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Florida Statute 112.18, commonly referred to as the
Heart/Lung Bill, is a public policy piece of legislation designed to offer added legal
protection for police, fireman and correctional officers who suffer with
heart disease, high blood pressure or tuberculosis. The heart/lung bill
should not be confused with F.S. 112.181, which creates a separate presumption
for the transmittal of
communicable diseases.
This summary is designed to give you the basics of what the heart/lung
bill can do to protect you, its limitations, and some steps you can take
to protect yourself in the event you need to file a claim. Case law updates
will be available through the firm's blog . Readers should be aware
that legislative efforts to revise this law are underway, as the costs
of covering these conditions have proven much more expensive than anticipated.
But let's start our discussion with the amended version of the law
which went into effect in Florida in 2002. The statute reads as follows:
FLORIDA STATUTE 112.18 (2002)
112.18 Firefighters and law enforcement or correctional officers; special
provisions relative to disability ---
(1) 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.
In short, the statute gives police, firefighters and corrections officers a
rebuttable presumption that their heart, blood pressure or TB condition was caused
by their employment. In a workers' compensation setting, it eliminated
the usual need for the employee to prove up the required elements found
in Florida Statute 440.151 pertaining to "occupational diseases."
Once you gain the presumption, more often than not, your employer will
have to cover your condition under workers' compensation. This means
the cost of your medical care may be covered by workers' compensation
and you will be eligible for impairment and lost wage benefits through
workers' compensation as well.
The presumption in favor of the employee may be overcome by evidence to
the contrary. The standard of proof to rebut the presumption will generally
be competent evidence, unless you offer proof of a work related cause
for your hypertension or heart disease. If a work related cause is offered
into evidence, the employer must rebut the presumption with clear and
convincing evidence of a non-work related cause. An unknown cause does
not help the employer, they must offer a specific non-work related cause,
typically obesity or smoking. The most important thing to understand initially
are the elements necessary to make the claim in the first place.
4 ELEMENTS
In order to invoke the presumption, there are
4 basic elements
that you have to satisfy:
1) You have to meet the definition of a
protected class. (You have to be a police officer, firefighter or correctional officer
as defined in Chapter 112, Florida Statutes)
2) You have to have a
protected condition (tuberculosis, heart disease or hypertension)
3) You have to have passed a
pre-employment physical, and
4) You have to be
disabled, totally or partially.
JULY 1, 2010 AMENDMENTS:
For claims filed
after July 1, 2010 the statute was amended to state that the presumption is
lost if the you
departed in a material fashion from the prescribed course of treatment from your personal physician and as a result, there was a significant aggravation
in your covered condition. You could also lose the presumption if you
had previously filed and received benefits on a workers' compensation
claim for a covered condition and departed from the prescribed treatment
of an authorized physician's recommendations. It also limited the
time for filing claims to
180 days after leaving employment.
This amendment does some unwelcome things from a litigant's point of
view. First, it opens up a can of worms in terms of your prior medical
records. It is one thing to fail to take medicine your personal physician
may have given you for high cholesterol and quite another to fail to follow
the doctors' advice to lose weight, or stop smoking. The failure to
take medicine might be a valid defense, but you can bet your employer
might also argue you failed to lose weight or to quit smoking when your
doctor told you to. Beware of your prior medical records. They can create
a problem for you by creating a defense to your claim.
First however, let's discuss the 4 elements necessary to make the claim,
as this creates the bulk of the questions. The first category, which conditions
are covered, creates the most litigation and is developing almost on a
case by case basis. The following cases create generalities and should
not be used, in and of themselves, to decide whether to file a claim for
compensation.
A) SELECT CASES ON PROTECTED CONDITIONS:
Peripheral vascular disease (PVD) is covered if it was caused by hypertension.
Butler v. City of Jacksonville, 980 So.2d 1250 (Fla 1
st DCA 2008).
Strokes are may be covered if the stroke is caused by heart disease or hypertension.
Lacunar strokes are generally covered.
Likewise "
essential hypertension" may be covered if the doctor specifically states the hypertension
is arterial or cardiovascular.
Bivins v. City of Lakeland, 993 So.2d 1100 (Fla. 1
st DCA 2008).
Pulmonary hypertension is not covered as it is not heart disease or arterial hypertension.
Bond v.
City of Boca Raton, 992 So.2d 252 (Fla. 1
st DCA 2008).
Renal condition covered because it was caused by hypertension.
O'Dwyer, Jr. v. City of Jacksonville Fire and Rescue, 41 So3d 897 (Fla. 1
st DCA 2010).
Palpitations not covered because they were not caused by heart disease.
Shamp v. Flagler Beach Police Department, 48 So.3d 58 (Fla. 1
st DCA 2010).
