in the supreme court of flori a case no. sc12-2559 …...the accepted cause of the heart disease,...
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IN THE SUPREME COURT OF FLORI A
Case No. SC12-2559
STATE OF FLORIDA-DEPARTMENT OF CORRECTIONSDIVISION OF RISK MANAGEMENT
Petitioner,
v.
JIMMY WALTERS,
Respondent.
BRIEF ON JURISDICTIONOF STATE OF FLORIDA-DEPARTMENT OF CORRECTIONS/
DIVISION OF RISK MANAGEMENT
On Petition Invoking Discretionary Jurisdiction to ReviewDecision of the District Court of Appeal
For the First District of Florida
COLLEEN CLEARY ORTIZFlorida Bar No. [email protected] North Palafox StreetPensacola, Florida 32501850-466-3267KAREN J. CULLENFlorida Bar No. [email protected] West Colonial DriveOrlando, Florida 32804407-649-8717Attorneys for Petitioner
TABLEOFCONTENTS
PageTABLEOFCONTENTS i
TABLE OF AUTHORITIES ii
SUMMARY OF THE ARGUMENT 3
ARGUMENT 4
I. THE DECISION EXPRESSLY AND DIRECTLYCONFLICTS WITH THE DECISION OF THIS COURT INCALDWELL V. DIVISION OF RETIREMENT, BY FAILING TORECOGNIZE THE RULE OF LAW SET OUT IN CALDWELL,THAT AN EMPLOYER/CARRIER CAN REBUT THEPRESUMPTION OF COMPENSABILITY BY EVIDENCE OF ANON-OCCUPATIONAL CAUSE, TO CASES IN WHICH ADISEASE OF ORDINARY LIFE CAUSES HEART DISEASE,OR OTHER CONDITION COVERED BY THEPRESUMPTION 4
II. THE DECISION EXPRESSLY AFFECTS A CLASS OFCONSTITUTIONAL OFFICERS, ALL STATE OF FLORIDAWARDENS AND SHERIFFS, AS IT RESULTS IN A NEWLYCREATED RESPONSIBILITY FOR SHERIFFS TO PROVIDEMEDICAL CARE AND INDEMNITY BENEFITS FOR THECONSEQUENCE OF MEDICAL CONDITIONS NOTORDINARILY COMPENSABLE UNDER THE FLORIDAWORKERS' COMPENSATION STATUTE 6
CONCLUSION 10
CERTIFICATE OF COMPLIANCE 11
CERTIFICATE OF SERVICE 11
APPENDIX Tab
11
TABLE OF CITATIONS
Florida Cases Page
Caldwell v. Division ofRetirement,372 So.2d 438 (Fla. 1979)............................................................................1,2,4,5
Clinch v. City ofJacksonville-Jacksonville Sheriff's Office,OJCC Case No.: 12-001408RJH, (October 10, 2012)..................................6
Fl.State Bd. ofHealth v. Lewis,149 So. 2d 41 (Fla. 1963).............................................................................8
Glendenning v. Curry, City Manager, et al.,14 So.2d 794 (Fla. 1943)..............................................................................7,8
Ramer v. State,530 So.2d 915, (Fla. 2004)..........................................................................3,7
Arnaldo Richetti v. Osceola County,OJCC: 11-014928TWS (March 28, 2012)...................................................6
Smith v. City ofDaytona BeachOJCC: 10-026911TGP; 1D12-2588 (viral cardiomyopathyresulted in need for heart transplant - appeal pending).................................6
State v. Jones,79 Fla. 56, 84 So.84 (Fla. 1920)...................................................................3
Wilder v. Orange Cty CorrectionsOJCC: 11-017206NPP, 1D12-1401 (appeal pending)..................................6
RulesFlorida Rule of Appellate Procedure 9.030(a)(2)(A) (iii).............................7
Florida Rule of Appellate Procedure 9.030(a)(2)(A) (iv).............................5
Ill 111
Florida ConstitutionArticle V, Section 3(b)(3)............................................................................5,7
Florida Statutes
§112.18, Fla. Stat..........................................................................................passim§440.151, Fla.Stat........................................................................................passim
IV
STATEMENT OF THE CASE AND FACTS
The case at hand pertains to the statutory presumption created by §112.18,
Fla. Stat. A claim was brought by Jimmy Walters, ("Walters"), a corrections
officer, against the State of Florida-Department of Corrections (Northwest Florida
Reception Center Annex) / Division of Risk Management, ("State"), after he
developed disabling myopericarditis and viral cardiomyopathy. (A-4). The parties
stipulated that Walters met the factual predicate giving rise to the§112.18
presumption. (A-3). Walters 1) is a covered employee, i.e., a corrections officer;
2) passed a pre-employment physical which revealed no evidence of heart disease;
3) was diagnosed with myopericarditis and cardiomyopathy, which are considered
"heart disease"; and 4) the diagnosed heart disease resulted in disability. (A-3).
