Caldwell v. Division of Retirement, Florida Dept. of Administration
| Decision Date | 14 June 1979 |
| Docket Number | No. 51807,51807 |
| Parties | Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent. |
| Court | Florida Supreme Court |
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.
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 caused by heart disease is presumed to have been suffered in line of duty unless the contrary be shown by competent evidence. The expert for the City (appellant) rejected the concept that strain of employment could be the cause of plaintiff's heart trouble. Relying upon the presumption, the court held that the officer was entitled to a pension for disability suffered in line of duty, saying:
For us to accept the appellant's view that following its expert's testimony, the presumption vanished and the burden of proof shifted to the plaintiff to "positively" prove the disability was service-connected (notwithstanding the testimony of plaintiff's expert) would be contrary to Florida law and would also have the effect of negating the presumption granted by section 185.34, supra. Permitting the testimony of the defendant's expert to have the effect of rebutting the presumption created by the statute in view of the contradictory and conflicting testimony of plaintiff's expert, would be contrary to the rule expressed by the Supreme Court of Florida in Kuehmsted v. Turnwall, 115 Fla. 692, 155 So. 847, wherein it was stated that where testimony of two medical experts is hopelessly conflicting, the evidence will be considered balanced as if it has not been offered. 132 So.2d at 444-445.
In the case Sub judice, the district court of appeal found that the heart attack suffered by Caldwell "resulted from arteriosclerosis . . . ." This finding required the application of the statutory presumption that the arteriosclerosis (heart disease) was suffered in the line of duty. The district court failed to apply the presumption when it further found that the arteriosclerosis was "unrelated to his duties as a fireman." The presumption supplies the element of service-connection, and the failure to apply the presumption constitutes conflict with City of Coral Gables v. Brasher, supra. We have jurisdiction.
A presumption has been defined as an inference required by a rule of law to be drawn as to the existence of one fact from the existence of some other established basic fact or combination of facts. 3 B. Jones, Jones on Evidence § 3.1 (6th ed....
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