STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DOLORES A. DANIELS )
)
Petitioner, )
)
vs. ) CASE NO. 78-1356
) ROBERT L. KENNEDY, DIRECTOR, ) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, STATE OF ) FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on March 9, 1979, in Miami, Florida.
APPEARANCES
For Petitioner: Richard A. Sicking, Esquire
Post Office Drawer 520337 Miami, Florida 33152
For Respondent: Stephen S. Mathues, Esquire
Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
Petitioner, Dolores A. Daniels ("Petitioner") filed an application, pursuant to Section 121.091(7)(c), Florida Statutes, for death in line of duty benefits as a result of the death of her husband, James C. Daniels, who at the time of his death was a fire fighter/emergency medical technician in the employ of Metropolitan Dade County, Florida. Respondent thereafter denied there quested in line of duty death benefits by letter dated June 30, 1978.
Petitioner than requested a formal hearing on Respondent's denial of her claim, and, in accordance with the provisions of Section 120.57(1)(b)(3) , Florida Statutes, Respondent requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. Final hearing in this cause was scheduled by Notice dated January 15, 1979.
At the final hearing, neither Petitioner nor Respondent presented the live testimony of any witnesses. Instead, Petitioner offered the transcript of proceedings A held before the Honorable James C. Henderson, Judge of Industrial Claims, on November 22, 1977; the deposition of Dr. . Whitmore Burtner; and the deposition of Dr. Ronald Wright. These documents were received into evidence as Petitioner's Exhibits 1 through 3, inclusive. Petitioner also offered Petitioner's Exhibits 4, 5, 6, 7, 8 and 9, each of which was received into
evidence. Respondent offered the deposition of Dr. Joseph H. Davis, which was received into evidence as Respondent's Exhibit No. 1, and the deposition of Dr. Peter L. Lardizabal, which was received into evidence as Respondent's Exhibit No. 2.
FINDINGS OF FACT
The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician.
On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975.
At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals.
At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep.
On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit.
At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure.
Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24
p.m. on July 20, 1976.
An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter
L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery.
Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye.
Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976.
Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1) , Florida Statutes.
Section 121.091(7)(c) (1), Florida Statutes, provides that:
The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime, unless said surviving spouse remarries, in which case the pension shall terminate on the date of remarriage; or, in lieu of the above, the surviving spouse may elect to receive the benefit
provided in paragraph (b) of this subsection.
Section 121.021(14) , Florida Statutes, defines "death in line of duty" as:
...death arising out of and in the actual performance of duty required by member's employment during his regularly scheduled working hours or irregular working hours as required by the employer...
Section 112.18(1), Florida Statutes, provides that:
Any condition or impairment of health of any Florida . . . county . . . fireman caused by heart disease . . . resulting in .
death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evi- dence. However, any such fireman shall have successfully passed a physical examination upon entering into any such service as a fireman, which examination failed to reveal any evidence of any such condition . .
The statutory presumption created by Section 112.18(1), Florida Statutes, is buttressed in this case by competent medical testimony establishing a causal connection between the decedent's employment and the condition leading to his death. The Respondent has failed to prove by clear and convincing evidence that the disease or condition causing the decedent's death was caused by a specific, non-work-related event or exposure. Caldwell v. Division of Retiremet, No. 51, 807 (Fla., filed June 14, 1979).
Respondent has submitted Proposed Findings of Fact in this cause. To the extent that such Proposed Findings of Fact have not been adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
That a Final Order be entered by the State of Florida, Department of Administration, Division of Retirement, finding that the Petitioner is entitled to widow's benefits as provided in Section 121.091(7)(c) , Florida Statutes.
RECOMMENDED this 2nd day of August, 1979, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Richard A. Sicking, Esquire
O. Drawer 520337 Miami, Florida 33152
Stephen S. Mathues, Esquire Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
DOLORES A. DANIELS,
Petitioner,
vs. DOAH CASE NO. 78-1356
ROBERT L. KENNEDY, JR., DIRECTOR, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, STATE OF FLORIDA,
Respondent.
/
FINAL ORDER INTRODUCTION
The Division of Retirement, through its undersigned agency head, hereby adopts the Findings of Fact as determined by the Hearing Officer as set forth below. After a review of the complete record, this agency rejects or modifies certain other Findings of Fact determined by the Hearing Officer as not being based upon competent substantial evidence, as will be stated with particularity at the conclusion of the adopted facts. The agency also rejects the Conclusions of Law determined by the Hearing Officer.
Petitioner, Dolores A. Daniels (Petitioner) filed an application pursuant to Section 121.091(7)(c) , Florida Statutes(1977), for death in-line-of-duty benefits as a result of the death of her husband, James C. Daniels, who at the time of his death was a fire fighter/emergency medical technician in the employ of Metropolitan Dade County, Florida. The Division thereafter denied the requested in-line-of-duty death benefits by letter dated June 30, 1978.
Petitioner then requested a formal hearing on the Division's denial of her claim, and, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes (1977), the Division requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. Final hearing in this cause was scheduled by Notice dated January 15, 1979.