The State denied compensability of Walters' myopericarditis and
cardiomyopathy ("heart disease"), contending that the undisputed cause of
Walters' heart disease was gastroenteritis, i.e., a stomach virus. (A-4).
The presumption afforded corrections officers and other first responders
under §112.18 can be rebutted with medical evidence that, "some other specific
hazard or non-occupational factor was the cause of the disease."Caldwell v.
Division ofRetirement, 372 So.2d 438, 441 (Fla. 1979). (A-2). The State argued
that the cause of Walters' heart disease, gastroenteritis, is a non-occupational
factor, as it is not an occupational disease compensable under §440.151, Fla. Stat.
I
(2009). (A-4). The Judge of Compensation Claims, ("JCC"), accepted the State's
argument and denied the claim, specifically ruling that Walters did not prove that
the accepted cause of the heart disease, the viral gastroenteritis, was an
occupational disease in the manner contemplated by section 440.151, Florida
Statutes." (A-4). Walters appealed.
On appeal, as at the trial level, Walters agreed that his heart disease was
caused by a stomach virus. (A-4). However, he argued that the presumption
"obviated any requirement on his part to prove that he contracted the virus at
work." (A-5). The appellate court looked to the unanimous opinion testimony of
the three physicians, that the source of the virus was unknown, and found that there
was no competent evidence in the record that supported the assertion that "this,"
i.e. the gastroenteritis (and/or, therefore, the heart disease) Walters contracted was
"non-occupational in nature" and "not work-related." (A-6). The appellate court
held that the JCC improperly shifted the burden to Walters to prove that the
stomach virus was work-related, thus failing to "give proper effect to the section
112.18 presumption." (A-7). The appellate court reversed and remanded the
JCC's decision.
The appellate decision expressly and directly conflicts with this Court's
decision in Caldwell v. Division ofRetirement, 372 So.2d 438 (Fla. 1979), which
held that the presumption can be rebutted by evidence of a non-occupational cause.
2
Moreover, in addition to its application to corrections officers, §112.18, Fla. Stat.,
and the appellate court's ruling, applies to all Wardens in the State of Florida, a
class of State officers, and to all Sheriffs in the State of Florida, a class of
constitutional officers. See, State v. Jones, 79 Fla. 56, 84 So.84 (Fla. 1920), and
Ramer v. State, 530 So.2d 915, (Fla. 2004). As such, the State of Florida-
Department of Corrections / Division of Risk Management timely filed a Notice
requesting this Court invoke its discretionary jurisdiction. The State also filed a
Motion for Stay of Mandate.
SUMMARY OF THE ARGUMENT
This case addresses the burden of proof required to rebut the statutory
presumption of compensability of heart disease afforded law enforcement officers,
firefighters, corrections officers, and probation officers under §112.18, Fla. Stat.
