Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

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).

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Section 112.18(1), Fla. Stat., says that if a firefighter, law enforcement officer, or corrections officer contracts tuberculosis, heart disease, or hypertension, there arises a presumption that the disease was contracted in the course of his employment.  The presumption is rebuttable by the employer, however.  What kind of evidence does it take to do so?  "Competent, substantial evidence" is all that is necessary, said the First District Court of Appeal in Lentini v. City of West Palm Beach, decided on 5/5/2008.  In so doing, the court merely reiterated the holding it had made last year in City of Tarpon Springs v. Vaporis and more recently in Saldana v. Miami-Dade County.  Although not discussed in the opinion, a 1979 decision from the Supreme Court of Florida, Caldwell v. Division of Retirement, 372 So.2d 438 (Fla. 1979), had stated that the presumption could be overcome only by "clear and convincing evidence" - a higher standard of proof.

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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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As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics.  See SB 2314.

 

Specifically, as §112.18(1) currently does for coronary problems and §112.181 does for hepatitis, SB 2314 would create a rebuttable presumption that "any condition or impairment of the health of a firefighter or paramedic". . . which is caused by cancer and results in total or partial disability or death is presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence."  In order to take advantage of the presumption, the firefighter or paramedic must have passed a physical examination before commencing employment which failed to reveal any evidence of such condition. 

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A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment.  And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he was presumed to be permanently totally disabled.  Note that this was a pre-10/1/2003 case so that the firefighter was entitled to an award of permanent total disability benefits if he met the test for disability used by the Social Security Administration.  Butler v. City of Jacksonville.

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I wrote here about SB 1440 and HB 301, two bills which were introduced during the 2007 legislative session which would have brought cancer within those conditions which are presumptively caused by a firefighter's employment.  It seems that Florida isn't the only state considering such legislation.  In fact, Washington, Vermont, and Colorado have now actually enacted similar provisions into law in those states.

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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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An "occupational disease" becomes compensable under the Florida Workers' Compensation Act only when the condition becomes "disabling," either totally or partially, not necessarily when the disease is merely diagnosed. What if a firefighter diagnosed with hypertension which is compensable because of the presumption afforded by the "Heart-Lung" bill (§112.18, Fla. Stat.) misses a few days of work because of the condition, but the employer elects to pay his full salary for those days?  Is he still "disabled?"

 

Yes, said the First DCA in City of Kissimmee v. Simpson, decided on 8/31/2007, in which it affirmed this order from the JCC, and in which it relied upon its earlier decision in City of Mary Esther v. McArtor which held the same.  

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Here's an interesting article from yesterday's edition of the Palm Beach Post.  The article discusses SB 1440 and HB 301 which were introduced during the 2007 session of the Florida Legislature and which would have broadened the scope of the so-called "Heart-Lung" bill to include cancer among those conditions which are presumptively caused by a firefighter's or paramedic's employment.  And here's a related story about a 34-year-old firefighter suffering from leukemia whose $1.6 million in medical bills and disability would be covered under bills like these.  Both articles discuss the financial bind that "presumption" statutes like §112.18 and the new §112.1815 are beginning to place upon municipal and county budgets.

 

Although both bills died in committee, the Palm Beach County legislative delegation has promised to re-introduce this legislation in 2008.

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Since 1979, the First District Court of Appeal in Tallahassee has had exclusive, statewide jurisdiction over all workers' compensation appeals.  But that will change if a South Florida claimant has his way.  On 6/15/2007, in Saldana v. Miami-Dade County, Florida (large file, be patient), the claimant filed a petition for writ of prohibition in the Florida Supreme Court in which he challenges the constitutionality of s.440.271, the statute which grants such exclusive appellate jurisdiction.

 

Florida has five intermediate appellate courts which divide the state geographically.  Most appeals from trial courts around the state are filed in the district court of appeal in the geographic area of the state where the trial court sits.  But not workers' compensation appeals.  As part of the 1979 overhaul of the Florida Workers' Compensation Act, the Florida Legislature enacted s.440.271, which says that all workers' compensation appeals must be filed in the First DCA in Tallahassee.  Why was this done?  Well, for one thing, the Legislature believed that it would be better for one court to develop special expertise in this area of the law.  The intent also was to cut down on the number of workers' compensation appeals being filed in the Florida Supreme Court.  By limiting appeals to one district court of appeal - thus eliminating the possibility of inter-district conflict - the Legislature accomplished this goal.

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Suppose an employee contracts an occupational disease which has naturally occurring periods of exacerbation and remission.  In Orange County Fire Rescue v. Jones, the First DCA held 2-1 that each of those periods of exacerbation can constitute a new and separate "accident."

