41
Fla. L. Weekly D454aTop of Form

Workers’
compensation — Compensable accidents — Heart disease — Presumption of
compensability — Law enforcement officers — “Triggering” of claimant’s
congenital slow accessory pathway which manifested as supra ventricular
tachycardia — In finding that the presumption of compensability had been
overcome, judge of compensation claims erroneously concluded that because the
slow accessory pathway was congenital, he was required to find that the
“trigger” was also congenital — JCC was required to consider evidence and
determine whether the employer overcame the presumption by establishing by
competent evidence that the trigger was also non-occupational

THOMASENA MITCHELL, Appellant, v. MIAMI DADE COUNTY AKA MDPD
(INTRACOASTAL)/MIAMI DADE COUNTY RISK MANAGEMENT, Appellees. 1st District. Case
No. 1D15-2153. Opinion filed February 23, 2016. An appeal from an order of the
Judge of Compensation Claims. Edward Ramos Almeyda, Judge. Date of Accident:
January 27, 2013. Counsel: Wendy S. Loquasto, Fox & Loquasto, P.A.,
Tallahassee, and Paolo Longo, Jr., Bichler, Kelley, Oliver & Longo, PLLC,
Maitland, for Appellant. R.A. Cuevas, Jr., County Attorney, and Daron S. Fitch,
Assistant County Attorney, Miami, for Appellees.

(PER CURIAM.) This workers’ compensation case makes its
second appearance before this Court. We find no error in the Judge of
Compensation Claims’ (JCC’s) considering on remand the testimony of both Drs.
Borzak and Pianko. The JCC nevertheless erred in his analysis regarding the
effect of the medical testimony as to what “triggered” — or made symptomatic
— Claimant’s congenital slow accessory pathway1 which manifested as supra ventricular
tachycardia (SVT).2

Mitchell
I

Previously, the Employer challenged the JCC’s determination
that it had not defeated the presumption of occupational causation to which the
parties agreed Claimant, a law enforcement officer, was entitled under
paragraph 112.18(1)(a), Florida Statutes (2012). See Miami-Dade Cty.
v. Mitchell (Mitchell I), 159 So. 3d 172 (Fla 1st DCA 2015). This
Court agreed that the JCC ignored or overlooked parts of the medical opinion
testimony when he concluded that Claimant’s slow accessory pathway was not a
congenital condition. Id. We reversed and remanded “to the JCC for
consideration of the medical evidence in its entirety.” Id. at 174.

Result
on Remand

At the remand hearing, no new evidence was submitted. The
parties were afforded the opportunity to direct the JCC to those portions of
the doctors’ depositions that they believed supported their respective
positions regarding Claimant’s entitlement to benefits.

After reviewing the medical testimony of Dr. Borzak,
Claimant’s independent medical examiner, and Dr. Pianko, the physician
authorized by the Employer to provide treatment while it investigated the
compensability of the claim, the JCC reversed his previous conclusion that the
slow accessory pathway was not a congenital condition. The JCC next turned to
the “second” part of the test to determine whether the Employer successfully
rebutted the occupational causation presumption — the “trigger” that he
explained made the abnormal wiring cause the SVT. On this question, the JCC
found there was no conflict in the opinions of the two physicians — both
agreed that the cause was unknown. Possible triggers were named — caffeine,
stress, low potassium, blockage of the heart — but the JCC concluded that in
this case there was no answer to the question.

The JCC noted that it was the Employer’s burden to prove a
non-occupational cause of the SVT by competent evidence. He found “that a non
occupational underlying medical condition, the slow pathway-AV node, was the
root of the ultimate SVT, which had a trigger of unspecific etiology.” Because
the SVT would not have occurred but for the existence of the congenital slow
pathway, the JCC concluded that the SVT “must also be found to be a product of
the underlying congenital, non occupation[al] condition.” Accordingly, the JCC
found Claimant’s claim not compensable.

Scope
of Remand

Claimant first challenges the JCC’s scope of remand, arguing
that he exceeded this Court’s directions. We review de novo the precise scope
of the remand; specifically, whether the JCC had the authority to make the
findings that he did. See Jacobsen v. Ross Stores, 882 So. 2d
431, 432 (Fla. 1st DCA 2004). Here, the instructions to the JCC were to
consider “the medical evidence in its entirety.” The medical evidence included
the depositions of Drs. Borzak and Pianko, which was the evidence considered by
the JCC. Thus, the JCC did not exceed the scope of the remand.

