STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JEROME CUNDY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1645

) ROBERT L. KENNEDY, JR., as State )

Retirement Director of the ) Department of Administration ) Division of Retirement, and the ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice at 9:00 a.m. in Room 359, State of Florida Office Building, 1350 N.W. 12th Avenue, Miami, Florida, on November 13, 1975, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose when Jerome Cundy, the Petitioner, was advised by the Division of Retirement, Respondent, that his application for in line of duty disability would not be approved and was notified of his right to a hearing pursuant to Chapter 120, Florida Statutes, on his right to such benefits. The Petitioner's application for regular retirement benefits was approved. Thereafter the Petitioner requested a formal hearing, and the case was referred to the Division of Administrative Hearings for hearing.

The primary question is whether the Petitioner, whose disability arose from a heart attack suffered at his home on the evening of November 27, 1972, is entitled to in line of duty disability. This raises two underlying issues, one of law and one of fact; to with:

1. Does the presumption created by Section 112.18, Florida Statutes, apply to Chapter 121, Florida Statutes, and

2. If the presumption applies, did the evidence presented rebut the presumption that the Petitioner's heart attack occur in line of duty.

The parties stipulated to the Petitioner's years of credible service and the fact that he was totally and permanently disabled and had received regular disability benefits from 1972 because of his heart attack.

SUMMARY OF FACTS

The Petitioner testified that he had been a Captain with the Dade County Fire Department at the time of his retirement, that he had passed an entry physical when he entered the fire service which revealed no disease of the heart, and that he had had a heart attack on November 29, 1972, which was caused by a heart disease which resulted in his retirement. The Petitioner asserted that the presumption of in line of duty disability created by Section 112.18, Florida Statutes, would apply and that he was therefore entitled to disability retirement benefits pursuant to Chapter 121, Florida Statutes.

The Petitioner testified that he was the head of the fire department's supply and maintenance branch. His duties were the administrative supervision and coordination of the personnel who were in charge of ordering supplies and providing maintenance services and heavy fire fighting support equipment. In emergencies his duty was to report to his regular duty station and perform his regular duties making certain that the elements fighting the fire had the supplies they needed through coordination of logistical and maintenance support. Although on call at all hours, the Petitioner indicated that he rarely had to respond to emergencies although he was alerted by telephone fairly frequently. Once alerted, he had to stay close to his phone but could go to sleep or relax until actually called in. He had worked in the support station since 1961 or 1962, and testified that his duties at retirement were essentially the same as they had been in 1962 and 1963 when he was promoted to lieutenant.

Although his duties could require his attendance at a fire scene, Petitioner testified that he had not actually gone to fire scenes with any frequency and could not recall having gone to a fire within several months of his heart attack.

The Petitioner testified that his duties were hectic and that he had felt overloaded for six months prior to his heart attack due to the inadequate number of personnel, inadequate equipment, and inadequate funding. Immediately prior to his heart attack,

the Petitioner's superior had attended a seminar out of town and the Petitioner had had to assume his duties for a week. These duties related to advising the chief of the department on matters relating to the department's budget. The Petitioner could not say how many additional hours of work or what specific activities he had had to assume. Additionally, one of the Petitioner's subordinates who was responsible for coordination of the mobile repair unit had taken leave to two or three weeks, and the Petitioner had assumed his duties. Although he had taken over responsibility of these activities, again the Petitioner could not specifically identify any activity or duty which these responsibilities had required him to perform. The Petitioner stated that he had not responded to a telephonic alert within at least two weeks of his attack, and did not recall his having gone to a fire scene within three months of his attack. Regarding the length and duration of his duties immediately prior to his attack, the record indicates that the Petitioner had holidays on November

18 and 19, took administrative leave on November 20, worked November 21 and 22, was on holiday leave November 23 and 24. His heart attack occurred on November 24 at approximately 11:15 p.m.

