In Florida Statute 440.02 we find:
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.
1. What this means is that an injury caused by a toxic substance is not compensable except under certain situations.
Why do we have to have ANY exclusions of compensability in this matter? If you are injured at work by toxic substances, that should be enough to satisfy the compensability issue.
2. Compensability is only allowed if the injured worker can show CLEAR AND CONVINCING EVIDENCE……. This very high evidentiary level is absolutely ridiculous and inhumane…. and profitable for carriers. A worker who has not been educated about the toxic nature of the substances s/he works with may not be aware of the safety issues or may have no ability to take safety precautions without fear of job loss. Further, a worker who has been injured is dealing with his/her health and is not in a position to collect the evidence required. Having no understanding of the legal requirements required by statutes and focusing on the injury, not the legal details, virtually assures that most injured workers will not be able to collect the evidence required to get medical and financial assistance. Workers whose first language is not English, workers who do not read well, and workers who don't ask questions or stand up for their own protections are in particular danger of falling victim of this bad legal provision.
This evidentiary requirement is just plain mean and it was gleefully added to the statutes by the writers who were protecting their insurance carrier clients. Reasonable proof of evidence is a much more humane and realistic evidentiary requirement.
3. Compensability is allowed only if that clear and convincing evidence includes PRE-EXISTING evidence showing that the specific toxic agent can be found to cause the injuries presented by the injured worker. There are many chemicals and toxins that cause illness or injury but have had no professional studies. Without the medical studies there is little chance of proving the causation of the illness or injury.
There are many chemicals and toxins that employees work with every day that are known to cause illness or injury but safety procedures and manufacturing warnings are not followed by the employer.
If there has been no testing on such a toxin, or if the pre-existing test results do not specifically include the exact situation that the injured worker was in, then the injury in not compensable. If the levels of toxin are not determinable, then the injury can be ruled not compensable.
Levels of exposure are almost impossible to prove, even under the best of circumstances, even when testing for toxins is a regular procedure within a facility. Many companies do not test for known toxins and often safety procedures are ignored.
Many employees never see the handling recommendations for chemicals and toxins, thus putting them at a greater risk of injury or illness.
4. Seriously complicating the search for evidence is the unwillingness of employers to release information about how many people may have had become ill after they have been exposed to these chemicals and toxins to show a pattern of illness and injury. The employer will avoid any subpoena by claiming the information is work product and therefore exempt from subpoena. Hiding bad safety records behind "work product" claims is a loophole that the legislature should close.
top
Here are some examples that would probably not be considered compensable:
1. You were in a cubicle at the edge of a very large room when the exterminator came through to spray for bugs in the break room, located at the opposite end of the room. The overspray wafted into your lungs, without you knowing it, starting a pulmonary reaction that did not present itself until nearly bedtime. You had to go to the emergency room. You had significant lung damage, requiring 3 weeks off-work and surprisingly high medical bills.
Not compensable: you could not show that there was evidence that the overspray got into your cubicle; you could not find any way to measure the specific level of exposure.
2. You are sitting in the gang bathroom, minding your own business, when a custodian begins cleaning the toilet in the adjacent stall. He mixes - foolishly - ammonia and bleach, which is very toxic and the resultant fumes drive him out of the bathroom, choking. You are not able to wrestle yourself into your clothing fast enough to escape the fumes before you are seriously injured and suffered permanent lung damage which, in addition to your chronic breathing problems, caused you to be so sensitive to bathroom cleaners that you were not able to use the workplace restrooms any more.
Not compensable: there was no way to precisely measure your exposure level to the toxins so you could not show clear and convincing evidence.
Summary: Clear and convincing evidence is definitely a bar too high to get over in the area of workers compensation.
We call on lawmakers to make the evidentiary requirement "reasonable proof" rather than "clear and convincing."
See our website: www.voicesflorida.com