42
Fla. L. Weekly D870aTop of Form
Fla. L. Weekly D870aTop of Form
Workers’
compensation — Compensable accidents — Heart attack — Presumption of
compensability — Corrections officers — JCC should have denied claim under
heart-lung statute where employer/carrier successfully rebutted presumption of
compensability and there was no competent, substantial evidence of occupational
causation — Although if claimant adduces competent evidence of occupational
causation in addition to the presumption, E/C must rebut the presumption with
clear and convincing evidence, where the claimant relies solely on the
statutory presumption, the E/C can rebut the presumption with competent evidence
— Evidence — Expert medical advisor’s opinion was incompetent and not a valid
basis for JCC’s finding in favor of claimant where opinion was based on an
inaccurate factual foundation and was improperly bolstered by other experts’
opinions and publications
compensation — Compensable accidents — Heart attack — Presumption of
compensability — Corrections officers — JCC should have denied claim under
heart-lung statute where employer/carrier successfully rebutted presumption of
compensability and there was no competent, substantial evidence of occupational
causation — Although if claimant adduces competent evidence of occupational
causation in addition to the presumption, E/C must rebut the presumption with
clear and convincing evidence, where the claimant relies solely on the
statutory presumption, the E/C can rebut the presumption with competent evidence
— Evidence — Expert medical advisor’s opinion was incompetent and not a valid
basis for JCC’s finding in favor of claimant where opinion was based on an
inaccurate factual foundation and was improperly bolstered by other experts’
opinions and publications
STATE
OF FLORIDA DEPARTMENT OF CORRECTIONS, NORTHWEST FLORIDA RECEPTION CENTER
ANNEX/DIVISION OF RISK MANAGEMENT, Appellants, v. ANDREW JUNOD, Appellee. 1st
District. Case No. 1D15-5259. Opinion filed April 13, 2017. An appeal from an
order of the Judge of Compensation Claims. Laura Roesch, Judge. Date of
accident: April 19, 2010. Counsel: Colleen Cleary Ortiz of Colleen Cleary
Ortiz, P.A., Pensacola, for Appellants. Kimberly A. Hill of Kimberly A. Hill,
P.L., Fort Lauderdale, for Appellee.
OF FLORIDA DEPARTMENT OF CORRECTIONS, NORTHWEST FLORIDA RECEPTION CENTER
ANNEX/DIVISION OF RISK MANAGEMENT, Appellants, v. ANDREW JUNOD, Appellee. 1st
District. Case No. 1D15-5259. Opinion filed April 13, 2017. An appeal from an
order of the Judge of Compensation Claims. Laura Roesch, Judge. Date of
accident: April 19, 2010. Counsel: Colleen Cleary Ortiz of Colleen Cleary
Ortiz, P.A., Pensacola, for Appellants. Kimberly A. Hill of Kimberly A. Hill,
P.L., Fort Lauderdale, for Appellee.
(KELSEY,
J.) The Employer/Carrier appeals a final order of the Judge of Compensation
Claims holding that Claimant is entitled to benefits under the heart-lung
statute, section 112.18 of the Florida Statutes. We reverse.
J.) The Employer/Carrier appeals a final order of the Judge of Compensation
Claims holding that Claimant is entitled to benefits under the heart-lung
statute, section 112.18 of the Florida Statutes. We reverse.
Claimant’s
Employment and Heart Attack.
Employment and Heart Attack.
After
applying for a job as a correctional officer trainee, Claimant completed a
pre-employment medical history questionnaire, and underwent a pre-employment
physical at a local walk-in clinic in December of 2008.1 On the questionnaire, he denied
having ever been diagnosed with vascular disorders, high blood pressure, heart
disease, heart murmur, or obesity. He was 5 feet, 8 inches tall and weighed 210
pounds. He disclosed that he had a family history of heart disease or heart
attack. He had a normal electrocardiogram. The lab report revealed elevated
glucose, but no other abnormalities among the factors tested. His blood labs
did not include a lipid panel, so the pre-employment physical included no
information about cholesterol levels. There was also no indication of his blood
pressure. The examining physician nevertheless checked boxes indicating that
his examination did not reveal evidence of tuberculosis, heart disease, or
hypertension.
applying for a job as a correctional officer trainee, Claimant completed a
pre-employment medical history questionnaire, and underwent a pre-employment
physical at a local walk-in clinic in December of 2008.1 On the questionnaire, he denied
having ever been diagnosed with vascular disorders, high blood pressure, heart
disease, heart murmur, or obesity. He was 5 feet, 8 inches tall and weighed 210
pounds. He disclosed that he had a family history of heart disease or heart
attack. He had a normal electrocardiogram. The lab report revealed elevated
glucose, but no other abnormalities among the factors tested. His blood labs
did not include a lipid panel, so the pre-employment physical included no
information about cholesterol levels. There was also no indication of his blood
pressure. The examining physician nevertheless checked boxes indicating that
his examination did not reveal evidence of tuberculosis, heart disease, or
hypertension.
Claimant
accepted a position as a correctional officer trainee beginning January
9, 2009. It was undisputed below that trainees are not correctional officers.
Trainees do not engage in “supervision, protection, care, custody, and control,
or investigation, of inmates within a correctional institution.” § 943.10(2),
Fla. Stat. (2009) (defining correctional officers). After his initial hire date
in January of 2009, Claimant participated in a training program based away from
the correctional facility compound. During training, he injured his back and
was unable to complete the training program, in an incident that the E/C
accepted as compensable. His employer gave him light-duty work reading mail in
the mail room for about four months. When he was deemed fully recovered from
the back injury, he returned to the training program and completed it
successfully, becoming a certified correctional officer on January 6, 2010.
accepted a position as a correctional officer trainee beginning January
9, 2009. It was undisputed below that trainees are not correctional officers.
