Understanding Florida Statute 112.18 – The Heart/Lung Bill

Posted in Heart/Lung Bill on November 27, 2008 by Leslie Riviere

 Florida Statute 112.18, commonly referred to as the Heart/Lung Bill, is a public policy piece of legislation designed to offer added legal protection for police, fireman and correctional officers who suffer with heart disease, high blood pressure or tuberculosis. The heart/lung bill should not be confused with F.S. 112.181, which creates a separate presumption for the transmittal of communicable diseases.

This bulletin is designed to give you the basics of what the heart/lung bill can do to protect you, it’s limitations, and some steps you can take to protect yourself in the event you need to file a claim. I try to update the material regularly, as the courts are often redefining who and what conditions are covered under the law. Readers should be aware that there will be legislative efforts in 2012 to revise this law, as the costs of covering these conditions has proven much more expensive than anticipated. Check back for updates periodically. But let’s start our discussion with the amended version of the law which went into effect in Florida in 2002. The statute reads as follows:

FLORIDA STATUTE 112.18 (2002)

112.18 Firefighters and law enforcement or correctional officers; special provisions relative to disability —

(1) Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such firefighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. Such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance, unless the insurer and insured have negotiated for such additional benefits to be included in the policy contract.

In short, the statute gives police, firefighters and corrections officers a rebuttable presumption that their heart, blood pressure or TB condition was caused by their employment. In a workers’ compensation setting, it eliminated the usual need for the employee to prove up the required elements found in Florida Statute 440.151 pertaining to “occupational diseases.” Once you gain the presumption, more often than not, your employer will have to cover your condition under workers’ compensation. This means the cost of your medical care may be covered by workers’ compensation and you will be eligible for impairment and lost wage benefits through workers’ compensation as well.

The presumption in favor of the employee may be overcome by evidence to the contrary. The standard of proof to rebut the presumption will generally be competent evidence, unless you offer proof of a work related cause for your hypertension or heart disease. If a work related cause is offered into evidence, the employer must rebut the presumption with clear and convincing evidence of a non-work related cause. An unknown cause doesn’t help the employer, they must offer a specific non-work related cause, typically obesity or smoking. The most important thing to understand initially are the elements necessary to make the claim in the first place.



In order to invoke the presumption, there are 4 basic elements that you have to satisfy:

1) You have to meet the definition of a protected class. (You have to be a police officer, firefighter or correctional officer as defined in Chapter 112, Florida Statutes)

2) You have to have a protected condition (tuberculosis, heart disease or hypertension)

3) You have to have passed a pre-employment physical, and

4) You have to be disabled, totally or partially.


For claims filed after July 1, 2010 the statute was amended to state that the presumption is lost if the you departed in a material fashion from the prescribed course of treatment from your personal physician and as a result, there was a significant aggravation in your covered condition. You could also lose the presumption if you had previously filed and received benefits on a workers’ compensation claim for a covered condition and departed from the prescribed treatment of an authorized physician’s recommendations. It also limited the time for filing claims to 180 days after leaving employment.

This amendment does some unwelcome things from a litigant’s point of view. First, it opens up a can of worms in terms of your prior medical records. It is one thing to fail to take medicine your personal physician may have given you for high cholesterol and quite another to fail to follow the doctors’ advice to lose weight, or stop smoking. The failure to take medicine might be a valid defense, but you can bet your employer might also argue you failed to lose weight or to quit smoking when your doctor told you to. Beware of your prior medical records. They can create a problem for you by creating a defense to your claim.

First however, let’s discuss the 4 element’s necessary to make the claim, as this creates the bulk of the questions I receive. The first category, which conditions are covered, creates the most litigation and is developing almost on a case by case basis. The following cases create generalities and should not be used, in and of themselves, to decide whether to file a claim for compensation.


Viral gastroenteritis was determined to be the ultimate cause of the claimant’s heart diesease, which was a combination of myopericarditis and cardiomyopathy.  Because the cardiologist testified gastroenteritis was the cause, and seemingly unrealted to the heart and lung system, the carrier appeared to have rebutted the presumption. On appeal,the 1st DCA awarded benefits to the claimant, finding the carrier had not established the viral gastroenteritis was not work related.  So unless the cardiologist can state the heart disease was caused by a specific, non-work related condition, if the other 3 elements are met, the condition is compensable. Walters v. State, opinion dated 10/16/12 (Fla. 1st DCA 2012).

