IN THE SUPREME COURT OF FLORIDA. v. Lower Tribunals Case No. 1D On Review from the District Court of Appeal, First District, State of Florida

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1 IN THE SUPREME COURT OF FLORIDA DYNELLE GIBSON, PETITIONER, Case No.: SC v. Lower Tribunals Case No. 1D ALTMAN CONTRACTORS and OJCC Case No DEJ NORTH RIVER INSURANCE COMPANY, RESPONDENTS. / PETITIONER=S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District, State of Florida LAURIE THROWER MILES Florida Bar No SMITH, FEDDELER, SMITH & MILES, P.A P. O. Drawer 1089 Lakeland, Florida Ph: (863) SUSAN W. FOX Florida Bar No FOX & LOQUASTO, P.A S Bumby Ave., Ste B Orlando, Florida Ph: (407) Fax: (407) susanfox@flappeal.com Attorneys for Petitioner

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF ARGUMENT... 3 JURISDICTIONAL STATEMENT... 4 ARGUMENT... 4 ISSUE I. THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF THE FLORIDA SUPREME COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE SAME POINT OF LAW ISSUE II. THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL INTERPRETED SECTION (1), FLORIDA STATUTES (2005), IN SUCH A MANNER AS TO DEPRIVE THE CLAIMANT OF ANY RIGHT TO THE REDRESS OF HER WORKPLACE INJURY UNDER CHAPTER 440, AND IT THEREBY HAS THE EFFECT OF EXPRESSLY DECLARING THE STATUTE VALID CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE ii

3 TABLE OF AUTHORITIES CASES AT & T Wireless Services, Inc. v. Castro, 896 So. 2d 828, 832 (Fla.1st DCA 2005)....9 Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005)... 4 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)... 4 Ford Motor Company v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 4 In re the Adoption of Baby E.A.W, 658 So.2d 961 (Fla. 1995)... 6 Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993)... 6 M.H. v. Dept. of Children and Family Servs., 977 So.2d 755 (Fla. 2d DCA 2008)... 6 Maddox v. State, 923 So.2d 442 (Fla.2006)...8 Murray v. Mariner Health/ACE USA, 946 So.2d 38 (Fla. 1st DCA 2006) Rucker v. City of Ocala, 684 So. 2d 836, 840 (Fla. 1st DCA 1996) 9 State v. Burris, 875 So.2d 408 (Fla.2004) iii

4 State v. Jefferson, 758 So.2d 661 (Fla.2000) 8 State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928). 8 The Florida Bar v. Hooper, 509 So.2d 289 (Fla. 1987)... 5 STATUTES Section (1), Florida Statutes (2005)... 1, 3, 5, 7, 9 Section (1), Florida Statutes (2005) 9 RULES Florida Rule Appellate Procedure 9.210(a)(2) OTHER Article V, section 3(b)(3), Florida Constitution... 4 Article I, section 9, Florida Constitution... 9 iv

5 STATEMENT OF THE CASE AND OF THE FACTS As set out in the opinion of the First District Court of Appeal, filed on April 29, 2011, and contained in the appendix (App.) attached to this brief, the majority=s opinion (Judges Hawkes and Marstiller) reversed a workers= compensation award entered in favor of claimant that had found her mold exposure injury proven by clear and convincing evidence (App. 1). In doing so, the majority construed section (1), Florida Statutes (2005), as requiring nothing less than direct proof based on testing of the levels of the substance to which claimant was exposed. The majority reversed Abecause no record evidence establishes the levels of mold to which Claimant was exposed in the workplace, a statutory condition imposed by section (1), Florida Statutes (2005).@ (App. 2.) Section (1), in defining accident, as applied to an injury or disease caused by exposure to mold, provides that such injury is not compensable Aunless 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....@ Judge Wolf=s dissenting opinion noted that the application of such a rigid interpretation to the statute placed a nearly impossible burden on claimant=s efforts to establish the compensability of her condition: AWhile section (1), Florida Statutes (2005), imposes a heightened standard for the compensability of injuries 1

6 caused by mold exposure, it does not impose the practically impossible burden suggested by the (App. 4.) This difficulty was compounded by the E/C=s destruction of the moldy drywall to which claimant was exposed, and, as a result, claimant never had the opportunity to have it tested (App. 3); however, as recounted in the dissenting opinion, statements of facts with which the majority did not take issue: AAfter these exposures, and at a time temporally consistent with the germination of the colonies of mold later found in Claimant=s lungs, Claimant became ill and was rendered comatose as a result of the mold infection in her lungs.@ (App. 3.) The dissent further pointed out that claimant had identified mold growing on the wet drywall in the construction area, and that the workers assigned to remove it were wearing hazardous material suits (App. 3). The dissent continued that, based on expert medical testimony linking claimant=s mold exposure to the workplace, Athe JCC... was clearly convinced that Claimant=s condition was caused by her exposure to mold in the workplace. In reaching this conclusion, the JCC properly exercised her prerogative as the finder of fact.@ (App. 4.) Motions for rehearing were timely filed on May 16, 2011, and denied on June 21, Petitioner=s notice to invoke the discretionary jurisdiction of this court was timely filed therefrom on July 20,