In particular, this case pertains to the applicable burden of proof in situations when
presumably compensable heart disease is caused by a disease of ordinary life. The
appellate court rejected the JCC's determination, that when the cause of heart
disease is proven to be a disease of ordinary life, a stomach virus, that the
presumption has been rebutted and that the burden shifts to the claimant to show
that the disease of ordinary life is a compensable condition, as required by
§440.151, Fla. Stat. The appellate court held that in such cases, in order to rebut
the §112.18 presumption, the employer/carrier not only has the burden to show that
3
the heart disease was caused by a disease of ordinary life, but also that the disease
of ordinary life was not contracted at the claimant's place of employment. This
holding expressly and directly conflicts with the decision of this Court in Caldwell
v. Division of Retirement, 372 So.2d 438 (Fla. 1979). Caldwell held that the
§112.18 presumption can be rebutted with medical evidence that a non-
occupational factor was the cause of the disease. Id., at 441.
Petitioner also seeks review in this Court as the appellate court's holding has
direct application to a class of constitutional and state officers, to include all State
of Florida Wardens and State of Florida Sheriffs, and results in a newly created
responsibility for such officers, to provide medical care and indemnity benefits for
the consequence of medical conditions not ordinarily compensable under the
Florida Workers' Compensation statute. This newly created responsibility will
have extraordinary financial impact on the affected class of constitutional and state
officers.
ARGUMENT
I. THE DECISION EXPRESSLY AND DIRECTLY CONFLICTSWITH THE DECISION OF THIS COURT IN CALDWELL V. DIVISIONOF RETIREMENT, BY FAILING TO RECOGNIZE THE RULE OF LAWSET OUT IN CALDWELL, THAT AN EMPLOYER/CARRIER CANREBUT THE PRESUMPTION OF COMPENSABILITY BY EVIDENCE OFA NON-OCCUPATIONAL CAUSE, TO CASES IN WHICH A DISEASE OFORDINARY LIFE CAUSES HEART DISEASE, OR OTHER CONDITIONCOVERED BY THE PRESUMPTION.
4
Petitioners respectfully request that this Court exercise its discretionary
jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution and
pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A) (iv), on the basis
that the decision of the First District Court of Appeal expressly and directly
conflicts with this Court's decision in Caldwell v. Division of Retirement, 372
So.2d 438 (Fla. 1979).
The Express and Direct Conflict
The 1st DCA is correct in its determination that if the §112.18 presumption
applies, even in the face of conflicting evidence, a covered employee does not have
to establish or even present evidence that the heart disease is an occupational
disease under the occupational disease statute, §440.151, Fla. Stat. However, when
the evidence establishes that the heart disease was caused by a disease of ordinary
life, (with rare exception such diseases are not considered occupational diseases
and are not compensable) this evidence of a non-occupational cause is sufficient to
rebut the presumption. As this Court held in Caldwell v. Division of Retirement,
372 So.2d 438 (Fla. 1979), an employer/carrier can rebut the §112.18, Fla. Stat.,
presumption of compensability of heart disease by showing some specific hazard
or non-occupational factor was the cause of the heart disease. Thus, the appellate
court's determination that the Employer/Carrier was required to also prove that the
disease of ordinary life was not contracted at the Claimant's place of employment
5
in order to rebut the §112.18 presumption directly and expressly conflicts with the
Caldwell holding.
Ordinarily, to be a compensable condition under the Florida Workers'
Compensation law, an illness such as a stomach virus, must meet the requirements
of §440.151, Fla. Stat. In general terms,§440.151(2) excludes all 'ordinary
diseases of life' to which the general public is exposed, and, 'shall be construed to
mean only a disease which is due to causes and conditions which are characteristic
of and peculiar to a particular trade, occupation, process, or employment... .' The
appellate court's ruling, in levying a secondary burden on the Employer/Carrier of
proving that a stomach virus which resulted in heart disease was not contracted at
the Claimant's place of employment, in effect creates a double, and likely
irrebuttable, presumption.
At least three additional viral cardiomyopathy cases have heard by judges of
compensation claims since November 2011, one of which resulted in the need for a
heart transplant. Additionally, a recent decision by a judge of compensation claims
extends the application of the presumption to headaches, alleged to have been the
cause of disabling hypertension. Because the appellate court's decision has wide
ranging impact, and conflicts with established law, this conflict, respectfully,
should be addressed by this Court.
