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Fla. L. Weekly D865dTop of Form
Fla. L. Weekly D865dTop of Form
Workers’
compensation — Compensable accidents — Heart condition — Firefighters —
Presumption of compensability — Rebuttal of presumption — Where claimant
asserted a presumption-only claim, employer’s burden on rebuttal was competent
evidence that disease was not work related — E/C met its threshold rebuttal
standard by presenting medical expert’s testimony that claimant’s coronary
artery disease was caused by non-work-related factors — Major contributing
cause is not a component of E/C’s rebuttal threshold, and medical expert was
not required to opine as to major contributing cause — Although E/C satisfied
its rebuttal standard by introducing competent evidence that the causative
factors of claimant’s coronary artery disease were non-work-related, the
presumption of compensability prevails where E/C failed to overcome the
presumption of the triggering event — E/C failed to show by competent evidence
that possible factors causing the trigger event, a plaque rupture, were
non-work-related
compensation — Compensable accidents — Heart condition — Firefighters —
Presumption of compensability — Rebuttal of presumption — Where claimant
asserted a presumption-only claim, employer’s burden on rebuttal was competent
evidence that disease was not work related — E/C met its threshold rebuttal
standard by presenting medical expert’s testimony that claimant’s coronary
artery disease was caused by non-work-related factors — Major contributing
cause is not a component of E/C’s rebuttal threshold, and medical expert was
not required to opine as to major contributing cause — Although E/C satisfied
its rebuttal standard by introducing competent evidence that the causative
factors of claimant’s coronary artery disease were non-work-related, the
presumption of compensability prevails where E/C failed to overcome the
presumption of the triggering event — E/C failed to show by competent evidence
that possible factors causing the trigger event, a plaque rupture, were
non-work-related
CITY
OF JACKSONVILLE/ CITY OF JACKSONVILLE RISK MANAGEMENT, Appellants, v. ROBERT
RATLIFF, Appellee. 1st District. Case No. 1D15-5844. Opinion filed April 13,
2017. An appeal from an order of the Judge of Compensation Claims. William R.
Holley, Judge. Date of Accident: November 17, 2014. Counsel: Thomas G.
Portuallo of Eraclides, Gelman, Hall, Indek, Goodman & Waters, Jacksonville,
for Appellants. John J. Schickel of Coker, Schickel, Sorenson, Posgay,
Camerlengo & Iracki, Jacksonville, and Bryan S. Gowdy and Meredith A. Ross
of Creed & Gowdy, P.A., Jacksonville, for Appellee.
OF JACKSONVILLE/ CITY OF JACKSONVILLE RISK MANAGEMENT, Appellants, v. ROBERT
RATLIFF, Appellee. 1st District. Case No. 1D15-5844. Opinion filed April 13,
2017. An appeal from an order of the Judge of Compensation Claims. William R.
Holley, Judge. Date of Accident: November 17, 2014. Counsel: Thomas G.
Portuallo of Eraclides, Gelman, Hall, Indek, Goodman & Waters, Jacksonville,
for Appellants. John J. Schickel of Coker, Schickel, Sorenson, Posgay,
Camerlengo & Iracki, Jacksonville, and Bryan S. Gowdy and Meredith A. Ross
of Creed & Gowdy, P.A., Jacksonville, for Appellee.
(THOMAS,
M.K., J.) In this workers’ compensation appeal, the Employer/Carrier (E/C)
challenges an order awarding the Claimant, a firefighter, entitlement to
compensability of his heart condition and related medical treatment under the
“heart-lung” statute, section 112.18, Florida Statutes (2014). The Claimant did
not appeal the JCC’s denial of compensability of an alleged hypertension
condition. We affirm in result because we find the E/C failed to sustain its
burden of proof in one respect, but write to clarify application of section
112.18(1) regarding the shifting burdens of proof and required quantum of
evidence. As the Claimant asserted a presumption-only claim, the E/C’s burden
on rebuttal is competent evidence. Major contributing cause (MCC) is not a
component of the E/C’s rebuttal threshold. However, under these facts, the E/C
must also rebut, by competent evidence, the presumption of the “triggering
event.” We find the E/C failed to rebut this second aspect of the presumption.
M.K., J.) In this workers’ compensation appeal, the Employer/Carrier (E/C)
challenges an order awarding the Claimant, a firefighter, entitlement to
compensability of his heart condition and related medical treatment under the
“heart-lung” statute, section 112.18, Florida Statutes (2014). The Claimant did
not appeal the JCC’s denial of compensability of an alleged hypertension
condition. We affirm in result because we find the E/C failed to sustain its
burden of proof in one respect, but write to clarify application of section
112.18(1) regarding the shifting burdens of proof and required quantum of
evidence. As the Claimant asserted a presumption-only claim, the E/C’s burden
on rebuttal is competent evidence. Major contributing cause (MCC) is not a
component of the E/C’s rebuttal threshold. However, under these facts, the E/C
must also rebut, by competent evidence, the presumption of the “triggering
event.” We find the E/C failed to rebut this second aspect of the presumption.
I. Facts
The
Claimant, a firefighter for twenty-six years, suffered an anterior wall
myocardial infarction while at work on November 17, 2014. On that day, he
attended a meeting in which a disagreement arose as to building code
requirements. The Claimant characterized the atmosphere as “back and forth” and
extremely stressful, but noted he did not consider the discussion a heated
argument. During the meeting, the Claimant began to experience discomfort and
chest pain. After the meeting, he sought medical care and was admitted to the
hospital. The Claimant was ultimately diagnosed with coronary artery disease
(CAD) and acute anterior wall myocardial infarction. The E/C accepted
compensability under the “120 day rule” and authorized continued medical care
with Dr. Dietzius upon Claimant’s release from the hospital. See §
440.20(4), Fla. Stat. However, the E/C later denied compensability of the
“accident” and cardiac conditions.
Claimant, a firefighter for twenty-six years, suffered an anterior wall
myocardial infarction while at work on November 17, 2014. On that day, he
attended a meeting in which a disagreement arose as to building code
requirements. The Claimant characterized the atmosphere as “back and forth” and
extremely stressful, but noted he did not consider the discussion a heated
argument. During the meeting, the Claimant began to experience discomfort and
chest pain. After the meeting, he sought medical care and was admitted to the
hospital. The Claimant was ultimately diagnosed with coronary artery disease
(CAD) and acute anterior wall myocardial infarction. The E/C accepted
compensability under the “120 day rule” and authorized continued medical care
with Dr. Dietzius upon Claimant’s release from the hospital. See §
440.20(4), Fla. Stat. However, the E/C later denied compensability of the
“accident” and cardiac conditions.
