FLORIDA'S HEART AND LUNG PRESUMPTION!
Re: Robert Punsky v. Clay County Sheriff’s Office and Scibal Insurance Group
Case No. 107-3901, March 6, 2009
The First District Court of Appeal released its En Banc decision on Punsky v. Clay County Sheriff's Office on February 27, 2009. The First DCA released a revised En Banc decision on March 6, 2009. The First DCA's initial opinion on the case was released on July 21, 2008. The Court recently undertook a review of its decision in the Punsky case in order to reconcile its findings with other leading cases on the Heart and Lung Presumption.
In the initial 2008 Punsky opinion, the Employer/Carrier was required to prove a specific, non-occupational cause for the Claimant's heart disease in order to overcome the presumption in Section 112.18, Florida Statutes. Citing Caldwell v. Division of Retirement, the Court found that the Employer/Carrier failed to meet this burden. The Court further stated that risk factors are not the same as causation and are, therefore, not sufficient to overcome the presumption. The 2008 decision also required the Employer/Carrier to overcome the presumption by clear and convincing evidence, the evidentiary standard developed in Caldwell. This opinion directly conflicted with Vaporis and Lentini. These cases required the Employer/Carrier to show that the Claimant's heart disease was caused by non-work related factors, rather than a specific non-occupational event. The evidentiary standard by which the Employer/Carrier may overcome the presumption according to Vaporis and Lentini is competent substantial evidence, a lower standard than that required by Caldwell.
In the February 27, 2009 En Banc opinion, the First DCA again reviewed the medical testimony, which was provided by a treating physician and an IME. The treating physician was able to testify that, out of several risk factors, the claimant's "combined familial hyperlipidemia" or CFL, was the primary cause of his heart attack and the major contributing cause for his heart condition. The IME confirmed the Claimant's CFL and testified that the Claimant's heart attack was not caused by a work-related exposure. The Claimant was unable to offer any favorable medical testimony. The First DCA acknowledged in its recent decision that where the Claimant does not offer any evidence in support of the presumption, Caldwell’s clear and convincing evidence standard does not apply. The presumption itself is not evidence. Only in cases where both sides offer conflicting medical evidence is the Employer/Carrier required to overcome the presumption with clear and convincing evidence. The First DCA in this En Banc opinion found that the Employer/Carrier successfully rebutted the presumption through competent substantial evidence.
The March 6, 2009 revised En Banc opinion gives further explanation regarding the appropriate standard to overcome the presumption. This opinion includes the Court’s acknowledgement that Section 112.18 does not impose a clear and convincing evidence standard. The statute merely says the presumption may be overcome by competent evidence. The Court further states that although a finding was made in City of Temple Terrace that the presumption was overcome by clear and convincing evidence, this was not the requisite standard. In other words, because the Claimant did not present any medical evidence and relied completely on the presumption, the Employer/Carrier needed only to overcome the presumption with competent substantial evidence.
Also in the March 6th decision, the First DCA says something similar to what they said in the initial 2008 opinion, that the “mere existence of risk factors” is not competent substantial evidence required to overcome the presumption. There needs to be evidence of a non-work related causation. However, the opinion further indicates that several non-work related factors or conditions can be the cause of the disease, as long as there is proof of causation. The Employer/Carrier does not need to prove a single non-work related cause.
Ultimately, the First DCA certified the following question to the Supreme Court of Florida:
Should Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438 (Fla. 1979), be construed to mean that the heightened burden of clear and convincing evidence is required to rebut the firefighter’s presumption in Section 112.18(1) when that statute expressly provides that the presumption may be rebutted by the lesser burden of ‘competent evidence’?
Overall, the recent En Banc opinions benefit Employer/Carrier's in Heart and Lung claims. Although we are still required by the First DCA to establish that the Claimant's employment is not the cause of his or her heart disease, we may do so through several non-occupational factors, rather than through one specific, non-occupational cause. In cases where all of the medical evidence favors the Employer/Carrier, we will only be required to overcome the presumption with competent substantial evidence. Caldwell's clear and convincing evidence standard will not apply unless the Claimant is able to support the presumption with medical testimony. Finally, the First DCA has asked the Supreme Court of Florida to determine whether the Employer/Carrier should ever be subjected to the higher standard of clear and convincing evidence, given the plain language of the Heart and Lung presumption.
It is clear from this holding that the First DCA has sincerely considered our arguments in the recent cases of Bivens v. City of Lakeland and Polk v. City of Lakeland. In both cases, we urged the First DCA to avoid applying the clear and convincing evidence standard where the Claimant fails to present any medical evidence in support of the presumption. We also argued that because the statute does not require a clear and convincing evidence standard or a specific non-work related cause, the Employer/Carrier should not be held to these higher standards of proof in order to overcome the presumption. It is reassuring to see our arguments validated in this most recent Heart and Lung opinion.
