DAYTONA BEACH, Fla. — A Florida appellate court has reinstated benefits for a woman who said she was treated for bronchitis and pneumonia numerous times while complaining of mold exposure at her workplace. Kloepper v. Unemployment Appeals Commission, No. 5D03-1194 (Fla. App., 5th Dist.).

The Fifth District Court of Appeal reversed the findings of Florida's Unemployment Appeals Commission, saying the commission improperly substituted its own review of Penelope Kloepper's claim for that of the unemployment appeals referee who granted her benefits.

Kloepper complained that she was diagnosed with bronchitis four times and pneumonia while working as a front-desk clerk at a motel in Kissimmee, Fla. Kloepper quit in October 2002 and filed for benefits under an exception for those who voluntarily leave work for 'good cause.'

The Court of Appeals said the commission relied on 'facts' not established or not adopted by the appeals referee to deny benefits to Kloepper. Among them were that Fountain Park Hospitality Inc., the motel owner, replaced a moldy carpet and wallpaper.

While that fact was conceded, there were no 'other efforts' as described by the commission, the court noted.

The court also said that those actions were taken after an OSHA inspection.

The court also faulted the commission making an adverse finding that Kloepper worked under those conditions for more than a year.

'The fact that Kloepper stayed on the job does not mean the unhealthy conditions were remedied, only that she needed the pay and benefits,' the court said.

The court compared the circumstances to those in Spangler v. Unemployment Appeals Com'n, So. 2d 98 [Fla. 5th DCA]), in which a stock handler complained of having to move cartons tainted with rodent droppings, blood and urine.

'Just as Spangler should not be required to work around rodents or rodent droppings, Kloepper should not have to work in an environment which causes bronchitis and pneumonia. Although Kloepper's employer did take some steps to correct the problem, the appeals referee did not find these steps actually corrected the problem,' the court said.

Kloepper was pro se.

Deputy General Counsel John D. Maher of the Unemployment Appeals Commission in Tallahassee represented the commission.
 
 

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