FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4802

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CROWN DIVERSIFIED INDUSTRIES 

CORP. and LIBERTY MUTUAL 

INSURANCE COMPANY,

Appellants,

v.

EILEEN PRENDIVILLE,

Appellee.

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On appeal from an order of the Judge of Compensation Claims.

Neal P. Pitts, Judge.

Dates of Accidents: April 26, 2016; June 27, 2016.

December 10, 2018

PER CURIAM.

 

In this workers’ compensation case, the Employer/Carrier 

(E/C) appeal the order of the Judge of Compensation Claims

awarding Eileen Prendiville benefits for her alleged injury caused 

by exposure to mold in the workplace. We agree with the E/C’s first 

argument and reverse because the JCC admitted the opinion 

testimony of Dr. Powers, Prendiville’s independent medical 

examiner, which was not competent evidence.
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Background

Prendiville worked for several years as an administrator in 

her employer’s resort complex in Clermont. In 2015, she developed 

symptoms of sinus infection, cough, voice loss (dysphonia),

bronchitis, and swelling of the legs (lymphedema). Prendiville had 

never experienced these symptoms before 2015. Due to similar 

complaints from a co-worker, an environmental study was 

performed in the workplace in August 2015. The study revealed no 

elevated microbial spores in the air of the areas tested, but the 

surface swabs indicated spores of several different molds, 

including Curvalaria. Prendiville subsequently testified that she 

smelled and saw what appeared to be mold in her personal office 

and other areas of the workplace; she also took photographs. 

In 2016, Prendiville underwent allergy testing in which she 

reacted positively to various allergens including selected weeds, 

trees, grasses, animals, and molds. The molds previously identified 

in the 2015 environmental study were among the numerous molds 

to which Prendiville had an allergic reaction. She later testified 

that she was led to believe that mold exposure at work was the 

cause of her medical problems because her symptoms were worse 

at work and better when she was away from work. In December 

2016, Prendiville filed a petition for benefits. The E/C denied 

compensability of any workplace injury and the matter proceeded 

to hearing before a JCC.

In the final order, the JCC found that Prendiville satisfied her 

burden of proving mold exposure at work as the major contributing 

cause of her injury via the testimony of Dr. Powers. Dr. Powers 

testified that he is board certified in family practice. He admitted 

that he does not generally treat patients who have been exposed to 

mold/fungi and that he had never previously treated a patient like 

Prendiville whose condition is “more extreme.” He holds no 

specialized licensing in mold exposure, infectious disease, 

toxicology, or any related field, and he never claimed to be an 

expert on mold-related injuries or diseases. Although Dr. Powers 

examined Prendiville in July 2016, he did not complete his report 

until November 2016 because it “required a lot of research” and he 

had never previously researched mold exposure. As a part of his 

research, Dr. Powers consulted with Dr. Uppal, an infectious 
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disease doctor in New York who specializes in mold exposure, and 

reviewed the medical records of Prendiville’s co-worker who had 

similar symptoms. 

Ultimately, Dr. Powers opined that Prendiville was exposed 

to mold in the workplace and that this exposure was the major 

contributing cause of Prendiville’s symptoms. During this 

testimony, the E/C raised multiple objections along with a general 

standing objection “to any of the doctor’s opinions based on 

improper predicate and improper foundation, [and] lack of 

evidence of actual mold exposure.” At the conclusion of crossexamination, the E/C placed a general objection on the record 

challenging the doctor’s expertise “under . . . section 90.702.” The

E/C also objected to the doctor’s reliance on the co-worker’s medical 

records as hearsay. 

Approximately a month before the final hearing, the E/C 

unsuccessfully moved to strike Dr. Powers’s opinion evidence as 

based on a lack of competent substantial evidence. The E/C 

asserted that there was no evidence of any kind of exposure, 

resulting in a “fallacy leap” in the logic of the doctor’s opinion, and 

that the co-worker’s medical records were irrelevant. 

Standard of Review

A JCC’s decision to admit evidence is reviewed for abuse of 

discretion. See King v. Auto Supply of Jupiter, Inc., 917 So. 2d 

1015, 1017 (Fla. 1st DCA 2006) (holding that a JCC’s admission of 

evidence is reviewed for abuse of discretion). In addition, the 

Florida Evidence Code applies to workers’ compensation 

proceedings. See Alford v. G. Pierce Woods Mem’l Hosp., 621 So. 2d 

1380, 1382 (Fla. 1st DCA 1993). 

Discussion

On appeal, the E/C raise several challenges to the JCC’s 

admission of Dr. Powers’s opinion testimony based primarily on 

the application of the rules of expert testimony under the Florida 

Evidence Code. We conclude that the JCC abused his discretion by 

admitting the expert testimony over the E/C’s objections because 
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it was based on improper bolstering and lacked a sufficient factual 

foundation. 

