STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARGIE ROBINSON, )
)
Petitioner, )
)
vs. ) Case No. 85-3349
) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )
)
Respondent. 1/ )
)
RECOMMENDED ORDER
Notice was provided, and on June 2, 1986, a formal Section 120.57(1), Florida Statutes, hearing was held in this cause.
Location of the hearing was Tallahassee, Florida. Charles C. Adams, hearing officer with the Division of Administrative Hearings, conducted the hearing. Counsel for the parties have filed proposed recommended orders. Those proposals have been considered prior to the entry of the recommended order. To the extent those proposals are consistent with the recommended order, they have been utilized. Otherwise, the suggested facts promoted through the proposed recommended orders have been disregarded for reasons explained in the appendix to this recommended order.
APPEARANCES
For Petitioner: Harold S. Richmond, Esquire
215 West Jefferson Street Post Office Box 695 Quincy, Florida 32351
For Respondent: Stanley M. Danek, Esquire
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32303
ISSUES
The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
FINDINGS OF FACT
From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death.
In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours.
During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System.
Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death.
In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt.
At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was
overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain.
Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt.
Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work.
At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence.
In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell.
Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent.
Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again.
Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes.
Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants.
When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties.
On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled.
In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old.
Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said:
Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson?
A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result.
If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause.
Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death?
A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise.
Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson.
Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to the provisions of Section 120.57(1), Florida Statutes.
Objection had been made to the testimony of the Petitioner concerning conversations with her husband in the evening hours of April 10 or early morning hours of April 11, 1984, in which he complained of discomfort and seemed despondent about the incident which had occurred with Morris Brown. That testimony was presented in the form of a proffer, subject to a ruling on its admissibility through the recommended order in this cause. That testimony is now admitted. Respondent, through counsel, urges that Section 90.602, Florida Statutes, disallows the admission of the evidence. That provision states:
No person interested in an action or proceeding against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of an insane person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or insane at the time of the examination.
This section does not apply when:
A personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or the assignee, committee, or guardian of an insane person, is examined on his own behalf regarding the oral communication.
Evidence of the subject matter of the oral communication is offered by the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or the assignee, committee, or guardian of an insane person.
The present action is not one of a person interested in an action or proceeding against the personal representative, heir- at-law, assignee, legatee, devisee or survivor of the deceased person, or against the assignee, committee or guardian of an insane person. It is an action by the widow of a member of the retirement system directed against the State of Florida, Department of Administration, Division of Retirement. For that reason the provision cited does not bar the testimony of the wife concerning the subject conversation. The statements of the
deceased are better described as comments about his existing mental, emotional and physical condition as envisioned by Section 90.803(3), Florida Statutes, and as such are hearsay exceptions. It is therefore appropriate for the Petitioner to impart these remarks. Moreover, those remarks by her husband may also be utilized by the experts who testified in the course of the hearing as a basis for opinion testimony. This is in accordance with Section 90.704, Florida Statutes, which states:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.
This provision would allow for the use of the remarks of the deceased and description of his demeanor to form the basis of the expert opinion testimony, even if those remarks were otherwise inadmissible.
The claim of the Petitioner for retirement benefits is in keeping with Section 121.091(7)(c)1., Florida Statutes. It says:
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).
In order to recover, Petitioner must demonstrate that the incident which occurred while the deceased was on duty on the night of April 10, 1984, involving the prisoner Morris Brown, caused the fatal outcome. That proof must be within a reasonable degree of medical probability. The event with Morris Brown was the cause of death within a degree of medical
probability. The events related to the problem which the deceased experienced with the prisoner Brown probably caused the subsequent death approximately 26-28 hours later. Those events are substantial and capable of the production of such an outcome. This decision is countenanced by the opinions of court in Division of Retirement v. Allen, 395 So.2d 1192 (Fla. 1st DCA 1981) Blanton vs. Division of Retirement, 480 So.2d 134 (Fla.
1st DCA 1985) and Dickson vs. Department of Admin. Div. of Retirement, 481 So.2d 52 (Fla. 1st DCA 1985).
It is, therefore, RECOMMENDED:
That a final order be entered which provides retirement benefits to the Petitioner in accordance with Section 121.091(7)(c)1., Florida Statutes.
