PROTECTED CLASS
Robert Crystal v. State of Florida Department of Management Services, Division of Retirement, 21 So. 3d 134 (Fla. 1st DCA 2009)
In this case the claimant was a former Department of Corrections employee/inspector who sought retirement benefits. The claimant sought retirement benefits pursuant to Section 112.18(1), Florida Statutes. The commission found the claimant’s employment as an “classification officer” was not a special risk position under Section 121.0515 and therefore, the claimant was not eligible for the Section 112.18 presumption. The claimant sought to rely on Section 112.18(1) to support his argument that his hypertension was in the line of duty which would entitle him to disability benefits regardless of his years of service. The Court ultimately reasoned that the position of “classification officer” met the definition of “correctional officer” contained in Section 943.10(2) because the primary responsibility of the classification officer is the protection and custody of inmates, as well as the investigation of inmate activities and inmate disciplinary actions. The Court found these responsibilities fitting in the category of “supervision and protection, care, custody and control, or investigation of inmates” as set forth in Section 943.10(2). Because the claimant met the definition of correctional officer he was entitled to the benefit of the Section 112.18(1) presumption when pursuing his claim for disability benefits.
Messina v. Charlotte County Fire Rescue
This is a September 11, 2009 decision of Judge Kathy Sturgis. The claimant, Anthony Messina, began his career as a firefighter in August 1974. He pursued heart claims against prior employers and received a substantial settlement. He subsequently obtained employment with Charlotte County Fire Rescue and while in their employment on July 6, 2007 he suffered a myocardial infarction. The claimant testified that his primary job duties were not the prevention and extinguishing of fires, the enforcement of fire codes and fire laws, or the protection of life and property from fires. The claimant was precluded from those activities, and as a result the JCC ruled the claimant was not a firefighter/protected class member and Section 112.18 presumption was inapplicable. The JCC also found that the applicable pre-employment physical was one the claimant underwent in 2004 and not the one back in 1974. The 2004 physical showed evidence of the claimant’s heart disease/bypass surgery condition which also precluded application of the presumption.
See Mintus under rebuttal.
See Crowden under pre-employment physical.
PROTECTED CONDITION
See Shamp under disability.
See Crowden under pre-employment physical.
Folsom v. Marianne County Sheriff’s Department
JCC Harold decision, final order dated December 21, 2009. The claimant was diagnosed with neurocardiogenic syncope and the employer attempted to rebut the presumption, but was unable to do so as the only evidence they presented was medical testimony that the claimant had described feeling a similar sensation years earlier and that the claimant had a prior Holter monitor performed. The JCC also found that vaso- vagal syncope was heart disease based on Dr. Mathias’ testimony that the condition constitutes heart disease. Dr. Mathias testified the condition is a functional abnormality of the heart; originates in the vagal nerves which are part of the “loop” which originates in the right ventricle, is caused by a arrhythmia; is a precipitous drop in blood pressure; and responds to certain stimuli, such as stress, causes a person’s heart rate and blood pressure to drop precipitously, which causes the person to black out; and requires treatment by cardiac medications or “pacemaker” therapy.
DISABILITY
Richard Pena v. City of Gainesville, ____ So.3rd ______; 2009WL3766228; (Fla. 1st DCA 2009)
The 1st DCA per curium affirmed JCC Thurman’s final order dated April 9, 2009 wherein the claimant was diagnosed with essential hypertension for which there was no known cause. Neither the employer’s nor the claimant’s IME physicians assigned any work restrictions or took the claimant off work. In this case the
claimant testified that his truck was out of service for 8 hours while he was at the physician, but the claimant presented no other medical evidence that he was disabled. As a result the JCC ruled the claimant was not disabled and the presumption was not applicable.