7 SUMMARY OF ARGUMENT Issue I. In ruling that the claimant could not satisfy her burden under section (1), Florida Statutes (2005), of presenting clear and convincing evidence that mold in the drywall to which claimant was exposed during the course of her employment was the cause of the injury or disease which she suffered because she had not had the drywall tested for the purpose of determining the level of her exposure, which placed an impossible burden on claimant because of the drywall=s destruction by the employer, the First District erroneously subjected claimant to a heightened clear and convincing review standard, despite abundant case law by both this court and other district courts of appeal recognizing the correct review standard is that of competent, substantial evidence. In addition, the court adopted an unreasonable standard. As a result, of the First District=s decision conflicts with decisions of this court and other district courts of appeal on the same point of law. Issue II. The construction given section (1), Florida Statutes (2005), by the First District Court of Appeal was to hold the statute valid, and, as applied to the facts involved, its interpretation effectively denied the employee any remedy under the Workers= Compensation Law for an otherwise compensable injury. As a result, the decision furnishes claimant an avenue of discretionary jurisdiction under the Florida Constitution. 3

8 JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of the district court of appeal that (1) expressly and directly conflicts with a decision of the supreme court or another district court on the same point of law, and/or (2) expressly declares a state statute valid, as is provided in the provisions of Article V, section 3(b)(3) of the Florida Constitution. ARGUMENT ISSUE I. THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF THE FLORIDA SUPREME COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE SAME POINT OF LAW. Initially, it should be noted that the jurisdiction of this court, based on express and direct conflict of decisions, as contemplated by Article V, section 3(b)(3) of the Florida Constitution, can be grounded on the misapplication of a decision of the Florida Supreme Court. See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006); Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005). Nor need the decision of the court under review refer expressly to a directly conflicting decision of either the Florida Supreme Court or another district court of appeal. In Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981), this court explained 4

9 that a district court=s Adiscussion of the legal principles which... [it] applied@ can supply Aa sufficient basis for... conflict review.@ The majority=s opinion in the present case stated that reversal of the compensation order was required Abecause no record evidence establishes the levels of mold to which Claimant was exposed in the workplace, a statutory condition imposed by section (1), Florida Statutes (2005).@ (App. 2). The effect of the court=s construction of the statute was that unless claimant tested the drywall to which she was exposed, but which she had no opportunity to do because of its destruction by the Employer, claimant could not satisfy her burden of presenting clear and convincing evidence that the mold in the drywall was the cause of the injury she had suffered. As such, its decision represents a clear misapplication of the principles of review that have been traditionally applied to a fact-finder=s judgment in cases at the trial level which impose on the proponent the burden of clear-and-convincing standard of evidence. The rule in such regard was stated by this court in The Florida Bar v. Hooper, 509 So.2d 289, 291 (Fla. 1987), as follows: [W]hile the referee must be presented with clear and convincing evidence in order to make a finding of misconduct, on review such a finding must be sustained if it is "supported by competent and substantial evidence." The Florida Bar v. Hirsch, 359 So.2d 856, 857 (Fla.1978). See The Florida Bar v. Abramson, 199 So.2d 457, 460 (Fla.1967) (rule that trier-of-fact's conclusions should be sustained if supported by "legally sufficient evidence" is applicable to bar discipline proceedings); Richardson v. State, 141 Fla. 218, 192 So

10 (1940) (reviewing court will not disturb findings of lower court unless standard of proof is applied erroneously). The above review standard was also applied to an appeal from an order terminating parental rights in Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993), wherein the court, in affirming, stated the following: Although the clear and convincing evidence standard is a higher standard of proof than that of the preponderance of the evidence, the principles applicable to appellate review of a trial court's findings remain the same. See Florida Bar v. Hooper, 509 So.2d 289, (Fla.1987). In this regard, "[f]indings of fact by a trial court are presumed correct and are entitled to the same weight as a jury verdict,"... Accordingly, because the standard of proof below was clear and convincing evidence, this court may not overturn the trial court's findings unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing. In re D.J.S., 563 So.2d 655, 662 (Fla. 1st DCA 1990). See also Florida Bar v. Hooper, 509 So.2d 289, 290 (Fla.1987). In In re the Adoption of Baby E.A.W, 658 So.2d 961, 967 (Fla. 1995), this court discussed the proper roles of an appellate and trial court when the application of the clear and convincing standard must be made at the trial level, as follows: A[O]ur task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact.@ This distinction between the respective trial and appellate standards has been frequently observed; more recently, in M.H. v. Dept. of Children and Family Servs., 977 So.2d 755, 762 (Fla. 2d DCA 2008), the Second District explained: 6