The
Claimant qualified for the “heart-lung” presumption under section 112.18(1),
having no evidence of heart disease on his pre-employment physical, among other
prerequisites. The Claimant asserted compensability of the heart condition on a
“presumption only” basis; or in other words, the Claimant had no medical
evidence of occupational causation and relied solely on the presumption of the
“heart-lung” statute.
Claimant qualified for the “heart-lung” presumption under section 112.18(1),
having no evidence of heart disease on his pre-employment physical, among other
prerequisites. The Claimant asserted compensability of the heart condition on a
“presumption only” basis; or in other words, the Claimant had no medical
evidence of occupational causation and relied solely on the presumption of the
“heart-lung” statute.
The
Claimant’s IME cardiologist, Dr. Schimmel, and the E/C’s expert cardiologist,
Dr. Dietzius, both testified via deposition. The record supports that Drs.
Dietzius and Schimmel noted the Claimant’s pre-existing history of diabetes,
high cholesterol, prior history of smoking, and a family history of early onset
CAD, among other pre-existing factors. Dr. Dietzius testified the Claimant
suffered from multiple risk factors for development of CAD. In his opinion,
these factors had risen, within a reasonable degree of medical certainty, to
the level of causative factors for the Claimant’s CAD and were not
related to work.1 He testified, “. . . given his risk
factors of hyperlipidemia and diabetes, which I do not believe are related to
his work, I believe that his risk factors contribute to his coronary artery
disease over his work.”
Claimant’s IME cardiologist, Dr. Schimmel, and the E/C’s expert cardiologist,
Dr. Dietzius, both testified via deposition. The record supports that Drs.
Dietzius and Schimmel noted the Claimant’s pre-existing history of diabetes,
high cholesterol, prior history of smoking, and a family history of early onset
CAD, among other pre-existing factors. Dr. Dietzius testified the Claimant
suffered from multiple risk factors for development of CAD. In his opinion,
these factors had risen, within a reasonable degree of medical certainty, to
the level of causative factors for the Claimant’s CAD and were not
related to work.1 He testified, “. . . given his risk
factors of hyperlipidemia and diabetes, which I do not believe are related to
his work, I believe that his risk factors contribute to his coronary artery
disease over his work.”
Medical
testimony established the Claimant suffered from blocked arteries (CAD) caused
by the build-up of plaque. The myocardial infarction resulted from the rupture
of the plaque. Dr. Dietzius admitted there was no medical test to determine the
“trigger” or cause of the plaque rupture. He identified possible “triggers” of
the plaque rupture to be high blood pressure, stress, or non-work-related
factors, among others.
testimony established the Claimant suffered from blocked arteries (CAD) caused
by the build-up of plaque. The myocardial infarction resulted from the rupture
of the plaque. Dr. Dietzius admitted there was no medical test to determine the
“trigger” or cause of the plaque rupture. He identified possible “triggers” of
the plaque rupture to be high blood pressure, stress, or non-work-related
factors, among others.
Dr.
Schimmel, the Claimant’s IME expert, also testified the Claimant suffered from
underlying blockage. He also recognized the list of multiple pre-existing risk
factors. He opined that he could not identify, within any degree of medical
certainty, which risk factors caused the CAD. Further, he advised that stress
or increase in blood pressure from the business meeting could have “triggered”
the plaque rupture on the day of this alleged “accident.” However, he also
agreed the cause or “trigger” of the rupture/thrombosis is unknown.2
Schimmel, the Claimant’s IME expert, also testified the Claimant suffered from
underlying blockage. He also recognized the list of multiple pre-existing risk
factors. He opined that he could not identify, within any degree of medical
certainty, which risk factors caused the CAD. Further, he advised that stress
or increase in blood pressure from the business meeting could have “triggered”
the plaque rupture on the day of this alleged “accident.” However, he also
agreed the cause or “trigger” of the rupture/thrombosis is unknown.2
II.
Firefighter’s Presumption
Firefighter’s Presumption
Section
112.18(1), also known as the “firefighter’s presumption” or the “heart-lung”
statute, creates a rebuttable presumption of occupational causation for
disabling heart disease suffered by firefighters, among other protected
classes, who meet certain prerequisites. At the time of the enactment of the
“heart-lung” bill in 1965, workers’ compensation law provided for an
occupational diseases cause of action pursuant to section 440.151, Florida Statutes.
Under section 440.151, a claimant was under the obligation to produce medical
testimony to support the ultimate conclusion that the disease was related to
employment, and could not prevail on an argument based on facts or inference
alone. The enactment of section 112.18 offered a claim option that allowed
qualifying employees to bridge this causation gap.3
112.18(1), also known as the “firefighter’s presumption” or the “heart-lung”
statute, creates a rebuttable presumption of occupational causation for
disabling heart disease suffered by firefighters, among other protected
classes, who meet certain prerequisites. At the time of the enactment of the
“heart-lung” bill in 1965, workers’ compensation law provided for an
occupational diseases cause of action pursuant to section 440.151, Florida Statutes.
Under section 440.151, a claimant was under the obligation to produce medical
testimony to support the ultimate conclusion that the disease was related to
employment, and could not prevail on an argument based on facts or inference
alone. The enactment of section 112.18 offered a claim option that allowed
qualifying employees to bridge this causation gap.3
Prior
to enactment of the “heart-lung” statute, an occupational disease claim under
section 440.151 enjoyed no presumption in favor of the claimant, and the
statute was silent with respect to an evidentiary burden of persuasion.4 However, in the late 1960s, Chapter
440, Florida Statutes, established a presumption in favor of a claimant in “any
proceeding for the enforcement of a claim for compensation.”5 See § 440.26, Fla. Stat.
(1965); Deahl v. Uni-Pak Corp., 550 So. 2d 122 (Fla. 1st DCA 1989); Hacker
v. St. Petersburg Kennel Club, 396 So. 2d 161 (Fla. 1st DCA 1981). Section
440.26 provided that, in the “absence of substantial evidence to the
contrary,” claims filed would be presumed to have occurred within the
course and scope of employment. (Emphasis added.) Thus, section 440.26 provided
an evidentiary standard equivalent to that of “clear and convincing evidence”
to rebut its presumption.6 Of interest, section 440.151
specifically excluded the presumption of section 440.26 from application in
occupational disease cases. The evidentiary standard set by the Legislature for
the presumption of section 440.26 was likely influential in later assignment of
the quantum of proof required under section 112.18.
to enactment of the “heart-lung” statute, an occupational disease claim under
section 440.151 enjoyed no presumption in favor of the claimant, and the
statute was silent with respect to an evidentiary burden of persuasion.4 However, in the late 1960s, Chapter
440, Florida Statutes, established a presumption in favor of a claimant in “any
proceeding for the enforcement of a claim for compensation.”5 See § 440.26, Fla. Stat.
