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Case History Document

Foxbilt Elec. v. Stanton
Entered By: Marc C Gabriel/LymeNetDate Created: 7-3-91
Document Type: Decision
Title: Decision for: Foxbilt Elec. v. Stanton


Case No.: 90-2154

Court of Appeal of Florida, First District

583 So. 2d 720; 1991 Fla. App.; 16 Fla. Law W. D

July 3, 1991, Filed

SUBSEQUENT HISTORY: [**1] Released for Publication August 14, 1991.
Rehearing Denied August 14, 1991. Review Dismissed October 9, 1991.

An Appeal from an Order of the Judge of Compensation Claims J.
Paul Jones.


COUNSEL: Elizabeth C. Wheeler and Michael F. Wilkes of Smalbein,
Johnson, Rosier, Bussey, Rooney & Ebbets, P.A., Orlando, for

Thomas E. Thoburn, Cocoa; Bill McCabe, Longwood, for Appellee.

JUDGES: Smith, J. Shivers, C.J., and Miner, J., concur.


OPINION: [*721] The employer/carrier (E/C) appeal an order of
the judge of compensation claims (JCC) finding compensable claimant's
contraction of Lyme disease from a tick bite received at work, and
awarding payment of benefits. We affirm.

Although there is conflicting evidence, there is competent,
substantial evidence supporting the judge's ruling. On March 8,
1985, claimant was digging a ditch to lay conduit for electrical
lines in a wildlife preserve at Cape Canaveral Air Force Station
when he was bitten by a tick on the upper right calf. He reported
the bite to his supervisor on the same day he was bitten and his
supervisor saw the tick. In the wildlife preserve are many deer and
migratory birds that carry ticks. When claimant returned home that
evening, his wife, an LPN, removed the tick [**2] with a pair
of tweezers. Between ten days and two weeks after the bite, a red
spot occurred at the area of the bite which was small at first but
grew to two to three inches in diameter. The spot was dark or
purplish red in the middle and looked like a bulls-eye. Within a
week or two of the bite, claimant began getting chills and fever.
His ankles started to swell, the swelling went into his knees and
wrists, and his skin got so sensitive that he could hardly touch
himself. He experienced fatigue, heart palpitations, dizziness and
blurred vision. By July 26, 1985, claimant could no longer work.

While some of the doctors opined that a diagnosis of Lyme disease
from this tick bite was not medically indicated, the more persuasive
weight of medical testimony was to the contrary. Claimant's treating
physician, Dr. Newman, a board certified neurologist, felt that
because claimant had peripheral neuropathy (sensitive skin) and joint
pain preceded by a tick bite, that claimant had Lyme disease. He
recognized that claimant had two negative serological tests for
Lyme disease, but explained that in his review of medical literature,
he found that patients who demonstrate Lyme disease do have negative
[**3] serum tests. Dr. Newman explained that the purpific area
observed after the tick bite could have been the erythema chronicum
migrans (ECM) rash (a rash associated with Lyme disease.) [*722]
This rash, plus the tick bite, plus the joint pain, and cardiac and
neurologic involvement in the form of peripheral neuropathy led
Dr. Newman to the diagnosis of Lyme disease within a reasonable
medical probability even in the absence of positive serological

Also testifying in claimant's behalf was Dr. Papendick, an expert
in Lyme disease residing in Wisconsin. Dr. Papendick has treated
over 220 cases in his Wisconsin office and has assisted with 135
other cases in ten other states. He reviewed claimant's records
and discussed the case with Dr. Newman and claimant on several
occasions. He felt within a reasonable degree of medical certainty
or probability that claimant suffered from Lyme disease from the
tick bite. He stated, in fact, that he felt 100% certainty that
claimant has Lyme disease. He explained that the tick bite
developed the classic bulls-eye rash, which is indicative of Lyme
disease, and that there is nothing else that will do that. Further,
claimant had multiple system problems, [**4] including the rash,
multiple aches, joint aching, vision disturbance, difficulty with
mental concentration, weakness, fatigue and swelling of the feet and
legs. Multisystem involvement is indicative of Lyme disease. Also,
claimant developed flu-like symptoms within a relatively short period
of time after the bite. Dr. Papendick testified that it is very
common that serological tests will be negative with someone who has
Lyme disease. He testified that there are no tests that can tell
absolutely whether or not a person has Lyme disease, although doctors
are presently experimenting with new tests. Dr. Papendick
recommended long-term treatment of claimant with the antibiotic
Minocin. Claimant was put on Minocin in September 1989, and in his
report of January 8, 1990, Dr. Newman indicated that claimant had
made some improvement.