Peripheral vascular disease (PVD) is covered if it was caused by hypertension. Butler v. City of Jacksonville, 980 So.2d 1250 (Fla 1stDCA 2008).

Strokes may be covered if the are caused by heart disease or hypertension. Lucunar strokes are generally covered.

Likewise “essential hypertension” may be covered if the doctor specifically states the hypertension is arterial or cardiovascular. Bivins v. City of Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008).

Pulmonary hypertension is not covered as it is not heart disease or arterial hypertension. Bond v. City of Boca Raton, 992 So.2d 252 (Fla. 1st DCA 2008).

A renal condition was covered because it was caused by hypertension. O’Dwyer, Jr. v. City of Jacksonville Fire and Rescue, 41 So3d 897 (Fla. 1stDCA 2010).

Palpitations were not covered because they were not caused by heart disease. Shamp v. Flagler Beach Police Department, 48 So.3d 58 (Fla. 1stDCA 2010).

Thoracic aortic disease is a form of heart disease and covered by the presumption. City of Venice v. Michael Van Dyke, 46 So.3d 115 (Fla 1stDCA 2010).


The disability prong of the test means you must have work related restrictions which impacts your ability to perform your job. Just being diagnosed with a health condition alone doesn’t qualify you. The condition must disable you, either fully or partially, and result in a loss of earnings. Effective October 1, 2003, Section 440.02(13) defines disability as the incapacity because of injury to earn in the same or any other employment, the wages which the employee was earning at the time of the injury.  Having a permanent injury, and therefore an impairment rating, does not satisfy the definition of disability.  Nor does missing time from work for diagnostic tests. You must demonstrate the protected condition prevented performance of your job, even if just for a few hours.

Presumptive disability cases are considered “occupational disease” cases and therefore the procedural rules relating to occupational disease cases apply. One such rule is that the date of accident is the date of disability. So for instance, if a person has a heart attack on June 1st, but doesn’t start missing work until June 6th, the date of accident is June 6th, the date of disablement.


The section 112.18 presumption does not apply a paramedic, who was certified as a firefighter. Lansford v. Broward County Board of County Commissioners, 485 So.2d 845 (Fla 1st DCA 1986).

A retired fireman was not protected because he did not meet the definition contained in Section 112.191 which provides that a “fireman” meant a duly employed uniformed fireman employed by an employer. Smith v. City of Miami, 552 So.2d 245 (Fla 1st DCA 1989).


Invoking the presumption requires the protected employee to have passed a pre-employment physical. The physical must show no evidence of heart disease, high blood pressure or TB. If the employer did not offer a pre-employment physical, then the presumption can not be invoked. Likewise a Section 633 pre-certification physical, which is mandatory, is not the same thing as a pre-employment physical, which is optional for the employer. The results of one cannot be substituted for the other.

In addition, you must have passed a pre-employment examination with your current employer. Passing a pre-employment physical with a former employer will not allow the presumption to be invoked.


1) When does my claim start?

The 2 year statute of limitations for filing a formal claim for workers compensation begins to run beginning with the date of disability or death. Not the date of exposure, not the date of diagnosis, not the date you miss time from work to go to the doctor. The date of your “accident” in the case of a heart/lung claim, is the date you receive permanent work restrictions from a doctor that cause you to lose income. From that date, you have 90 days to report your claim to your supervisor, and if it is denied for any reason, you have 2 years from your accident date to file suit.

2) Does my condition have to start at work?

No. You must be an active employee, but a diagnosis is all that is required. If you suffer a heart attack while off duty, but it is because of heart disease, you are entitled to the presumption.

3) What is meant by a rebuttable presumption?

The presumption that your condition is work related can be “rebutted” or overcome, with competent medical evidence to the contrary. So even though you may have been diagnosed with heart disease or high blood pressure, if there is testimony from a physician that your condition has a specific, non-occupational cause, you may still lose your claim. For instance, in a recent court ruling, the court found a firefighter with “essential hypertension,”a term referring to high blood pressure with no specific cause, was not entitled to the presumption. In order for high blood pressure to be compensable under this statute, it must be caused by a problem in the cardiovascular system.  The standards of proof necessary to rebut the presumption vary from competent to clear and convincing.

4) What can I do to protect myself?

Get regular check ups with a primary care physician and eliminate your risk factors. The most common defenses to a claim under the heart/lung bill are obesity, smoking, and high cholesterol. All three are preventable and can be eliminated by you as possible defenses to a claim. Speak with your primary care doctor about the broad term “heart disease” and whether you have any condition which could be construed as heart disease.

