Archive for the Workers’ compensation Category

New Twist on the Heart/Lung Presumption

Posted in Workers' compensation on March 13, 2010 by leslie@lawyertampa

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.

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Understanding Florida Statute 112.181 – Communicable diseases

Posted in Workers' compensation on November 9, 2009 by leslie@lawyertampa

Florida Statute 112.181 is designed to give a presumption of compensability to first responders who contract communicable diseases.  This includes  firefighters, paramedics, EMT’s, police and  and correctional officers.

This statute differs from the normal workers’ compensation  exposure statute in that proof of the source of the exposure is not required, nor is proof of a higher incidence among a particular profession at issue.

More likely than not, most emergency workers had a pre-employment physical as part of the employment process.  If a worker had a blood borne disease discovered as part of the physical, the worker will never be covered for that particular problem.

If, during the course of employment, an employee tests positive for hepatitis, TB or any disease which can be transmitted by blood , saliva, or any other body fluid, it will be presumed to have been contracted during the course of employment.  The employee however, must complete an affidavit which states he or she hasn’t been exposed  to a person outside of work with a known blood disease; had a transfusion of blood or blood components (other than their own); engaged in unsafe sex or used IV  drugs.

 This statute’s presumption is also rebuttable, just like the heart/lung bill, so let’s look at a few pitfalls common to these cases.

1) If you make a claim, you need to sign an affidavit that mentions all the above factors.  Making a false claim can now subject you to penalties for fraud, not only sinking your workers’ compensation case, but making you subject to criminal penalties.

2) Once you make a claim you open up all your prior medical records to scruinity.  So if you reported to a doctor or psychiatrist the use of IV drugs, treatment for an STD, children out of wedlock, a prior surgery which required blood or bone grafting, piercings or tatoos, it’s all fodder for the defense, unless you’ve been TESTED.

The simplist way to protect yourself is to get a full blown blood testing and TB screening once a year, and report every incidence of unintended fluid transfer.  Every time a victim, suspect or inmate bleeds, bites, spits or throws something on you, file an incident report.  Remember HIV, hepatitis and may other blood borne diseases have incubation periods and may not show up for many months.

Having the blood testing done once a year will narrow the window of exposure.  These diseases can also be expensive to treat over a lifetime and so they are vigorously defended.  Many first responders are young, unmarried and sexually active.  You do not want to find yourself being deposed by a lawyer asking the names of your sexual partners for the last ten years.  Having a blood test once a year means you may have a shorter list of names to remember, and don’t think you won’t be asked.

Second, try to aviod unprotected sex if you are not in a monogomous relationship.  Some of these diseases are deadly, and if you look back in most peoples medical records you can usually find some problem that required penicillin…. That’s a case ender.

So get tested annually, report every occurrence, and avoid unprotected sex.

Florida Workers’ compensation and exposure cases

Posted in Workers' compensation on August 16, 2008 by leslie@lawyertampa

One of the amendments to the 2003 workers compensation statute in Florida was to change the standard for proving exposure cases.  An exposure case is any case in which a worker is exposed to a substance that can cause harm.  Just about any chemical, hazardous or not, can inflict damage depending on the concentration of the chemical and the duration of exposure.

Most workers have an exposure to a known chemical.  In some cases, like a firefighter entering a burning building, there may be an exposure to an unknown substance.  In either case, the employee bears the burden of proving exposure to a substance in sufficient concentration and for a sufficient duration to cause the harm suffered.  In many cases the worker can prove what he/she was exposed to, perhaps even the duration, but it is the concentration that is often difficult, if not impossible to prove.

Unless your work place is monitored for air quality or you wear a personal monitoring device, the ability to prove concentration is almost non-existent, and yet that is precisely what the injured worker must do.  In order to prove this element, scientific or medical testimony is required.  That testimony must prove up the duration/concentration requirements and must prove it by clear and convincing evidence, which is a higher standard than the normal competent and substantial evidence required in every other case.

This type of scientific evidence may require re-creating the workers’ actual work place incident or using empirical evidence common to the industry.  Regardless, this type of testimony is expensive.  So unless the worker requires lasting, expensive medical care, the attorney involved in the claim is unlikely to put up the $5,000 to $10,000 required to pull an environmental or toxicological expert into the fray.  It is just cost preclusive to try to prosecute minor exposure cases under the current statute.

Before the changes in 2003, the court had some ability to use the logical cause doctrine.  If you got a spray in the face of chlorine gas and developed a breathing problem you never had before, 1 + 1 = 2.  You could draw an inference.  Now you would have to prove the concentration you got sprayed with and under most situations this is all but impossible.  This is why they call them “accidents”.

If you’ve been exposed and the insurance carrier wants to deny your claim, get some quality assistance right away.  Both from a pulmonologist and a lawyer.