41
Fla. L. Weekly D589cTop of Form
Fla. L. Weekly D589cTop of Form
Workers’
compensation — Compensable accidents — Heart disease — Presumption of
compensability — Firefighters — Judge of compensation claims did not apply
correct analysis when it found that employer/carrier had successfully rebutted
presumption of occupational causation of fire safety officer’s tachycardia —
Evidence that claimant’s arterioventricular node reentrant tachycardia involved
congenital abnormality of heart was sufficient to rebut statutory presumption
of compensability, but was insufficient to actually overcome the presumption in
absence of competent evidence that event that triggered claimant’s tachycardia
was non-occupational — Where the claimant’s heart disease was identified as
AVNRT, it was necessary to address both the physiological abnormality and the
cause of the trigger in determining whether presumption of compensability was
overcome
compensation — Compensable accidents — Heart disease — Presumption of
compensability — Firefighters — Judge of compensation claims did not apply
correct analysis when it found that employer/carrier had successfully rebutted
presumption of occupational causation of fire safety officer’s tachycardia —
Evidence that claimant’s arterioventricular node reentrant tachycardia involved
congenital abnormality of heart was sufficient to rebut statutory presumption
of compensability, but was insufficient to actually overcome the presumption in
absence of competent evidence that event that triggered claimant’s tachycardia
was non-occupational — Where the claimant’s heart disease was identified as
AVNRT, it was necessary to address both the physiological abnormality and the
cause of the trigger in determining whether presumption of compensability was
overcome
BRIAN GONZALEZ, Appellant, v. ST. LUCIE COUNTY-FIRE
DISTRICT/FLORIDA MUNICIPAL INSURANCE TRUST-FLORIDA LEAGUE OF CITIES, INC.,
Appellee. 1st District. Case No. 1D15-3185. Opinion filed March 8, 2016. An
appeal from an order of the Judge of Compensation Claims. Robert D. McAliley,
Judge. Date of Accident: September 4, 2013. Counsel: Bill McCabe, Longwood, and
Tonya A. Oliver of Bichler, Kelley, Oliver, Longo & Fox, PLLC, Tampa, for
Appellant. Alan D. Kalinoski and Lamar D. Oxford of Dean, Ringers, Morgan &
Lawton, Orlando, for Appellee.
DISTRICT/FLORIDA MUNICIPAL INSURANCE TRUST-FLORIDA LEAGUE OF CITIES, INC.,
Appellee. 1st District. Case No. 1D15-3185. Opinion filed March 8, 2016. An
appeal from an order of the Judge of Compensation Claims. Robert D. McAliley,
Judge. Date of Accident: September 4, 2013. Counsel: Bill McCabe, Longwood, and
Tonya A. Oliver of Bichler, Kelley, Oliver, Longo & Fox, PLLC, Tampa, for
Appellant. Alan D. Kalinoski and Lamar D. Oxford of Dean, Ringers, Morgan &
Lawton, Orlando, for Appellee.
(PER CURIAM.) In this workers’ compensation case, Claimant,
a safety officer with the fire department, appeals the denial of his claim for
a determination of compensable heart disease under paragraph 112.18, Florida
Statutes (2013).* In the final order denying the claim, the Judge of
Compensation Claims (JCC) found that the Employer/Carrier (E/C) successfully
rebutted the presumption of occupational causation afforded Claimant under the
statute. Because the JCC did not apply the correct analysis, we reverse and
remand.
a safety officer with the fire department, appeals the denial of his claim for
a determination of compensable heart disease under paragraph 112.18, Florida
Statutes (2013).* In the final order denying the claim, the Judge of
Compensation Claims (JCC) found that the Employer/Carrier (E/C) successfully
rebutted the presumption of occupational causation afforded Claimant under the
statute. Because the JCC did not apply the correct analysis, we reverse and
remand.
I
On September 4, 2013, Claimant was called to respond to a
residential fire. While other firefighters fought the fire, Claimant performed
his duties of walking around the premises looking for entrapping structures. He
wore “full bunker gear,” including helmet, hood, mask, and oxygen tank, with a
total weight of 60 to 70 pounds. When Claimant later entered the structure to
determine what could be salvaged, he became very lightheaded and felt his heart
race. Cardiac monitoring revealed that Claimant was experiencing
superventricular tachycardia (a rapid heart rate). He was subsequently
diagnosed with an abnormal heart rhythm known as arterioventricular node
reentrant tachycardia (AVNRT) — the condition for which Claimant claims
compensability. He eventually underwent ablation surgery and is now essentially
cured.