(1965); Deahl v. Uni-Pak Corp., 550 So. 2d 122 (Fla. 1st DCA 1989); Hacker
v. St. Petersburg Kennel Club, 396 So. 2d 161 (Fla. 1st DCA 1981). Section
440.26 provided that, in the “absence of substantial evidence to the
contrary,” claims filed would be presumed to have occurred within the
course and scope of employment. (Emphasis added.) Thus, section 440.26 provided
an evidentiary standard equivalent to that of “clear and convincing evidence”
to rebut its presumption.6 Of interest, section 440.151
specifically excluded the presumption of section 440.26 from application in
occupational disease cases. The evidentiary standard set by the Legislature for
the presumption of section 440.26 was likely influential in later assignment of
the quantum of proof required under section 112.18.
In
1979, the Florida Supreme Court in Caldwell v. Division of Retirement,
Florida Department of Administration, 372 So. 2d 438 (Fla. 1979), addressed
for the first time the presumption of sections 112.18 (firefighters) and 185.34
(police officers) and application of the presumptions in “disability
in-line-of-duty benefit” claims. Two issues were addressed: 1) whether the
State Retirement Commission erred in refusing to apply the “heart-lung
presumption” of section 112.18(1) in evaluating firefighter Caldwell’s claim
for disability in-line-of-duty benefits; and 2) if the presumption of section
112.18(1) applied, whether the E/C met the burden of proof with respect to its
rebuttal threshold. Caldwell, 372 So. 2d at 439. The Florida Supreme
Court interpreted the burdens of proof and quantum of evidence required of the
section 112.18 presumption. Id. at 440-42.
1979, the Florida Supreme Court in Caldwell v. Division of Retirement,
Florida Department of Administration, 372 So. 2d 438 (Fla. 1979), addressed
for the first time the presumption of sections 112.18 (firefighters) and 185.34
(police officers) and application of the presumptions in “disability
in-line-of-duty benefit” claims. Two issues were addressed: 1) whether the
State Retirement Commission erred in refusing to apply the “heart-lung
presumption” of section 112.18(1) in evaluating firefighter Caldwell’s claim
for disability in-line-of-duty benefits; and 2) if the presumption of section
112.18(1) applied, whether the E/C met the burden of proof with respect to its
rebuttal threshold. Caldwell, 372 So. 2d at 439. The Florida Supreme
Court interpreted the burdens of proof and quantum of evidence required of the
section 112.18 presumption. Id. at 440-42.
Caldwell
argued that the presumption of section 112.18 required a high rebuttal
standard, typically required of social policy presumptions, to maintain the
legislative intent of the statute. Id. at 439. Furthermore, he asserted
that a high burden should be placed on those litigants who claim no
work-relatedness when a prima facie case of causal relationship has been made. Id.
Caldwell proclaimed that the “heart-lung” statute was one of critical social
policy affecting the burden of proof or persuasion and was not a “vanishing
presumption.” Id. at 440-41. In accepting Caldwell’s arguments, the
court explained, “the [section 112.18] presumption would be meaningless if the
only evidence necessary to overcome it is evidence that there has been no
specific occupational-related event that caused the disease.”7 Id. at 440.
argued that the presumption of section 112.18 required a high rebuttal
standard, typically required of social policy presumptions, to maintain the
legislative intent of the statute. Id. at 439. Furthermore, he asserted
that a high burden should be placed on those litigants who claim no
work-relatedness when a prima facie case of causal relationship has been made. Id.
Caldwell proclaimed that the “heart-lung” statute was one of critical social
policy affecting the burden of proof or persuasion and was not a “vanishing
presumption.” Id. at 440-41. In accepting Caldwell’s arguments, the
court explained, “the [section 112.18] presumption would be meaningless if the
only evidence necessary to overcome it is evidence that there has been no
specific occupational-related event that caused the disease.”7 Id. at 440.
The
Florida Supreme Court further detailed how the presumption may be rebutted:
Florida Supreme Court further detailed how the presumption may be rebutted:
When evidence rebutting such
a presumption is introduced, the presumption does not automatically disappear.
It is not overcome until the trier of fact believes that the presumed fact has
been overcome by whatever degree of persuasion is required by the
substantive law of the case. This may be by a preponderance of the evidence or
by clear and convincing evidence, as the case may be. . .
a presumption is introduced, the presumption does not automatically disappear.
It is not overcome until the trier of fact believes that the presumed fact has
been overcome by whatever degree of persuasion is required by the
substantive law of the case. This may be by a preponderance of the evidence or
by clear and convincing evidence, as the case may be. . .
The statutory presumption is
the expression of a strong public policy which does not vanish when the
opposing party submits evidence. Where the evidence is conflicting the quantum
of proof is balanced and the presumption should prevail. This does not
foreclose the employer from overcoming the presumption. However, if there is
evidence supporting the presumption the employer can overcome the presumption
only by clear and convincing evidence.
the expression of a strong public policy which does not vanish when the
opposing party submits evidence. Where the evidence is conflicting the quantum
of proof is balanced and the presumption should prevail. This does not
foreclose the employer from overcoming the presumption. However, if there is
evidence supporting the presumption the employer can overcome the presumption
only by clear and convincing evidence.
Id. at
440-41 (emphasis added).
440-41 (emphasis added).
Section
112.18 did not explicitly recognize that it was a public policy measure and did
not articulate the burden of persuasion applied to all possible levels of
rebuttal. Where the Legislature does not articulate the rebuttal thresholds
within a presumption statute, the courts are tasked with analyzing the
substantive law of the case to determine whether the presumption was one of
burden of proof or a “vanishing” or “bursting bubble” presumption. Universal
Ins. Co. of N. A. v. Warfel, 82 So. 3d 47, 58 (Fla. 2012). After
determination that section 112.18 embodied strong public policy, the court
assigned to the E/C the higher burden of persuasion of clear and convincing
evidence, where a claimant introduced evidence of work-relatedness. Caldwell,
372 So. 2d at 440. The etiology of the clear and convincing evidence burden of
persuasion for section 112.18 presumption rebuttal, has been a matter of
speculation and debate. See Punsky v. Clay Cty. Sheriff’s Office,
18 So. 3d 577 (Fla. 1st DCA) (on rehearing en banc), review denied, 22
So. 3d 539 (Fla. 2009). However, the Florida Supreme Court’s application of a
higher quantum of proof on rebuttal where evidence is submitted by the claimant
in support of causation is logically supported by the court’s recognition of
the “heart-lung” statute as a matter of strong public policy, and section
112.18 as a presumption of “burden of proof.”