DONE AND ENTERED this 27th day of June 1986, at Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June 1986.
ENDNOTE
1/ Lena Robinson had intervened in the action. That intervention was withdrawn by her counsel on January 14, 1986.
COPIES FURNISHED:
Harold S. Richmond, Esquire
215 West Jefferson Street
0. Box 695 Quincy, Florida 32351
Stanley M. Danek, Esquire
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207Building C Tallahassee, Florida 32302
Gilda H. Lambert, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Andrew McMullian, Director Division of Retirement Cedars Executive Center Building C
Tallahassee, Florida 32303
APPENDIX
Petitioner's proposed facts were incorporated in the recommended order.
Respondents proposed facts were incorporated in the recommended order with the exception of paragraph 11 which is rejected as being contrary to facts found.
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=
AGENCY FINAL ORDER
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=
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
MARGIE ROBINSON,
Petitioner,
vs. Case No. 85-3349
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by MARGIE ROBINSON,
widow of E. L. Robinson, for review of the decision of the State Retirement Director that the death of E. L. Robinson was not in- line-of-duty. A hearing was held pursuant to notice of June 2, 1986, before Charles C. Adams, designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Harold S. Richmond, Esquire
215 West Jefferson Street Post Office Box 695 Quincy, Florida 32351
For Respondent: Stanley M. Danek, Esquire
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32303
The Hearing Officer filed his Recommended Order on June 27, 1986, in which he sustained the Petitioner's assertion and concluded that the death of E. L. Robinson (hereinafter, Robinson) occurred in-line-of-duty.
The Division has reviewed the record and exhibits and rejects or modifies certain findings of fact as not being based on competent, substantial evidence. Section 120.57(1)(b)9, Fla.Stat.
PRELIMINARY MATTERS
By way of motions, there were several preliminary matters brought to the Hearing Officer's attention and ruled on by him in the Final Order. However, because each of the preliminary matters involves policy considerations for which the agency has special statutory responsibility, it is necessary to review each of these matters in this Final Order in view of the requirements of Chapter 121, Fla. Stat. These preliminary matters include:
Whether or not Petitioner is competent to testify about conversations she had with her husband prior to his death;
Whether or not the testimony of Dr. Britt is admissible as to the issue of causation between the incident at the jail and the later death of Robinson.
The above points will be considered under Conclusions of Law, infra.
HEARING OFFICER'S FINDINGS OF FACT
Because the Division is accepting certain of the Hearing Officer's Findings of Fact, rejecting others in part or in total, and supplementing the findings, each Finding of Fact in the Recommended Order will be considered individually.
Paragraph 1: Accepted.
Paragraph 2: Accepted.
Paragraph 3: Accepted.
Paragraph 4: Accepted. Paragraph S: Accepted. Paragraph 6: Accepted.
Paragraph 7: Accepted. Paragraph 8 (sic): Accepted. Paragraph 9: Accepted.
Paragraph 10: Accepted. After Robinson talked to Brown, Brown calmed down, and Lt. Norris and Robinson then subdued him on the bunk with the handcuffs. While there was some struggle, there was no fight or threat of a fight. Had Brown been released, he would have stood up. Mrs. Robinson testified that to her knowledge, her husband had been involved on two other occasions with the subduing of prisoners.
Paragraph 11: Accepted as to the testimony of Mrs.
Robinson concerning comments made by Robinson upon his return home for reasons discussed in the Conclusions of Law. Testimony as to usage of nitroglycerin by Robinson is not supported by the prescription purchase records that Robinson used 100 nitroglycerin pills between October 10, 1983, and February 27, 1984, when he refilled the prescription. No proof was offered at the hearing as to the number of pills left from the February prescription refill. The remaining portions of Paragraph 11 are accepted.
Paragraph 12: Accepted.
Paragraph 13: Accepted.
Paragraph 14: Rejected for the following reasons:
Dr. Britt did not answer the question on the basis of commonly accepted medical standards, to wit, whether there was a causal relation within a reasonable degree of medical certainty' but answered it in a "hypothetical fashion" and then stated that "a sudden death syndrome could arise" from the event (emphasis in testimony added).