Follow any prescribed course of treatment suggested by your doctor. Remember, under the 2010 amendments to the statute, failing to follow a prescribed course of treatment can be a defense to a claim.

5) What will likely happen in the future?

As a matter of public policy it’s unlikely the Governor will gut the law in it’s entirety. But there will likely be limits placed on the extent of coverage. There may be age limits, or employment term limits, wellness programs put in place, or exemptions from coverage. The local municipalities just can’t afford to cover the costs of heart disease for all the retirees. It’s going to be a budget battle.


COVID 19 and Florida First Responders

Posted in COVID 19, Coronavirus and Florida First Responders- Healthcare Workers with tags , , , , , , , , , on March 25, 2020 by Leslie Riviere

Acquiring the COVID -19 virus as a result of a work place exposure seems fairly straight forward.  But increasingly, exposure cases have become more difficult to pursue under Florida’s workers’ compensation system.  The Florida Statute which governs exposure cases requires the injured employee prove, by clear and convincing evidence, the nature of the exposure.  In chemical cases, this may not only require pinpointing the exact chemical to which you were exposed, but also the duration and quantity of the exposure.  A task well beyond the facts available in a typical exposure incident.

With cases involving a virus like COVID-19, employers may deny coverage if the employee cannot prove they contracted the virus through workplace exposure.  This brings into focus the problems with diseases that are considered pandemics, as the liklihood of community acquisition can run very high.  Add to that HIPAA regulations that can prevent an employee from accessing patient health records and the burden of proving your case can become overwhelming.

First responders and health care professionals may find employers are unwilling to assume responsibility for their exposures because of looming costs.

So here are a few suggestions while cases regarding exposure to COVID 19 in Florida come to light.

Read the CDC guidelines for EMS and healthcare workers.  There are many helpful tips in their database. Keep a log of any potential exposures.  Document the date, time and place of the exposure.  Detail the start and stop time of the contact, the nature of the contact; i.e. were you in direct contact, were tests run on the patient, were you exposed to fluids.  Make note of any protective gear you wore as well as any protective equipment in use in the area.  Failure to use available safety equipment can result in a reduction of workers’ compensation benefits.  To the extent HIPAA allows, document the particulars about contact with a known positive patient.  Log your own temperature and any symptoms related to COVID-19 daily.  This will help narrow your window of exposure.

Limit your contact with family and friends outside of work.  If an employer can show you had contact with another person who tested positive outside of work, it can compromise your case.  Contact employee health and report any exposures which give you pause.  Use your common sense if you believe your exposure to a patient was compromised your health

Workers’ compensation benefits can include wages for lost time from work or in quarantine, payment for past or future medical care, benefits related to a permanent impairment, such as reduced lung function and death benefits.  Do not assume your employer will cover you in the event you test positive.  Consider taking some of the steps outlined above and if you have questions, call a board certified workers’ compensation lawyer for specific advice or help filing a claim.

South Florida Judge declares F.S. 440.11 unconstitutional – potential impact on First Responders

Posted in Heart/Lung Bill on August 14, 2014 by Leslie Riviere

A Miami-Dade circuit court judge declared the exclusivity provision of Florida’s workers’ compensation law unconstitutional today.  This could result in the legislature having to  re-write a major provision of the law.

This has nothing to do with the heart-lung provisions of F.S. 112.18, but it would have a big impact on first responder cases.

In a nutshell, workers’ injured on the job have workers’ compensation as their exclusive remedy.  You can’t opt out of workers’ compensation and sue your employer for damages.  To give up your constitutional right to sue for damages and have redress by jury, the courts have said you have to have an adequate substitute.  The problem is, the insurance industry has influenced the Florida legislature to chip away at workers’ compensation law.  Every rewrite of the law has reduced benefits for workers. The last major re-write in 2003, took away several important safeguards for workers.

Right now, if you have only a partial loss of earning capacity, you get paid nothing under the comp law.  You receive temporary lost wage benefits up to MMI, but once your doctor releases you, you only get paid additional lost wage benefits if you are permanently and totally disabled.

