Effective July 15, 2003 the Florida Legislature amended Fla. Stat. § 440.02(1) and elevated the burden of proof needed to prove an injury as a result of exposure to toxic chemicals. Dubreuil, John J. Florida Workers’ Compensation Handbook § 6.07(6) (2012 ed. 2012).
What the Legislature did was change the law to where an injury or disease caused by exposure to toxic chemicals is no longer presumed to arise out of the course of employment. In order for it to be found that the injury arose out of the course of employment the injured worker must prove three criteria by clear and convincing evidence. First, the claimant must show that he or she was in fact exposed to the specific substance; second, the claimant must demonstrate the level of exposure; and third, the claimant must demonstrate that the level of exposure to the specific substance can cause the injury or disease sustained. Fla. Stat. § 440.02(1). In other words, you must show the exact chemical you were exposed to, how much of that chemical you came into contact with, and lastly, that the amount of the chemical you came into contact with causes your type of injury.
What does clear and convincing mean?
According to Black’s Law Dictionary, clear and convincing evidence is evidence that indicates that the thing to be proved is highly probable or reasonably certain. To put that in context, most civil cases have what they call a “preponderance of evidence” standard. Preponderance of evidence basically means that in order to win you need only show that it was more likely than not the incident occurred. By increasing the burden for exposure cases the Legislature has now made a rebuttable presumption in favor of the insurance carriers.
What does it take to overcome the presumption?
In short, it will take expert testimony which can prove to be very costly. The first expert needed will be someone who is trained in detection and identification of toxic chemicals with knowledge of how to measure the amounts of those chemicals. Next, you will need expert medical evidence that shows the type of injury is a result of exposure to the specific chemical. Dubreuil at § 6.07(6).
Just because it may seem extremely difficult to prove exposure cases does not mean that you have no recourse. By declaring that an injury caused by exposure to a toxic substance is not an accidental injury arising out of the employment, the legislature may have destroyed an employer’s immunity against toxic tort suits. Id. In addition to that, many insurance carriers will still rather settle your case than spend time and money on litigation. If you are a first responder such as a firefighter or police officer, you have a lower burden of proof and are in the “more likely than not” category.
We would love to discuss your case and explain courses of action you may have when presented with this confusing and difficult scenario. This is why it is important to hire a workers’ compensation attorney who handles these types of situations and knows what your entitled to. If you or someone you know is in this situation, please give us a call at (877) 817-4127