The facts presenting hypothetical question were insufficient to provide the complete background of Robinson's medical condition, medication usage, the jail incident, the events of the next days, and statements of other known witnesses. See D'Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA 1980).
A subsequent hypothetical question was later asked Dr. Britt in which the above factors were included (Dr. Britt's depo, pg. 2432). After several clarifying questions and answers, the doctor stated in effect that he was unable to answer the question on causation with a yes or no answer and stated (beginning on page 29 of the deposition):
(by Mr. Danek) So then you're not able to give an opinion because there are facts missing, is that what you're saying?
A. Well, if you ask me my opinion, again, of whether -- which your initial question was whether that marker event had anything to do with his sudden death that night, I will answer that as saying it could very well have been a night as far as creating an unstable angina syndrome. It could have happened two minutes after the squabble. It could have happened two days, either when he had gone to bed -- let me answer this in what I can tell you factually I know and that cardiology literature knows.
Silent ischemia is the thing that we all wish we had the clinical acumen for, being able to point out when a critical change in the vascular tone is occurring or the coronary arteries that could lead to a
sudden death so that we could recognize that event. Without having either a conversation with him or someone having a conversation, conversational recollection of how he had either reacted before he retired, talking about this or exhibiting an emotional pattern that exhibited stress or reflected stress, it's impossible because you can have silent events when someone is sitting at a desk pondering a problem or reading a book, I thought comma, and then all of a sudden they're dead and if he or she is at their place of work, the questions comes up, did the job kill him. We know that there are silent ischemic events that are horrible that causes sudden death that occur outside of the setting of what a normal person is considered to be doing in their usual line of occupation. Did you follow what I'm saying?
Q. I understand you.
A. Okay. And so in trying to answer your question, I'm trying to answer this question not for a yes or no, you know, type of answer, but what do we really know when we try to look back at the same patient and say what could I have done to have saved that life if he had had a Holter-monitor on, for instance, at that time. Maybe at supper he was having a silent ischemic event related to, again, perhaps the whole event that occurred at the jail and then when he ate, we know there is a thing of postprandial angina.
Q. Which he had.
A. Okay. Now is the angina that he had postprandially, let's just take presumptively, was enough to start up the cascade again and then he had a reflection silently while asleep of the event and the two of them combined presented a cascade of events that were not able to be recuperated by the quick return of the nitroglycerin
sublingual or not controlled by the topical nitrates and so forth.
If you're willing to put that kind of clinical picture in there, it would make sense; otherwise, we're going to be playing, you know, really guesswork and I'm trying to give you my clinical judgment.
Q. That's fine. I appreciate that. One of the theories of heart attacks is a spasm of the cardiovascular arteries, is that right?
A. Yes.
Q. Okay. The spasms, are they a normal occurrence in any individual?
A. Again, to answer that factually and correctly, you have spasms on a fixed lesion, spasms in a normal coronary.
Q. Spasms do occur then?
A. Yes, but you have to separate the two.
Q. I understand. If you have a spasm in somebody who has a severe disease, it could lead to a heart attack.
A. No. No. If you have a pipe that is narrow--these areas of occlusion are not circumferential. In other words, it doesn't narrow down in a concentric fashion to a small hole. You have an area blocked over here with a little bit of blood going through a small hole over here. The major blood is going through the major lumen left, the normal hole left. If this little hole becomes plugged, that's the one that can open and dilate. That's the one that can be just enough to cause critical narrowing and can lead to spasm of the other site, the only site, as compared to somebody with a normal artery that goes from this size to this size but opens back up to that size.
The only reasonable conclusion to be drawn is that Dr.
Britt's testimony, while interesting in its possibilities and theories, does not support a finding of fact within a reasonable degree of medical certainty. Paragraph 14 is rejected as not being supported by competent, substantial evidence.
Paragraph 15 (sic): Accepted in part. While Dr. Bianco did defer to Dr. Britt on the question of causation, his testimony did establish the severity of Robinson's coronary condition. The question of causation necessarily is based on that coronary condition. Therefore, his testimony is material and relevant to an understanding of this case. Further, he testified that coronary problems of the type that Robinson had can produce heart attacks under various conditions from no activity - sleeping - to minimal activity - fishing. While he does not testify as to causation in this case, his inability to do so suggests that a causal relationship between the incident and later death cannot be established by medical science.
