Posted on September 9, 2008 by David McCranie

First DCA: New Rule for Heart Attacks Caused by Emotional Stress

My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment.  Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

 

  • HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL 

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing."  Id. at 587.  Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one.  "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment."  Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978). 

 

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury.  Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

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Posted on March 11, 2008 by David McCranie

Corrections Officer's Heart Disease Not Covered by the "Heart-Lung" Bill

Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease.  He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112.18(1), Fla. Stat., the "Heart-Lung" bill, to establish the compensability of his condition.  But §112.18(1) only affords a presumption of compensability for such conditions; the presumption may be rebutted by evidence that the condition is not job-related.  Here, the JCC found that the presumption of compensability had been rebutted by evidence of: (1) a genetic predisposition to hypertension; (2) onset of hypertension prior to his employment with the employer; (3) a failure properly treat his hypertension; and (4) development of hypertensive heart disease resulting from untreated hypertension.  You can read the JCC's order here.

 

Saldana appealed the JCC's order to the First DCA, but also filed this petition for writ of prohibition in the Florida Supreme Court in which he challenged the First DCA's jurisdiction to hear his appeal.  The supreme court rejected his challenge in this order.

 

Now the First DCA has rejected his appeal, concluding that the employer presented evidence sufficient to rebut the presumption.  Saldana v. Miami-Dade County.

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Posted on September 21, 2007 by David McCranie

Employer Entitled to Appointment of Expert Medical Advisor in "Heart-Lung Bill" Cases

When the medical testimony in a Florida workers' compensation case conflicts, either party (or the JCC on his own motion) may request the appointment of an "expert medical advisor" ("EMA") pursuant to §440.13(9)(c), Fla. Stat., in order to resolve the conflict.  Once appointed, in the absence of "clear and convincing evidence" to the contrary, the EMA's opinions are presumed to be correct and must be accepted by the JCC.

 

But does an employer have a right to the appointment of an EMA in cases arising under Florida's "Heart-Lung Bill" (§112.18, Fla. Stat.), which states that for firefighters and other law enforcement personnel, medical conditions such as heart disease and tuberculosis are presumed to have been caused by the claimant's employment?  The JCC in this order said no, reasoning that the appointment of an EMA in such cases would be "contrary to the statutory presumption."   In other words, the JCC concluded that placing questions such as the cause of a first responder's heart disease into the hands of an EMA, whose opinions almost always must be accepted, essentially defeats the purpose of the presumption afforded by §112.18 in the first place.  (The JCC later concluded in this order on the merits that the employer had not presented sufficient evidence to rebut the §112.18 presumption that the claimant's heart disease was caused by his employment as a law enforcement officer).

 

But in Palm Beach County Sheriff's Office v. Bair, decided on 9/21/2007, the First District Court of Appeal brushed aside any such concerns and held that the employer is indeed entitled to the appointment of an EMA in these cases.  Presumably, this holding would also apply in cases arising under the other "presumption" statute, i.e., §112.181(2), Fla. Stat., which states that "hepatitis" and "meningococcal meningitis" contracted by an "emergency rescue or public safety worker" are presumed to have been contracted in the line of duty.  

 

By the way, fans of appellate litigation might be interested to note that the employer here attempted to obtain review of the JCC's initial order concerning the EMA question by way of a petition for writ of certiorari with the First District Court of Appeal, but the petition was denied. 

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Posted on June 7, 2007 by David McCranie

Heart attacks now compensable without regard to "Victor Wine?"

For over 40 years, heart attacks and other "internal failures of the cardiovascular system" occurring on the job have generally not been compensable under the Florida Workers' Compensation Act.  Known as the "Victor Wine" rule (taken from the name of the case which decided the issue), it required the employee to demonstrate that his heart attack resulted from an "unusual strain or overexertion" not routine to the type of employment he was accustomed to performing - the purpose being to separate those heart attacks that were truly work-related from those that weren't.

 

In a footnote to this rececent decision, however, one panel of the First District Court of Appeal called into question whether the "Victor Wine" test remains good law.  The Court noted that under this 2003 amendment to the law, an employee must now prove that his on-the-job accident caused more than 50% of his injury and resulting need for treatment.  Requiring him to comply with the "Victor Wine" test as well, said the Court, "seems unduly burdensome and inappropriate."

 

Resolution of the issue will have to await another day, however.  Because the claimant's accident in that case occurred before 10/1/2003, the effective date of the statutory amendments, the Court concluded that it need not address the question.

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