112.18 did not explicitly recognize that it was a public policy measure and did
not articulate the burden of persuasion applied to all possible levels of
rebuttal. Where the Legislature does not articulate the rebuttal thresholds
within a presumption statute, the courts are tasked with analyzing the
substantive law of the case to determine whether the presumption was one of
burden of proof or a “vanishing” or “bursting bubble” presumption. Universal
Ins. Co. of N. A. v. Warfel, 82 So. 3d 47, 58 (Fla. 2012). After
determination that section 112.18 embodied strong public policy, the court
assigned to the E/C the higher burden of persuasion of clear and convincing
evidence, where a claimant introduced evidence of work-relatedness. Caldwell,
372 So. 2d at 440. The etiology of the clear and convincing evidence burden of
persuasion for section 112.18 presumption rebuttal, has been a matter of
speculation and debate. See Punsky v. Clay Cty. Sheriff’s Office,
18 So. 3d 577 (Fla. 1st DCA) (on rehearing en banc), review denied, 22
So. 3d 539 (Fla. 2009). However, the Florida Supreme Court’s application of a
higher quantum of proof on rebuttal where evidence is submitted by the claimant
in support of causation is logically supported by the court’s recognition of
the “heart-lung” statute as a matter of strong public policy, and section
112.18 as a presumption of “burden of proof.”
III.
Analysis
Analysis
The
standard of review on appeal of workers’ compensation orders is “whether there
is substantial competent evidence in accordance with logic and reason to
sustain the finding of the [JCC].” Id. at 583 (quoting Andrews v.
C.B.S. Div., Maule Indus., 118 So. 2d 206, 208 (Fla. 1960)). This Court has
noted the importance of competent substantial evidence review rather than a
“reweighing of the evidence.” Id. Contrary to the E/C’s arguments, the
standard is not de novo merely based on the fact that expert testimony
was submitted via deposition, so the JCC was in no better place than this Court
to rule on credibility. Frederick v. United Airlines, 688 So. 2d 412,
413 (Fla. 1st DCA 1997).
standard of review on appeal of workers’ compensation orders is “whether there
is substantial competent evidence in accordance with logic and reason to
sustain the finding of the [JCC].” Id. at 583 (quoting Andrews v.
C.B.S. Div., Maule Indus., 118 So. 2d 206, 208 (Fla. 1960)). This Court has
noted the importance of competent substantial evidence review rather than a
“reweighing of the evidence.” Id. Contrary to the E/C’s arguments, the
standard is not de novo merely based on the fact that expert testimony
was submitted via deposition, so the JCC was in no better place than this Court
to rule on credibility. Frederick v. United Airlines, 688 So. 2d 412,
413 (Fla. 1st DCA 1997).
Burdens
of Proof/Quantum of Evidence
of Proof/Quantum of Evidence
The
Claimant asserted a “presumption only” claim pursuant to section 112.18.
Accordingly, in this context, to rebut the presumption, the E/C must produce competent
evidence that the disease is not work related.8 With respect to the CAD, the
Claimant’s expert testified he was unable to provide an opinion, within a
reasonable degree of medical certainty, as to causation. The E/C’s medical
expert, Dr. Dietzius, testified, also within a reasonable degree of medical
certainty, that all causative factors of Claimant’s CAD were non-work-related.
The JCC summarized Dr. Dietzius’ testimony as follows:
Claimant asserted a “presumption only” claim pursuant to section 112.18.
Accordingly, in this context, to rebut the presumption, the E/C must produce competent
evidence that the disease is not work related.8 With respect to the CAD, the
Claimant’s expert testified he was unable to provide an opinion, within a
reasonable degree of medical certainty, as to causation. The E/C’s medical
expert, Dr. Dietzius, testified, also within a reasonable degree of medical
certainty, that all causative factors of Claimant’s CAD were non-work-related.
The JCC summarized Dr. Dietzius’ testimony as follows:
Ultimately, Dr. Dietzius
testified that the Claimant’s risk factors for the development of coronary
heart disease, including hyperlipidemia and diabetes, had risen to the level of
actual causative factors within a reasonable degree of medical certainty. It is
noted that the doctor did not specifically opine as to major contributing
cause. The doctor relied upon supporting literature of epidemiological studies
indicating that diabetes and hyperlipidemia were risk factors that could cause
plaque formation which in turn causes coronary artery disease.
testified that the Claimant’s risk factors for the development of coronary
heart disease, including hyperlipidemia and diabetes, had risen to the level of
actual causative factors within a reasonable degree of medical certainty. It is
noted that the doctor did not specifically opine as to major contributing
cause. The doctor relied upon supporting literature of epidemiological studies
indicating that diabetes and hyperlipidemia were risk factors that could cause
plaque formation which in turn causes coronary artery disease.
The
JCC ultimately rejected the opinion of Dr. Dietzius regarding the causation of
the CAD, explaining as follows:
JCC ultimately rejected the opinion of Dr. Dietzius regarding the causation of
the CAD, explaining as follows:
. . . Dr. Dietzius rendered
his ultimate opinion on causation based on his training, experience and a
review of medical studies that were epidemiological by nature. However, the
undersigned did not find the testimony to be persuasive or sufficient as competent
evidence or clear and convincing evidence by which to establish a rebuttal
of the Legal Presumption. The evidence further did not meet the standard set to
constitute major contributing cause.
his ultimate opinion on causation based on his training, experience and a
review of medical studies that were epidemiological by nature. However, the
undersigned did not find the testimony to be persuasive or sufficient as competent
evidence or clear and convincing evidence by which to establish a rebuttal
of the Legal Presumption. The evidence further did not meet the standard set to
constitute major contributing cause.
(Emphasis
added.)
added.)
Here,
the JCC used a “catch all” approach by holding that he did not find the
testimony to meet the standard of “competent evidence or clear and convincing
evidence” sufficient to establish a rebuttal of the presumption. Use of this
general “catch-all” standard was error. In Johns Eastern Company v. Bellamy,
137 So. 3d 1058 (Fla. 1st DCA 2014), this Court held a JCC must determine what
rebuttal standard the E/C must satisfy and identify it in the final order. Use
of a “catch all” reference to both burdens of evidentiary persuasion is not sufficient
and does not adequately identify the JCC’s reasoning. Id. at 1059.
