In what is certainly a blow to toxic exposure cases, the First DCA, in Matrix Employee Leasing/FCIC v. Pierce, reversed a JCC order finding Claimant’s chronic obstructive pulminary disease condition to be compensable.  Claimant relied on § 440.02(1) to prove her claim.  The Court found no competent, substantial evidence to support the JCC’s finding that clear and convincing evidence established that claimant’s disease was caused by exposure to specific harmful chemicals at the levels to which she was exposed


What is key in the Pierce decision is that the E/C presented no evidence at Final Hearing and Claimant proffered expert testimony from her IME.  In essence, the Court limited what can be acceptable evidence in just trying to prove a prima facie case.


§ 440.02(1) states:


An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.


The Court was emphatic in putting reinforcing Claimant’s burden to prove this exposure caused an injury, going as far to rule the JCC erred in implying the E/C had an obligation to offer evidence to counter the claim.  The Court even dissects Claimant’s IME testimony in weighing if it passes muster under the “clear and convincing standard.


This is a very conservative opinion which reinforces the defense oriented intent of the 2003 amendments to §440.02(1).  (I am sure that Claimant’s history of smoking a pack and half of a day for 20 years played a role in the DCA’s decision.) 


And while this decision is likely to curb the filing of future toxic exposure claims, David McCranie, in his blog, makes an excellent point as to whether this decision now opens the door toward employer tort liability:  Can an employer claim immunity, under §440.11, for a toxic tort liability if Claimant’s injuries are not covered by Chapter 440?