Under the circumstances, it was not improper for the JCC to accept
the testimony of these doctors over the testimony of the E/C's
expert, Dr. Dickensheets. Dr. Dickensheets had merely reviewed
claimant's medical records, not seen him. Unlike Dr. Papendick, who
had wide experience and expertise in Lyme disease, Dr. Dickensheets
had seen only about five cases of [**5] Lyme disease, although he
was then treating one patient who might have Lyme disease. Dr.
Dickensheets recognized that probably the most reliable diagnosis
for Lyme disease is predicated upon the onset of the ECM rash.
However, relying on some of the contrary evidence in this record
indicating that claimant did not experience the onset of this
rash, Dr. Dickensheets opined that claimant did not have Lyme
disease. Thus, his opinion was based upon his view of evidence which
was in conflict with the evidence found by the others to establish
that claimant did experience this rash.

Next, Dr. Dickensheets gave as a reason for rejecting the
diagnosis of Lyme disease, the fact that claimant had not responded
to another antibiotic recommended for Lyme disease, which was
prescribed for him, and which claimant took for fourteen days. At
the same time, however, Dr. Papendick explained that this antibiotic
should have been taken for a much longer period of time and that
improvement could not be expected with just fourteen days use.
Finally, Dr. Dickensheets relied upon the fact that claimant had
negative serological testing for Lyme disease. Yet, Dr. Dickensheets
acknowledged that negative testing [**6] can occur. At the same
time, Dr. Dickensheets referred to the "Florida Lyme Disease Case
Definition" prepared by the Department of Health and Rehabilitative
Services which, significantly, does not require seropositive testing
for the diagnosis of either definite or probable cases of Lyme

On appeal, in addition to urging that the JCC's order is not based
on competent, substantial evidence, a conclusion which we find is not
substantiated by the record, the E/C further contend that because
this case involves a disease, the claimant was required to
demonstrate causal connection by clear evidence rather than by merely
showing that it is logical that the injury arose out of the
claimant's employment or that by a preponderance of probabilities it
appears that it arose out of such employment. Harris v. Josephs of
Greater Miami, Inc., 122 So.2d 561 (Fla. 1960)(claimant, a
beautician, [*723] developed dermatitis which her doctor
diagnosed as related to her use of hair dyes in her employment;
however, the claimant had been working for 30 years using chemicals
and had no prior history of dermatitis, she used rubber gloves in her
work, and a dermatologist appointed by the [**7] deputy conducted
patch tests using chemicals and dyes in claimant's work environment
and the tests were inconclusive--claim denied).

However, the E/C overlook the qualifying language in Harris.
This rule applies only when the disease is not the result of an
external occurrence or accident. Compare Gordon v. Walgreen's Drug
Store, 149 So.2d 857, 858 (Fla. 1963) (waitress contracted dermatitis
after puncturing her fingers with nails--dermatitis result of injury
to the hands, not the result of a disease attributable to claimant's
occupation; injury treated as scheduled injury rather than
occupational disease). As recognized by Larson in his widely accepted
treatise, the contraction of disease is deemed an injury by accident
if due to some unexpected or unusual event or exposure. An
infectious disease may be held accidental if the germs gain entrance
through a scratch or through unexpected or abnormal exposure to
infection. Applying this same reasoning, a disease which is acquired
by the bite of an insect is an accident. 1B A. Larson, The Law of
Workmen's Compensation, @ 40.00, et seq. (1991). Thus, in analogous
situations, courts have recognized that Rocky [**8] Mountain
spotted fever from a tick bite is an injury by accident. Id. at @

In this case, as shown by competent, substantial evidence, there
was a clearly identifiable accident and injury which occurred during
the course and scope of claimant's employment--a tick bite--which
resulted in claimant contracting Lyme disease. Thus, neither Harris
nor the other cases relied upon by the E/C offer any basis for denial
of compensation.


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