Jacksonville Sheriff’s Office v. Shacklett, 15 So. 3d 859 (Fla. 1st DCA 2009)
This is a July 2009 1ST DCA decision. The JCC awarded compensability of the claimant’s hypertension pursuant to Section 112.18, Florida Statutes. The Appellate Court affirmed that the claimant’s essential hypertension was covered by the statute because the argument was not preserved for appeal. The claimant was employed as a law enforcement officer. The claimant was diagnosed with hypertension and was advised to stay off work until cleared by a cardiologist. The claimant was ultimately diagnosed with benign essential hypertension. The claimant was released to his normal duties without any functional limitations. The parties stipulated there was no written documentation that the claimant was taken out of work due to hypertension. The Court found that the claimant was not actually incapacitated, partially or totally from performing his employment and therefore was not disabled. The presumption was not applicable and the
Court reversed the JCC’s ruling of compensability.
Jakeo v. City of Lakeland
This is a August 14, 2009 JCC Roesch decision. The claimant is a sergeant with the Lakeland Police Department hired in June 1997. The JCC accepted Dr. Mathias’ opinion that a one time blood pressure reading at the time of the pre-employment physical was not evidence of hypertension. However, the judge found that the claimant’s essential hypertension condition did not result in disability. The judge noted that the claimant may have been disabled due to a pseudo aneurysm in the aftermath of a cardiac catheterization but there was no evidence the claimant was disabled because of essential hypertension.
Shamp v. Flagler Beach Police Department
This is a September 21, 2009 Judge Portuallo decision. The claimant was employed as a police officer with Flagler Beach. The claimant was involved in a serious motor vehicle accident and the employer provided treatment for his injuries. As part of the motor vehicle accident the claimant was evaluated by a cardiologist, but the employer denied continued cardiac treatment. The claimant sought compensability of the claimant’s cardiac conditions either per Section 112.18 or as related to the motor vehicle accident. The claimant was diagnosed with palpitations, but there was no medical evidence that the palpitations were from an arrhythmia or other heart condition. Section 112.18 was not applicable because the claimant did not suffer a protected condition. Further, the claimant failed to present any competent evidence that he was disabled as a result of the palpitation condition. The claimant’s missed time from work for evaluations and treatment of his condition were not disability. The claimant’s hypertension was not covered by Section 112.18 because the claimant did not prove that it was arterial or cardiovascular hypertension. Notwithstanding that fact, the claimant was not disabled as a result of hypertension. The claimant missed work for evaluation of his hypertension condition, and not as a direct result of the hypertension condition.
Barr v. City of St. Petersburg
This is an October 5, 2009 JCC Hafner decision. The claimant was a police officer employed with the City of St. Petersburg since 1981. He underwent a pre-employment physical without evidence of hypertension. In 2007 he was diagnosed with hypertension. In this case the claimant was disabled for kidney stones and missed time from work. Subsequently the claimant was diagnosed with hypertension, but never taken off of work by his treating physician. The claimant presented evidence of Dr. Mathias, who saw the claimant one year later, that the claimant would have been off work until his blood pressure was controlled. The Court rejected Dr. Mathias’ retrospective opinions because the physicians who treated the claimant during the acute phase of the hypertension diagnosis did not take the claimant off work, even though bringing the claimant’s pressure under control took months and trials of more than one medication to accomplish. The JCC denied application of the Section 112.18 presumption because the claimant failed to present evidence of “disability”.
Nelson v. Jacksonville Sheriff’s Office
This is an October 15, 2009 JCC decision from Judge Rosen. The claimant was a corrections officer who worked for the City of Jacksonville since December 1991. The claimant was subsequently diagnosed with hypertension in 1996. The claimant presented no evidence that she missed work as a result of hypertension or its sequelae. The claimant presented evidence she was disabled from headaches and asserted the headaches were caused by the hypertension. The judge found the claimant failed to present any competent evidence that the hypertension caused her headaches. The claimant failed to present any evidence that she was independently disabled as a result of hypertension. As a result the JCC ruled the presumption was not applicable and denied the claim.
