State v. Junod, CASE NO. 1D15–5259

• Decision Date: 13 April 2017
• Docket Number: CASE NO. 1D15–5259
• Parties: STATE of Florida DEPARTMENT OF CORRECTIONS, Northwest Florida Reception Center Annex/Division of Risk Management, Appellants, v. Andrew JUNOD, Appellee.
• Court: Florida District Court of Appeals

217 So.3d 200

STATE of Florida DEPARTMENT OF CORRECTIONS, Northwest Florida Reception Center Annex/Division of Risk Management, Appellants,

v.Andrew JUNOD, Appellee.

CASE NO. 1D15–5259

District Court of Appeal of Florida, First District.

Opinion filed April 13, 2017

Rehearing Denied May 18, 2017

Colleen Cleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellants.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.

KELSEY, J.

The Employer/Carrier appeals a final order of the Judge of Compensation Claims holding that Claimant is entitled to benefits under the heart-lung statute, section 112.18 of the Florida Statutes. We reverse.

Claimant's Employment and Heart Attack .

After applying for a job as a correctional officer trainee, Claimant completed a pre-employment medical history questionnaire, and underwent a pre-employment physical at a local walk-in clinic in December of 2008.¹ On the questionnaire, he denied having ever been diagnosed with vascular disorders, high blood pressure

, heart disease, heart murmur, or obesity. He was 5 feet, 8 inches tall and weighed 210 pounds. He disclosed that he had a family history of heart disease or heart attack. He had a normal electrocardiogram. The lab report revealed elevated glucose, but no other abnormalities among the factors tested. His blood labs did not include a lipid panel, so the pre-employment physical included no information about cholesterol levels.

There was also no indication of his blood pressure. The examining physician nevertheless checked boxes indicating that his examination did not reveal evidence of tuberculosis

, heart disease, or hypertension.

Claimant accepted a position as a correctional officer trainee beginning January 9, 2009. It was undisputed below that trainees are not correctional officers. Trainees do not engage in "supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution." § 943.10(2), Fla. Stat. (2009) (defining correctional officers). After his initial hire date in January of 2009, Claimant participated in a training program based away from the correctional facility compound. During training, he injured his back and was unable to complete the training program, in an incident that the E/C accepted as compensable. His employer gave him light-duty work reading mail in the mail room for about four months. When he was deemed fully recovered from the back injury, he returned to the training program and completed it successfully, becoming a certified correctional officer on January 6, 2010.

Just over three months after becoming certified and beginning work as a correctional officer, Claimant suffered a heart attack

while asleep at home. He notified his employer of the heart attack, and returned to work within a couple of weeks. A captain asked Claimant if the heart attack was work-related, and Claimant said it was not. He continued to work at that correctional facility until December of 2011, when he left to take another job. He did not assert a claim for benefits arising out of the heart attack before leaving this job, nor within the year after he left and worked elsewhere.² He was re-hired at the correctional facility in December of 2012.

Claimant first made a claim for benefits arising out of his 2010 heart attack

in December of 2014—four years and eight months after the heart attack. He asserted that he did not know until November of 2014 that his heart attack might be covered under the heart-lung statute. He argued that the statute of limitations did not begin to run until November of 2014 when he claims he first became aware of the heart-lung statute. The JCC accepted this argument and found the claim to be timely—a finding that we do not reach. We conclude that even if the claim was timely, the claim should have been denied because the E/C successfully rebutted the presumption of compensability under the heart-lung statute and there was no competent, substantial evidence of occupational causation.

Claimant's First Report form and his first Petition for Benefits did not rely on any sudden accident or unusual exertion as causing his heart attack

. Rather, Claimant asserted in both documents that he "developed disabling arterial and cardiovascular hypertension and or heart diseaseover course of career as a certified corrections officer which became disabling on or about 4/19/2010 [the date of his heart attack ]." (Emphasis added.)³ The E/C denied the claim in its entirety on grounds of expiration of the statute of limitations, untimely notice, failure to meet the statutory presumption, and rebuttal of the statutory presumption.

Independent Medical Examiners (IMEs) .

Claimant's IME, Dr. Borzak, reviewed Claimant's medical records without examining Claimant. Dr. Borzak acknowledged Claimant's non-occupational risk factors, and concluded that he was not able to determine the cause of Claimant's heart attack

.