Trainees do not engage in “supervision, protection, care, custody, and control,
or investigation, of inmates within a correctional institution.” § 943.10(2),
Fla. Stat. (2009) (defining correctional officers). After his initial hire date
in January of 2009, Claimant participated in a training program based away from
the correctional facility compound. During training, he injured his back and
was unable to complete the training program, in an incident that the E/C
accepted as compensable. His employer gave him light-duty work reading mail in
the mail room for about four months. When he was deemed fully recovered from
the back injury, he returned to the training program and completed it
successfully, becoming a certified correctional officer on January 6, 2010.
Just
over three months after becoming certified and beginning work as a correctional
officer, Claimant suffered a heart attack while asleep at home. He notified his
employer of the heart attack, and returned to work within a couple of weeks. A
captain asked Claimant if the heart attack was work-related, and Claimant said
it was not. He continued to work at that correctional facility until December
of 2011, when he left to take another job. He did not assert a claim for
benefits arising out of the heart attack before leaving this job, nor within
the year after he left and worked elsewhere.2 He was re-hired at the correctional
facility in December of 2012.
over three months after becoming certified and beginning work as a correctional
officer, Claimant suffered a heart attack while asleep at home. He notified his
employer of the heart attack, and returned to work within a couple of weeks. A
captain asked Claimant if the heart attack was work-related, and Claimant said
it was not. He continued to work at that correctional facility until December
of 2011, when he left to take another job. He did not assert a claim for
benefits arising out of the heart attack before leaving this job, nor within
the year after he left and worked elsewhere.2 He was re-hired at the correctional
facility in December of 2012.
Claimant
first made a claim for benefits arising out of his 2010 heart attack in
December of 2014 — four years and eight months after the heart attack. He
asserted that he did not know until November of 2014 that his heart attack
might be covered under the heart-lung statute. He argued that the statute of
limitations did not begin to run until November of 2014 when he claims he first
became aware of the heart-lung statute. The JCC accepted this argument and
found the claim to be timely — a finding that we do not reach. We conclude
that even if the claim was timely, the claim should have been denied because
the E/C successfully rebutted the presumption of compensability under the
heart-lung statute and there was no competent, substantial evidence of
occupational causation.
first made a claim for benefits arising out of his 2010 heart attack in
December of 2014 — four years and eight months after the heart attack. He
asserted that he did not know until November of 2014 that his heart attack
might be covered under the heart-lung statute. He argued that the statute of
limitations did not begin to run until November of 2014 when he claims he first
became aware of the heart-lung statute. The JCC accepted this argument and
found the claim to be timely — a finding that we do not reach. We conclude
that even if the claim was timely, the claim should have been denied because
the E/C successfully rebutted the presumption of compensability under the
heart-lung statute and there was no competent, substantial evidence of
occupational causation.
Claimant’s
First Report form and his first Petition for Benefits did not rely on any
sudden accident or unusual exertion as causing his heart attack. Rather,
Claimant asserted in both documents that he “developed disabling
arterial and cardiovascular hypertension and or heart disease over course of
career as a certified corrections officer which became disabling on or
about 4/19/2010 [the date of his heart attack].” (Emphasis added.)3 The E/C denied the claim in its
entirety on grounds of expiration of the statute of limitations, untimely
notice, failure to meet the statutory presumption, and rebuttal of the statutory
presumption.
First Report form and his first Petition for Benefits did not rely on any
sudden accident or unusual exertion as causing his heart attack. Rather,
Claimant asserted in both documents that he “developed disabling
arterial and cardiovascular hypertension and or heart disease over course of
career as a certified corrections officer which became disabling on or
about 4/19/2010 [the date of his heart attack].” (Emphasis added.)3 The E/C denied the claim in its
entirety on grounds of expiration of the statute of limitations, untimely
notice, failure to meet the statutory presumption, and rebuttal of the statutory
presumption.
Independent
Medical Examiners (IMEs).
Medical Examiners (IMEs).
Claimant’s
IME, Dr. Borzak, reviewed Claimant’s medical records without examining
Claimant. Dr. Borzak acknowledged Claimant’s non-occupational risk factors, and
concluded that he was not able to determine the cause of Claimant’s heart
attack.
IME, Dr. Borzak, reviewed Claimant’s medical records without examining
Claimant. Dr. Borzak acknowledged Claimant’s non-occupational risk factors, and
concluded that he was not able to determine the cause of Claimant’s heart
attack.
The
E/C’s IME, Dr. Pedone, reviewed Claimant’s medical records and examined
Claimant. Dr. Pedone concluded within a reasonable degree of medical certainty
that Claimant developed atherosclerosis over a period of years prior to his
employment as a correctional officer, and that the atherosclerosis in turn was
caused by Claimant’s multiple risk factors unrelated to his employment. These
risk factors included a history of heavy smoking — between two and three-and-a-half
packs a day for 20 years, ending ten years before he took the trainee job; male
gender; over age 45 (age 55); family history of early-onset heart disease as
evidenced by his mother’s cardiac bypass surgery at age 55 and subsequent heart
transplant and death; obesity; dyslipidemia; increased abdominal girth; and
elevated glucose levels. The E/C’s IME concluded within a reasonable degree of
medical certainty that these factors, and not Claimant’s employment, caused
Claimant’s heart attack.
E/C’s IME, Dr. Pedone, reviewed Claimant’s medical records and examined
Claimant. Dr. Pedone concluded within a reasonable degree of medical certainty
that Claimant developed atherosclerosis over a period of years prior to his
employment as a correctional officer, and that the atherosclerosis in turn was
caused by Claimant’s multiple risk factors unrelated to his employment. These
risk factors included a history of heavy smoking — between two and three-and-a-half
packs a day for 20 years, ending ten years before he took the trainee job; male
gender; over age 45 (age 55); family history of early-onset heart disease as
evidenced by his mother’s cardiac bypass surgery at age 55 and subsequent heart
transplant and death; obesity; dyslipidemia; increased abdominal girth; and
elevated glucose levels. The E/C’s IME concluded within a reasonable degree of
medical certainty that these factors, and not Claimant’s employment, caused
Claimant’s heart attack.
