Standards for Rebutting the "Heart-Lung" Presumption - Part Deux
Just a few days ago, I wrote about Lentini v. City of West Palm Beach, a case where the First DCA reiterated that in order to rebut the presumption of compensability afforded by §112.18(1), the so-called "Heart-Lung" bill, an employer need only present "competent substantial evidence." After all, the statute itself says the presumption applies "unless the contrary be shown by substantial evidence" (Emphasis added).
Now comes the court's revised opinion in Butler v. City of Jacksonville, issued on motion for clarification on 5/8/2008. The court's original opinion in this case, issued on 1/31/2008, held that the JCC had erred: (1) in failing to afford the claimant, a firefighter, the benefit of the §112.18(1) presumption for his peripheral vascular disease ("PVD"); and (2) in failing to find that the claimant's compensable disease rendered him permanently totally disabled under the criteria for disability used by the Social Security Administration.
The revised opinion, issued in response to the employer's motion for clarification, reaches the same result and is almost identical to the original opinion with one notable exception - Judge Kahn's new concurring opinion. Judge Kahn takes issue with these statements in the majority opinion: (1) "The presumption switches the burden of proof from the claimant to the employer and may be overcome by clear and convincing evidence that the disease was caused by a specific non-work-related event or exposure" (emphasis added); and (2) "[t]he employer did not present any evidence, let alone clear and convincing evidence, that the claimant's PVD was caused by a specific non-work-related event or exposure" (emphasis added).
As Judge Kahn points out, these statements are taken from the Supreme Court of Florida's decision in Caldwell v. Division of Retirement, 372 So.2d 438 (Fla. 1979). He argues that Caldwell does not apply, however, because "[t]he language selected by our supreme court does not, with all respect, seem to have any particular reference to the statute it was construing" and that, in any event, Vaporis and other recent First DCA decisions are more faithful to the statutory language that permits the presumption to be rebutted "by competent evidence."
Whichever the proper standard for rebutting the presumption, Judge Kahn is clearly correct about one thing: the majority's statements in Butler concerning the quantum and quality of proof necessary to rebut the presumption are dicta because they are unnecessary to the decision. Because the employer in Butler failed to present any proof to rebut the presumption, the amount of proof necessary to rebut it was simply not at issue.
