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.

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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.

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.

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.

 

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.

Fibromyalgia and Social Security

Posted in Social Security Disability on August 10, 2008 by leslie@lawyertampa

Many of my clients learn through their physician that they may have developed fibromyalgia.  Most often this news comes from a rhumatologist, but in some cases it can come from a sharp primary care physician.  The diagnosis invariably comes after years of trying to pinpoint the cause of a host of medical problems. 

Fibromyalgia is often difficult to pinpoint because there is no specific test for the condition and the symptoms are often vague and seemingly unrelated.  Most clients report generalized body aches, tender points to the touch, fatigue, headaches and gastrointestional problems.  A condition that usually affects women, many patients have been passed from doctor to doctor without ever getting any definitive diagnosis.  They may be told they are depressed or going through menopause, but most women report a major shift in their health has occured and they don’t want to be told it’s all in their head.

By the time a client comes to me, there is usually a trail of doctors reports from unrelated specialties.  Primary care, orthopedics, gastrology, obgyn and neurology.  All with very little to offer.  If you have done your internet research you now know what you have and you may now need financial and medical help if you can no longer work.  If you are to the point where clerical work on a 40 hour a week basis is too much, an application for Social Security disability may be one of several options.

The disability application process is long and often frustrating, but with a little planning, a successful application on the basis of fibromyalgia is relatively easy.  The first step is to make sure you have access to medical care.  Social security claims may be pending for 2 to 3 years before approval and if you are not in medical treatment during the waiting period it can be much more difficult to prove your case.  You can COBRA you health benefits from your employer, get on your spouses insurance plan or seek county medical services.  If worse comes to worse go to a low cost clinic and work out a deal to pay cash for an appointment once a quarter.  A medical history of complaints is crucial to your case.

Second, having fibromyalgia creates a host of non-exertional complaints.  Social Security tends to classify physical complaints as either exertional (affecting your ability to sit, stand, lift, carry, walk etc.) and non-exertional (affecting you ability to see, hear, speak, concentrate etc.).  Many fibromylagia clients decribe headaches, irritable bowels, jaw pain, cramping, low energy or symptoms of depression.  Many of these complaints don’t neetly affect your ability to sit, stand, walk or carry.  They result in you having to lay down, run to the restroom or being so fatigued you can’t get off the couch. 

Those types of symptoms need to be relayed to your doctor and most importantly, written down in your medical chart.  This requires you telling your physician or their assistant that you need them to make notes in your chart about what you can and can’t do on a daily basis.  Tell your medical provider to log your complaints and make the same request each and every time you go see your doctor.  Having a series of consistent complants over a long period of time will assist the Judge who may hear your case find your complaints credible.  And credibility is 99% of the battle.

Fibromyalgia is a disease that’s a lot of little complaints.  I have a special form that I ask doctors to fill out that is specific for fibromyalgia alone.  The key to successful presentation of a fibromyalgia case, is to document all those symptoms over and over again and to get your doctor to appreciate how those symptoms affect you ability to work, cook, clean, drive a car, care for the kids, shop for groceries. That way when your doctor is asked to comment about your ability to work, the doctor’s own medical records form the foundation of their opinions.  An opinion from your doctor which is consistent with their own records is a winner every time.