The problem with 90% of the first responder cases is you are a highly paid, fit group of employees.  Many injuries may disable you from police or firefighting work, but don’t permanently disable you from other work.  For instance, if you have a dominant hand injury, or a heart condition that makes you unfit for police work, you may sill be fit to perform desk work.  If you have to perform desk work, your earning capacity is reduced, your salary takes a big hit, but under the current law, you get no compensation for the reduction in salary.  You receive nothing under the Florida’s workers’ compensation statute when your work related injury results in a reduction in earning capacity.

Florida is the only state that pays nothing for a partial loss of earning capacity.  Today, a Florida Circuit court judge said the legislature has gone too far and it was unconstitutional to strip away a workers right to sue their employer in exchange for a system that pays little to nothing.  If this decision holds water, the legislature may have to rewrite the law to provide payment to injured workers who have lost part of their earning capacity.   There is hope yet!

Recent heart attack case – clear and convincing evidence requirement

Posted in Heart/Lung Bill on November 1, 2011 by Leslie Riviere

A recent case, Torres v. Miami Dade Corrections, decided by Judge Rosen in St. Petersburg is one of the best cases on point regarding the need for clear and convincing evidence in order to rebut the presumptions afforded by Florida Statute 112.18.

In Torres, a corrections office suffered a heart attack at the jail.  The carrier denied coverage on the basis that the heart attack was personal in nature.  In support, the carrier offered the testimony of three physicians who stated the major contributing cause of the heart attack, or 51% of the cause, was personal risk factors, including claimant’s age, diet, family history, exercise regimen, smoking and obesity.

The judge rejected these arguments, finding that the clear and convincing standard of proof, necessary to rebut the statutory presumption afforded the claimant, was not met.  Although there is no definition for clear and convincing evidence, the evidence that personal risk factors accounted for 51% of the cause for the heart attack was insufficient to meet this higher evidentiary standard.  The claimant was awarded benefits.

A new case on cardiac arrhythmia

Posted in Heart/Lung Bill on August 26, 2011 by Leslie Riviere

CASE NO. 1D10-6321

In this workers’ compensation appeal, Claimant, a firefighter, challenges an order of the Judge of Compensation Claims (JCC) that finds that his Employer and its workers’ compensation carrier (the E/C) introduced sufficient evidence to establish a non-occupational cause of his cardiac arrhythmia. Claimant argues that testimony establishing that the cause of Claimant’s condition was unknown was insufficient to demonstrate that the condition, in fact, had a non-industrial cause. We agree and reverse.

Here, there is no dispute that Claimant established the legal conditions for the operation of the presumption found in section 112.18(1), rendering his cardiac arrhythmia work-related and, thus, compensable under the Workers’ Compensation Law — unless sufficiently rebutted by the introduction of evidence establishing a non-industrial cause. See Punsky v. Clay County Sheriff’s Office, 18 So. 3d 577, 583 (Fla. 1st DCA 2009).  The medical evidence accepted as credible by the JCC established that the sufficient cause of Claimant’s condition was unknown; Claimant could have developed the condition notwithstanding his occupation; and, “mechanistically,” the condition is caused by an electrical defect in the cells of the heart. From this, the JCC concluded that the E/C sufficiently established a non-occupational cause of Claimant’s condition.

By finding that Claimant’s condition, which, by definition, is an electrical defect of the heart, was caused by a defect of the heart — the cause of which is unknown — the JCC devalued and eviscerated the legal presumption of compensability afforded by section 112.18(1). A determination of the physiological cause of a disease or medical diagnosis — although perhaps helpful under some circumstances in determining the sufficient, or legal, cause of a medical condition — does not, without more, establish the legal cause of the condition, but rather, evades the issue altogether.* Moreover, here, the medical testimony that the JCC accepted as credible established that the sufficient cause of Claimant’s condition was unknown, based on the evidence presented, — an empty set  [*3] that precludes a contrary postulate. See generally Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009) (stating, to rebut 112.18 presumption, E/C required to affirmatively demonstrate non-work-related cause, not prove that there is no known cause). Accordingly, we REVERSE the denial of benefits and attorney’s fees and costs, and REMAND the case for the entry of an order awarding same.

Social Security hearings and dire need

Posted in Social Security Disability on December 31, 2010 by Leslie Riviere

More often than not, after an individual has received a denial letter from Social Security they will be faced with the prospect of going to a court hearing. Depending on where you live, the wait time for the hearing can be a year or more.

