Archive for the Heart/Lung Bill Category

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@lawyertampa

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!

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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.

A new case on cardiac arrhythmia

Posted in Heart/Lung Bill on August 26, 2011 by leslie@lawyertampa

MICHAEL LeBLANC, Appellant, v. CITY OF WEST PALM BEACH and JOHNS EASTERN COMPANY, Appellees.
CASE NO. 1D10-6321
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
PER CURIAM.

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.

New case on hypertension

Posted in Heart/Lung Bill on November 5, 2010 by leslie@lawyertampa

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.

CITY OF PEMBROKE PINES and GALLAGHER BASSETT SERVICES, INC.,
Appellants,
v.
LESLIE ORTAGUS, JR.,
Appellee.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
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.

MARSTILLER, J.
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).
AFFIRMED.
WEBSTER and LEWIS, JJ., CONCUR.

Senate Bill 2176 – Treatment & Claim Deadlines

Posted in Heart/Lung Bill on July 3, 2010 by leslie@lawyertampa

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@lawyertampa

I’M LOOKING AT RETIRING IN ABOUT 3 YEARS ,I HAD A HEART ATTACK IN DEC 07 AND HAD 3 STENTS PUT IN AT THAT TIME AND ANOTHER LAST YEAR. I’M STILL EMPLOYED AS A DEPUTY, AFTER I RECEIVE MY DISABILITY RATING FROM MY DOCTOR WHICH SHOULD BE SOON . WILL I GET A CERTAIN AMOUNT EVERY MONTH DEPENDING ON THE RATING OR HOW DOES THIS WORK.

ANSWER:

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@lawyertampa

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?

ANSWER:

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.