 

Why is this important?  Well, for one reason, the parties' substantive rights in a workers' compensation case are governed by the law in effect on the date of the "accident."  In this case Mr. Jones, a firefighter, had initially contracted Hepatits C in 1992 when the Florida Workers' Compensation Act provided for the payment of "wage loss" benefits upon attaining maximum medical improvement (MMI).  But those benefits were only payable where the employee had some actual loss of earnings resulting from his accident or disease.  In this case, Mr. Jones returned to work full time as a firefighter after attaining MMI so he didn't qualify for any wage loss benefits.  His disease thereafter went into a period of remission.

 

By the time his disease flared up in 1997, the law had changed.  In 1994, the legislature repealed the previous "wage loss" provisions and provided instead for the payment of "permanent impairment" (PI) benefits upon attaining MMI.  Unlike wage loss benefits, PI benefits are payable without regard to economic loss.  And following the 1997 flareup, Mr. Jones once again returned to work as a firefighter full time.  Therefore, under the Court's ruling, Mr. Jones' 20% impairment rating following his 1997 flareup resulted in an extra 60 weeks' worth of PI benefits that he wouldn't have gotten had his rights been governed by the 1992 law.

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In this non-workers' compensation case, the Fourth District Court of Appeal in West Palm Beach has held that a police officer on his way to work while driving a police vehicle was not in the course of his employment at the time of his automobile accident.  Therefore, the City of Hollywood, the municipality for which he worked, was not liable for the injuries sustained by the pedestrian whom he struck and injured in the accident.

 

In Garcia v. City of Hollywood, Sergeant Redding was on his way to work at 6:00 a.m. in his police vehicle when he struck and injured Rocio Garcia as she was crossing the road to catch her school bus.  The City permitted Redding to take the police vehicle home every evening after his shift and to drive it in to work the next day.  Rocio's parents brought suit against the City, claiming that Sergeant Redding negligently operated his vehicle and that he was in the course of his employment at the time of the accident - thereby rendering the City liable for Rocio's injuries under the doctrine of "respondeat superior." 

 

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The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla.  It will be codified as s.112.1815, Fla. Stat.

• EFFECTIVE DATE  

The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law."  Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date.  See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).

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Speaking of first responders, they were the subject of one of the few legislative changes regarding workers' compensation made by the Florida Legislature in its 2007 regular session.  Specifically, the legislature enacted CS/SB 746, which creates a new statutory provision, §112.1815, Fla. Stat.  This bill:

 

• Lowers the standard of proof from “clear and convincing evidence” to “a preponderance of the evidence” for first responders in establishing the compensability of occupational diseases or from injuries or diseases resulting from exposure to toxic substances;  
• Eliminates for first responders the requirement of proving a physical injury in order to establish the compensability of a mental or nervous injury, although only medical benefits, not compensation benefits, are payable where there is no physical injury;  
• Eliminates for first responders the 6-month limit on temporary total disability benefits for mental or nervous injuries payable after maximum medical improvement from the responder’s physical injuries imposed by §440.093(3), Fla. Stat.; 
• Eliminates for first responders the 1% limitation on psychiatric impairments imposed by §440.15(3)(c), Fla. Stat.;  
• Provides for the continuation of permanent total supplemental disability benefits after age 62 if the first responder’s employer does not participate in the Social Security program;  
• Provides for the compensability of any adverse result or complication caused by a smallpox vaccination.

 

The bill is now before Governor Crist awaiting his signature.

 

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Very few workers' compensation cases make it all the way to the Florida Supreme Court, but this one has.  It’s a complicated tale.

 

Mr. Flamily, the claimant here, was a firefighter for the City of Orlando who contracted Hepatitis C. (By way of background, since 1995, firefighters and other “first responders” have benefited from a special statute which says that, when a firefighter contracts that disease, it’s presumed that he contracted it as a result of his employment). Mr. Flamily actually retired in 1996 due to disability resulting from heart problems. He settled his workers’ compensation claim arising out of those heart problems later that year for a lump-sum payment of $110,750.00. (There’s another special statute that makes heart problems of firefighters and other law enforcement personnel compensable under the Florida Workers’ Compensation Act without having to comply with the “Victor Wine” rule).

 

Anyway, although Flamily’s Hepatitis C wasn’t diagnosed until 2000, he was convinced that he had contracted it during his employment with the City (Understandable, really, given the nature of firefighters’ work and the long incubation period usually necessary before symptoms of the disease appear). Trouble was, by the time he was diagnosed, he was no longer an employee of the City. And then there was that pesky 1996 settlement agreement where he had settled all potential work-related claims against the City.

 

 

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