DIVISION'S SUPPLEMENTAL FINDINGS OF FACT
E. L. Robinson had significant cardiovascular disease, having occlusion (blockage) of his right coronary artery in his left anterier fending artery and other blockages of 60% to 70% in the first ventricular ranch of the right coronary artery and of 95% to 99% in the second lateral artery of the circumflex artery, heart valve problems, poor heart muscle involvement, and a probable prior heart attack. Id. (attachments to Dr. Bianco's deposition)
Robinson had a number of the risk factors associated with heart disease, including diabetes which causes rapid progression of hardening of the arteries, long-time smoker, hypertension, and a probable, prior heart attack (Dr. Bianco's deposition, pg. 15). It was recommended that he have immediate bypass surgery, but he refused, choosing instead to be treated conservatively (Dr. Britt's office notes of October 12, 1983).
As of his last visit with Dr. Britt on March 26, 1984, he had suffered 12 occasions of chest discomfort for which he had to take nitroglycerine and further had gained eight pounds since the October 3, 1983 office visit. In addition, he was still using TransDerm Nitro 5 patches, a show acting nitroglycerine medicine, using one patch per day (Dr. Britt's office notes of March 26, 1984).
The testimony of the witnesses tends to support a
finding that Robinson's job was stressful, but there is no competent evidence that it is more stressful than other types of employment. There is no evidence that the incident at the jail on April 10, 1984, was the substantial producing cause of Robinson's death on April 12, 1984, using the current legal standard which requires such evidence be supported or based on a reasonable degree of medical certainty.
CONCLUSIONS OF LAW
Section 121.021(14), Florida Statutes, defines "death in-line-of-duty", as follows:
"Death in line of duty" means death arising out of and in the actual performance of duty as required by a member's employment during his regular scheduled working hours or irregular working hours as required by the employer. . ."
The issue to be resolved in this proceeding is whether or not E.
L. Robinson death arose out of the performance of his job duties as above defined.
At the hearing, the Division objected to the testimony of Mrs. Robinson concerning various statements proported to be made by her husband on intervening after the incident at the jail. The Division believed that the above testimony was barred by the Dead Man's Statute, Section 90.602, Fla. Stat. In the Recommended Order, the Hearing Officer discussed the status of such testimony and concluded that it was not barred by the Dead Man's Statute. The Division adopts that conclusion of law.
The testimony of Mrs. Robinson was also objected on the basis of hearsay. The Hearing Officer found such statements to be "comments about his existing mental, emotional and physical condition as envisioned by Section 90.803(3), Fla. Stat., and as such are hearsay exceptions. While the testimony was not offered on the basis of Robinson's mental, emotional or physical condition, the Division nevertheless adopts the conclusion of the Hearing Officer.
The final basis on which the Division objected to Mrs. Robinson's testimony was based on her substantial interest in the outcome of the case. This issue was not addressed by the Hearing Officer and will be addressed in this Final Order. The old common law rule prohibited a person from testifying in a
suit when he or she had an interest in the outcome. The reason for the rule was the likelihood that such persons would testify falsely. This rule has changed by statute so that interest, motive, bias, or prejudice may be considered as affecting an interested witness' credibility.
It is undisputed that Mr. Robinson has the only interest in this case. It is also undisputed that no other evidence or witnesses support her statements as to what her husband may have said to her or felt on the night of the incident. In fact, all the other testimony tends to show that Robinson was not depressed, upset, or in any way concerned about the incident that night or the next day, his day off. The Hearing Officer had sufficient opportunity to observe the demeanor and credibility of Mrs. Robinson, and the Division accepts her testimony.
In administrative proceedings, the burden of proof is based on the preponderance of the evidence. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Fla. Department of Transportation v. JWC Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
The burden of proof in these matters is such that a Petitioner must show that the probative weight, influence, force, or power of the evidence, proves his claim. Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co., 160 So. 2d 102 (Fla. 1964).
In cases involving medical issues, the burden of proof requires that the claimant or petitioner show that injury or accident was the "cause" of the resulting medical impairment or death. In other words, it must be shown that the injury or accident was "causally connected" or was the "causal event" that lead to the later medical problems. The determination of causal connection is necessarily a mixed question of law and medicine.