There are several methods available to shorten this wait, one of which is called a dire needs request. This is essentially a pleading sent to the Office of Disability Adjudication and Review, where all hearings are held, advising the court that the individual applying for disability meets certain criteria. Some criteria are financial, such as bankruptcy, foreclosure, eviction or an inability to pay for basis necessities. Other criteria may relate to medical need, suicidal or homicidal ideations, where the applicant is at risk for injury, or those around the applicant.

If the applicant is homeless, this too is a criteria for a dire needs request. A simple statement from a shelter or witnesses to the homelessness is all that is required.

If the Social Security hearing office finds good cause exists, the case will be moved up the court’s docket for an expedited hearing, usually within a month or two.

New case on hypertension

Posted in Heart/Lung Bill on November 5, 2010 by Leslie Riviere

The upshot of the following case is,if you have hypertension which is being covered by workers’ compensation and you return to full duty, the workers’ compensation carrier remains responsible for your medical care.


CASE NO. 1D09-6168

Opinion filed November 2, 2010.
An appeal from an order of the Judge of Compensation Claims.
Geraldine B. Hogan, Judge.
Date of Accident: May 11, 2005.

The claimant in this worker’s compensation appeal is a firefighter for the City of Pembroke Pines (“City”). On May 11, 2005, during his annual physical examination, he was diagnosed with hypertension. His physician assigned him tolight duty and prescribed medication. After several days off work and two days of light duty, the claimant returned to normal duty and was deemed to have reached maximum medical improvement (“MMI”) on May 17, 2005. He has needed continued medical treatment since then, including medication to control high blood pressure and cholesterol, semi-annual physical examinations, and annual stress tests. He filed a petition for benefits in January 2009 when the employer/carrier (“E/C”), after paying medical benefits for three years, terminated benefits claiming that under section 112.18, Florida Statutes, he became ineligible for workers’ compensation benefits once he returned to normal duty. The Judge of Compensation Claims (“JCC”) ruled that the E/C must pay for treatment of the claimant’s hypertension even though he is no longer disabled by the condition and can fully perform his duties as a firefighter. We agree and affirm the JCC’s order.
The Workers’ Compensation Act covers occupational diseases, provided that the “disease has resulted from the nature of the employment in which the employee was engaged . . . , was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease.” § 440.151(1)(a), Fla. Stat. (2004). The occupational disease must have caused a disability to be “treated as the happening of an injury by accident,” and thus, compensable. Id. See City of Port Orange v. Sedacca, 953 So. 2d 727, 729 (Fla. 1st DCA 2007). Section 112.18, Florida Statutes, creates a presumption of compensability for 3
certain conditions suffered by firefighters and law enforcement and correctional officers.
Any condition or impairment of health of any . . . firefighter or any law enforcement officer or correctional officer . . . caused by . . . tuberculosis, heart disease, or hypertension resulting in total or partial disability . . . shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.
§ 112.18(1), Fla. Stat. (2004). “[A] claimant’s burden of proving major contributing cause . . . is fully met where the presumption . . . is applied . . . .” Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009). The E/C here accepted compensability of the claimant’s hypertension and paid for his medical treatment for more than three years. But now they assert the claimant was only entitled to the presumption in section 112.18, and thus medical benefits, during the week-long period his hypertension resulted in “total or partial disability.” In other words, now that the claimant’s job-related hypertension is successfully controlled by medication such that he is back to normal duty, the E/C need no longer pay for ongoing treatment of the condition.
To be sure, under section 112.18 disability is necessary to establish compensability of any condition or impairment of health “caused by. . . hypertension.” See Sedacca at 729. But once compensability is established, nothing in section 440.151, or elsewhere in chapter 440, conditions the receipt of 4
medical benefits on continued disability, or limits payment of medical benefits to only the period of disability. See City of Miami v. Thomas, 657 So. 2d 927, 928 (Fla. 1st DCA 1995) (rejecting assertion by employer/carrier that disability giving rise to section 112.18 presumption must be permanent). Indeed, the occupational disease is treated as if it were “an injury by accident.” §440.151(1)(a), Fla. Stat. (2004). As the JCC in this case correctly noted, section 440.13(2)(a), Florida Statutes (2004), requires employers to furnish medically necessary care for a compensable condition “for such period as the nature of the injury or the process of recovery may require . . . .” The claimant here still suffers from a compensable occupational disease—hypertension—and he proved the condition requires continued medical treatment in the form of medication and routine periodic evaluation. The E/C therefore must pay for the claimant’s ongoing treatment for hypertension as long as the condition remains the major contributing cause of his need for medical care. See Engler v. Am. Friends of Hebrew Univ., 18 So. 3d 613, 614 (Fla. 1st DCA 2009) (concluding once compensability of injury is established, carrier can no longer contest occupational cause, but can contest specific treatment based on its lack of connection to compensable injury).