II. THE DECISION EXPRESSLY AFFECTS A CLASS OFCONSTITUTIONAL OFFICERS, ALL STATE OF FLORIDA WARDENS
6
AND ALL STATE OF FLORIDA SHERIFFS, AS IT RESULTS IN ANEWLY CREATED RESPONSIBILITY FOR SHERIFFS TO PROVIDEMEDICAL CARE AND INDEMNITY BENEFITS FOR THECONSEQUENCE OF MEDICAL CONDITIONS NOT ORDINARILYCOMPENSABLE UNDER THE FLORIDA WORKERS' COMPENSATIONSTATUTE.
The decision of the First District Court of Appeal applies to all Wardens and
Sheriffs in the State of Florida, as such, it expressly affects a class of constitutional
and state officers. See, Glendenning v. Curry, City Manager, et al., 14 So.2d 794
(Fla. 1943), and Ramer v. State, 530 So.2d 915 (Fla. 2004). For this reason,
Petitioners respectfully request that this Court exercise its discretionary jurisdiction
under Article V, Section 3(b)(3) of the Florida Constitution and pursuant to Florida
Rule of Appellate Procedure 9.030(a)(2)(A) (iii).
In Ramer v. State, 530 So.2d 915 (Fla. 2004) this Court recognized Sheriffs
as constitutional officers. In Glendenning v. Curry, City Manager, et al., 14 So.2d
794 (Fla. 1943), this Court addressed the issue as to what constitutes a state officer
for purposes of discretionary jurisdiction, stating:
In State affairs, this Court has long held that the word 'officer' implies a
delegation of a portion of the sovereign power of the State to, and the possession of
it by, the person filling the office. While all the following elements need not
always exist, the word office usually embraces the idea of tenure, duration,
emolument, and duties and responsibilities imposed by law-a public trust to be
7
exercised, usually with some considerable degree of discretion and judgment, in
behalf of the government. Glendenning, 14 So.2d at 798.
That wardens in the State of Florida meet this definition is supported by
§944.14, Fla. Stat., which statutorily defines the role and duties wardens, to include
the duty to, "supervise the government, discipline, and policy of the state
correctional institutions, and to enforce all orders, rules, and regulations." As
suggested by Glendenning, these duties, imposed by law, are established for the
public trust on behalf of the government. As such, wardens are a class of state
officers for which discretionary jurisdiction may be considered.
In contrast to the multitude of cases analyzing "conflict jurisdiction," this
Court has had little opportunity to provide opinion concerning its constitutional
and state officer jurisdiction. In Fl. State Bd. of Health v. Lewis, 149 So. 2d 41
(Fla. 1963), this Court described the constitutional provision, stating:
The obvious purpose of the subject constitutional provision was to authorize
this court to review decisions which, in the ultimate, would affect all constitutional
or state officers exercising the same powers, even though only one of such officers
might be involved in the particular litigation.
Not only does the case at bar directly impacts the duties of both Wardens,
who are state officers, it directly impacts all Sheriffs in the State of Florida, i.e., a
class of constitutional officers.
8
Of critical import, the decision imposes a significant fiscal duty on all
Sheriffs in every county of the State of Florida, as it results in a newly created
responsibility for these constitutional and state officers to provide medical care and
indemnity benefits to their corrections officers and deputies for the consequence of
medical conditions (e.g. common viruses) not ordinarily compensable under the
Florida Workers' Compensation statute. This newly created responsibility will
have extraordinary financial impact on the affected class of constitutional and state
officers. As noted above, viral cardiomyopathy (heart disease caused by a virus),
is a condition which can result in the need for heart transplantation. That this
decision and its rationale will extend further to make compensable the consequence
of other diseases of ordinary life is made evident by the previously referenced
decision, in which the JCC required an employer/carrier to rebut the §112.18
presumption with proof that a claimant's headache was not caused by her
employment.