Expert
Medical Advisor (EMA).
Medical Advisor (EMA).
Although
there was no conflict between the IME opinions because one physician could not
determine a cause and the other opined that the cause was non-occupational, the
JCC made no findings on the IME opinions, and the parties agreed to the appointment
of an expert medical advisor (EMA). The JCC appointed Dr. Leonard Pianko as an
EMA to evaluate Claimant and advise the JCC. Dr. Pianko recognized Claimant had
several coronary risk factors traditionally associated with coronary artery
disease, but concluded that the predominant etiology of the heart disease was
work-related. By the time Claimant saw Dr. Pianko on August 18, 2015, it had
been five years and four months since Claimant’s heart attack. Dr. Pianko
admitted that when he examined Claimant and prepared the EMA report, he did not
know that Claimant had worked as a correctional officer for only about three
months before the heart attack. Instead, he assumed Claimant had worked as a
correctional officer for “several years” or about “2 years” after passing his
December 2008 pre-employment physical. Given that mistaken factual foundation,
the E/C objected to the EMA’s opinion and moved to strike it.
there was no conflict between the IME opinions because one physician could not
determine a cause and the other opined that the cause was non-occupational, the
JCC made no findings on the IME opinions, and the parties agreed to the appointment
of an expert medical advisor (EMA). The JCC appointed Dr. Leonard Pianko as an
EMA to evaluate Claimant and advise the JCC. Dr. Pianko recognized Claimant had
several coronary risk factors traditionally associated with coronary artery
disease, but concluded that the predominant etiology of the heart disease was
work-related. By the time Claimant saw Dr. Pianko on August 18, 2015, it had
been five years and four months since Claimant’s heart attack. Dr. Pianko
admitted that when he examined Claimant and prepared the EMA report, he did not
know that Claimant had worked as a correctional officer for only about three
months before the heart attack. Instead, he assumed Claimant had worked as a
correctional officer for “several years” or about “2 years” after passing his
December 2008 pre-employment physical. Given that mistaken factual foundation,
the E/C objected to the EMA’s opinion and moved to strike it.
The
EMA also opined that Claimant’s heart attack was work-related based on articles
by Dr. Stefanos Kales, describing epidemiological studies covering only police
officers and firefighters. These articles are not in the record, but the EMA
described them as showing “a markedly increased incidence of coronary artery
disease” among police and firefighters compared to the general population. The
EMA acknowledged that the Kales articles did not cover correctional officers,
and he knew of no studies that did pertain to correctional officers. He
nevertheless considered the Kales articles analogous based on his own
experience, primarily in Dade County. There was no evidence of studies or Dr.
Pianko’s experience involving correctional officers with work tenures of only a
few months. Dr. Pianko acknowledged that Claimant had other risk factors, but
expressly based his opinion of occupational causation directly on the Kales
articles.
EMA also opined that Claimant’s heart attack was work-related based on articles
by Dr. Stefanos Kales, describing epidemiological studies covering only police
officers and firefighters. These articles are not in the record, but the EMA
described them as showing “a markedly increased incidence of coronary artery
disease” among police and firefighters compared to the general population. The
EMA acknowledged that the Kales articles did not cover correctional officers,
and he knew of no studies that did pertain to correctional officers. He
nevertheless considered the Kales articles analogous based on his own
experience, primarily in Dade County. There was no evidence of studies or Dr.
Pianko’s experience involving correctional officers with work tenures of only a
few months. Dr. Pianko acknowledged that Claimant had other risk factors, but
expressly based his opinion of occupational causation directly on the Kales
articles.
At
the EMA’s deposition and at trial, the E/C objected to the EMA’s opinion on the
grounds that the EMA improperly relied on the Kales articles and failed to
satisfy the requirements of section 90.702 of Florida’s Evidence Code and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).4 Claimant did not request a pre-trial
ruling on the Daubert objection, and did not request the assignment of
an alternate EMA.
the EMA’s deposition and at trial, the E/C objected to the EMA’s opinion on the
grounds that the EMA improperly relied on the Kales articles and failed to
satisfy the requirements of section 90.702 of Florida’s Evidence Code and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).4 Claimant did not request a pre-trial
ruling on the Daubert objection, and did not request the assignment of
an alternate EMA.
The
Heart-Lung Statute.
Heart-Lung Statute.
Florida’s
heart-lung statute was enacted in 1965, covering firemen only. § 112.18, Fla.
Stat. (1965) (codifying Ch. 65-480, Laws of Fla. (Senate Bill 149)). An earlier
Florida Supreme Court decision held that medical incidents such as heart
attacks could be compensable events even without the occurrence of a literal
“accident,” if they resulted from unusual work-related exertion. Victor Wine
& Liquor, Inc. v. Beasley, 141 So. 2d 581, 588-89 (Fla. 1961) (On
Rehearing Granted). Subsequent changes in the law broadened applicability of
the statutory presumption of compensability. See Ch. 73-125, § 1, at
196, Laws of Fla. (abolishing previous requirement that the presumption
operated only in regard to pension and retirement benefits); Caldwell v.
Div. of Ret., 372 So. 2d 438, 440-41 (Fla. 1979) (broadening compensability
to encompass firemen’s disabilities accruing over a period of time as hazards
are “constantly faced” over the course of a career); Ch. 2002-236, § 3, at
1720, Laws of Fla. (adding law enforcement officers and correctional officers
as covered occupations); Ch. 2010-175, § 2, at 2184, Laws of Fla. (amending
statute to add correctional probation officers, impose time limits on claims,
and eliminate the presumption of occupational causation for claimants who have
materially departed from a prescribed medical course of treatment resulting in
aggravation of a covered condition).
heart-lung statute was enacted in 1965, covering firemen only. § 112.18, Fla.