residential fire. While other firefighters fought the fire, Claimant performed
his duties of walking around the premises looking for entrapping structures. He
wore “full bunker gear,” including helmet, hood, mask, and oxygen tank, with a
total weight of 60 to 70 pounds. When Claimant later entered the structure to
determine what could be salvaged, he became very lightheaded and felt his heart
race. Cardiac monitoring revealed that Claimant was experiencing
superventricular tachycardia (a rapid heart rate). He was subsequently
diagnosed with an abnormal heart rhythm known as arterioventricular node
reentrant tachycardia (AVNRT) — the condition for which Claimant claims
compensability. He eventually underwent ablation surgery and is now essentially
cured.
The consensus medical opinion here establishes that AVNRT is
heart disease involving a congenital abnormality of the heart characterized by
an extra electrical pathway (dual AV node physiology) which causes tachycardia
when there is a triggering event. Because some people born with the abnormality
never experience the tachycardia, the diagnosis of AVNRT requires both the
congenital abnormality and the triggering event for the episode of tachycardia.
Dr. Borzak, Claimant’s independent medical examiner (IME), opined that the
triggering event for Claimant’s episode of tachycardia on September 4, 2013,
was the adrenaline from the exertion he expended that day while working.
Although Dr. Borzak conceded that Claimant’s work activities were not at the
highest level of exertion that day, he explained that there is no perfect
correspondence between the level of exertion and the instance of tachycardia.
Somewhat counterintuitively, Dr. Borzak also testified that laboratory testing
showed that Claimant’s tachycardia could only be induced and sustained with
aggressive stimulation protocol: i.e., high adrenaline levels.
heart disease involving a congenital abnormality of the heart characterized by
an extra electrical pathway (dual AV node physiology) which causes tachycardia
when there is a triggering event. Because some people born with the abnormality
never experience the tachycardia, the diagnosis of AVNRT requires both the
congenital abnormality and the triggering event for the episode of tachycardia.
Dr. Borzak, Claimant’s independent medical examiner (IME), opined that the
triggering event for Claimant’s episode of tachycardia on September 4, 2013,
was the adrenaline from the exertion he expended that day while working.
Although Dr. Borzak conceded that Claimant’s work activities were not at the
highest level of exertion that day, he explained that there is no perfect
correspondence between the level of exertion and the instance of tachycardia.
Somewhat counterintuitively, Dr. Borzak also testified that laboratory testing
showed that Claimant’s tachycardia could only be induced and sustained with
aggressive stimulation protocol: i.e., high adrenaline levels.
By contrast, Dr. Perloff opined that there was nothing about
what Claimant did as a firefighter that could be identified as the cause of the
AVNRT. According to Dr. Perloff, as people age, they develop fibrous ingrowth
into the AV node which may slow conduction velocity enough to support the
abnormal heart rate so that AVNRT presents at different stages of life; the
specific triggering event is often unknown. Dr. Perloff testified that there
was no medical evidence that emotional stress could ever be a trigger, but
nevertheless acknowledged that physical exertion could have triggered of
Claimant’s tachycardia. Significantly, Dr. Perloff testified that there is no
medical literature linking AVNRT to occupation and no medical data to support a
finding that Claimant’s job was the trigger of the abnormal rhythm.
what Claimant did as a firefighter that could be identified as the cause of the
AVNRT. According to Dr. Perloff, as people age, they develop fibrous ingrowth
into the AV node which may slow conduction velocity enough to support the
abnormal heart rate so that AVNRT presents at different stages of life; the
specific triggering event is often unknown. Dr. Perloff testified that there
was no medical evidence that emotional stress could ever be a trigger, but
nevertheless acknowledged that physical exertion could have triggered of
Claimant’s tachycardia. Significantly, Dr. Perloff testified that there is no
medical literature linking AVNRT to occupation and no medical data to support a
finding that Claimant’s job was the trigger of the abnormal rhythm.
II
Here, although the JCC afforded Claimant the statutory
presumption of compensability of his heart disease, he ultimately found that
the E/C successfully rebutted the presumption. Our review of the JCC’s findings
as to the rebuttal of the presumption under paragraph 112.18(1)(a) is to
determine whether CSE supports whatever decision is reached by the JCC as the
finder of fact. See Punsky v. Clay Cty. Sheriff’s Office, 18 So.
