Punsky v. Clay County Sheriff's Office, Case No. 1D07-3901 (Fla. App. 2/27/2009), Case No. 1D07-3901.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPer Curiam
Decision Date27 February 2009
Docket NumberCase No. 1D07-3901.

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Case No. 1D07-3901.
District Court of Appeal of Florida, First District.
Opinion filed February 27, 2009.

An appeal from an order of the Judge of Compensation Claims, Ivy C. Harris, Judge.

Geoffrey Bichler of Bichler & Kelley, P.A., Winter Park, for Appellant.

Allison Hunnicutt Hauser of Marks Gray, P.A., Jacksonville, for Appellees.



We have for consideration appellees' Motion for Rehearing, Rehearing En Banc, and Certification. We deny the motion for certification, but grant the motion for rehearing, and hear this case en banc in order to harmonize our case law. We

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withdraw the panel decision of July 21, 2008, Punsky v. Clay County Sheriff's Office, ___ So. 2d ___, 33 Fla. L. Weekly D1820 (Fla. 1st DCA July 21, 2008), and substitute the following opinion.

Appellant, Robert Punsky, the claimant below, seeks review of an order of the Judge of Compensation Claims (JCC) denying workers' compensation benefits. We affirm the order, because, although the presumption of section 112.18(1), Florida Statutes (2005), applies, competent substantial evidence of record supports the JCC's alternative ruling that the presumption was rebutted by the medical evidence introduced by appellees. Since claimant presented no evidence other than the presumption to support a work-related cause, the statute we here construe allows rebuttal of the presumption it establishes "by competent evidence."


Claimant, then employed as a deputy sheriff, suffered a heart attack on June 24, 2005, while asleep. He sought workers' compensation benefits, alleging that stress from his job as a police officer had caused the heart attack and that he was entitled to invoke section 112.18(1), Florida Statutes, often referred to as the "firefighter's presumption." At the hearing, the medical evidence presented unanimously supported a conclusion that claimant's heart attack was facilitated and, more likely than not, caused by a genetic condition known as combined

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familial hyperlipidemia (CFL). CFL results from a genetic pre-disposition that affects the ability of one's body to handle cholesterol. Such was the opinion of both Dr. Patel, claimant's treating physician, and Dr. Nocero, an independent medical examiner. Although not the only evidence in the record, we find that Dr. Nocero's testimony goes directly to the disputed point in this case and thus quote it in pertinent part:

Q. What are the risk factors that we just identified, Doctor, for Mr. Punsky's heart attack of June 4, 2005?

A. High cholesterol, high triglyceride, poor diet, cigarette smoking, and family history, genetics.

Q. And of those risk factors, which one is the primary cause of his heart attack of June 4, 2005?

. . . .

A. The genetic one, the CFL. Since we know that in studies of CFL, the individual with CFL has over three times the risk of developing a heart attack versus someone without this condition.

. . . .

Q. What is the major contributing cause of Officer Punsky's heart attack of January 2005?

. . . .

A. CFL, combine[d] familial hyperlipidemia.

Q. And is that your opinion to a reasonable degree of medical probability?

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A. Yes.

Q. What is the major contributing cause of Officer Punsky's continuing need for medical treatment for his heart condition?

A. The CFL.

(emphasis added).

Dr. Patel, the treating physician, did not testify in quite as stark terms as did Dr. Nocero, but Dr. Patel did indicate that causation of claimant's heart attack would not be found in work-related exposures. Dr. Patel confirmed that Mr. Punsky suffers from CFL. Dr. Patel also testified that Mr. Punsky, more likely than not, had CFL since his teenage years. In the order on review, the JCC ruled both that the firefighter's presumption did not apply and that, even had it applied, appellees rebutted it by presenting evidence of a pre-existing condition and other risk factors. Although we conclude that the statutory presumption does apply to this case, we affirm the order on the alternative finding below that the statutory presumption was rebutted by the evidence of non-industrial causation.


As to the threshold question, whether the statutory presumption applies, the JCC determined that Punsky did not merit application of the presumption because he failed his pre-employment physical. See § 112.18(1), Fla. Stat. (2005). The record does not support such a finding. Each of the doctors testifying before the

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JCC agreed the physical as given showed no evidence of heart disease, and the doctor who actually administered the physical concluded at the time that Punsky passed. The JCC's finding was apparently based upon expert testimony that Punsky, more likely than not, suffered from undetected CFL at the time of his physical. However, such retrospective opinion testimony does not demonstrate that an otherwise qualified employee failed a pre-employment physical examination. Turning to the more salient issue, however, we conclude that appellees rebutted the presumption sufficiently under the statute and the controlling case law, as the JCC here properly found as an alternative basis for her order.

Section 112.18(1) establishes a presumption that certain health conditions incurred by any designated firefighter or law enforcement officer are accidental and "have been suffered in the line of duty unless the contrary be shown by competent evidence." In Caldwell v. Division of Retirement, 372 So. 2d 438 (Fla. 1979), the Florida Supreme Court construed this statute in a case involving line-of-duty state disability benefits. Significantly, both to our decision today and to an understanding of the case law on this point, the record in Caldwell included "evidence that [the employee's heart attack] was caused by arteriosclerosis unrelated to . . . employment, and there was evidence that recent employment stress or employment stress over a period of time caused the attack in whole or in

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part." Id. at 439 (quoting Caldwell v. Div. of Retirement, 344 So. 2d 923, 924 (Fla. 1st DCA 1977)). The court specifically noted that "[t]he medical testimony crucial to this case was conflicting." Id. This court, in the underlying opinion that the supreme court would eventually quash, determined that the heart attack resulted from arteriosclerosis, unrelated to Caldwell's duties as a fireman. See Caldwell, 344 So. 2d at 924-25.

In reviewing the case, our supreme court discussed the significance of a presumption established by law:

The Court in Nationwide Mutual Insurance Co. v. Griffin, 222 So. 2d 754, 756 (Fla. 4th DCA 1969), discussed the vanishing presumption as follows:

A presumption is a rule of law which attaches to certain evidentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value. Florida follows generally [albeit not always] what is something called the Thayerian rule to the effect that when credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter for the jury to consider.

Another type of rebuttable presumption is one which affects the

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burden of proof. These are expressions of social policy.

When evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. This may be by a preponderance of the evidence or by clear and convincing evidence, as the case may be.

Caldwell, 372 So. 2d at 440 (citations omitted). As the supreme court concluded, the presumption embodied in section 112.18(1) affects the burden of persuasion and, accordingly, it is not in the nature of a vanishing presumption which, as the court discussed in the passage quoted above, dissolves upon the introduction of conflicting evidence. Id. at 440-41. The author of Caldwell, in a later opinion, characterized the presumption identified by the Caldwell court as one that "shift[s] the burden to the party against whom the presumption operates to prove the nonexistence of the fact presumed." Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 600 (Fla. 1987). This type of presumption does not vanish in the face of evidence to the contrary. See id. "`It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case.'" Id. at 600-01 (quoting Caldwell, 372 So. 2d at 440).

The Caldwell court, although never actually quoting the statute it construed and applied, determined nevertheless that the statutory presumption "cast on the

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employer the burden of persuading the trier of fact that the disease was caused by a non-occupationally related agent." 372 So. 2d at 441. Accordingly, and again without any quotation from the statute, the court determined that "it is necessary that the [employer] show that the...

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