Stat. (1965) (codifying Ch. 65-480, Laws of Fla. (Senate Bill 149)). An earlier
Florida Supreme Court decision held that medical incidents such as heart
attacks could be compensable events even without the occurrence of a literal
“accident,” if they resulted from unusual work-related exertion. Victor Wine
& Liquor, Inc. v. Beasley, 141 So. 2d 581, 588-89 (Fla. 1961) (On
Rehearing Granted). Subsequent changes in the law broadened applicability of
the statutory presumption of compensability. See Ch. 73-125, § 1, at
196, Laws of Fla. (abolishing previous requirement that the presumption
operated only in regard to pension and retirement benefits); Caldwell v.
Div. of Ret., 372 So. 2d 438, 440-41 (Fla. 1979) (broadening compensability
to encompass firemen’s disabilities accruing over a period of time as hazards
are “constantly faced” over the course of a career); Ch. 2002-236, § 3, at
1720, Laws of Fla. (adding law enforcement officers and correctional officers
as covered occupations); Ch. 2010-175, § 2, at 2184, Laws of Fla. (amending
statute to add correctional probation officers, impose time limits on claims,
and eliminate the presumption of occupational causation for claimants who have
materially departed from a prescribed medical course of treatment resulting in
aggravation of a covered condition).
The
first paragraph of the 2009 statute in effect when Claimant had his heart
attack was otherwise largely unchanged from the original law, providing as
follows:
first paragraph of the 2009 statute in effect when Claimant had his heart
attack was otherwise largely unchanged from the original law, providing as
follows:
Any condition or impairment
of health of any Florida state, municipal, county, port authority, special tax
district, or fire control district firefighter or any law enforcement officer
or correctional officer as defined in s. 943.10(1), (2), or (3) caused by
tuberculosis, heart disease, or hypertension resulting in total or partial
disability or death shall be presumed to have been accidental and to have been
suffered in the line of duty unless the contrary be shown by competent
evidence. However, any such firefighter or law enforcement officer shall have
successfully passed a physical examination upon entering into any such service
as a firefighter or law enforcement officer, which examination failed to reveal
any evidence of any such condition. Such presumption shall not apply to
benefits payable under or granted in a policy of life insurance or disability
insurance, unless the insurer and insured have negotiated for such additional
benefits to be included in the policy contract.
of health of any Florida state, municipal, county, port authority, special tax
district, or fire control district firefighter or any law enforcement officer
or correctional officer as defined in s. 943.10(1), (2), or (3) caused by
tuberculosis, heart disease, or hypertension resulting in total or partial
disability or death shall be presumed to have been accidental and to have been
suffered in the line of duty unless the contrary be shown by competent
evidence. However, any such firefighter or law enforcement officer shall have
successfully passed a physical examination upon entering into any such service
as a firefighter or law enforcement officer, which examination failed to reveal
any evidence of any such condition. Such presumption shall not apply to
benefits payable under or granted in a policy of life insurance or disability
insurance, unless the insurer and insured have negotiated for such additional
benefits to be included in the policy contract.
§
112.18(1), Fla. Stat. (2009).
112.18(1), Fla. Stat. (2009).
Rebutting
the Statutory Presumption.
the Statutory Presumption.
The
heart-lung statute provides that the E/C can rebut the statutory presumption
with competent evidence of non-occupational causation. Id. (“unless the
contrary be shown by competent evidence”). The Florida Supreme Court in Caldwell
described the presumption created in section 112.18 as an expression of social
policy, and thus held that it affects the burden of proof. 372 So. 2d at 440. Caldwell
held that the statutory presumption can be rebutted with medical evidence
that “some other specific hazard or non-occupational factor was the cause of
the disease.” Id. at 441.
heart-lung statute provides that the E/C can rebut the statutory presumption
with competent evidence of non-occupational causation. Id. (“unless the
contrary be shown by competent evidence”). The Florida Supreme Court in Caldwell
described the presumption created in section 112.18 as an expression of social
policy, and thus held that it affects the burden of proof. 372 So. 2d at 440. Caldwell
held that the statutory presumption can be rebutted with medical evidence
that “some other specific hazard or non-occupational factor was the cause of
the disease.” Id. at 441.
We
have held that, if the claimant relies solely on the statutory presumption, the
E/C can rebut that presumption with competent evidence; but if the claimant
adduces competent evidence of occupational causation in addition to the
presumption, the E/C must have clear and convincing evidence to rebut the
presumption. Punsky v. Clay Cty. Sheriff’s Office, 18 So. 3d 577, 584
(Fla. 1st DCA) (On Rehearing En Banc) (certifying question of great public
importance as to the E/C’s proper burden of proof), review denied, 22
So. 3d 539 (Fla. 2009). The E/C’s rebuttal evidence must be medical evidence
established to a reasonable degree of medical certainty. Fuller v. Okaloosa
Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009). If the JCC’s ultimate
conclusion is not supported by competent, substantial evidence, we must
reverse. Punsky, 18 So. 3d at 584.
have held that, if the claimant relies solely on the statutory presumption, the
E/C can rebut that presumption with competent evidence; but if the claimant
adduces competent evidence of occupational causation in addition to the
presumption, the E/C must have clear and convincing evidence to rebut the
presumption. Punsky v. Clay Cty. Sheriff’s Office, 18 So. 3d 577, 584
(Fla. 1st DCA) (On Rehearing En Banc) (certifying question of great public
importance as to the E/C’s proper burden of proof), review denied, 22
So. 3d 539 (Fla. 2009). The E/C’s rebuttal evidence must be medical evidence
established to a reasonable degree of medical certainty. Fuller v. Okaloosa
Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009). If the JCC’s ultimate
conclusion is not supported by competent, substantial evidence, we must
reverse. Punsky, 18 So. 3d at 584.
