First DCA to Consider "Heart-Lung" Presumption En Banc
I wrote here about the seemingly conflicting opinions from the First District Court of Appeal on what kind of proof a governmental employer must present in order to rebut the statutory presumption that a firefighter's or law enforcement officer's heart disease was caused by his employment. On the one hand, in Punsky v. Clay Co. Sheriff's Office, the court said that the employer did not meet its burden of rebutting the presumption because it did not present evidence of "a specific non-work related event or exposure" which would account for the claimant's heart disease. On the other hand, in cases like Lentini v. City of West Palm Beach, the court said that no such evidence is necessary and that, consistent with the wording of the statute, the employer need only present "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.'"
The court has also struggled with whether the proof must amount to "clear and convincing" evidence, as the Florida Supreme Court has held, or whether it need only be "competent substantial" evidence, as the statute itself seems to say.
Now, by order rendered in Punsky on 1/6/2009, the First District on its own motion has decided to take up the issue en banc. The court has indicated that it will not hold oral argument and will not accept the filing of additional briefs.