Defending a presumption-only claim, the E/C faced only the threshold rebuttal
burden of providing competent evidence that the factor, or multiple
factors, wholly combined, causing the CAD were non-industrial in nature. Punsky,
18 So. 3d at 583; Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806
(Fla. 1st DCA 2009).
the JCC used a “catch all” approach by holding that he did not find the
testimony to meet the standard of “competent evidence or clear and convincing
evidence” sufficient to establish a rebuttal of the presumption. Use of this
general “catch-all” standard was error. In Johns Eastern Company v. Bellamy,
137 So. 3d 1058 (Fla. 1st DCA 2014), this Court held a JCC must determine what
rebuttal standard the E/C must satisfy and identify it in the final order. Use
of a “catch all” reference to both burdens of evidentiary persuasion is not sufficient
and does not adequately identify the JCC’s reasoning. Id. at 1059.
Defending a presumption-only claim, the E/C faced only the threshold rebuttal
burden of providing competent evidence that the factor, or multiple
factors, wholly combined, causing the CAD were non-industrial in nature. Punsky,
18 So. 3d at 583; Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806
(Fla. 1st DCA 2009).
We
conclude that the E/C satisfied its burden of rebutting this aspect of the
statutory presumption but did not, as we explain later, satisfy its burden as
to the second-tier of the analysis. Dr. Dietzius testified, within a reasonable
degree of medical certainty and based on medical evidence, the CAD was caused
by non-work-related factors. Competent substantial evidence does not support
the JCC’s finding that the E/C failed to meet its threshold rebuttal standard.
Improperly, the JCC imposed upon the E/C the burden of rebuttal by clear and
convincing evidence and that MCC be addressed by its medical expert.
conclude that the E/C satisfied its burden of rebutting this aspect of the
statutory presumption but did not, as we explain later, satisfy its burden as
to the second-tier of the analysis. Dr. Dietzius testified, within a reasonable
degree of medical certainty and based on medical evidence, the CAD was caused
by non-work-related factors. Competent substantial evidence does not support
the JCC’s finding that the E/C failed to meet its threshold rebuttal standard.
Improperly, the JCC imposed upon the E/C the burden of rebuttal by clear and
convincing evidence and that MCC be addressed by its medical expert.
Major
Contributing Cause
Contributing Cause
A
claimant’s burden of proving MCC by medical evidence is fully met where the
presumption contained in section 112.18(1) is applied. Fuller, 22 So. 3d
at 806. In the Final Order, the JCC held, “It is noted that [Dr. Dietzius] did
not specifically opine as to major contributing cause.” He further noted,
regarding the E/C’s failure to satisfy its rebuttal standard, “The evidence
further did not meet the standard set to constitute major contributing cause.”
The JCC erred in interpreting the E/C’s rebuttal threshold to include
satisfaction of the MCC standard.
claimant’s burden of proving MCC by medical evidence is fully met where the
presumption contained in section 112.18(1) is applied. Fuller, 22 So. 3d
at 806. In the Final Order, the JCC held, “It is noted that [Dr. Dietzius] did
not specifically opine as to major contributing cause.” He further noted,
regarding the E/C’s failure to satisfy its rebuttal standard, “The evidence
further did not meet the standard set to constitute major contributing cause.”
The JCC erred in interpreting the E/C’s rebuttal threshold to include
satisfaction of the MCC standard.
MCC
is defined as, “the cause which is more than 50 percent responsible for the
injury as compared to all other causes combined for which treatment or benefits
are sought.” § 440.09(1), Fla. Stat. Section 440.09(1) must be read in
conjunction with section 440.02(1), which provides as follows:
is defined as, “the cause which is more than 50 percent responsible for the
injury as compared to all other causes combined for which treatment or benefits
are sought.” § 440.09(1), Fla. Stat. Section 440.09(1) must be read in
conjunction with section 440.02(1), which provides as follows:
. . . if a preexisting
disease or anomaly is accelerated or aggravated by an accident arising out of
and in the course of employment, only acceleration of death or acceleration or
aggravation of the preexisting condition reasonably attributable to the
accident is compensable. . . .
disease or anomaly is accelerated or aggravated by an accident arising out of
and in the course of employment, only acceleration of death or acceleration or
aggravation of the preexisting condition reasonably attributable to the
accident is compensable. . . .
By
definition, MCC is inapplicable to satisfaction of the E/C’s rebuttal threshold
under section 112.18 (whether requiring competent evidence or clear and
convincing evidence). MCC contemplates comparison of two or more qualifying
causation factors, with at least one requiring non-work relationship and one of
work-relatedness. MCC analysis is necessary only when the claimant’s injury or
need for treatment is caused by the impact of the employment accident combining
with a preexisting injury or condition that is non-work-related. Pizza Hut
v. Proctor, 955 So. 2d 637 (Fla. 1st DCA 2007); Pearson v. Paradise Ford,
951 So. 2d 12 (Fla. 1st DCA 2007). If, in order to satisfy its rebuttal burden
under a section 112.18 claim, the E/C must submit medical evidence that “the”
or “all” causation factors are non-industrial in order, MCC is extraneous. See
Walker v. Broadview Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012); Caputo
v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012); Proctor.
It matters not the percentage of responsibility assigned to one or more of the
non-industrial causation factors. For example, assume a medical expert
testifies that there are several risk factors of a claimant’s heart disease —
pre-existing genetic factors, smoking, and work-related stress, among others.
The E/C’s rebuttal threshold cannot be satisfied by eliciting testimony from a
doctor that all are causative factors (work and non-work related), to some
degree, including stress from work, but the MCC of the heart disease is the
pre-existing, genetic factor.
definition, MCC is inapplicable to satisfaction of the E/C’s rebuttal threshold
under section 112.18 (whether requiring competent evidence or clear and
convincing evidence). MCC contemplates comparison of two or more qualifying
causation factors, with at least one requiring non-work relationship and one of
work-relatedness. MCC analysis is necessary only when the claimant’s injury or
need for treatment is caused by the impact of the employment accident combining
with a preexisting injury or condition that is non-work-related. Pizza Hut
v. Proctor, 955 So. 2d 637 (Fla. 1st DCA 2007); Pearson v. Paradise Ford,
951 So. 2d 12 (Fla. 1st DCA 2007). If, in order to satisfy its rebuttal burden
under a section 112.18 claim, the E/C must submit medical evidence that “the”
or “all” causation factors are non-industrial in order, MCC is extraneous. See
Walker v. Broadview Assisted Living, 95 So. 3d 942 (Fla. 1st DCA 2012); Caputo
v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012); Proctor.