The
E/C Successfully Rebutted the Presumption.
E/C Successfully Rebutted the Presumption.
Although
the E/C raises several issues on appeal including statute of limitations, which
we do not reach, we reverse because the E/C successfully rebutted the statutory
presumption with competent medical evidence; and the JCC’s conclusion of
occupational causation was not supported by competent, substantial evidence. See
id. Dr. Borzak, Claimant’s IME, performed a records review only, with no
personal interaction with Claimant. He could provide no opinion regarding
causation. In contrast, the E/C’s IME, Dr. Pedone, examined Claimant and his
records, and testified with the requisite degree of medical certainty that
Claimant suffered from multiple pre-existing risk factors that, alone or in
combination, caused Claimant’s atherosclerosis and resulting myocardial
infarction. He excluded any work-related causes.
the E/C raises several issues on appeal including statute of limitations, which
we do not reach, we reverse because the E/C successfully rebutted the statutory
presumption with competent medical evidence; and the JCC’s conclusion of
occupational causation was not supported by competent, substantial evidence. See
id. Dr. Borzak, Claimant’s IME, performed a records review only, with no
personal interaction with Claimant. He could provide no opinion regarding
causation. In contrast, the E/C’s IME, Dr. Pedone, examined Claimant and his
records, and testified with the requisite degree of medical certainty that
Claimant suffered from multiple pre-existing risk factors that, alone or in
combination, caused Claimant’s atherosclerosis and resulting myocardial
infarction. He excluded any work-related causes.
Although
there was no conflict between the two IME opinions, because Claimant’s IME
physician had no opinion regarding causation, the JCC nevertheless appointed
Dr. Pianko as EMA. Dr. Pianko acknowledged Claimant’s coronary risk factors
traditionally associated with coronary artery disease, but concluded that the
predominant cause of Claimant’s heart disease was work-related. An EMA opinion
is presumptively correct to the extent it addresses disagreements in the
opinions of healthcare providers. § 440.13(9)(c), Fla. Stat. (“The opinion of
the expert medical advisor is presumed to be correct unless there is clear and
convincing evidence to the contrary as determined by the judge of compensation
claims.”).5 However, an EMA opinion also must
comply with the Florida Evidence Code, including Daubert. See U.S.
Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla. 2002) (“First, the Florida
Evidence Code applies in workers’ compensation proceedings.”) (citing Alford
v. G. Pierce Woods Mem’l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993));
Giaimo, 154 So. 3d at 387. Under the Evidence Code as amended in 2013 to
codify Daubert, expert testimony must be “based on sufficient facts or
data”; be “the product of reliable principles and methods”; and be applied
“reliably to the facts of the case.” § 90.702, Fla. Stat. We conclude that the
E/C’s Daubert objection to Dr. Pianko’s opinion was well-founded,
because the opinion (1) lacked an accurate factual basis, and (2) relied on
improper bolstering. It therefore provided no legally sufficient evidentiary
basis for the JCC’s ruling in favor of Claimant, and required judgment for the
E/C. Punsky, 18 So. 3d at 584.
there was no conflict between the two IME opinions, because Claimant’s IME
physician had no opinion regarding causation, the JCC nevertheless appointed
Dr. Pianko as EMA. Dr. Pianko acknowledged Claimant’s coronary risk factors
traditionally associated with coronary artery disease, but concluded that the
predominant cause of Claimant’s heart disease was work-related. An EMA opinion
is presumptively correct to the extent it addresses disagreements in the
opinions of healthcare providers. § 440.13(9)(c), Fla. Stat. (“The opinion of
the expert medical advisor is presumed to be correct unless there is clear and
convincing evidence to the contrary as determined by the judge of compensation
claims.”).5 However, an EMA opinion also must
comply with the Florida Evidence Code, including Daubert. See U.S.
Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla. 2002) (“First, the Florida
Evidence Code applies in workers’ compensation proceedings.”) (citing Alford
v. G. Pierce Woods Mem’l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993));
Giaimo, 154 So. 3d at 387. Under the Evidence Code as amended in 2013 to
codify Daubert, expert testimony must be “based on sufficient facts or
data”; be “the product of reliable principles and methods”; and be applied
“reliably to the facts of the case.” § 90.702, Fla. Stat. We conclude that the
E/C’s Daubert objection to Dr. Pianko’s opinion was well-founded,
because the opinion (1) lacked an accurate factual basis, and (2) relied on
improper bolstering. It therefore provided no legally sufficient evidentiary
basis for the JCC’s ruling in favor of Claimant, and required judgment for the
E/C. Punsky, 18 So. 3d at 584.
(1) Inaccurate
Factual Foundation. We have held that an expert must establish accurate
essential foundation facts in support of the expert’s opinion. Lang Pools v.
McIntosh, 415 So. 2d 842, 843 (Fla. 1st DCA 1982) (rejecting expert’s
opinion based on premise that claimant suffered a fall, when claimant’s own
testimony was to the contrary, rendering the expert’s factual foundation
erroneous); see also Arkin Constr. Co. v. Simpkins, 99 So.
2d 557, 561-62 (Fla. 1957) (“It is elementary that the conclusion or opinion of
an expert witness based on facts or inferences not supported by the evidence in
a cause has no evidential value.”). Dr. Pianko admitted that when he examined
Claimant in August of 2015, he was not aware that Claimant had worked as a
correctional officer for only about three months before suffering the heart
attack at issue. Rather, the doctor had assumed that Claimant had worked as a
correctional officer for several years or at least two years before the heart
attack. He related that Claimant had talked to him about the stresses of
working as a correctional officer.
Factual Foundation. We have held that an expert must establish accurate
essential foundation facts in support of the expert’s opinion. Lang Pools v.