Dibernardo v. Miami-Dade County, (Fla. 1st DCA 2009 unpublished opinion #1D09-1588)
On October 29, 2009 the 1st DCA PCA affirmed JCC Castiello’s decision. The claimant was a law enforcement officer who experienced chest discomfort on April 17 and April 21, 2007. He did not miss work. The claimant subsequently went for a stress test on April 30, 2007 and upon receipt to of the stress test results, the claimant’s treating physician referred him to a cardiologist for evaluation. The claimant subsequently underwent cardiac catherization on May 9, 2007 and missed that day as well as the following two days of work. The claimant spent the weekend at home and returned to work on Monday, May 14, 2007. The JCC ruled the claimant was not disabled because time missed from work for medical/diagnostic treatment alone does not constitute disability per Bivins v. Lakeland.
Porcelli v. City of Orlando Fire Department, (Fla. 1st DCA 2009 unpublished opinion #1D08-6210)
This is an October 30, 1st First DCA decision where the Court per curium affirmed a JCC Condry order dated October 10, 2008 which denied application of the Section 112.18 presumption because the claimant was not disabled. In this case the claimant underwent cardiac catheterization and missed work, but was not disabled due to the heart disease condition. The heart catheterization was for diagnostic purposes only and in this case the claimant only had minimal plaquing which was not enough by itself to prevent the claimant from doing his job.
Falles v. Hillsboro County Fire Rescue
This is a November 3, 2009 JCC Lorenzen decision where the employer provided treatment for the claimant’s hypertension condition for more than 120 days. JCC Lorenzen ruled that due to Section 440.20(4), the 120 day rule, the employer was estopped from denying compensability. Notwithstanding the JCC’s decision per Section 440.20(4) the JCC also ruled the claimant was disabled from work for a period of three days because of high blood pressure. The JCC ruled the waiting period did not apply and three days of missed work was sufficient to meet the requirement that the claimant suffer a loss of ability to earn.
Ortagus v. Pembroke Pines Fire Department
This is a November 6, 2009 JCC Hogan decision. Pursuant to Section 112.18, the claimant claimed a compensable hypertension condition with a date of accident of May 11, 2005. The claimant was employed as a firefighter with the City of Pembroke Pines. On August 21, 2008 after providing benefits for the claimant’s hypertension condition the employer denied the compensability and asserted the claimant was no longer disabled as a result of hypertension and therefore the presumption no longer applied. The employer acknowledged that they initially accepted compensability of the claimant’s condition. Judge Hogan ultimately granted the claimant’s request for authorization, evaluation and treatment with a Board Certified Cardiologist to treat the claimant’s heart disease and hypertension.
Michael Hones v. City of Pembroke Pines
This is a December 11, 2009 decision from JCC Pecko in Ft. Lauderdale. In this case, the claimant was a law enforcement officer who started with the employer in 1991. The claimant passed a pre-employment physical without evidence of hypertension. On October 24, 2006, the claimant suffered a hypertensive episode at work and was instructed to go to the hospital. The claimant testified he was unable to work on the date of the accident and he missed two or three hours of work and went home. He was given medication and oxygen at the hospital. The claimant followed up with his general practitioner physician who treated him with medication and did not restrict him from performing any of his work duties as a police officer. The employer provided workers’ compensation treatment for the claimant’s hypertension until several months before the hearing. The workers’ compensation authorized cardiologist confirmed the claimant had hypertension. The workers’ compensation cardiologist opined the claimant’s hypertension was stable and under good control. The claimant was placed at MMI on December 18, 2006 with a 0% PPI. The claimant had no restrictions. The facts established the employer paid medical benefits on the claim for approximately two years and three months. The employer sent a 120 day letter to the claimant on November 14, 2006. The adjuster responded to a December 2006 Petition for Benefits by indicating medical care was being provided. The employer decided to terminate the claimant’s benefits on November 2, 2008. The basis of the denial was that the claimant suffered no lost time or disablement. No restrictions were imposed and the claimant was a MMI with a 0% PPI. The adjuster felt the presumption ended. The employer did not deny compensability within 120 days and accepted hypertension as compensable as related to the industrial accident. The JCC ruled the presumption did not require continued disability and did not vanish when the claimant returned to work without restrictions or reached MMI.