Archive for November, 2011

Recent heart attack case – clear and convincing evidence requirement

Posted in Heart/Lung Bill on November 1, 2011 by leslie@lawyertampa

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.

Advertisements