McIntosh, 415 So. 2d 842, 843 (Fla. 1st DCA 1982) (rejecting expert’s
opinion based on premise that claimant suffered a fall, when claimant’s own
testimony was to the contrary, rendering the expert’s factual foundation
erroneous); see also Arkin Constr. Co. v. Simpkins, 99 So.
2d 557, 561-62 (Fla. 1957) (“It is elementary that the conclusion or opinion of
an expert witness based on facts or inferences not supported by the evidence in
a cause has no evidential value.”). Dr. Pianko admitted that when he examined
Claimant in August of 2015, he was not aware that Claimant had worked as a
correctional officer for only about three months before suffering the heart
attack at issue. Rather, the doctor had assumed that Claimant had worked as a
correctional officer for several years or at least two years before the heart
attack. He related that Claimant had talked to him about the stresses of
working as a correctional officer.
By
the time of this examination and discussion, however, Claimant was describing
the experiences of nearly five years in that job. Dr. Pianko admitted that it
was important to his analysis that he thought Claimant had worked under the
real and anticipatory stress of the correctional officer job for several years
prior to his heart attack, and that he was mistaken. This was a significant
factual error that went to the very heart of Dr. Pianko’s causation opinion,
rendering that opinion incompetent. See Daubert, 509 U.S. at 591
(requiring accurate connection between expert testimony and the actual facts of
the case to satisfy requirement of relevance); Shartz v. Miulli, 127 So.
3d 613, 620-21 (Fla. 2d DCA 2013) (rejecting as legally insufficient an
expert’s causation testimony that relied on conjecture to extrapolate several
years back in time to determine the decedent’s then-existing medical
condition). Dr. Pianko’s opinion, materially lacking an accurate factual foundation,
could not support the JCC’s ruling. Punsky, 18 So. 3d at 584.
the time of this examination and discussion, however, Claimant was describing
the experiences of nearly five years in that job. Dr. Pianko admitted that it
was important to his analysis that he thought Claimant had worked under the
real and anticipatory stress of the correctional officer job for several years
prior to his heart attack, and that he was mistaken. This was a significant
factual error that went to the very heart of Dr. Pianko’s causation opinion,
rendering that opinion incompetent. See Daubert, 509 U.S. at 591
(requiring accurate connection between expert testimony and the actual facts of
the case to satisfy requirement of relevance); Shartz v. Miulli, 127 So.
3d 613, 620-21 (Fla. 2d DCA 2013) (rejecting as legally insufficient an
expert’s causation testimony that relied on conjecture to extrapolate several
years back in time to determine the decedent’s then-existing medical
condition). Dr. Pianko’s opinion, materially lacking an accurate factual foundation,
could not support the JCC’s ruling. Punsky, 18 So. 3d at 584.
(2)
Improper Bolstering. We also find that Dr. Pianko
improperly bolstered his opinion. Experts are prohibited from bolstering their
opinions by reference to the opinions of non-testifying experts or opinions
expressed in treatises authored by others. § 90.706, Fla. Stat.; Linn v.
Fossum, 946 So. 2d 1032, 1039 (Fla. 2006). These principles apply in
workers’ compensation cases under either Daubert or Frye. Henson,
823 So. 2d at 109 (adopting for application in workers’ compensation cases the
requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
that expert testimony must be based on precepts generally accepted in the
scientific community); Booker v. Sumter Cty. Sheriff’s Office, 166 So.
3d 189, 194 (Fla. 1st DCA 2015) (rejecting, after Legislature’s adoption of Daubert,
pure opinion testimony based only on clinical experience and training, and
requiring expert opinions to be based on scientific knowledge to assure
relevance and reliability). In this case, Dr. Pianko’s testimony was not
competent evidence, because he improperly bolstered his opinion.
Improper Bolstering. We also find that Dr. Pianko
improperly bolstered his opinion. Experts are prohibited from bolstering their
opinions by reference to the opinions of non-testifying experts or opinions
expressed in treatises authored by others. § 90.706, Fla. Stat.; Linn v.
Fossum, 946 So. 2d 1032, 1039 (Fla. 2006). These principles apply in
workers’ compensation cases under either Daubert or Frye. Henson,
823 So. 2d at 109 (adopting for application in workers’ compensation cases the
requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
that expert testimony must be based on precepts generally accepted in the
scientific community); Booker v. Sumter Cty. Sheriff’s Office, 166 So.
3d 189, 194 (Fla. 1st DCA 2015) (rejecting, after Legislature’s adoption of Daubert,
pure opinion testimony based only on clinical experience and training, and
requiring expert opinions to be based on scientific knowledge to assure
relevance and reliability). In this case, Dr. Pianko’s testimony was not
competent evidence, because he improperly bolstered his opinion.
Dr.
Pianko as EMA admitted that Claimant had several risk factors for heart
disease, including male gender, family history of heart disease, and personal
history of heavy cigarette smoking. However, he found these factors less
significant than factors addressed in articles written by another expert,
dealing with firefighters and law enforcement officers. Dr. Pianko’s written EMA
report stated as follows with respect to his reliance on such articles
(emphasis added):
Pianko as EMA admitted that Claimant had several risk factors for heart
disease, including male gender, family history of heart disease, and personal
history of heavy cigarette smoking. However, he found these factors less
significant than factors addressed in articles written by another expert,
dealing with firefighters and law enforcement officers. Dr. Pianko’s written EMA
report stated as follows with respect to his reliance on such articles
(emphasis added):
I have reviewed several
articles that have looked at police officers and firefighters written by Kales,
which on an epidemiological basis shows a markedly increased incidence of
coronary artery disease in the general population. [Claimant’s] development of
heart attack 2 years later appeared to be work related based on the
epidemiological data of [K]ales.
articles that have looked at police officers and firefighters written by Kales,
which on an epidemiological basis shows a markedly increased incidence of
coronary artery disease in the general population. [Claimant’s] development of
heart attack 2 years later appeared to be work related based on the
epidemiological data of [K]ales.