3d 577, 584 (Fla. 1st DCA 2009).
presumption of compensability of his heart disease, he ultimately found that
the E/C successfully rebutted the presumption. Our review of the JCC’s findings
as to the rebuttal of the presumption under paragraph 112.18(1)(a) is to
determine whether CSE supports whatever decision is reached by the JCC as the
finder of fact. See Punsky v. Clay Cty. Sheriff’s Office, 18 So.
3d 577, 584 (Fla. 1st DCA 2009).
In Punsky, this court held that the level of proof
necessary to rebut the presumption depends on the circumstances. Id. at
579. Where a claimant relies solely on the presumption to support the claim,
the E/C can rebut the presumption with competent evidence; however, where
“there is evidence supporting the presumption which is accepted as credible
by the JCC [then] clear and convincing evidence would be required. . . .” See
Johns E. Co. v. Bellamy, 137 So. 3d 1058, 1058-59 (Fla. 1st DCA 2014)
(citing Punsky, 18 So. 3d at 579, 584 (emphasis supplied)). In this
case, the JCC expressly found that the E/C successfully rebutted the
presumption under either evidentiary standard: competent evidence or clear and
convincing evidence.
necessary to rebut the presumption depends on the circumstances. Id. at
579. Where a claimant relies solely on the presumption to support the claim,
the E/C can rebut the presumption with competent evidence; however, where
“there is evidence supporting the presumption which is accepted as credible
by the JCC [then] clear and convincing evidence would be required. . . .” See
Johns E. Co. v. Bellamy, 137 So. 3d 1058, 1058-59 (Fla. 1st DCA 2014)
(citing Punsky, 18 So. 3d at 579, 584 (emphasis supplied)). In this
case, the JCC expressly found that the E/C successfully rebutted the
presumption under either evidentiary standard: competent evidence or clear and
convincing evidence.
In this case, Claimant did not rely solely on the
presumption, but also presented Dr. Borzak’s testimony in support of an
occupational cause; thus, the E/C had to establish that the cause of trigger
was either non-occupational or that there was a specific non-occupational cause
for it. In contrast to Dr. Perloff’s testimony, Dr. Borzak identified the
adrenaline associated with Claimant’s work activities on September 4, 2013, as
the trigger for the episode of tachycardia that day. Ultimately, the JCC found
that Dr. Borzak only presumed Claimant had high adrenaline levels that
day and “did not explain why claimant, who had been in the fire service for 13
years and also presumably had many occasions both on and off the job to
experience events that raised his adrenaline level, prompted [sic] this
particular episode of AVNRT.” In workers’ compensation law, “[i]t is well
established that the [JCC] determines credibility, resolves conflicts in the
evidence, and may accept the testimony of one physician over that of several
others.” City of W. Palm Beach Fire Dep’t v. Norman, 711 So. 2d 628, 629
(Fla. 1st DCA 1998).
presumption, but also presented Dr. Borzak’s testimony in support of an
occupational cause; thus, the E/C had to establish that the cause of trigger
was either non-occupational or that there was a specific non-occupational cause
for it. In contrast to Dr. Perloff’s testimony, Dr. Borzak identified the
adrenaline associated with Claimant’s work activities on September 4, 2013, as
the trigger for the episode of tachycardia that day. Ultimately, the JCC found
that Dr. Borzak only presumed Claimant had high adrenaline levels that
day and “did not explain why claimant, who had been in the fire service for 13
years and also presumably had many occasions both on and off the job to
experience events that raised his adrenaline level, prompted [sic] this
particular episode of AVNRT.” In workers’ compensation law, “[i]t is well
established that the [JCC] determines credibility, resolves conflicts in the
evidence, and may accept the testimony of one physician over that of several
others.” City of W. Palm Beach Fire Dep’t v. Norman, 711 So. 2d 628, 629
(Fla. 1st DCA 1998).
Although the JCC here did not expressly accept Dr. Perloff’s
opinion, he gave a reason why he rejected Dr. Borzak’s opinion; even when a
doctor’s testimony is unrefuted, the JCC may reject the testimony as unreliable
so long as the JCC gives a reason. See Vadala v. Polk Cty. Sch. Bd.,
822 So. 2d 582, 584 (Fla. 1st DCA 2002). Because the JCC here essentially
rejected Dr. Borzak’s opinion — the only evidence of an occupational cause
beyond that of the presumption — as not credible, the lesser standard of
competent evidence will apply here to rebut the presumption. See Punsky,
18 So. 3d at 584 (“It is only when there is evidence supporting the presumption
which is accepted as credible by the JCC that clear and convincing evidence
would be required to be found by the JCC . . . to rebut the statutory
presumption.”).
