Confusion Reigns in "Heart-Lung" Cases
I've written here and here about the quantum and quality of proof which a governmental employer must present in order to rebut the presumption of compensability for heart disease, etc., afforded to firefighters and other law enforcement personnel by §112.18(1), Fla. Stat. In Punsky v. Clay County Sheriff's Office, decided on 7/21/2008, the First DCA added to the confusion on this issue.
Punsky reversed an order in which the JCC's had concluded that the employer had presented sufficient evidence to rebut the presumption. That evidence included testimony - accepted by the JCC - that because of various "risk factors" like high cholesterol, smoking, and obesity the claimant would have developed heart disease and had a heart attack no matter what his occupation had been. In other words, the JCC was persuaded that Punsky's medical problems had nothing to do with his job as a sheriff's deputy.
In reversing, the court relied upon the Florida Supreme Court decision in Caldwell v. Div. of Retirement, 372 So.2d 438 (Fla. 1979), that “[t]o rebut the statutory presumption, it is necessary that the Commission [the employer/carrier] show that the disease causing the disability or death was caused by a specific, non-work related event or exposure.” Id. at 441 (emphasis added). Caldwell also says there must be “clear and convincing” evidence in order to rebut the presumption. Id. at 440.
But Lentini v. City of West Palm Beach, 980 1232 (Fla. 1st DCA 2008), decided just months ago, says that all that is necessary to rebut the presumption is “competent substantial evidence that convinces [a judge of compensation claims] that the disease was caused by some non-work related factor, not that it was caused by any sort of ‘specific hazard or non-occupational hazard. . .” Lentini at 1233 (quoting City of Tarpon Springs v. Vaporis, 953 So.2d 597, 599 (Fla. 1st DCA 2007)).
I think these two standards conflict. To me, Lentini and Vaporis seem closer to the statutory language which mandates application of the presumption “unless the contrary be shown by competent evidence.” See §112.18(1), Fla. Stat. (emphasis added). But neither Lentini nor Vaporis cite the supreme court’s Caldwell decision. See also Judge Kahn’s concurring opinion in Butler v. City of Jacksonville, 980 So.2d 1250 (Fla. 1st DCA 2008). In Butler, Judge Kahn seemed to support the Vaporis reasoning, but he was also on the panel in Punsky and did not write separately.
In addition to the above, however, I think that Punsky makes the compensability of these "presumption" cases very difficult to defend once the diagnosis of heart disease is made. I'm not a cardiologist (and I don't play on on this blog), but it's my understanding that while there are many risk factors for developing heart disease (including smoking, obesity, diabetes, family history, high cholesterol), medical science for the most part is simply unable at present to determine the cause of heart disease in any given case. Punsky says that the mere presence of these “risk factors,” without more, is insufficient to rebut the statutory presumption. If it is true that the cause of heart disease in any given case is unknowable, it seems to me that the presumption comes close to being irrebuttable. In other words, if we don’t know what does cause heart disease in a given case, how can an employer ever prove what does not cause the disease, i.e., the employment?