Each Warden and Sheriff in the State of Florida is subject to the First
District Court of Appeal in worker's compensation matters, and thus to this
decision. The duties imposed by this decision are significant. The duty to
compensate corrections officers and deputies for heart diseases caused by an untold
number of diseases of ordinary life would divert significant funds from Wardens'
and Sheriffs' coffers and away from their public safety and criminal control
9
missions. Therefore, Petitioners, and the Northwest Florida Reception Center
Annex and its Warden, respectfully request that this Court accept jurisdiction to
review the decision that results in a newly created responsibility for Wardens and
Sheriffs to provide medical care and indemnity benefits for the consequence of
medical conditions not ordinarily compensable under the Florida Workers'
Compensation Statute.
CONCLUSION
For all the foregoing reasons, Petitioners respectfully request this Court
accept discretionary jurisdiction.
Respectfully submitted,
/s/ Colleen Cleary OrtizCOLLEEN CLEARY ORTIZFlorida Bar No. [email protected] North Palafox StreetPensacola, Florida 32501850-466-3267KAREN J. CULLENFlorida Bar No. [email protected] West Colonial DriveOrlando, Florida 32804407-649-8717Attorneys for Petitioner
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished this 14'h day of December, 2012 via email to Paolo Longo, Esquire, Co-
Counsel for Employee/Claimant/Respondent at [email protected]; Kelli
Biferie Hastings, Esquire, Co-Counsel for Claimant/Appellant at
[email protected]; and Paul M. Hawkes, Esquire, Co-Counset for
Claimant/Appellant at [email protected].
/s/ Colleen Cleary OrtiCOLLEEN CLEARY ORTIZ
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this pleading is typed with Times New Roman
14-point font.
/s/ Colleen Cleary OrtCOLLEEN CLEARY ORTIZ
l1
IN THE SUPREME COURT OF FLORIDA
Case No. SC12-2559
STATE OF FLORIDA-DEPARTMENT OF CORRECTIONSDIVISION OF RISK MANAGEMENT
Petitioner,
v.
JIMMY WALTERS,
Respondent.
PETITIONER'S APPENDIX
COLLEEN CLEARY ORTIZFlorida Bar No. [email protected] North Palafox StreetPensacola, Florida 32501850-466-3267KAREN J. CULLENFlorida Bar No. [email protected] West Colonial DriveOrlando, Florida 32804407-649-8717Attorneys for Petitioner
TABLEOFCONTENTS
Tab Page
1. Opinion of the First District Court of Appeal 1-7
2. Certificate of Service 8
IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA
JIMMY WALTERS, NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D11-6707
STATE OF FLORIDA - DOC/DIVISION OF RISKMANAGEMENT,
Appellee. .
Opinion filed October 16, 2012.
An appeal from an order of the Judge of Compensation Claims.Laura Roesch, Judge.
Date of Accident: December 22, 2009.
Paul M. Hawkes, Tallahassee, Kelli Biferie Hastings of the Law Office of KelliBiferie Hastings, PLLC, Orlando, and Paolo Longo of Bichler Kelley, PLLC,Maitland, for Appellant.
Alan Kalinoski of Dean, Ringers, Morgan & Lawton, P.A., Orlando, and ColleenCleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellee.
BENTON, C.J.
On this appeal of the order of a judge of compensation claims denying all
benefits claimed on account of Jimmy Walters's heart disease, we reverse and
remand for the award of medical benefits for the care and treatment of his heart
disease and of any other workers' compensation benefits he may be entitled to on
account of his heart disease.
Section 112.18, Florida Statutes (2009)-variously known as the
"Firefighter's Presumption," the "Heart and Lung Bill" or the "Heart-Lung
Statute," see 9 Patrick John McGinley, Fla. Prac. Workers' Comp. with Forms §
11:6 (2012 ed.)--creates a rebuttable presumption of occupational causation for
disabling heart disease (among other health conditions) suffered by correctional
officers (among others) who meet certain prerequisites.1 The presumption is
dispositive unless rebutted by medical evidence. See Fuller v. Okaloosa Corr.