11 DCF's interpretation of Osborne Stern & Co. II [Dept. of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So.2d 932 (Fla.1996)]and Mayes [Mayes v. Dept. of Children and Family Services, 801 So.2d 980 (Fla. 1st DCA 2001)] misses the "distinction between the standard by which an administrative tribunal measures the proof presented to it, i.e., preponderance of the evidence, and the standard by which a reviewing court measures the correctness of an administrative order under review, i.e., competent substantial evidence." (citation omitted) The trial court found the evidence to be clear and convincing. Because it is clear that in reversing, the First District misapplied the review standard pertinent to a trier of facts= findings, which is that of competent, substantial evidence, rather than clear and convincing evidence, which it imposed, and failed to review the evidence in the light most favorable to claimant, this court should therefore extend its review jurisdiction for the obvious reason that the district court=s decision represents a patent departure and conflict with decisions of this court and of other district courts of appeal that have otherwise applied the correct review standard. In addition, in adopting a standard of proof requiring a claimant to obtain sampling of levels of mold, the First District has established an unreasonable and practically impossible standard. Absent an employer s voluntary, concurrent scientific air sampling, an employee s exposure to mold, fungus, or other toxic fumes or substances would never be provable. A claimant may not know of the exposure until after it occurs and would rarely if ever have any means of testing of 7

12 exposure. As this Court explained many years ago, no literal interpretation should be given [to a statute] that lends to an unreasonable or ridiculous conclusion. State v. Sullivan, 95 Fla. 191, 116 So. 255, 261 (1928); see also State v. Burris, 875 So.2d 408, 414 (Fla.2004) (stating, more recently, that [a] statute's plain and ordinary meaning controls only if it does not lead to an unreasonable result ). See also, Maddox v. State, 923 So.2d 442, 452 (Fla.2006) and Murray v. Mariner Health, 994 So. 2d 1051, 1061 (Fla. 2008) (discussing rule of construction). The appellate courts must resort to traditional rules of statutory construction, keeping in mind that [w]herever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result. State v. Jefferson, 758 So.2d 661, 664 (Fla.2000); Murray v. Mariner Health, 994 So. 2d 1051, The First District s decision fails to follow accepted rules of construction and thus conflicts with decisions that do so. ISSUE II. The DECISION OF THE FIRST DISTRICT COURT OF APPEAL INTERPRETED SECTION (1), FLORIDA STATUTES (2005), IN SUCH A MANNER AS TO DEPRIVE THE CLAIMANT OF ANY RIGHT TO THE REDRESS OF HER WORKPLACE INJURY UNDER CHAPTER 440, AND IT THEREBY HAS THE EFFECT OF EXPRESSLY DECLARING THE STATUTE VALID. The First District ruled that a claimant must present testing to establish levels of mold to prove a compensable mold exposure (App. 2). The effect of the court=s decision is to deny Petitioner any meaningful access to a remedy under the Law of 8

13 Workers= Compensation, because it forecloses her from relying on traditional proof by testimonial lay and medical evidence of the presence of mold or circumstantial proof of exposure in sufficient amounts to cause infection. To satisfy due process considerations applicable to a property interest in workers compensation benefits, parties must be given a meaningful opportunity to present evidence. See Rucker v. City of Ocala, 684 So. 2d 836, 840 (Fla. 1st DCA 1996) quoting Florida Forest & Park Serv. v. Strickland, 18 So. 2d 251, 254 (Fla.1944). This court moreover has long recognized that constitutional 1 due process problems arise when a party's only means of evidence is excluded or beyond their control. AT & T Wireless Services, Inc. v. Castro, 896 So. 2d 828, 832 (Fla.1st DCA 2005). The constitutional effect of the First District=s construction of section (1), Florida Statutes (2005), was clearly brought to the court=s attention, yet the court rejected such arguments and determined the statute, as interpreted, was valid. A similar challenge was raised to the validity of section (1), Florida Statutes (2005), the worker= compensation fee statute, in Murray v. Mariners Health/Ace USA, 946 So.2d 38 (Fla. 1st DCA 2006), and it, too, was denied. Although the court also certified a non-constitutional question to this court as one of 1 Article I, section 9 of the Florida Constitution provides: No person shall be deprived of life, liberty or property without due process of law.... 9

14 great public importance, such was not the basis of this court=s exercise of jurisdiction, which was grounded on the district court=s express declaration of the statute as constitutional. See Murray v. Mariner Health, 994 So. 2d 1051, 1053 (Fla. 2008) (A[T]he First District Court of Appeal expressly held that the statute as significantly amended in 2003 is The present case presents a similar jurisdictional basis. CONCLUSION This court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of petitioner=s argument. Respectfully submitted, LAURIE THROWER MILES, ESQ. Florida Bar No SMITH, FEDDELER, SMITH & MILES, P.A. Post Office Drawer 1089 Lakeland, Florida /s/susan W. FOX SUSAN W. FOX, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 112 N. Delaware Ave. Tampa, Florida Ph.: (863) Ph: (813) ; Fax: (813) susanfox@flappeal.com Attorneys for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to William H. Rogner, Esq., Teri A. Bussey, Esq., HURLEY, ROGNER, MILLER, 10

15 COX, et al., 1560 Orange Avenue - Suite 500, Winter Park, FL 32789, by U.S. mail this 1st day of August _/s/susan W. FOX Attorney CERTIFICATE OF TYPEFACE COMPLIANCE I further certify that this brief is typed in Times New Roman 14-point font, in compliance with Florida Rule of Appellate Procedure 9.210(a)(2). /s/susan W. FOX Attorney 11