The medical standard traditionally used by t le courts is whether or not the injury or accident is causally related to the "effect" within a "reasonable degree of medical certainty". This standard requires more than a guess or conjecture by the doctor but less than absolute certainty or proof. It is a standard based on current medical knowledge, skill, and ability of the medical profession.
In this proceeding, the Hearing Officer gave weight to certain testimony of Dr. Britt in which the doctor stated that the incident on April 10th was causally related to the later death, but the Hearing Officer ignored a similar question on causation asked of Dr. Britt later in his deposition. The Division has rejected the finding of fact in the Recommended Order that there was a causal connection and adopted Dr. Britt's later testimony that he could not state within a reasonable degree of medical certainty that a causal connection existed.
Dr. Bianco testified that Robinson had significant coronary problems as of October, 1983, the date of the coronary catheterization, including a probable prior heart attack and heart valve problems. Robinson had significant multiple coronary artery disease which ranked an 8 or 9 on the scale of
10 (10 being the most severe disease)(Dr. Bianco's deposition, Id. 13). He would have recommended immediate bypass surgery. With the above underlying condition, Robinson had a 60% survival chance for the next five years. (Id., pg. 14)
In the typical administrative proceeding, the Hearing Officer is the trier of fact and the agency may not change or modify his findings if they are based on competent substantial evidence. One exception to this rule is when the testimony in question was taken and then presented at the hearing in the form of a deposition.
This Court has held that under such circumstances its ability to review the deposition testimony is not inferior to the trier of fact. Dukes v. Dukes, 346 So.2d 544 (Fla. 1st DCA); Kelly v. Fla. Atlantic University, 413 So.2d 833 (Fla. 1st DCA 1982); Hammersmith, Inc. v. Zanfardino, 425 So.2d 80 (Fla.
1st DCA 1983). Under this principle, the Division is in no lesser a position to review the testimonies of Drs. Britt and Bianco. For these reasons, the Division modifies the Recommended Order.
Robinson had several risk factors involved with coronary artery disease, and both before and after the catheterization was taking several medications for his heart condition.
While Dr. Bianco did defer eventually to the opinion of Dr. Britt on causation, he also testified that-given Robinson's condition, a fatal heart attack could have occurred while sleeping, watching television, or fishing. (Id., pgs. 23-
24) He concluded by stating:
Q. (by Mr. Danek) Do you have an opinion within a reasonable degree of medical certainty as to whether the fatal heart attack that he had was in any way connected with the altercation at the jail some 27 hours before?
(Objection by Mr. Richmond-deleted)
THE WITNESS: I don't think that we could be sure that that was related to that. I honestly feel, from listening to the history, that in fact, his whole job was responsible for the death of the patient, not that specific incident.
I'm honestly not sure -- despite the fact that he doesn't complain of frequent chest pain in that six-month period, he had significant coronary artery disease, and that job was just too stressful of a job for a man to hold with that kind of coronary artery disease. He needed either to be retired after his heart catheterization, or have the bypass surgery.
Q. Which he didn't do either of?
A. Ri ght.
Q. So rather than relate it to specific incidents, you would just relate it to the job?
A. Yes, that's a stressful job for a fellow with that much coronary artery disease.
Q. Okay. Are you saying that the job itself is stressful, or the job is stressful for a person in his condition?
A. I think both, actually. The job is stressful, and with his condition it's only worsened by having that job. In other words, let me expound on that. Simply stress alone, which we, unfortunately,
overlooked as one of the causes of coronary artery disease, has a significant part to play in a heart attack or in the progression of coronary artery disease.
Specifically, stress, with its release of epinephrine, causes those coronary arteries to go into spasm, to tighten down. And, of course, Procardia is there to prevent that from happening. But in an overstressful situation, Procardia just isn't going to protect you in that situation. (Dr.
Bianco's deposition, pgs. 22 -23) Dr. Bianco later stated:
Q. So there is not necessarily, or is there, a cause and effect relationship between the job and the heart attack?
A. The heart attack that occurred at 12:30 a.m., that is?
Q. Yes.
A. I don't think there is a direct relationship, but I think there is at least causal relationship between the job and a heart attack and his coronary artery disease.
