CITY OF TAMARAC AND ADJUSTCO, APPELLANTS,
v.
ARIS C. VARELLAN, APPELLEE
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The Florida District Court of Appeal reversed a workers' compensation order awarding benefits to a police academy trainee who claimed he contracted hepatitis-B virus from swimming in a contaminated pool and suffered aggravation from a subsequent abdominal blow. The court found insufficient evidence that the pool was contaminated with hepatitis-B virus or that the blow aggravated his condition.
The court held that there was no competent, substantial evidence supporting either compensable injury. The pool was not shown to be contaminated with hepatitis-B virus, and there was no evidence that the blow caused more severe symptoms or extended illness compared to what Varellan would have experienced otherwise.
[1] A workers' compensation claimant must prove a causal connection between a disease or physical defect and a compensable accident by clear evidence, not merely by a prepond…
[2] A workers' compensation claim for a disease allegedly contracted from a contaminated source requires evidence that the source was, in fact, contaminated with the disease.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because there is no evidence that the pool in which Varellan swam was contaminated with hepatitis-B virus and because there is a lack of evidence that Varellan suffered more severe symptoms or an extended length of illness from the blow to his abdomen than he would have suffered otherwise, we find no competent, substantial evidence to support the deputy commissioner's findings.”
Establishes the court's finding that both prongs of the compensable injury claims lacked evidentiary support.
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Join FLexlaw to unlock all legal intelligenceVarellan, a police academy trainee, claimed he contracted hepatitis-B virus while swimming in an algae-laden pool during his training over several mon…
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JOANOS, Judge.
Employer and carrier appeal from a workers’ compensation order in which the deputy commissioner found that Varellan suffered a compensable injury when he allegedly contracted hepatitis-B virus during his police academy training while swimming in an algae ladened pool, and subsequently sustained another compensable injury when he received a blow to his abdomen, causing a contusion to his liver and aggravating his hepatitis. The deputy commissioner relied upon the testimony of Dr. Xenakis that the probable cause of Varellan’s hepatitis, based upon the history given by Varellan that he had been swimming in a contaminated pool for several months, was the contaminated swimming pool, possibly mouth-to-mouth resuscitation, or other unknown causes. Dr. Xenakis had no idea when Varellen contracted hepatitis. He discussed the average incubation period of 50-180 days for hepatitis-B virus and stated that he had seen shorter incubation periods, the shortest period being 21 days, in cases of blood-borne hepatitis. Dr. Xenakis felt a blow to a swollen organ could be very damaging, but he could not say if the blow Varellan suffered affected his hepatitis.
Because there is no evidence that the pool in which Varellan swam was contaminated with hepatitis-B virus and because there is a lack of evidence that Varel-lan suffered more severe symptoms or an extended length of illness from the blow to his abdomen than he would have suffered otherwise, we find no competent, substantial evidence to support the deputy commissioner’s findings.
In cases of an employee’s suffering a disease or physical defect, as a result of a compensable accident, distinguished from external occurrences, the claimant must prove a causal connection by some clear evidence, rather than showing it was logical or by a preponderance of the probabilities it arose from the employment. Department of Corrections v. Lussier, 451 So. 2d 968 (Fla. 1st DCA 1984). Varellan has failed to produce any clear evidence which shows a causal connection between his contracting hepatitis-B virus and his swimming in a pool which was not shown to have been contaminated.
Accordingly, the deputy commissioner’s order is reversed.
MILLS and BARFIELD, JJ., concur.
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City OF FT. Lauderdale v. Lindie, 496 So. 2d 168 (Fla. 1st DCA 1986)…Greater Miami, 122 So. 2d 561 (Fla.1960). There is no evidence that the pedestrian actually had Herpes.1 As the deputy noted during the hearing, “It’s speculation to say whether he had it or he didn’t have it.” [*170] In City of Tamarac v. Varellan, 463 So. 2d 479 (Fla. 1st DCA 1985), we reversed an award of benefits where a police academy trainee contracted hepatitis after training in an algae-filled swimming pool. In that case, although the algae-filled swimming pool was the best guess as to where the disea…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't OF Corr. v. Lussier, 451 So. 2d 968 (Fla. 1st DCA 1984)