Archive for November, 2008

Understanding Florida Statute 112.18 – The Heart/Lung Bill

Posted in Heart/Lung Bill on November 27, 2008 by leslie@lawyertampa

 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.

 

4 ELEMENTS

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.

JULY 1, 2010 AMENDMENTS:

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.

A) SELECT CASES ON PROTECTED CONDITIONS:

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).

B) DISABILITY:

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.

C) SELECT CASES ON PROTECTED CLASSES:

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).

D) PRE-EMPLOYMENT PHYSICAL:

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.

 OTHER ISSUES:

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.

 

Advertisements