Nature
of the Presumption

Central to this matter, and to the JCC’s error, is an
understanding of the nature of the presumption afforded Claimant under section
112.18 and how it is applied to the facts in this case. Section 90.302, Florida
Statutes, describes two types of presumptions — presumptions affecting the
burden of producing evidence and presumptions affecting the burden of proof.
Presumptions affecting the burden of producing evidence are often described as
“bursting bubble” presumptions because they vanish once evidence rebutting them
is introduced. See Universal Ins. Co. of N. Am. v. Warfel, 82 So.
3d 47, 54 (Fla. 2012). See also Punsky v. Clay Cty. Sheriff’s Office,
18 So. 3d 577, 581 (Fla. 1st DCA 2009) (en banc). Section 90.303, Florida
Statutes, explains that presumptions intended to facilitate the finding that a particular
action occurred, as opposed to implementing public policy, are presumptions
affecting the production of evidence. Section 90.304, Florida Statutes,
provides “[i]n civil actions, all rebuttable presumptions which are not defined
in section 90.303 are presumptions affecting the burden of proof.” As
recognized in Punsky, this latter type is the nature of the presumption
provided by section 112.18. Id.

In Warfel, the supreme court explained the mechanics
of each presumption:

In Department
of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla.
1990), this Court articulated the difference between the two types of
presumptions as defined by the Florida Evidence Code. With regard to 90.303
presumptions, this Court stated that ‘[t]his type of presumption is commonly
referred to as a vanishing presumption, or a ‘bursting bubble’ presumption.
Once evidence rebutting the presumption is introduced, the presumption
disappears and the jury is not told of it.” Id. at 31 (emphasis
supplied). With regard to the presumption articulated in section 90.304, this
Court stated:

When
a presumption shifts the burden of proof, the presumption remains in effect
even after evidence rebutting the presumption has been introduced and the
jury must decide if the evidence is sufficient to overcome the presumption.
Public Health Trust v. Valcin, 507 So. 2d 596 (Fla. 1987). Presumptions
which shift the burden of proof in civil proceedings are primarily expressions
of social policy. Id. at 601; Caldwell v. Division of Retirement,
372 So. 2d 438, 440 (Fla. 1979); C. Ehrhardt, Florida Evidence 68-79 (2d
ed. 1984) (e.g., presumptions of the validity of marriage, sanity in civil
cases, legitimacy of a child born in wedlock, the correctness of judgments).

Id. at
31-32 (emphasis supplied).

82 So. 3d at 54. When applied to workers’ compensation
proceedings, the presumption, even if rebutted, does not disappear;
rather, the JCC is then charged with deciding whether the evidence is
sufficient to overcome the presumption.

Application
of the Presumption

Here, with the evidence that the slow accessory pathway was
a congenital abnormality, the Employer rebutted the presumption that Claimant’s
SVT was occupationally caused. Were there no other facts to consider, the JCC
would weigh this evidence and, if convinced by it, conclude that this evidence
also serves to overcome the presumption. The complicating factor here is the
existence of evidence that the slow accessory pathway is “triggered” by
something that brings on the SVT. The JCC erroneously concluded that simply
because the slow accessory pathway was congenital, he was required to find that
the “trigger” was also congenital. Rather, he was required to consider the
evidence and determine whether the Employer overcame the presumption by establishing
by competent evidence that the trigger was also non-occupational.3

Much like a pre-existing condition, this court has
recognized a congenital condition can be aggravated. See City of
Temple Terrace v. Bailey, 481 So. 2d 49, 51 (Fla. 1st DCA 1985). The
evidence necessary to overcome the presumption must be medical evidence. See
Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009).
It is not necessary for the employer to identify a single non-occupational
cause in order to overcome the presumption. See Punsky, 18 So. 3d
at 584. If the expert medical testimony establishes, for instance, that there
are one or more possible non-occupational causes for the trigger, or there are
no known occupational causes, this testimony, if accepted by the JCC, could
overcome the presumption. On the other hand, if the JCC declines to accept this
contrary evidence, then the presumption will support a ruling in favor of the
claimant. Id. at 585.

Conclusion

Here, the JCC made no findings regarding whether any
potential trigger or triggers for the SVT were occupational; rather, he
erroneously concluded that, because the underlying slow accessory pathway was
congenital (non-occupational), so too was the trigger. Based on the foregoing,
we once again REVERSE and REMAND for further proceedings, which, in the JCC’s
discretion, may include reopening of the medical evidence to address the
trigger issue. (ROWE, RAY, and SWANSON, JJ., CONCUR.)

__________________

1Dr. Pianko testified that this
congenital defect is a mild abnormality of the heart’s electrical wiring.

2Dr. Pianko also testified that SVT
is a very rapid, abnormal heart beat.

3The Employer’s burden was to submit
competent evidence to rebut the presumption because Claimant relied solely on
the section 112.18 presumption to establish compensability. See Punsky,
18 So. 3d at 583-84.

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