Unfortunately, again, we forgot to mention stress. But all the other factors he does have. He has the risk factors, the smoking, diabetes, high blood pressure, obesity, family history, sudden death. One we neglected to mention is stress. So add that all in, it added to his coronary artery disease. (Id., pg. 24)
Dr. Bianco's testimony is significant because it explains that the underlying coronary problem was so severe that a fatal heart attack could have occurred at time of little physical activity such as sleep. In fact, the fatal attack did occur during Robinson's sleep.
If the incident at the jail was as significant as
Petitioner would lead us to believe, the fatal attack was much more likely to have occurred within a few hours of the incident. That did not happen; instead Robinson spent his day off visiting friends and his mother with no complaints of chest pain, tiredness, or other complaints about the incident the prior night.
In Popiel v. Broward County School Board, 432 So.2d 1374 (Fla. DCA 1983), an employee of the School Board was traveling on School Board business and was robbed by a thief who reached through the car window and snatched the woman's gold necklace from around her neck. Approximately one hour later, she collapsed and died of a heart attack. While the decision turned upon the provisions of Chapter 440, Fla. Stat., it is significant to note two points; first, the fatal heart attack occurred one hour after the incident, and two, the medical testimony showed a pre-existing heart valve problem. The medical testimony in Popiel showed "that the shock and upset from the robbery was the cause of descendant's heart attack and death". Id. 1375
If this claim is based on death being caused by physical trauma, it must fail since there was no injury or accident suffered by Robinson. If the claim is based on the stress and shock of the incident, it too must fail because of the lack of proof of stress and the significant period of time between the incident and the resulting death some 27 hours. Job stress alone is not a basis of awarding in-line-of-duty death benefits. Accord Aircraft Services, Inc. v. Bradley, 448 So.2d 1045 (Fla. 1st DCA 1984). See also Hammersmith, Inc. v. Zanfardino, 425 So.2d 80 (Fla. 1st DCA 1983) in which an employee suffered a fatal aneurysm of the aorta following his taking and failing three (3) polygraph tests; and City of Opa Locka v. Quinlan, 451 So.2d 965 (Fla. 1st DCA 1984) in which a police sergeant suffered a heart attack after he had worked several days carrying a greater work load than usual.
In reviewing the record, the preponderance of the evidence does not support a conclusion that the incident of April 10th was causally related to the subsequent death by heart attack of April 12th. Petitioner has not carried her burden of proof based on the medical evidence which would prove that the death was causally related to the incident within a reasonable degree of medical certainty. The medical evidence, fairly read, shows that death was due to a multitude of factors and could have occurred at any time and under any condition, because given his heart condition, he was a "walking time bomb", and it was
just a matter of time before he would have the heart-attack, regardless of his employment.
The Recommended Order states that the incident "was substantially" capable of production of such an outcome". Whether the incident was capable of production of such an outcome is not the standard to be used in these types of cases since any of the known factors was capable of producing the outcome. Even a "non-factor" such as sleeping or fishing or watching TV were capable of producing the outcome.
In these types of cases, the Division has consistently looked for a substantial or significant incident and the resulting causal relationship. It need not (in every case) be the most significant factor or the only factor but it should certainly be more than a possibility since medically all things are possible and should certainly be more than merely capable of producing the outcome.
If the operative medical standard is to be a reasonable degree of medical certainty, then that standard should apply. Any different standard is not permitted under Section 121.091(4)(b), Fla. Stat.
Based on the foregoing Findings or Fact and Conclusions of Law, it is
ORDERED that the application of Margie Robinson for in- line-of-duty death benefits based on the death of her husband,
L. Robinson, be DENIED.
DONE AND ORDERED this 10th day of October, 1985, in Tallahassee, Florida.
J. McMULLIAN, III State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT THIS 10th DAY OF OCTOBER, 1986.
COPIES FURNISHED:
Charles C. Adams Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Harold S. Richmond, Esquire
215 West Jefferson Street Post Office Box 695 Quincy, Florida 32351
Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 Building C
Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Jun. 27, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 10, 1986 | Agency Final Order | |
| Jun. 27, 1986 | Recommended Order | Widow was entitled to death benefits for death of husband in the line-of-duty. A struggle with a prisoner was the precipitating event for cardiac arrest. |
