Caldwell v. Division of Retirement, Florida Dept. of Administration, DD--399

• Decision Date: 07 April 1977
• Docket Number: No. DD--399,DD--399
• Parties: Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent.
• Court: Florida District Court of Appeals

Page 923

344 So.2d 923

Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent.

No. DD--399.

District Court of Appeal of Florida, First District.

April 7, 1977.

Rehearing Denied May 11, 1977.

M. Stephen Turner of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for petitioner.

Stephen W. Metz, Tallahassee, for respondent.

MILLS, Judge.

Caldwell seeks review of an order of the State Retirement Commission (Commission) denying Caldwell's claim for in line of duty disability benefits, costs and attorney's fees. Caldwell contends the Commission erred in the following respects:

1. By refusing to apply the presumption of in line of duty set forth in Section 112.18(1), Florida Statutes (1975),

2. by applying an incorrect causation standard for in line of duty disability,

3. by failing to find that Caldwell was entitled to in line of duty disability as a matter of law, and

4. by failing to award Caldwell costs and attorney's fees under Section 121.23(2)(a), Florida Statutes (1975).

Caldwell, a Brevard County Fire Department lieutenant suffered an acute myocardial infarction (heart attack) shortly after reporting to work on the 7:00 A.M. shift and while preparing coffee. As a result, he was totally and permanently disabled. At the time of his employment, Caldwell was found by a physician to be in good health. The evidence concerning the cause of Caldwell's heart attack was conflicting. There was evidence that it was caused by arteriosclerosis unrelated to his employment, and there was evidence that recent employment stress or employment stress over a period of time caused the attack in whole or in part.

Section 121.021(13), Florida Statutes (1975), provides in pertinent part:

"Disability in line of duty' means an injury or illness arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer.'

Section 112.18(1) provides in pertinent part:

'Any condition or impairment of health of any Florida . . . county, . . . fireman caused by . . . heart disease, . . . resulting in total . . . disability . . . shall be presumed to have been suffered in the line of duty unless the contrary be shown by competent evidence. . . .'

When read together these statutes clearly state that a heart attack suffered by a county fireman resulting in total or partial disability shall be presumed to...