Inst., 22 So. 3d 803, 806 (Fla. 1st DCA 2009). In order to rebut the presumption,
the medical evidence must prove "the disease . . . was caused by a specific, non-
work related event or exposure," Caldwell v. Div. of Ret., Fla. Dep't of Admin.,
372 So. 2d 438, 441 (Fla. 1979), superseded by statute on other grounds as stated
in Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 52-54 (Fla. 2012), i.e., by
"some non-work-related factor." Lentini v. City of W. Palm Beach, 980 So. 2d
1232, 1233 (Fla. 1st DCA 2008). See also City of Tarpon Springs v. Vaporis, 953
So. 2d 597, 599 (Fla. 1st DCA 2007). The presumption can also be rebutted by
i The claimant must have passed a physical examination upon entering intoservice as a correctional officer (or other covered position), which failed to revealany evidence of the disabling disease. § 112.18(1), Fla. Stat. (2009).
2
proof of a specific "combination of wholly non-industrial causes." Punsky v. Clay
Cnty. Sheriff's Office, 18 So. 3d 577, 583-84 (Fla. 1st DCA 2009).
In the present case, the parties stipulated to the factual predicate necessary to
give rise to the statutory presumption of occupational causation.2 Mr. Walters is a
corrections officer whose job required, among other things, that he gather newly
received inmates' clothing when new arrivals were ordered to change into prison
garb. Before he began work as a correctional officer, a medical examination
revealed no heart disease of any kind. Beginning the week before he went to the
hospital on December 22, 2009, he felt as if he were coming down with a cold, but
he worked the full week anyway. Only after chills and nausea on his days off, and
when he began to experience chest pain, did he go to Gulf Coast Medical Center
2 Our supreme court discussed what section 112.18, Florida Statutes (2009),requires in Caldwell v. Division of Retirement, Florida Department ofAdministration, 372 So. 2d 438, 440-41 (Fla. 1979). In the absence of stipulatedfacts, the statute requires "proof that the claimant was employed as a lawenforcement officer, fireman or other covered employee, that he suffered from acondition or impairment caused by tuberculosis, heart disease or hypertensionwhich resulted in disability or death, and that he had passed a physical examinationupon entering into service as a law enforcement officer or other covered position,which failed to reveal any evidence of the disabling disease. See § 112.18(1), Fla.Stat. (2005). Upon such proof, a claimant is entitled to the presumption that hissubsequently occurring disease is work-related unless and until the presumption isrebutted . . . . See Caldwell, 372 So. 2d at 441." Punsky v. Clay Cnty. Sheriff'sOffice, 18 So. 3d 577, 585 (Fla. 1st DCA 2009) (Benton, J., concurring). Theparties in the present case stipulated that Mr. Walters had "heart disease" resultingin some disability and had "passed" the requisite examination--it had revealed noheart disease-and that he was employed as a correctional officer, which is a"covered position." Id.
3
where he was treated for "heart symptoms." From there he was then taken by
ambulance to Bay Medical Center, where he was diagnosed with myopericarditis
and cardiomyopathy, and remained hospitalized for several days.
Relying on the presumption of occupational causation set out in section
112.18, Florida Statutes (2009), he later filed a workers' compensation claim
asserting the heart disease was compensable. After the State of Florida denied the
claim, the judge of compensation claims, while acknowledging that the statutory
presumption arose, ruled the State had rebutted the presumption with testimony
that Mr. Walters's heart disease was attributable to viral gastroenteritis. The same
order also said that the appellant had not proven that viral gastroenteritis was an
occupational disease in the manner contemplated by section 440.151, Florida
Statutes (2009).
In his single point on appeal, the appellant relies, as he did as claimant
below, on the section 112.18 presumption. He contends the order under review
erred both in finding that the State had rebutted the section 112.18 presumption
and in shifting the burden of proof back to him, requiring him to establish that the
stomach virus was an occupational disease. He takes no exception to the finding
that his cardiac problems were traceable to a stomach virus, but argues that,
because the etiology of his viral gastroenteritis-the source of the stomach
virus-is unknown, the State failed to prove that the cause of his heart disease was
4
non-occupational, and thus failed to rebut the section 112.18 presumption. The
presumption obviated any requirement on his part to prove that he contracted the
virus at work, he maintains.