opinion, he gave a reason why he rejected Dr. Borzak’s opinion; even when a
doctor’s testimony is unrefuted, the JCC may reject the testimony as unreliable
so long as the JCC gives a reason. See Vadala v. Polk Cty. Sch. Bd.,
822 So. 2d 582, 584 (Fla. 1st DCA 2002). Because the JCC here essentially
rejected Dr. Borzak’s opinion — the only evidence of an occupational cause
beyond that of the presumption — as not credible, the lesser standard of
competent evidence will apply here to rebut the presumption. See Punsky,
18 So. 3d at 584 (“It is only when there is evidence supporting the presumption
which is accepted as credible by the JCC that clear and convincing evidence
would be required to be found by the JCC . . . to rebut the statutory
presumption.”).
III
Recently, in Mitchell v. Miami Dade County, Case No.
1D15-2153 (Fla. 1st DCA Feb. 23, 2016) [41 Fla. L. Weekly D454a] (Mitchell
II), this court addressed the statutory presumption in the context of a
claim involving the same dual AV node physiology and with similar medical
evidence regarding the need for both the congenital abnormality and a trigger
to bring on the tachycardia, and set forth the proper analysis when the
evidence includes a complicating factor of a trigger. As the Mitchell II
court explained, medical evidence of the congenital condition is sufficient to
rebut the presumption but, because the presumption does not disappear when the
presumption is rebutted, the employer/carrier also bears the burden of overcoming
the presumption by competent evidence that the trigger is also
non-occupational. Id.
1D15-2153 (Fla. 1st DCA Feb. 23, 2016) [41 Fla. L. Weekly D454a] (Mitchell
II), this court addressed the statutory presumption in the context of a
claim involving the same dual AV node physiology and with similar medical
evidence regarding the need for both the congenital abnormality and a trigger
to bring on the tachycardia, and set forth the proper analysis when the
evidence includes a complicating factor of a trigger. As the Mitchell II
court explained, medical evidence of the congenital condition is sufficient to
rebut the presumption but, because the presumption does not disappear when the
presumption is rebutted, the employer/carrier also bears the burden of overcoming
the presumption by competent evidence that the trigger is also
non-occupational. Id.
Here, as a part of his findings, the JCC concluded that
Claimant’s congenital condition is the heart disease, which is contrary to the
medical evidence. Instead, the evidence establishes that the AVNRT is the heart
disease. Thus, as in Mitchell II, both factors identified as necessary
to produce the heart disease of AVNRT — the physiological abnormality and the
trigger — must be addressed. In other words, although the congenital nature of
the physiological abnormality is sufficient to rebut the presumption, the cause
of the trigger must also be determined.
Claimant’s congenital condition is the heart disease, which is contrary to the
medical evidence. Instead, the evidence establishes that the AVNRT is the heart
disease. Thus, as in Mitchell II, both factors identified as necessary
to produce the heart disease of AVNRT — the physiological abnormality and the
trigger — must be addressed. In other words, although the congenital nature of
the physiological abnormality is sufficient to rebut the presumption, the cause
of the trigger must also be determined.
In the instant case, the medical opinions conflict
concerning the cause of the trigger. Although the JCC clearly rejected Dr.
Borzak’s opinion concerning a specific occupational cause of the trigger, he
did not make a specific finding regarding whether the E/C overcame the
presumption by establishing that there is one or more possible non-occupational
causes for the trigger or that there are no occupational causes. The JCC,
however, did not have the benefit of the analysis articulated in Mitchell II.
concerning the cause of the trigger. Although the JCC clearly rejected Dr.
Borzak’s opinion concerning a specific occupational cause of the trigger, he
did not make a specific finding regarding whether the E/C overcame the
presumption by establishing that there is one or more possible non-occupational
causes for the trigger or that there are no occupational causes. The JCC,
however, did not have the benefit of the analysis articulated in Mitchell II.
We, therefore, REVERSE and REMAND for further consideration
in accordance with the analysis set forth in Mitchell II and this
opinion. (WOLF, WETHERELL, and RAY, JJ., CONCUR.)
in accordance with the analysis set forth in Mitchell II and this
opinion. (WOLF, WETHERELL, and RAY, JJ., CONCUR.)
__________________
*“Any condition or impairment of health of any . . .
firefighter . . . caused by . . . heart disease . . . 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.” § 112.18(1)(a), Fla. Stat. (2013).
firefighter . . . caused by . . . heart disease . . . 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.” § 112.18(1)(a), Fla. Stat. (2013).