It matters not the percentage of responsibility assigned to one or more of the
non-industrial causation factors. For example, assume a medical expert
testifies that there are several risk factors of a claimant’s heart disease —
pre-existing genetic factors, smoking, and work-related stress, among others.
The E/C’s rebuttal threshold cannot be satisfied by eliciting testimony from a
doctor that all are causative factors (work and non-work related), to some
degree, including stress from work, but the MCC of the heart disease is the
pre-existing, genetic factor.
In
practical application, section 112.18 requires the E/C, on rebuttal of the
presumption, to satisfy a more stringent burden of proof than MCC. Pursuant to
legal precedent, the E/C’s rebuttal burden does not encompass an obligation to
demonstrate a single, non-industrial cause. City of Tarpon Springs v.
Vaporis, 953 So. 2d 597, 599 (Fla. 1st DCA 2007). Non-industrial causation
may be shown through demonstration of a combination of wholly
non-industrial causes. Fuller, 22 So. 3d at 806. As this Court noted in Punsky,
“It is the evidence of non-industrial causation that may be found to rebut the
presumption, not the mere existence of risk factors or conditions.” 18 So. 3d
at 583. Satisfaction of the prerequisites for MCC application, causative
factors that are both work-related and non-work-related, is mutually exclusive
to the viability of an E/C’s rebuttal under section 112.18. Accordingly, the
absence of medical testimony regarding MCC from the E/C’s medical expert
testimony did not result in the E/C’s failure to meet its burden of proof.
practical application, section 112.18 requires the E/C, on rebuttal of the
presumption, to satisfy a more stringent burden of proof than MCC. Pursuant to
legal precedent, the E/C’s rebuttal burden does not encompass an obligation to
demonstrate a single, non-industrial cause. City of Tarpon Springs v.
Vaporis, 953 So. 2d 597, 599 (Fla. 1st DCA 2007). Non-industrial causation
may be shown through demonstration of a combination of wholly
non-industrial causes. Fuller, 22 So. 3d at 806. As this Court noted in Punsky,
“It is the evidence of non-industrial causation that may be found to rebut the
presumption, not the mere existence of risk factors or conditions.” 18 So. 3d
at 583. Satisfaction of the prerequisites for MCC application, causative
factors that are both work-related and non-work-related, is mutually exclusive
to the viability of an E/C’s rebuttal under section 112.18. Accordingly, the
absence of medical testimony regarding MCC from the E/C’s medical expert
testimony did not result in the E/C’s failure to meet its burden of proof.
In Fuller,
this Court announced, “Because a claimant’s burden of proving major
contributing cause (MCC) by medical evidence, is fully met where the
presumption contained in section 112.18(1) is applied, the Employer, in
rebutting the presumption must likewise disprove occupational causation by
medical evidence.” 22 So. 3d at 806. To the extent that Fuller, or any
language in Punsky, has been interpreted as requiring the E/C to also
satisfy MCC as a part of the burden of proof shifting under section 112.18, we
clarify to the contrary.9 Fuller held the E/C must
satisfy its burdens of proof “by medical evidence,” as is required of the
claimant. Id. This Court did not declare that MCC is a component of the
E/C’s rebuttal threshold, but only that the specific evidence required to
satisfy the shifting burdens of proof must be medically based.
this Court announced, “Because a claimant’s burden of proving major
contributing cause (MCC) by medical evidence, is fully met where the
presumption contained in section 112.18(1) is applied, the Employer, in
rebutting the presumption must likewise disprove occupational causation by
medical evidence.” 22 So. 3d at 806. To the extent that Fuller, or any
language in Punsky, has been interpreted as requiring the E/C to also
satisfy MCC as a part of the burden of proof shifting under section 112.18, we
clarify to the contrary.9 Fuller held the E/C must
satisfy its burdens of proof “by medical evidence,” as is required of the
claimant. Id. This Court did not declare that MCC is a component of the
E/C’s rebuttal threshold, but only that the specific evidence required to
satisfy the shifting burdens of proof must be medically based.
Following
qualification for the presumption, the claimant’s burden of proving MCC under
section 440.09(1), is satisfied. MCC is not revived as a required standard of
proof for the claimant under sections 440.09(1) and 440.151, Florida Statutes,
unless and until the E/C successfully satisfies its rebuttal threshold.
qualification for the presumption, the claimant’s burden of proving MCC under
section 440.09(1), is satisfied. MCC is not revived as a required standard of
proof for the claimant under sections 440.09(1) and 440.151, Florida Statutes,
unless and until the E/C successfully satisfies its rebuttal threshold.
Two-Tiered
Analysis Required
Analysis Required
This
Court has recognized the necessity of application of a two-tiered rebuttal
analysis when the subject heart disease results from a combination of an
underlying condition with a “triggering event.” See Mitchell v.
Miami-Dade Cty., 186 So. 3d 65 (Fla. 1st DCA 2016) (Mitchell II)
(concluding even if Claimant’s condition was congenital and non-work related,
if medical testimony establishes that the combination of the congenital or
underlying condition and a “trigger” cause the heart disease, the E/C must also
establish through the required quantum of evidence that the “trigger” was also
non-occupational).10 Of note, this Court in Mitchell
II emphasized its earlier declaration that, “much like a pre-existing
condition, this court has recognized a congenital condition can be aggravated.”
Id. at 68 (citing City of Temple Terrace v. Bailey, 481 So. 2d 49
(Fla. 1st DCA 1985)); Walters v. State of Fl.-DOC, 100 So. 3d 1173 (Fla.
1st DCA 2012).
Court has recognized the necessity of application of a two-tiered rebuttal
analysis when the subject heart disease results from a combination of an
underlying condition with a “triggering event.” See Mitchell v.
Miami-Dade Cty., 186 So. 3d 65 (Fla. 1st DCA 2016) (Mitchell II)
(concluding even if Claimant’s condition was congenital and non-work related,
if medical testimony establishes that the combination of the congenital or
underlying condition and a “trigger” cause the heart disease, the E/C must also
establish through the required quantum of evidence that the “trigger” was also
non-occupational).10 Of note, this Court in Mitchell
II emphasized its earlier declaration that, “much like a pre-existing
condition, this court has recognized a congenital condition can be aggravated.”
