 So.2d 199 (Fla. 1989); Griffith v. McDonalds, 526 So.2d 1032 (Fla. 1st DCA 1988).
It is true that we have also remanded in cases where the judge has failed to give reasons for his rejection of conflicting medical testimony, if his or her findings are not apparent from the record or if the order appears to have overlooked or ignored evidence in the record. See Allied Parcel Delivery v. Dixon, 466 So.2d 439 (Fla. 1st DCA 1985); Poorman v. Muncy Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). Neither of those two circumstances is applicable, however, in the case at bar.
Although the judge below did not specifically state in his order why he accepted Dr. Newburg's opinion over that of others, the record, in my judgment, adequately discloses why he did so. Notwithstanding that Dr. Newburg was not the employee's treating physician, he was a specialist in the oncology field and was clearly qualified to give an opinion. Nevertheless, if the majority strongly believes that the record is unclear in this regard, it appears to me that at the very most the case should be remanded for the judge to articulate his reasons for rejecting the opinions of the other physicians.
Finally, while I agree with the majority that the judge incorrectly applied the presumptions set forth in Section 440.26, Florida Statutes (1989), to a claim for death benefits resulting from an occupational disease, I regard the application of such presumptions as only harmless error, in that the order, fairly considered, appears to reach the conclusion, independent of the erroneous application of the statute, that Simpson's lung cancer was the direct result of asbestos exposure during his employment with Keener Construction Company.
At any event, if there remains any lingering question whether the judge's order was influenced by the application of the statute, I consider — similar to the issue relating to conflicting medical evidence — that the case should only be remanded to the judge to give specific findings whether he would have reached the same result despite his erroneous application of the statutory presumptions.