The Petitioner also testified that he had been overcome by smoke in late 1963 and had been hospitalized. Subsequently, on his annual physical he had complained of chest pains. The departmental physician had had the Petitioner's physician hospitalize him for tests. The Petitioner indicated that he had thought it was for emphysema. No medical records explaining the existence or nature of any medical problems were introduced. On the record Petitioner's counsel referenced an EKG report, however, the earliest report is dated 1970 and while it reveals that there was sinus tachycardia, there was no evidence introduced concerning that such a condition implies or relating it to the Petitioner's 1972 heart attack. The Petitioner's testimony indicates that he received on treatment and was released after several days and returned to work.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner's claim for disability retirement was grounded on three theories: (1) the applicability of the presumption created by Section 112.18, (2) the increase stress of his duties due to the absence of his superior officer and one of his subordinates, and (3) the latent injury or illness of Petitioner's heart in 1963 while Petitioner was performing fire fighting duties.

2. The Respondent argues that the presumption is not applicable for several grounds. This recommended order shall not treat the constitutional issues raised in Respondent's brief, but which are preserved for possible consideration by the appellate court.

   
   

3. The Respondent argues that the presumption created by Section 112.18, Florida Statutes, is a limited one and is not of general application to determinations of disability pursuant to Chapter 121, Florida Statutes. Referenced to Chapter 65-480, Laws of Florida, as follows, which enacted the original provision, clearly discloses the general nature of the provision:

   
   

   AN ACT relating to fireman; providing for the payment of benefits; providing that tuberculosis, heart disease, or hyper- tension resulting in total or partial disability or death shall be presumed to have been suffered in the line of duty; providing limitations of applicability; providing an effective date.

   
   

   Be It Enacted by the Legislature of the State of Florida:

   Section 1. Any condition or impairment of health of any Florida municipal, county, port authority, or fire control district fireman caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or 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 evidence, provided, however, that 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; provided, further, that such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance. Nothing herein shall be construed to extend or otherwise affect the provisions of chapter 440, Florida Statutes, pertaining to

   workmen's compensation. (Emphasis supplied.)

4. The language of the statute and its clear intent was to create a general presumption applicable to any determination of disability except those specifically exempted. The amendment of the provision after passage of Chapter 121, Florida Statutes, without any stated exemption for retirement determinations would indicate the legislature's intent to make the presumption applicable to disability retirement determinations.

5 The Respondent further contests the applicability of the presumption on the basis that while the Petitioner was a captain with the Dade County Fire Department in 1972, that his duties were administrative in nature and therefore he did not meet the functional definition of a fire fighter as that term is used in Section 112.18, Florida Statutes.

1. A presumption springs from the general knowledge or universal experience of mankind. The knowledge or experience upon which the presumption of Section 112.18, Florida Statutes, is based is the fact that firemen in fighting fires are exposed to smoke, physical danger and strenuous exertion and emotional stress such that it would expose them to a higher risk of occurrence of tuberculosis, heart disease, or hypertension. Fireman, as the term is used in Section 112.18, Florida Statutes, is therefore a functional definition applicable to those individuals who are exposed as part of their duties to the types of conditions and risk from which the presumption springs.

   
   

2. A functional definition of firemen finds support from the definition from the next section in Chapter 12, dealing with firemen, Section 112.191, which provided a definition of fire fighters as follows:

   
   

   (b) The term "fireman" means a duly uniformed fireman employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property therefrom, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertained to the prevention and control of fires, who is a member of a duly constituted fire department of such employer, and not a volunteer fireman.

   
   

3. This definition, as the only one appearing in the chapter, is indicative of the body of persons to whom the legislature was addressing its attention, and it indicates a

   functional definition of firemen and not an organizational definition.

   
   

4. The Hearing Officer concludes as a matter of law that the presumption created by Section 112.18, Florida Statutes, is generally applicable to any individual who meets the statutory definition of fireman, who passed an entrance physical which revealed no evidence of tuberculosis, heart disease, or hypertension, and who is totally or partially disabled by one of the aforementioned diseases.

   
   

5. The Petitioner showed he was a fire captain, had passed an entrance physical which revealed no evidence of heart disease, and it was stipulated that he was totally disabled from heart disease. The presumption therefore placed the burden on the agency to go forward and to prove that the Petitioner's heart attack did not occur in line of duty.