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on March 9, 1979, `in Miami, Florida. The Petitioner was represented by Richard A. Sicking, Esquire, Post Office Drawer 520337, Miami, Florida 33152 and the Division was represented by Stephen S. Mathues, Esquire, Assistant Division Attorney, Division of Retirement, Cedars Executive Center, 2639 North Monroe Street, Suite 207C - Box 81, Tallahassee, Florida 32303.
At the final hearing, neither Petitioner nor the Division presented live testimony of any witnesses. Instead, Petitioner offered the transcript of proceedings held before the Honorable James C. Henderson, Judge of Industrial Claims, on November 22, 1977; the deposition of Dr. O. Whitmore Burtner; and the deposition of Dr. Ronald Wright. These documents were received into evidence as Petitioner's Exhibits 1 through 3, inclusive. Petitioner also offered Petitioner's Exhibits 4, 5, 6, 7, 8 and 9, each of which was received into evidence. The agency offered the deposition of Dr. Joseph H. Davis, which was received into evidence as Respondent's Exhibit No. 1, and the deposition of Dr. Peter L. Lardizabal, which was received into evidence as Respondent's Exhibit No. 2.
FINDINGS OF FACT
The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician.
On November 4, 1975 the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 1975.
At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, aid various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals.
At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of hid unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep.
On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit.
At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck 1and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976.
An autopsy was performed on the deceased on July 21, 1976, Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate atherosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of
death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery.
Dr. Lardizabal performed the autopsy examination of the decedent by gross' observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding . Findings contained in the autopsy report, together with evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possibly as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to be "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye.
Petitioner, Delores A. Daniels is the surviving spouse of James C. Daniels.
Additional Findings of Fact, Rejection and Modification of Hearing Officer's Findings
The Hearing Officer found:
Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarc- tion, which in turn was the result of arterio- sclerosis which had virtually cut off the supply of blood to the affected area of his heart.
Although the causes of arteriosclerosis are not presently known to medical science, it appears clear from the record that acute myocardial infarction can be caused by emotional or phy- sical stress, and that the decedent's myocar- dial infarction was, in fact, caused by the stress and strain of his job as a firefighter and emergency medical technician. In fact,
it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976,
while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement
by the decedent, might act as a `triggering mechanism' for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his
death. The type of lesion present in the dece- dent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976.
Initially, these findings are highly conflicting and contradictory. When stripped of excess verbiage, the findings become:
[Decedent [probably] went into ventric-
ular fibrillation which led to his death [but] the actual proximate cause of his death was the underlying myocardial infarction, which. . . was a result of arteriosclerosis. . .
the causes of [which] are not presently known to medical science. [A] cute myocardial in- farction can be caused by emotional or physical stress, and . the decedent's myocardial in- farction was . caused by the stress and
strain of his job as a firefighter. In fact, the decedent was having a heart attack which led to the myocardial infarction [sometime
while he was at work]. [P]ushing of the wheel- A barrow loads of cement by the decedent might
act as a "triggering mechanism" for ventricular fibrillation [but that is irrelevant because] the lesion in the decedent's heart, which oc- curred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless
Distilling these findings still further, the Hearing Officer included that the decedent (probably) died because of ventriclar fibrillation, but he act actually died because of an infarction which was caused by arteriosclerosis, the cause of which unknown. However, he also concluded that the fatal infarction was caused by job stress, but in the next sentence he finds that the infarction was caused by a "heart attack" during forking hours. Moreover, the Hearing Officer finds that while the decedent's ventricular fibrillation (which was, and then was not, the cause of the death above) might have been caused by his pushing the wheelbarrow, it really does not matter because he had a fatal lesion in his heart which occurred as much as 48 hours prior to his death. This fatal lesion is remarkable in that decedent's working hours began only thirty or thirty-one hours prior to his death.
In the final analysis, one truly cannot discern what the Hearing Officer found. Did the decedent die from ventricular fibrillation caused by the exertion of pushing the wheelbarrow, or did he die because of his infarction? Was his infarction caused by arteriosclerosis, or by job stress, or by a heart attack at work, or by a fatal lesion which could have occurred 18 hours prior to his work shift?
In order to clear up this confusion, the agency makes the following findings of fact, with appropriate references to the record below. The decedent did have a myocardial infarction. (Davis pp. 10, 12; Lardizabal pp. 8-9; Burtner p. 9) The exact time of the infarction is unknown, ranging between "hours" before his death (Lardizabal pp. 10, 13, 30) and forty-eight hours
before his death (Wright p. 24; Burtner p. 9). The "lesion", the "heart attack" and the "myocardial infarction" all refer to the. same event.
There is insufficient evidence to show that the infarction was caused by the stress of the decedent's employment. Only Dr. Burtner testified on this issue, and his testimony (if a person is under enough emotional stress and physical strain and if this exists for a long enough period of time, and if he is susceptible enough [Burtner pp. 21-22, 24]) is rejected as being entirely subjective and speculative.
