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Judge Delays Sheriff’s Employees’ Compensation Hearings Over Sick Building, But Further Compromise Is Eluding Them

| March 25, 2019

Visible black mold analysts observed during a round of testing at the Sheriff's Operations Center in January, in the same place where it had been observed, and ostensibly mitigated, more than a year earlier. (Terracon)

Visible black mold analysts observed during a round of testing at the Sheriff’s Operations Center in January, in the same place where it had been observed, and ostensibly mitigated, more than a year earlier. (Terracon)

For the second time in four months, a judge agreed to postpone what was scheduled to be a set of final hearings in workers’ compensation claims of 35 Flagler County Sheriff’s employees who say their health was damaged while working at the Sheriff’s Operations Center in Bunnell. The sheriff’s insurer has denied the claims.

Meanwhile, an attorney representing the employees is again urging the sheriff and its insurance carrier, North American Risk Services, to “acknowledge that the denial of these claims was premature, and that medical care would be provided to our clients while the investigation continues.” The attorney considers that a way to prevent further costly litigation.

In an alignment very unusual in workers’ compensation claims, Sheriff Rick Staly is siding with his employees and against his own carrier. But his attorney, Kayla Hathaway, told the employees’ attorney that despite that support, “the agency has found itself very limited by extraneous factors such as the law and contractual agreements with our insurance carrier.” Geoff Bichler, the employees’ attorney, is asking for roughly $50,000 to be set aside for employees’ medical expenses. Hathaway told Bichler that “Since the Sheriff cannot lawfully divert or use funding for the stated settlement we are unable to move forward with further discussion.”

That leaves the employees’ fate at the mercy of the workers’ compensation judge and, beyond that, dependent on the outcome of a lawsuit Bichler is expected to file in circuit court on their behalf–against the sheriff and county government. County government is the landlord. It built–or rebuilt–the Sheriff’s Operations Center out of a shell of what used to be a hospital. The county is responsible for building maintenance, and for ensuring that the sheriff has proper facilities out of which to operate.

The 34,000 square foot facility opened in 2015 and was office space for nearly 70 sheriff’s employees until the sheriff ordered it evacuated last June after employees in increasing numbers complained of symptoms similar to those caused by sick-building syndrome. The sheriff’s administration, civilian employees and detectives have since been spread out between makeshift offices at the county courthouse and the old sheriff’s administration building off Justice Lane, near the jail. But both the sheriff and Jerry Cameron, the interim county administrator, have called the arrangement “untenable.” Cameron is working on an alternative, both for the short term and the long term.

The employees filed workers’ compensation claims but have faced resistance from the sheriff’s insurance carrier and from the state Office of the Judges of Compensation Claims, which has been hearing their cases in Daytona Beach.

The court wants the employees to prove that they’ve been made ill and to prove that the building is at fault. Both steps are dependent at least in part on seeing doctors and in part on atmospheric and other kind of testing results at the Operations Center. The judge conceded that delaying the hearings is necessary because “testing of the Operations Center is ongoing and the CDC has not completed its investigation.”

Click On:

A team from the Centers for Disease Control spent two days in Flagler last fall, examining the Operations Center and interviewing employees. It produced an interim report that raised alarms about the symptoms observed and the likelihood of water intrusion at the center. It made recommendations but has not produced a final report. But a subsequent round of testing by Terracon Consultants, which included more intrusive, or “destructive,” measures, such as drilling holes in walls and tearing out floor tiles, corroborated in fact what CDC examiners had theorized, finding mold in some rooms and significant water intrusion bubbling up from the floor in many spots.

Terracon recommended further testing. That complicated key timetables–that of the employees’ workers’ compensation claims and that of the county’s attempt to repatriate the Operations Center into its own.

For the employees, depositions of key witnesses in the workers’ compensation cases have not been taken because “taking these depositions without full testing results appears likely to result in incomplete opinions based on developing facts,” the employees’ attorneys wrote in seeking to delay the hearings.

The sheriff’s insurance carrier objected to a delay, claiming that the employees, according to the judge’s ruling granting the delay, “have had an opportunity to conduct further testing of the Operations Center and have not done so, that the results of the CDC investigation would likely be inadmissible in these proceedings, and that the claimants have not scheduled the depositions of their expert witnesses.”

Wilbur Anderson, the judge on the case, suggested this would be the last delay, and that the hearings should be scheduled no later than July 31.

The employees’ cases in claims court is uncertain because Florida law places a huge burden of proof on the claimant, and because sick-building syndrome cases are notoriously hazy to prove even if symptoms individuals suffer from are not: cases stumble in cavities between cause and effect, cavities insurance carriers’ attorneys generally exploit effectively. The employees’ difficult cases likely explain why their attorney has been trying to put to their advantage the sheriff’s professed sympathy with the employees, and against his own carrier.

Bichler says the case shave already been very costly and will continue to be costly, even before the civil suit is filed. The spending can stop “by simply agreeing to the terms that I’ve proposed,” including the $50,000 set aside for employees.

“It’s going to cost you ten times that to take these cases to trial,” Bichler said this morning, “and you’re not done at that point. We’re still going to drop a civil suit later. This is an opportunity for everybody to sit down, stop the madness, and figure out a way to go forward together.”

But Bichler attempted one such compromise already a few weeks ago, in what he portrayed as a chance for the parties to avoid civil litigation. Then as now, it fell on deaf ears, the opposing parties seeing no reason to compromise on a grind they’re winning, in a legal climate that overwhelmingly favors employers and carriers, not employees.

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1 Response for “Judge Delays Sheriff’s Employees’ Compensation Hearings Over Sick Building, But Further Compromise Is Eluding Them”

  1. Dennis McDonald says:

    As many know I have spoken to the BOCC for 9 months about the human element that remains the most important aspect of the Largest Man Made Disaster in Flagler County history. These Deputies and Staff are “the Sheriff” as well as being our relatives, friends and neighbors. All we hear about is the constant kabuki dance surrounding this building and what it involves to fix it. Bottom line here is 38 of the folks that protect us were poisoned !

    To correct this simply drill down with the very best construction litigator with a strong background in CERCLA law [Brownfields/Superfund] and nail ALL the idiots that built this disaster benefiting Barabara Revels business associates. Let us start with the former BOCC, County Staff, Architect firm, Architect, Engineer and Contractor. These former BOCC members were all personally informed by Ruffalo, McDonald[remember the pictures I gave to the BOCC in 2015] and Bob Hamby a retired PE. that worked for many years at the Federal Government dealing with old contaminated buildings from the Y12 Manhattan Project. PE.Hamby personally met with all, EXCEPT HANNS that refused to meet. Only Charlie voted NO to buy this 2006/2007 contestant on the Federal Brownfield list !

    These insurance companies will fight this to the end costing us $500K plus by years end and they will in turn put it on Flagler County 2020 Insurance premium for all Taxpayers to shoulder ! Sure have Staff shop for a better rate next year and with our history we will pay even MORE. Has this County we ever witnessed a circular firing squad ? It’s here.

    I have included a letter that Ruffalo and I personally delivered to the County to address this buildings now known failures. Revocation of the Certificate of Occupancy is required by the Florida Building Code as corroborated by the County paid for 2/28/2019 Terracon Report. This building sits on a property that is included in the U.S.G.S. mapped flood plain. Why would you build a Sheriff HQ on swamp frontage ?

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