The E/C's IME, Dr. Pedone, reviewed Claimant's medical records and examined Claimant. Dr. Pedone concluded within a reasonable degree of medical certainty that Claimant developed atherosclerosis

over a period of years prior to his employment as a correctional officer, and that the atherosclerosis in turn was caused by Claimant's multiple risk factors unrelated to his employment. These risk factors included a history of heavy smoking—between two and three-and-a-half packs a day for 20 years, ending ten years before he took the trainee job; male gender; over age 45 (age 55); family history of early-onset heart disease as evidenced by his mother's cardiac bypass surgery at age 55 and subsequent heart transplant and death; obesity ; dyslipidemia ; increased abdominal girth; and elevated glucose levels. The E/C's IME concluded within a reasonable degree of medical certainty that these factors, and not Claimant's employment, caused Claimant's heart attack.

Expert Medical Advisor (EMA) .

Although there was no conflict between the IME opinions because one physician could not determine a cause and the other opined that the cause was non-occupational, the JCC made no findings on the IME opinions, and the parties agreed to the appointment of an expert medical advisor (EMA). The JCC appointed Dr. Leonard Pianko as an EMA to evaluate Claimant and advise the JCC. Dr. Pianko recognized Claimant had several coronary risk factors traditionally associated with coronary artery disease

, but concluded that the predominant etiology of the heart disease was work-related. By the time Claimant saw Dr. Pianko on August 18, 2015, it had been five years and four months since Claimant's heart attack. Dr. Pianko admitted that when he examined Claimant and prepared the EMA report, he did not know that Claimant had worked as a correctional officer for only about three months before the heart attack. Instead, he assumed Claimant had worked as a correctional officer for "several years" or about "2 years" after passing his December 2008 pre-employment physical. Given that mistaken factual foundation, the E/C objected to the EMA's opinion and moved to strike it.

The EMA also opined that Claimant's heart attack was work-related based on articles by Dr. Stefanos Kales, describing epidemiological studies covering only police officers and firefighters. These articles are not in the record, but the EMA described them as showing "a markedly increased incidence of coronary artery disease" among police and firefighters compared to the general population. The EMA acknowledged that the Kales articles did not cover correctional officers, and he knew of no studies that did pertain to correctional officers. He nevertheless considered the Kales articles analogous based on his own experience, primarily in Dade County. There was no evidence of studies or Dr. Pianko's experience involving correctional officers with work tenures of only a few months. Dr. Pianko acknowledged that Claimant had other risk factors, but expressly based his opinion of occupational causation directly on the Kales articles.

At the EMA's deposition and at trial, the E/C objected to the EMA's opinion on the grounds that the EMA improperly relied on the Kales articles and failed to satisfy the requirements of section 90.702 of Florida's Evidence Code and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).⁴ Claimant did not request a pre-trial ruling on the Daubert objection, and did not request the assignment of an alternate EMA.

The Heart–Lung Statute .

Florida's heart-lung statute was enacted in 1965, covering firemen only. § 112.18, Fla. Stat. (1965) (codifying Ch. 65–480, Laws of Fla. (Senate Bill 149)). An earlier Florida Supreme Court decision held that medical incidents such as heart attacks could be compensable events even without the occurrence of a literal "accident," if they resulted from unusual work-related exertion. Victor Wine & Liquor, Inc. v. Beasley , 141 So.2d 581, 588–89 (Fla. 1961) (On Rehearing Granted). Subsequent changes in the law broadened applicability of the statutory presumption of compensability. See Ch. 73–125, § 1, at 196, Laws of Fla. (abolishing previous requirement that the presumption operated only in regard to pension and retirement benefits); Caldwell v. Div. of Ret. , 372 So.2d 438, 440–41 (Fla. 1979) (broadening compensability to encompass firemen's disabilities accruing over a period of time as hazards are "constantly faced" over the course of a career); Ch. 2002–236, § 3, at 1720, Laws of Fla. (adding law enforcement officers and correctional officers as covered occupations); Ch. 2010–175, § 2, at 2184, Laws of Fla. (amending statute to add correctional probation officers, impose time limits on claims, and eliminate the presumption of occupational causation for claimants who have materially departed from a prescribed medical course of treatment resulting in aggravation of a covered condition).

The first paragraph of the 2009 statute in effect when Claimant...