Posted on March 3, 2008 by David McCranie

Cancer Bill for Firefighters and Paramedics Re-Introduced

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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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 September 4, 2007 by David McCranie

Is Cancer Coverage Next for Firefighters and Paramedics?

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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Posted on June 13, 2007 by David McCranie

Effective Date and Retroactive Application of New "First Responders" Bill

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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Posted on June 8, 2007 by David McCranie

2007 Legislative changes

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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