Senate Bill 2176 – Treatment & Claim Deadlines

Posted in Heart/Lung Bill on July 3, 2010 by Leslie Riviere

First let me state that a case was recently published, Martz v. Volusia County Fire Services, which is the first case I have seen that defines atrial fibrillation (AF) as “heart disease”.  AF is covered by the heart/lung bill.

Second, the governor approved Senate Bill 2176, regarding treatment of heart/lung conditions.  In short, compensability may be denied if the worker fails to follow a prescribed course of treatment and the failure to follow treatment results in an aggravation of the heart/lung condition.

Claims must also be filed within 180 days of leaving employment in order for the presumption to apply.  The pertinent text is reproduced below:

 298         (b)1. For any workers’ compensation claim filed under this
  299  section and chapter 440 occurring on or after July 1, 2010, a
  300  law enforcement officer, correctional officer, or correctional
  301  probation officer as defined in s. 943.10(1), (2), or (3)
  302  suffering from tuberculosis, heart disease, or hypertension is
  303  presumed not to have incurred such disease in the line of duty
  304  as provided in this section if the law enforcement officer,
  305  correctional officer, or correctional probation officer:
  306         a. Departed in a material fashion from the prescribed
  307  course of treatment of his or her personal physician and the
  308  departure is demonstrated to have resulted in a significant
  309  aggravation of the tuberculosis, heart disease, or hypertension
  310  resulting in disability or increasing the disability or need for
  311  medical treatment; or
  312         b. Was previously compensated pursuant to this section and
  313  chapter 440 for tuberculosis, heart disease, or hypertension and
  314  thereafter sustains and reports a new compensable workers’
  315  compensation claim under this section and chapter 440, and the
  316  law enforcement officer, correctional officer, or correctional
  317  probation officer has departed in a material fashion from the
  318  prescribed course of treatment of an authorized physician for
  319  the preexisting workers’ compensation claim and the departure is
  320  demonstrated to have resulted in a significant aggravation of
  321  the tuberculosis, heart disease, or hypertension resulting in
  322  disability or increasing the disability or need for medical
  323  treatment.
  324         2. As used in this paragraph, “prescribed course of
  325  treatment” means prescribed medical courses of action and
  326  prescribed medicines for the specific disease or diseases
  327  claimed and as documented in the prescribing physician’s medical
  328  records.
  329         3. If there is a dispute as to the appropriateness of the
  330  course of treatment prescribed by a physician under sub
  331  subparagraph 1.a. or sub-subparagraph 1.b. or whether a
  332  departure in a material fashion from the prescribed course of
  333  treatment is demonstrated to have resulted in a significant
  334  aggravation of the tuberculosis, heart disease, or hypertension
  335  resulting in disability or increasing the disability or need for
  336  medical treatment, the law enforcement officer, correctional
  337  officer, or correctional probation officer is entitled to seek
  338  an independent medical examination pursuant to s. 440.13(5).
  339         4. A law enforcement officer, correctional officer, or
  340  correctional probation officer is not entitled to the
  341  presumption provided in this section unless a claim for benefits
  342  is made prior to or within 180 days after leaving the employment
  343  of the employing agency.

Deputy and disability rating

Posted in Heart/Lung Bill on May 16, 2010 by Leslie Riviere



The disability rating determines the amount of impairment benefits you receive.  They are referred to as IB benefits and are discussed in Florida Statute 440.15.

These payments have nothing to do with receiving permanent and total disability payments under workers’ compensation or in-line of duty retirement pay.

Any injured worker, whether under the heart/lung bill or not, gets IB benefits when they reach maximum medical improvement and they have a permanent physical or mental impairment.  Your treating doctor will use the Florida Impairments Guides, which is a book, to determine your percentage of impairment to the body as a whole.

You get paid 2 weeks of benefits for ratings between 1 and 10%; 3 weeks for ratings between 11 and 15%; and it goes higher from there.

These benefits are paid weekly, and they are paid at 50% of your compensation rate if you are still working and 75% of your compensation rate if you are not working.  Your compensation rate is 2/3 of your average weekly wage.