At
his deposition, which was admitted into evidence for purposes of the final
evidentiary hearing, Dr. Pianko admitted that the Kales articles did not deal
with correctional officers. He nevertheless testified that in his opinion,
based in part on conversations he has had with other unspecified experts, the
articles involving police officers in particular should relate to
correctional officers. When asked specifically whether this opinion was
supported by any medical treatises or journals, he said he was relying on his
own experience, particularly in Dade County.
his deposition, which was admitted into evidence for purposes of the final
evidentiary hearing, Dr. Pianko admitted that the Kales articles did not deal
with correctional officers. He nevertheless testified that in his opinion,
based in part on conversations he has had with other unspecified experts, the
articles involving police officers in particular should relate to
correctional officers. When asked specifically whether this opinion was
supported by any medical treatises or journals, he said he was relying on his
own experience, particularly in Dade County.
Dr.
Pianko was not entitled to bolster his opinion by reference to other experts’
opinions or publications. The seminal case on improper bolstering is Linn v.
Fossum, which prohibits experts from bolstering their opinions by reference
to other experts or treatises. 946 So. 2d at 1039. We have applied Linn
to prohibit experts from using published materials or hearsay consultations to
bolster their opinions. Duss v. Garcia, 80 So. 3d 358, 364 (Fla. 1st DCA
2012); Hargrove v. Howell, 884 So. 2d 960, 962 (Fla. 1st DCA 2004); see
also Liberatore v. Kaufman, 835 So. 2d 404, 407 (Fla. 4th DCA 2003)
(collecting cases prohibiting bolstering of expert opinions on direct
examination). This result flows from section 90.706 of the Florida Evidence
Code, which prohibits the use of authoritative literature except on
cross-examination. The EMA’s reliance on the Kales articles as well as other
unspecified publications and discussions was improper, and rendered the EMA
opinion incompetent and not a valid evidentiary basis for the JCC’s finding in
favor of Claimant. Punsky, 18 So. 3d at 584.
Pianko was not entitled to bolster his opinion by reference to other experts’
opinions or publications. The seminal case on improper bolstering is Linn v.
Fossum, which prohibits experts from bolstering their opinions by reference
to other experts or treatises. 946 So. 2d at 1039. We have applied Linn
to prohibit experts from using published materials or hearsay consultations to
bolster their opinions. Duss v. Garcia, 80 So. 3d 358, 364 (Fla. 1st DCA
2012); Hargrove v. Howell, 884 So. 2d 960, 962 (Fla. 1st DCA 2004); see
also Liberatore v. Kaufman, 835 So. 2d 404, 407 (Fla. 4th DCA 2003)
(collecting cases prohibiting bolstering of expert opinions on direct
examination). This result flows from section 90.706 of the Florida Evidence
Code, which prohibits the use of authoritative literature except on
cross-examination. The EMA’s reliance on the Kales articles as well as other
unspecified publications and discussions was improper, and rendered the EMA
opinion incompetent and not a valid evidentiary basis for the JCC’s finding in
favor of Claimant. Punsky, 18 So. 3d at 584.
Conclusion.
Because
the E/C successfully rebutted the statutory presumption of section 112.18, and
the EMA’s opinion was not competent, substantial evidence of occupational
causation, Claimant was not entitled to benefits under the heart-lung statute.
the E/C successfully rebutted the statutory presumption of section 112.18, and
the EMA’s opinion was not competent, substantial evidence of occupational
causation, Claimant was not entitled to benefits under the heart-lung statute.
REVERSED
and REMANDED for entry of judgment in favor of the E/C. (ROWE and JAY, JJ.,
CONCUR.)
and REMANDED for entry of judgment in favor of the E/C. (ROWE and JAY, JJ.,
CONCUR.)
__________________
1Before
correctional officers were added to the heart-lung statute in 2002, the law
required firefighters and law enforcement officers to successfully pass a
physical examination upon entering service, before being entitled to benefits
under the statute. § 112.18(1)(a), Fla. Stat. (2001). In 2007, the
pre-employment physical requirement was extended to cover correctional officers
and correctional probation officers under § 943.13(6).
correctional officers were added to the heart-lung statute in 2002, the law
required firefighters and law enforcement officers to successfully pass a
physical examination upon entering service, before being entitled to benefits
under the statute. § 112.18(1)(a), Fla. Stat. (2001). In 2007, the
pre-employment physical requirement was extended to cover correctional officers
and correctional probation officers under § 943.13(6).
2Under
an amendment to the statute enacted in 2010, the presumption does not apply if
a claim for benefits is not made “prior to or within 180 days after leaving the
employment of the employing agency.” § 112.18(1)(b)4., Fla. Stat. (2010). This
Court in Scherer v. Volusia Cty. Dep’t of Corr., 171 So. 3d 135, 139-40
(Fla. 1st DCA 2015), by a 2-1 vote, construed this provision as not applying to
claims arising before July 1, 2010. Because we resolve this appeal on other
grounds, we do not reach this issue.
an amendment to the statute enacted in 2010, the presumption does not apply if
a claim for benefits is not made “prior to or within 180 days after leaving the
employment of the employing agency.” § 112.18(1)(b)4., Fla. Stat. (2010). This
Court in Scherer v. Volusia Cty. Dep’t of Corr., 171 So. 3d 135, 139-40
(Fla. 1st DCA 2015), by a 2-1 vote, construed this provision as not applying to
claims arising before July 1, 2010. Because we resolve this appeal on other
grounds, we do not reach this issue.