Without the infarction, the decedent may not have died as he did. However, the actual cause of his death was ventricular fibrillation. (David p. 9; Burtner pp. 25, 26) and this fibrillation was caused by the exertion of pushing the wheelbarrow. (Davis pp. 20, 24, 47, 48; Burtner p. 25; Lardizabal
p. 13) There is insufficient evidence to conclude that the decedent would have died, absent the exertion. Admittedly, he could have died (Davis pp. 41-42, 45-46; Burtner pp. 25-26) but "could" is not the test. Dr. Wright's opinion that the decedent was "already a dead man" (Wright p. 23) is rejected as speculative and contradictory, in that he admitted some people with similar infarctions do survive (Wright p. 28 -- he just had not seen any (Wright p.
29) -- and the exertion "might have speeded things up by an hour". (Wright p. 23)
The agency also finds that the decedent experienced no unusual exertion in his employment since he was not required to perform anything other than his standard required duties during his regularly scheduled working hours.
CONCLUSIONS OF LAW
Section 121.091(7)(c)(1), Florida Statutes, (1977) provides:
The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime, unless said surviving
spouse remarries, in which case the pension A shall terminate on the date of remarriage; or, in lieu of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b) of this subsection.
Section 121.021(14), Florida Statutes, (1977) defines "death in line of duty" as:
death arising out of an in the actual performance of duty required by member's employment during his regularly scheduled working hours or irregular working hours as required by the employer . . .
In addition to the foregoing statutes, the First District Court of Appeal has held that Section 112.18(1), Florida Statutes (1977) is applicable to the Florida Retirement System, Chapter 121, Florida Statutes (1977). Caldwell
v. Division of Retirement, 344 So.2d 923 (Fla. 1st DCA 1977) affirmed in part
So.2d (Fla. 1979) Case No. 51,807, Opinion filed June 14, 1979. That statute provides:
Any condition or impairment of health of
any Florida . . . county . . fireman caused by . . . heart disease . . . resulting in . death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evi- dence. However, any such fireman shall have successfully passed a physical examination upon entering into any such service as a fireman, which examination failed to reveal any evidence of any such condition . . .
The Supreme Court held in Caldwell:
To rebut the statutory presumption it is necessary that the [agency] show that the disease causing disability or death was caused by a specific, non-work related event or ex- posure.. (Opinion p. 5)
As a county fireman who successfully passed a physical examination the decedent is entitled to the presumption. Were it not for the competent, substantial evidence showing that he died as a result of ventricular fibrillation, his widow would be entitled to in-line-of-duty death benefits in spite of the fact that he died while off duty following strenuous activity and in spite of the fact that he had experienced no unusual exortion at work.
Since the decedent's ventricular fibrillation was caused, or "triggered", by his act of pushing the wheelbarrow (which was clearly not a requirement or consequence of his employment and which was done on his own time), that act is the "specific, non-work related" event required to rebut the presumption. (Caldwell, supra) Accordingly, the Petitioner is not entitled to the benefits of Section 121.091(7)(c)(1) supra, because her husband was not "killed in the line of duty."
This agency also concludes that any claim alleging the decedent's infarction was caused by the stress of employment, whether supported by the evidence or not, is sufficient as a matter of law to merit in line of duty benefits. The Florida Supreme Court has recently stated the following with respect to "stress" claims:
We have had a number of 'heart' cases
in which we determined what was or what was not an unusual and non-routine strain or exertion within the definition of Victor Wine [& Liquor, Inc. v. Beasley, 141 So.2d
581 (Fla. .1962)]. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient.
Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is
a causal connection between a heart attack or other internal failure of the cardio- vascular system and the claimant's employ- ment. (Richard E. Mosca & Co., Inc. v.
Mosca, 362 So.2d 1340, 42 [Fla. 1978])
That Court went on to conclude that the failure of Mosca's cardiovascular system was not compensable because there was no evidence to show that it was caused by "any unusual strain or overexertion" resulting from a "specifically identifiable effort" which was "not routine to the type of work he was performing". (Id. at
p. 1344) As it was not demonstrated that the decedent performed any physical activity not common to his job, the holding in Mosca would also preclude Petitioner's recovery of in-line-of-duty death benefits.
DECISION AND ORDER
Based on the foregoing facts and authorities, Petitioner's application for in-line-of-duty death benefits pursuant to Section 121.091(7)(c)(1) , Florida Statutes (1977) is hereby denied.
DONE and ORDERED this 11th day of September, 1979, at Tallahassee, Leon County, Florida.
Robert L. KENNEDY, JR.
State Retirement Director
Copies to:
Richard Sicking, Esquire Post Office Drawer 520337 Miami, Florida 33152
Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Nov. 02, 1979 | Final Order filed. |
| Aug. 02, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 11, 1979 | Agency Final Order | |
| Aug. 02, 1979 | Recommended Order | Recommend claim for survivor's benefits be granted upon a showing decedent's death was work related and not caused by other activities. |