Thoracic aortic disease is a form of heart disease and covered by the presumption.
City of Venice v. Michael Van Dyke, 46 So.3d 115 (Fla 1
st DCA 2010).
B) DISABILITY:
The disability prong of the test means you must have work related restrictions
which impacts your ability to perform your job. Just being diagnosed with
a health condition alone doesn't qualify you. The condition must disable
you, either fully or partially, and result in a loss of earnings. Effective
October 1, 2003, Section 440.02(13) defines disability as the incapacity
because of injury to earn in the same or any other employment, the wages
which the employee was earning at the time of the injury. Having a permanent
injury, and therefore an impairment rating, does not satisfy the definition
of disability. Nor does missing time from work for diagnostic tests. You
must demonstrate the protected condition prevented performance of your
job, even if just for a few hours.
Presumptive disability cases are considered "occupational disease"
cases and therefore the procedural rules relating to occupational disease
cases apply. One such rule is that the date of accident is the date of
disability. So for instance, if a person has a heart attack on June 1
st, but doesn't start missing work until June 6
th, the date of accident is June 6
th, the date of disablement.
C) SELECT CASES ON PROTECTED CLASSES:
The section 112.18 presumption does not apply to a
paramedic, who was certified as a firefighter.
Lansford v. Broward County Board of County Commissioners, 485 So.2d 845 (Fla 1
st DCA 1986).
A
retired fireman was not protected because he did not meet the definition contained in
Section 112.191 which provides that a "fireman" meant a duly
employed uniformed fireman employed by an employer.
Smith v. City of Miami, 552 So.2d 245 (Fla 1
st DCA 1989).
D) PRE-EMPLOYMENT PHYSICAL:
Invoking the presumption requires the protected employee to have passed
a pre-employment physical. The physical must show no evidence of heart
disease, high blood pressure or TB. If the employer did not offer a pre-employment
physical, then the presumption can not be invoked. Likewise a Section
633 pre-certification physical, which is mandatory, is not the same thing
as a pre-employment physical, which is optional for the employer. The
results of one cannot be substituted for the other.
In addition, you must have passed a pre-employment examination with your
current
employer. Passing a pre-employment physical with a former employer will
not allow the presumption to be invoked.
OTHER ISSUES:
1) When does my claim start?
The 2 year statute of limitations for filing a formal claim for workers
compensation begins to run beginning with the date of disability or death.
It does not run from the date of exposure, or the date of diagnosis, or
the date you miss time from work to go to the doctor. The date of your
"accident" in the case of a heart/lung claim, is the date you
receive permanent work restrictions from a doctor that cause you to lose
income. From that date, you have 90 days to report your claim to your
supervisor, and if it is denied for any reason, you have 2 years from
your accident date to file suit.
2) Does my heart attack have to happen at work?
No. You must be an active fireman, police officer or correctional officer,
but a diagnosis of heart disease is all that is required to invoke the
presumption. If you suffer a heart attack while off duty, but it is because
of heart disease, you are entitled to the presumption.
3) What is meant by a rebuttable presumption?
The presumption that your condition is work related can be "rebutted"
or overcome, with competent medical evidence to the contrary. So even
though you may have been diagnosed with heart disease or high blood pressure,
if there is testimony from a physician that your condition has a specific,
non-occupational cause, you may still lose your claim. For instance, in
a recent court ruling, the court found a firefighter with "essential
hypertension" a term referring to high blood pressure with no specific
cause, was not entitled to the presumption. In order for high blood pressure
to be compensable under this statute, it must be caused by a problem in
the cardiovascular system.
4) What can I do to protect myself?
Get regular check-ups with a primary care physician and eliminate your
risk factors. The most common defenses to a claim under the heart/lung
bill are obesity, smoking, and high cholesterol. All three are preventable
and can be eliminated by you as possible defenses to a claim. Speak with
your primary care doctor about the broad term "heart disease"
and whether you have any condition which could be construed as heart disease.
Follow any prescribed course of treatment suggested by your doctor. Remember,
under the 2010 amendments to the statute, failing to follow a prescribed
course of treatment can be a defense to a claim.
5) What will likely happen in the future?
As a matter of public policy it's unlikely the Governor will gut the
law in it's entirety. But there will likely be limits placed on the
extent of coverage. There may be age limits, or employment term limits,
wellness programs put in place, or exemptions from coverage. The local
municipalities just can't afford to cover the costs of heart disease
for all the retirees. It's going to be a budget battle.
Contact Us For Help Today!
If you need to discuss your heart/lung matter with an experienced attorney,
contact the Tampa office of Harris & Riviere by calling
, send us an
email or fill out one of our free
case evaluation forms.