Once it arises, the presumption of occupational causation "remains with the
claimant . . . and . . . is itself sufficient to support an ultimate f'mding of industrial
causation unless overcome by evidence of sufficient weight to satisfy the trier of
fact that the tuberculosis, heart disease or hypertension had a non-industrial cause."
Punsky, 18 So. 3d at 583; see generally Warfel, 82 So. 3d at 52-54. Unless the
statutory presumption is rebutted, the presumption is an adequate substitute for
evidence of occupational causation, and compels the legal result that a claimant has
proven occupational causation. See Punsky, 18 So. 3d at 582-84. The
presumption controls "unless the contrary be shown." § 112.18(2), Fla. Stat.
(2009).
If the presumption applies, the claimant is under no obligation to establish
occupational causation redundantly by adducing evidence beyond what was
necessary to give rise to the presumption in the first place. Specifically, there is no
requirement to put on proof meeting the requirements of section 440.151, Florida
Statutes (2009), (titled "Occupational diseases"), unless and until the section
112.18 presumption is rebutted. "[A] claimant's burden of proving major
contributing cause (MCC) by medical evidence, is fully met where the
5
presumption contained in section 112.18(1) is applied . . . ." Fuller, 22 So. 3d at
806.
Nobody suggests that substantial, competent evidence did not support the
finding that "it was gastroenteritis, as a result of an unnamed virus, that caused a
viral cardiomyopathy and pericarditis from which the Claimant suffered." But no
evidence whatsoever supports this additional finding: "I further find this to be non-
occupational in nature and therefore not work-related." Whether "this" references
the gastroenteritis, the virus, or the heart disease, no competent evidence in the
record supports the assertion that "this" was "non-occupational in nature" and "not
work-related." As far as this record shows, Mr. Walters may well have
encountered the virus, the organism that caused first the gastroenteritis then the
cardiomyopathy and pericarditis, at his workplace.
Whether appellant caught the stomach virus at work or elsewhere was not
proven and may not be knowable. The only opinions the doctors gave on the
source of the virus were: "Q. . . . [C]ould you tell me where he got it [the virus]?
A. [Dr. Trantham] No." and [Dr. Castello] "It must be a virus. I don't know
which one or where it came from." And finally "Q. But again, we don't know
what virus and from where it came from; is that reasonable? A. [Dr. Whitworth]
Yes, that's reasonable." The State had the burden to prove he did not get the virus
at work, and failed to carry its burden.
6
The judge of compensation claims erroneously imported into this Heart and
Lung Statute case the legal requirements claimants must meet to demonstrate
entitlement to workers' compensation benefits for other "occupational diseases" as
provided for in section 440.151, Florida Statutes (2009). Mr. Walters sought to
establish, not an occupational disease, but a "condition or impairment of . . . any . .
. correctional officer . . . caused by . . . heart disease . . . resulting in total or partial
disability . . . presumed to have been accidental and to have been suffered in the
line of duty." § 112.18 (1), Fla. Stat. (2009). In shifting the burden to the claimant
to prove that the offending virus was work-related, the judge of compensation
claims failed to give proper effect to the section 112.18 presumption. The State
never rebutted the presumption of an "accident" in the line of duty, a presumption
that arose in the present case on stipulated facts.
Accordingly, we remand with directions that the judge of compensation
claims award medical benefits for the care and treatment of appellant's heart
disease and any other workers' compensation benefits he is entitled to on account
of his heart disease.
Reversed and remanded, with directions.
MARSTILLER and RAY, JJ., CONCUR.
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above has been
furnished by electronic mail on this 4th day of December, 2012, to: Paolo Longo,
Esquire, Co-Counsel for Employee/Claimant/Respondent at [email protected],
Kelli Biferie Hastings, Esquire, Co-Counsel for Claimant/Appellant at
[email protected], and Paul M. Hawkes, Esquire, Co-Counsel for
Claimant/Appellant at [email protected].
/S/ Colleen Cleary O izCOLLEEN CLEARY ORTIZ, ESQ.Florida Bar No. 0347220Colleen Cleary Ortiz, P.A.1127 N. Palafox StreetPensacola, FL 32501(850) [email protected] for Petitioner
12