So for example, let’s say you earn $600 a week and you are still working and you have a 4% impairment rating.  Your compensation rate is $400 a week (2/3 of $600).  So you will get 8 weeks of benefits (4% x 2weeks = 8weeks) at 50% of your compensation rate ($400/2 = $200) or $200 x 8 weeks = $1,600 paid in weekly installments of $200.

Sometimes the carrier opts to pay it in a  lump sum, but these are really tiny payments unless you have a really high impairment rating, which is difficult under these guides. 

Also, remember if you retire, you are not eligible for permanent, total disability benefits through workers’ compensation because your heart problem didn’t cause you to become unemployable.  You retired.  Now if your authorized doctor (or any doctor for that matter) tells you you can no longer work at all because of your heart, then you leave the force, we have a different kettle of fish.

So be prepared.  Impairment benefits typically don’t amount to much.

Police officer question re: hypertension

Posted in Heart/Lung Bill on May 16, 2010 by Leslie Riviere

I have been employed as a police officer for 20 years.   Approx. (6-7) years ago,  I suffered from high blood pressure on duty and had to be driven to the hospital for treatment.    About (6) months later,  I had severe chest pains on duty.  Again I was taken to the hospital   Each time I went to the hospital, I was given an EKG and I appeared fine.   I was diagnosed with hypertension, high colesteral, and diabetes.   I have been taking medication  for these health issues.  I was diagnosed a couple of years prior to problems at work.    Claims were filed with workmans comp. These temporarily paid for my medication while they viewed my health records.  6 months lately they denied the heart and lung bill, and claims discontinued paying for my medications.     Am I elgible for the heart and lung bill, and is it to late to appeal the denial through a lawyer?


Having trouble responding on WordPress to e-mail, but I can still post.  So I am reprinting the question and my response.

There are 2 questions here.  The first has to do with the compensability of the hypertension.  The heart/lung bill simply requires you pass a pre-employment physical.  If you had signs of hypertension on the pre-employment physical the case would be difficult to win.

If you passed a pre-employment physical without signs of hypertension, but back in your medical records there lurks prior treatment for hypertension, these records can be used to rebut the presumption. 

So if you passed a pre-employment physical and developed hypertension, it is presumed in-line of duty by statute.  The burden then shifts to the employer to show by clear and convincing evidence some other cause for the hypertension, which can include prior (pre-employment), medical records.  It can also be as simple as testimony from a cardiac specialist that you are overweight and have high cholesterol.  The judge weighs what constitutes “clear and convincing evidence” but it is a much higher standard than preponderance of the evidence.

The second issue from our police officer involves the statute of limitations.  A claim for workers’ compensation can be brought within 2 years of your date of accident or within 1 year of your last medical treatment with your authorized workers’ compensation physician who treats you for the hypertension.  In addition, there is a 120 day “pay and investigate” rule.  If you have been getting medication for hypertension for more than 120 days while they sifted through your medical records, you can argue they are barred from denying your claim.

New Twist on the Heart/Lung Presumption

Posted in Workers' compensation on March 13, 2010 by Leslie Riviere

A new case was just published by the Florida First District Court of Appeal, intrepreting the heart-lung bill, applicable to police and firefighters, found in Florida Statute 112.18.  The case is Miami-Dade County v. Davis, 26 So.2d 13 (Fla. 1st DCA 2009).

As we know, Florida Statute 112.18 gives police and firefighters a presumption that heart disease is acquired in the line of duty, if the worker successfully passes a pre-emplyment physical that fails to reveal any evidence of the disease.  In this particular case, firefighter Davis passed his pre-employment physical, later developed heart disease and had bypass surgery at the expense of his employer. 

He stopped working as a firefighter for a time, and later applied for work again as a firefighter with another county.  This time his physical revealed heart disease, but he was not considered such a risk he was precluded from employment.  He had another cardiac event while off duty and put in another claim for workers’ compensation.  The county declined the claim, arguing his pre-employment physical found evidence of heart disease.  The firefighter argued he has passed his initial physical, and that anything subsequent cardiac problems should be presumed in the line of duty.  The judge agreed, but the court of appeal reversed the ruling.

The upshot of the court’s ruling was that the firefighter’s application to work for a new county required he pass a new physical, and his failure to pass the new physical without evidence of heart disease, prevented him from claiming the presumption affored by Florida Statute 112.18.

This should be a serious consideration if you are thinking of changing job locations and you have already had a work related cardiac event covered by this statute.  A new physical could prevent you from claiming further coverage under this statute.