Id. at 68 (citing City of Temple Terrace v. Bailey, 481 So. 2d 49
(Fla. 1st DCA 1985)); Walters v. State of Fl.-DOC, 100 So. 3d 1173 (Fla.
1st DCA 2012).
In Gonzalez
v. St. Lucie County — Fire District, 186 So. 3d 1106 (Fla 1st DCA 2016),
the Claimant, a firefighter, responded to the scene of a fire. He walked the
scene of the fire wearing heavy equipment weighing sixty to seventy pounds. At
the scene, he became lightheaded and required immediate medical treatment. The
Claimant was later diagnosed with a congenital abnormality (AVNRT),
“characterized by an extra electrical pathway which causes tachycardia when
there is a triggering event.” Id. at 1107. The JCC found that the E/C
had successfully rebutted the presumption of section 112.18 as it relates to
the congenital condition. However, this Court remanded the case to the JCC to
address the second-tier analysis, required by the facts, as to whether the E/C
overcame the presumption relating to the “trigger,” which the Claimant argued
was the exertion from his work activities.11
v. St. Lucie County — Fire District, 186 So. 3d 1106 (Fla 1st DCA 2016),
the Claimant, a firefighter, responded to the scene of a fire. He walked the
scene of the fire wearing heavy equipment weighing sixty to seventy pounds. At
the scene, he became lightheaded and required immediate medical treatment. The
Claimant was later diagnosed with a congenital abnormality (AVNRT),
“characterized by an extra electrical pathway which causes tachycardia when
there is a triggering event.” Id. at 1107. The JCC found that the E/C
had successfully rebutted the presumption of section 112.18 as it relates to
the congenital condition. However, this Court remanded the case to the JCC to
address the second-tier analysis, required by the facts, as to whether the E/C
overcame the presumption relating to the “trigger,” which the Claimant argued
was the exertion from his work activities.11
Here,
the Claimant suffered from an underlying condition, CAD. On the date of
accident, the underlying CAD resulted in a plaque rupture (triggering event)
and the Claimant suffered a myocardial infarction, the heart disease requiring
treatment. Dr. Dietzius testified there is no test that can directly determine
a cause for the “trigger,” the plaque rupture. In fact, both medical experts
agreed that the etiology for the plaque rupture was unknown. One expert agreed
that the stress of the heated work meeting could have caused high blood
pressure, which resulted in the plaque rupture (manifesting as chest pain
during the meeting). However, this was speculation. As explained above, the E/C
satisfied its rebuttal standard by introducing competent evidence that the
causative factors of the Claimant’s CAD were non-work-related. However, under
these facts, the E/C was also required to overcome the presumption of the
“trigger.” Once a claimant gives rise to the presumption by satisfying the
pre-requisites of section 112.18, occupational causation is established;
therefore, there is no requirement on the part of the claimant to put on
further proof meeting the requirements of section 440.151, Florida Statutes, as
it relates to a “trigger.” See Walters v. State of Fl., 100 So.
3d 1173, 1176 (Fla. 1st DCA 2012). The E/C failed to satisfy its rebuttal
burden with respect to this second-tier. Both medical experts testified that it
was not possible, within a reasonable degree of medical certainty, to determine
the cause of the “trigger,” but the stress from the meeting could have been a
possible cause. Because the E/C could not, by competent evidence, show that
“the” or “all” possible factors causing the “trigger event” were non-work
related, the presumption prevails. LeBlanc v. City of W. Palm Beach, 72
So. 3d 181 (Fla. 1st DCA 2011).12
the Claimant suffered from an underlying condition, CAD. On the date of
accident, the underlying CAD resulted in a plaque rupture (triggering event)
and the Claimant suffered a myocardial infarction, the heart disease requiring
treatment. Dr. Dietzius testified there is no test that can directly determine
a cause for the “trigger,” the plaque rupture. In fact, both medical experts
agreed that the etiology for the plaque rupture was unknown. One expert agreed
that the stress of the heated work meeting could have caused high blood
pressure, which resulted in the plaque rupture (manifesting as chest pain
during the meeting). However, this was speculation. As explained above, the E/C
satisfied its rebuttal standard by introducing competent evidence that the
causative factors of the Claimant’s CAD were non-work-related. However, under
these facts, the E/C was also required to overcome the presumption of the
“trigger.” Once a claimant gives rise to the presumption by satisfying the
pre-requisites of section 112.18, occupational causation is established;
therefore, there is no requirement on the part of the claimant to put on
further proof meeting the requirements of section 440.151, Florida Statutes, as
it relates to a “trigger.” See Walters v. State of Fl., 100 So.
3d 1173, 1176 (Fla. 1st DCA 2012). The E/C failed to satisfy its rebuttal
burden with respect to this second-tier. Both medical experts testified that it
was not possible, within a reasonable degree of medical certainty, to determine
the cause of the “trigger,” but the stress from the meeting could have been a
possible cause. Because the E/C could not, by competent evidence, show that
“the” or “all” possible factors causing the “trigger event” were non-work
related, the presumption prevails. LeBlanc v. City of W. Palm Beach, 72
So. 3d 181 (Fla. 1st DCA 2011).12
This
matter does not require remand to the JCC, as the Final Order documents the
JCC’s findings with regard to the unknown causation of the “triggering” event.
The JCC specifically found, “[Dr. Dietzius] agreed that the cause for the
plaque rupture was unknown . . . .” Dr. Schimmel also opined that there was no
method to determine causation of the plaque rupture. Both experts agreed the
stress from the argument in the business meeting may have been one of many
possible causes. Accordingly, the E/C failed to satisfy both tiers of its
rebuttal burden.
matter does not require remand to the JCC, as the Final Order documents the
JCC’s findings with regard to the unknown causation of the “triggering” event.
The JCC specifically found, “[Dr. Dietzius] agreed that the cause for the
plaque rupture was unknown . . . .” Dr. Schimmel also opined that there was no
method to determine causation of the plaque rupture. Both experts agreed the
stress from the argument in the business meeting may have been one of many
possible causes. Accordingly, the E/C failed to satisfy both tiers of its
rebuttal burden.
AFFIRMED.
(BILBREY and KELSEY, JJ., CONCUR.)
(BILBREY and KELSEY, JJ., CONCUR.)