The problems with Dr. Powers’s testimony stem from the 

evidentiary requirements set forth in sections 90.704 and 

440.09(1). Section 440.02(1), Florida Statutes (2016), provides, in 

pertinent part, that an injury or disease caused by exposure to a 

toxic substance, such as mold, “is not an injury by accident arising 

out of 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.” Section 440.09(1) requires 

that “[t]he injury, its occupational cause, and any resulting 

manifestations or disability must be established to a reasonable 

degree of medical certainty, based on objective relevant medical 

findings, and the accidental compensable injury must be the major 

contributing cause of any resulting injuries.” Dr. Powers testimony 

did not supply a sufficient evidentiary basis for concluding that 

Prendiville was exposed to mold in her workplace, or that her mold 

exposure at work was the major contributing cause of her 

symptoms.

The first problem with Dr. Powers’s expert opinion was that it 

was improperly bolstered by the professional opinions and reports 

of others. In Linn v. Fossum, 946 So. 2d 1032, 1039-40 (Fla. 2006), 

the Florida Supreme Court explained that improper bolstering 

occurs when an expert is used as a conduit for otherwise 

inadmissible evidence, and the expert reaches an opinion by 

relying on the opinions and publications of other experts. See also

State Dep’t of Corr. v. Junod, 217 So. 3d 200, 207 (Fla. 1st DCA 

2017) (holding an expert medical advisor’s reference to other 

experts’ opinions and publications to have rendered his 

occupational causation opinion incompetent). Here, Dr. Powers

gave testimony describing several published articles that he found 

on the internet. These articles were attached to his deposition 

transcript. He “greatly” relied on this literature in reaching his 

opinion on workplace causation in this case, and the JCC then 

identified articles appended to his deposition as evidence 

supporting the final compensation order below.
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 Dr. Powers further bolstered his testimony with the opinions 

of New York-based infectious disease doctor, Dr. Uppal, who 

specializes in mold infections. Dr. Powers did not reach his opinion 

independently, but admitted (1) that he had never had a patient 

like Prendiville; (2) that he did not reach an opinion until after his 

consultation with Dr. Uppal, who was currently treating a similar 

patient; and (3) that he adopted Dr. Uppal’s recommendations that 

Prendiville needed to see an infectious disease physician, adopting 

her specific recommendations for particular blood tests and 

recommending that Dr. Uppal be authorized to take over 

Prendiville’s care. This was not a situation where Dr. Powers relied 

on “his own independent opinion.” See Gutierrez v. Vargas, 239 So. 

3d 615, 627 (Fla. 2018). But instead, Dr. Powers gave voice to Dr. 

Uppal’s opinion in the absence of the availability of crossexamination.

Dr. Powers also relied on the inadmissible medical records of 

Prendiville’s co-worker to bolster his opinion, which he identified 

as “facts and data” forming the basis of his opinion. Although Dr. 

Powers did not have a “face-to-face” consultation with the coworker’s physicians, it is clear that he treated her medical records 

as both evidence and confirmation of his occupational causation 

opinion regarding Prendiville.

The second problem with Dr. Powers’s testimony is that it 

lacked a sufficient factual foundation to establish occupational 

causation. Dr. Powers opined that Prendiville became infected 

from “whatever molds or substances were in that building” and 

suggested that the most likely substance was Curvularia mold. In 

reaching this opinion, Dr. Powers relied heavily on the co-worker’s

medical records which showed that she had been infected with 

Curvularia mold. But these records are not clearly applicable to 

Prendiville’s medical condition, whereas section 440.02(1) restricts 

conclusions that exposure arose out of employment unless there is 

clear and convincing evidence establishing that there was 

“exposure to the specific substance involved at [harm-causing] 

levels.” Prendiville’s apparent infection from a specific mold has 

not been demonstrated by diagnostic testing despite the fact that 

a blood test would provide objective proof. Even if we were to 

assume proper “facts or data” support Dr. Powers’s opinion that 

Prendiville was exposed to Curvularia mold at work, Prendiville
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did not establish “that the facts or data are of a type reasonably 

relied upon by experts in the subject” to conclude that she actually 

contracted any disease or injury from that exposure. Indeed, Dr. 

Powers appeared to concede that there was currently insufficient 

facts to determine which mold (of the many potential molds that

may be found anywhere in Florida) caused Prendiville’s symptoms. 

For these reasons, we find that the JCC abused his discretion 

when he admitted Dr. Powers’s occupational causation opinion 

testimony into evidence. We, therefore, reverse the order below. 

REVERSED and REMANDED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Edward C. Duncan III of Law Offices of Amy L. Warpinski, Fort 

Myers, for Appellants.

Wayne Johnson of DeCiccio & Johnson, Maitland, for Appellee.