Caldwell v. Division of Retirement, Florida Dept. of Administration, No. 51807

• Court: United States State Supreme Court of Florida
• Writing for the Court: ADKINS; ENGLAND; BOYD
• Citation: 372 So.2d 438
• Parties: Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent.
• Docket Number: No. 51807
• Decision Date: 14 June 1979

Page 438

372 So.2d 438 Billie E. CALDWELL, Petitioner,
v.
DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent. No. 51807. Supreme Court of Florida. June 14, 1979.
Rehearing Denied July 24, 1979.

Page 439

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

E. Douglas Spangler, Jr., Asst. Division Atty., Division of Retirement, Tallahassee, for respondent.

Richard A. Sicking and Joseph C. Segor, of Kaplan, Dorsey, Sicking & Hessen, Miami, for the International Association of Firefighters, AFL-CIO, amicus curiae.

Stephen H. Cypen, of Cypen & Nevins, Miami Beach, for Board of Trustees of The City of Boca Raton Police and Firefighters Retirement System, Board of Trustees of The Hollywood Firemen's Pension Fund, Board of Trustees of The City of Hollywood Police Officers Retirement System, Board of Trustees of The City Pension Fund for Firemen and Policemen in The City of Miami Beach and Board of Trustees of The Pompano Beach Police and Firefighters' Retirement System, amicus curiae.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the First District Court of Appeal, Caldwell v. Division of Retirement, Department of Administration, 344 So.2d 923 (Fla. 1st DCA 1977), which allegedly conflicts with a decision of the Third District Court of Appeal in City of Coral Gables v. Brasher, 132 So.2d 442 (Fla. 3d DCA 1961), on the same point of law. Art. V, § 3(b)(3), Fla.Const.

The State Retirement Commission (Commission) denied Caldwell's claim for "disability in line of duty" benefits, costs, and attorney's fee. Caldwell, a fireman, suffered a heart attack. The district court of appeal held that the Commission erred in refusing to apply section 112.18(1), Florida Statutes (1975), which provided that any impairment of health of a fireman caused by heart disease resulting in total disability is presumed to have been suffered in the line of duty unless the contrary is shown by competent evidence. By statute, "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. § 121.021(13), Fla.Stat. (1975).

The district court of appeal in its opinion correctly held that section 112.18(1), Florida Statutes (1975), was applicable. The court then found that there was a conflict in the testimony, saying:

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.

The medical testimony crucial to this case was conflicting. The Commission found that the heart attack suffered by Caldwell resulted from arteriosclerosis which was unrelated to his duties as a fireman. There was competent substantial evidence in the record to support this finding. The causation standard applied by the Commission to the facts of this case was correct and Caldwell is not entitled to in line of duty disability as a matter of law.

The Commission says that its determination was supported by substantial and competent evidence, and this was sufficient even though the testimony was conflicting. Caldwell says that the presumption is one that affects the burden of persuasion and can be overcome only by clear and convincing evidence. If the evidence is conflicting, he says, the presumption prevails.

In City of Coral Gables v. Brasher, supra, the City appealed from a judgment which held that Brasher's heart disease arose from and out of the discharge of his duties as a police captain. Section 185.34, Florida Statutes (1961), provided that any impairment of health of police officers...