__________________
1Possible
risk factors may not necessarily be considered by a medical expert to rise to
the level of causative factors. See Punsky v. Clay Cty. Sheriff’s
Office, 18 So. 3d 577, 583 (Fla. 1st DCA) (on rehearing en banc), review
denied, 22 So. 3d 539 (Fla. 2009).
risk factors may not necessarily be considered by a medical expert to rise to
the level of causative factors. See Punsky v. Clay Cty. Sheriff’s
Office, 18 So. 3d 577, 583 (Fla. 1st DCA) (on rehearing en banc), review
denied, 22 So. 3d 539 (Fla. 2009).
2Neither
party raised a Daubert objection to the expert medical testimony, or
requested an EMA pursuant to section 440.13(9)(c), Florida Statute. The JCC did
not, sua sponte, appoint an EMA.
party raised a Daubert objection to the expert medical testimony, or
requested an EMA pursuant to section 440.13(9)(c), Florida Statute. The JCC did
not, sua sponte, appoint an EMA.
3Section
112.18 claims are considered de facto occupational disease claims and are,
thus, governed by legal standards of section 440.151, Florida Statutes; e.g.
statute of limitations. See City of Pembroke Pines v. Ortagus, 50
So. 3d 31 (Fla. 1st DCA 2010); Sledge v. City of Fort Lauderdale, 497
So. 2d 1231 (Fla. 1st DCA 1986).
112.18 claims are considered de facto occupational disease claims and are,
thus, governed by legal standards of section 440.151, Florida Statutes; e.g.
statute of limitations. See City of Pembroke Pines v. Ortagus, 50
So. 3d 31 (Fla. 1st DCA 2010); Sledge v. City of Fort Lauderdale, 497
So. 2d 1231 (Fla. 1st DCA 1986).
4Although
section 112.18, Florida Statutes, provides minimal instruction on required
burdens of proof and burden of evidentiary persuasion (i.e. competent
evidence), case law has provided further guidance, as will be discussed later
in this opinion.
section 112.18, Florida Statutes, provides minimal instruction on required
burdens of proof and burden of evidentiary persuasion (i.e. competent
evidence), case law has provided further guidance, as will be discussed later
in this opinion.
5Section
440.26 was repealed in 1990, although the section continued to be referenced in
section 440.151(1)(e) until the 2003 amendments to Chapter 440.
440.26 was repealed in 1990, although the section continued to be referenced in
section 440.151(1)(e) until the 2003 amendments to Chapter 440.
6 [Clear and convincing
evidence] is that which “produce[s] in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be
established,” evidence “so clear, direct and weighty and convincing as to enable
[the factfinder] to come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue.” Aiello v. Knoll Golf Club, 64 N.J.
Super. 156, 162, 165 A.2d 531 (App. Div. 1960).
evidence] is that which “produce[s] in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be
established,” evidence “so clear, direct and weighty and convincing as to enable
[the factfinder] to come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue.” Aiello v. Knoll Golf Club, 64 N.J.
Super. 156, 162, 165 A.2d 531 (App. Div. 1960).
Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (quoting In Re
Boardwalk Regency License Application, 180 N.J. Super. 324, 434 A.2d 1111,
1118 (N.J. Super. App. Div. 1981)).
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (quoting In Re
Boardwalk Regency License Application, 180 N.J. Super. 324, 434 A.2d 1111,
1118 (N.J. Super. App. Div. 1981)).
7A
“burden of proof” presumption was later codified in the Florida Evidence Code,
as section 90.304, Florida Statutes.
“burden of proof” presumption was later codified in the Florida Evidence Code,
as section 90.304, Florida Statutes.
8If
a claimant has evidence of work-relatedness, the E/C’s rebuttal standard is by
clear and convincing evidence. Here, the Claimant had no evidence of causation
other than the presumption of section 112.18.
a claimant has evidence of work-relatedness, the E/C’s rebuttal standard is by
clear and convincing evidence. Here, the Claimant had no evidence of causation
other than the presumption of section 112.18.
9In Punsky,
although the doctor was questioned regarding MCC, he had previously identified
the risk factors, all of which were non-work-related. 18 So. 3d at 579-80.
although the doctor was questioned regarding MCC, he had previously identified
the risk factors, all of which were non-work-related. 18 So. 3d at 579-80.
10In Mitchell
I, the Claimant (an off-duty police officer) was at home when she
experienced chest pain after taking her daughter for medical care. Brief of
Appellant at 3, Miami-Dade Cty. v. Mitchell, 159 So. 3d 172 (Fla. 1st
DCA 2015) (Mitchell I) (No. 14-1446). The Claimant was ultimately
diagnosed with the congenital condition of slow accessory pathway which was
“triggered” by “something” that resulted in heart disease. Mitchell II,
186 So. 3d at 68. This Court remanded the case back to the JCC to determine if
the E/C also overcame the presumption as it relates to the “trigger” component.
Id. at 69.
I, the Claimant (an off-duty police officer) was at home when she
experienced chest pain after taking her daughter for medical care. Brief of
Appellant at 3, Miami-Dade Cty. v. Mitchell, 159 So. 3d 172 (Fla. 1st
DCA 2015) (Mitchell I) (No. 14-1446). The Claimant was ultimately
diagnosed with the congenital condition of slow accessory pathway which was
“triggered” by “something” that resulted in heart disease. Mitchell II,
186 So. 3d at 68. This Court remanded the case back to the JCC to determine if
the E/C also overcame the presumption as it relates to the “trigger” component.
Id. at 69.
11The
E/C’s second-tier rebuttal analysis of a “triggering event,” if the facts
require it, logically contemplates whether the “trigger” occurred while the
claimant was within the course and scope of employment. E.g., did “trigger”
occur when claimant was sleeping at home, while in a stressful work meeting, or
while under exertion at work? Although the specific cause(s) of the trigger may
not be identifiable, work-relation may be excluded if the claimant cannot
causally connect the “trigger event” to work activities.
E/C’s second-tier rebuttal analysis of a “triggering event,” if the facts
require it, logically contemplates whether the “trigger” occurred while the
claimant was within the course and scope of employment. E.g., did “trigger”
occur when claimant was sleeping at home, while in a stressful work meeting, or
while under exertion at work? Although the specific cause(s) of the trigger may
not be identifiable, work-relation may be excluded if the claimant cannot
causally connect the “trigger event” to work activities.
12Of
note, if the underlying condition is congenital, the E/C does not have to prove
the “trigger” is also congenital but only that the cause(s) of the trigger is
“non-occupational.” See Mitchell II, 186 So. 3d at 68.
note, if the underlying condition is congenital, the E/C does not have to prove
the “trigger” is also congenital but only that the cause(s) of the trigger is
“non-occupational.” See Mitchell II, 186 So. 3d at 68.
* *
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