3In
light of Claimant’s own concessions in the report form and PFB that he had
worked in a qualifying occupation for only about three months before having a
heart attack while sleeping at home, we have examined the employment tenures
involved in our previous heart-lung opinions, and in records on appeal for
cases dating back as far as we have retained records (2006). We have found no
cases applying the heart-lung presumption that involved an employment tenure of
less than 10 years, and cases involving careers of up to 33 years. See
Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 804-05 (Fla. 1st DCA 2009)
(10 years); City of Jacksonville Fire & Rescue Dep’t v. Battle, 148
So. 3d 795, 796 (Fla. 1st DCA 2014) (33 years). Nevertheless, section 112.18 on
its face does not impose an express tenure requirement. Claimant himself
refused to sign the report form that asserted he “developed” disabling
conditions “over course of career as a certified corrections officer.” Above
the signature block on the report form is the caution that “Any person who,
knowingly and with intent to injure, defraud, or deceive . . . files a
statement of claim containing any false or misleading information commits
insurance fraud . . . .” The signature line bears the words “refused to sign.”
light of Claimant’s own concessions in the report form and PFB that he had
worked in a qualifying occupation for only about three months before having a
heart attack while sleeping at home, we have examined the employment tenures
involved in our previous heart-lung opinions, and in records on appeal for
cases dating back as far as we have retained records (2006). We have found no
cases applying the heart-lung presumption that involved an employment tenure of
less than 10 years, and cases involving careers of up to 33 years. See
Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 804-05 (Fla. 1st DCA 2009)
(10 years); City of Jacksonville Fire & Rescue Dep’t v. Battle, 148
So. 3d 795, 796 (Fla. 1st DCA 2014) (33 years). Nevertheless, section 112.18 on
its face does not impose an express tenure requirement. Claimant himself
refused to sign the report form that asserted he “developed” disabling
conditions “over course of career as a certified corrections officer.” Above
the signature block on the report form is the caution that “Any person who,
knowingly and with intent to injure, defraud, or deceive . . . files a
statement of claim containing any false or misleading information commits
insurance fraud . . . .” The signature line bears the words “refused to sign.”
4We
are aware of the Florida Supreme Court’s decision declining to adopt Daubert
“to the extent it is procedural.” In re: Amends. to the Fla. Evid. Code,
42 Fla. L. Weekly S179 (No. SC16-181) (Fla. Feb. 16, 2017). See also
Anderson v. State, 42 Fla. L. Weekly S286c (No. SC12-1252, 14-881) (Fla.
Mar. 9, 2017) (describing Daubert as “more lenient” than Frye).
We reaffirm that Daubert continues to apply in workers compensation
proceedings as we held in Giaimo v. Fla. Autosport, Inc., 154 So. 3d
385, 388 (Fla. 1st DCA 2014). See also Baricko v. Barnett Transp., Inc.,
42 Fla. L. Weekly D174 (Fla. 1st DCA Jan. 17, 2017) (Wetherell, J., concurring)
(noting that supreme court’s failure to adopt the procedural aspects of Daubert
“will have no impact whatsoever on the applicability of the Daubert test
in workers’ compensation proceedings”). On the facts of this case, as we
explain herein, we conclude that the result here would be the same under either
Daubert or Frye; but that comparative analysis should not be
construed as suggesting any departure from Giaimo.
are aware of the Florida Supreme Court’s decision declining to adopt Daubert
“to the extent it is procedural.” In re: Amends. to the Fla. Evid. Code,
42 Fla. L. Weekly S179 (No. SC16-181) (Fla. Feb. 16, 2017). See also
Anderson v. State, 42 Fla. L. Weekly S286c (No. SC12-1252, 14-881) (Fla.
Mar. 9, 2017) (describing Daubert as “more lenient” than Frye).
We reaffirm that Daubert continues to apply in workers compensation
proceedings as we held in Giaimo v. Fla. Autosport, Inc., 154 So. 3d
385, 388 (Fla. 1st DCA 2014). See also Baricko v. Barnett Transp., Inc.,
42 Fla. L. Weekly D174 (Fla. 1st DCA Jan. 17, 2017) (Wetherell, J., concurring)
(noting that supreme court’s failure to adopt the procedural aspects of Daubert
“will have no impact whatsoever on the applicability of the Daubert test
in workers’ compensation proceedings”). On the facts of this case, as we
explain herein, we conclude that the result here would be the same under either
Daubert or Frye; but that comparative analysis should not be
construed as suggesting any departure from Giaimo.
5An
EMA opinion is admissible as provided in § 440.25(4)(d), Fla. Stat., when
there is a conflict in the medical evidence. However, an EMA opinion is not
presumptively correct under § 440.13(9)(c) to the extent that it exceeds the
scope of any identified disagreement between other authorized medical opinions.
Lowe’s Home Centers, Inc. v. Beekman, 187 So. 3d 318, 322 (Fla. 1st DCA
2016) (“Therefore, the opinions intended to carry the presumption of
correctness are only those that address already identified disagreements
in medical opinions; all other medical opinions expressed by the EMA carry the
same weight as that of an independent medical examiner or an authorized
treating physician.”). In that situation, the EMA opinion is no more than a
potential “source of assistance to the JCC.” Id. (quoting Fitzgerald
v. Osceola Cty. Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008)).
EMA opinion is admissible as provided in § 440.25(4)(d), Fla. Stat., when
there is a conflict in the medical evidence. However, an EMA opinion is not
presumptively correct under § 440.13(9)(c) to the extent that it exceeds the
scope of any identified disagreement between other authorized medical opinions.
Lowe’s Home Centers, Inc. v. Beekman, 187 So. 3d 318, 322 (Fla. 1st DCA
2016) (“Therefore, the opinions intended to carry the presumption of
correctness are only those that address already identified disagreements
in medical opinions; all other medical opinions expressed by the EMA carry the
same weight as that of an independent medical examiner or an authorized
treating physician.”). In that situation, the EMA opinion is no more than a
potential “source of assistance to the JCC.” Id. (quoting Fitzgerald
v. Osceola Cty. Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008)).
* *
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