   
   

6. In seeking to show that the Petitioner is not entitled to in line of duty benefits, the agency attacks the Petitioner's qualifications to be entitled to the presumption. Evidence was presented that Petitioner had not performed fire fighting duties in approximately nine years prior to his heart attack. Therefore, for a substantial period of time prior to his attack the Petitioner did not meet the functional definition of fire fighter. Based on this evidence the Hearing Officer finds the presumption rebutted.

   
   

7. Therefore a determination of disability in line of duty must be proved by the evidence presented at hearing. City of Coral Gables v. Brasher, 120 So.2d 5. It was incumbent upon the Petitioner to introduce evidence to support his claim that the disability arose in line of duty. Although there are no cases arising under the retirement law which interpret what constitutes an in line of duty heart attack, the workman's compensation law has produced several. These cases generally establish a standard which requires some form of unusual physical exertion or strain while performing regular duties beyond those normally experienced by the claimant.

   
   

8. The evidence that the Petitioner's superior officer and one of his subordinates were on leave was considered. Any duties which he had been called upon to perform because of these absences were the same administrative type duties which he normally performed. The Petitioner could not identify any specific acts which the absences of his superior and one of his subordinates had caused him to perform. The evidence submitted by the Petitioner

   did not indicate that he had had unusual stress or physical demands placed upon him prior to his attack.

   
   

9. The record instead reveals that conditions had generally been hectic for at least six months. Further, although his superior officer and one of his subordinates had been off for a number of days prior to his heart attack, the Petitioner had also been off five days of the seven days preceding his attack, including the 48 hours immediately preceding the attack.

   
   

10. The Hearing Officer concludes that the agency rebutted the presumption created by Section 112.18, F.S., and that the Petitioner failed to show any unusual stress or physical activity which was the proximate cause of his 1972 heart attack. Further, the Petitioner failed to present any medical diagnosis of his 1963 problem which resulted in his hospitalization and to relate said incident in any way to the 1972 heart attack.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that Petitioner's application for disability in line of duty benefits be denied.

DONE AND ORDERED this 22nd day of January, 1976.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

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BEFORE THE RETIREMENT COMMISSION OF THE STATE OF FLORIDA

IN THE MATTER OF:

DISABILITY RETIREMENT OF

JEROME G. CUNDY, DOAH CASE NO. 75-1645

APPLICANT.

/

ORDER

Pursuant to notice, the State Retirement Commission continued its public hearing in the above-styled cause on September 28, 1976, commencing at 9:00 a.m. in the hearing room of the Retirement Commission at Cedars Executive Center in Tallahassee, Florida. Present in addition to Chairman John F. Tingle, were Commissioners Howard J. Friedman, Ellio J. Winograd, L. K. Ireland, Jr., Perry C. Harvey, Jr., and John R. Smith.

This proceeding arose when Jerome Cundy, the applicant, was advised by the Division of Retirement that his application for in- line-of-duty disability would not be approved. His application for disability retirement benefits by virtue of permanent and total disability was approved. Applicant was notified of his right to a hearing pursuant to Chapter 120, F.S., and thereafter the Applicant timely requested a formal hearing. This request was referred by the Division of Retirement to the Division of Administrative Hearings for hearing.

Initial hearing was held by Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings on November 13, 1975, at the State Office Building, 1315 N.W. 12th Avenue, Miami, Florida. At this hearing, the Division of Retirement was represented by L. Keith Pafford, Esq., and the Applicant was represented by Richard A. Sicking, Esq.

As a result of this hearing, Hearing Officer, Stephen Dean, submitted his Recommended Order on January 22, 1976, recommending that applicant's application for disability for in-line-of-duty

benefits be denied. Included in his Recommended Order were findings of fact and conclusions of law, one such conclusion being that "the presumption created by Section 112.18, F.S. is generally applicable to any individual who meets the statutory definition of fireman, who passed an entrance physical which revealed no evidence of tuberculosis, heart disease, or hypertension, and who is totally or partially disabled by one of the above-mentioned diseases."

The Hearing Officer further held, however, that the presumption described above was rebutted by evidence that the Applicant had not performed firefighting duties in approximately nine years prior to his heart attack, and therefore, did not meet the functional definition of firefighter.

In response to this recommended order, Mr. Sicking, Attorney for Mr. Haley, submitted exceptions to the State Retirement Commission in a letter dated February 4, 1976.

On February 24, 1976, after appropriate notice to the parties, hearing was held before the State Retirement Commission on the Recommended Order of the Division of Administrative Hearings' Hearing Officer. This hearing took place in the State Retirement Commission Hearing Room at Cedars Executive Center in Tallahassee, Florida, commencing at 1:00 p.m. In addition to Chairman John F. Tingle, the following Commissioners were present: Howard J. Friedman, Edna S. Tait, Perry C. Harvey, Jr., and Elliot

J. Winograd.

At the February 24th hearing, the Applicant was represented by Richard A. Sicking, Esquire and the Division of Retirement was represented by Keith Pafford, Esquire. Before the Commission at this hearing were the transcript of proceedings before Hearing Officer, Stephen Dean, and copies of all evidence and documents submitted by the parties throughout the course of the proceeding. These, of course, included the brief and exceptions and the Hearing Officer's Recommended order.

No new evidence was taken by the Commission at the February 24th hearing, but rather the proceeding was limited to oral argument by the attorneys for the parties and extensive questioning of these attorneys by Commission members. The threshold legal issue before the Commission was whether Section 112.18, F.S. providing a presumption in favor of certain firemen, applies to Chapter 121, F.S. relating to the Florida Retirement System. Applicant's attorney argued that the presumption did apply and attorney for the Division of Retirement argued that the

presumption did not apply, or if it did, the presumption was adequately rebutted by evidence presented by the Division of Retirement at the proceeding before the Hearing Officer.

Motion by Commission Friedman that Recommended Order of the Hearing Officer be accepted by the Commission failed to carry.

Thereafter a motion was made and was deadlocked by a vote of three to three that the Commission seek an Attorney General's opinion on the applicability of Section 112.18, F.S. to the Florida Retirement System. A third motion was made then, that the application for in-line-of-duty disability benefits be approved.

That motion was also deadlocked by a vote of three to three. Finally, another motion was made to obtain an Attorney General's opinion regarding Section 112.18 and to continue this proceeding until that opinion could be received and considered by the Commissioners.

On March 4, 1976, a letter was written requesting opinion from the Attorney General, and on June 17, 1976, the Attorney General responded with his opinion number 076-136 to the following question:

"Does the presumption created by Section 112.18(1), F.S., relating to the disability or death of certain firemen resulting from certain causes in any way affect the definitions of the phrases `disability in line of duty" and `death in line of duty" contained in sections 121.021(13) and (14), F.S., or the provisions of Section 121.091,

F.S. of the Florida Retirement System Act?"

Summary conclusion of that opinion was that the presumption created by Section 112.18(1), F.S. should not be applied to determine whether the disability or death of a fireman designated therein incurred "in line of duty" for purposes of determining retirement benefits under Chapter 121, F.S.

After the attorney for Mr. Cundy brought to the Attorney General's opinion the pendency of this proceeding before the Retirement Commission, the Attorney General withdrew his June 19, 1976 opinion. (See AGO 076-136A, dated August 19, 1976). Basis for withdrawal of his opinion was the view of the Attorney General that his opinion on this subject, when there has been no final agency decision or order, might constitute an unwarranted intrusion into the province of the administrator of the Florida

Retirement System, the Division of Administrative Hearings, and the Florida Retirement Commission.

As recited above, continuation of hearing in this proceeding was held on September 28, 1976. Two of the Commissioners present, John R. Smith and L. K. Ireland, were not present at the original hearing on February 24, 1976. These two Commissioners were provided with a complete transcript of that hearing and a full record of the proceeding and prepared themselves to participate in the deliberations at this hearing. Again, no further evidence was accepted by the Commission, but rather the attorneys were limited to oral argument and response to questions by the Commissioners.

FINDINGS OF FACT

By declining to adopt the hearing officer's Recommended Order as the Commission's final order, the Commission has chosen to make its own findings based on review of all evidence and testimony that comprises the record in this proceeding and based on argument of counsel for the parties.

Applicant, at the time of his retirement, had completed approximately 16 years of creditable service for retirement purposes with the Metro Dade County Fire Department. His position when re retired was that of Captain and his duties were primarily supervisory and administrative with regard to logistical and maintenance support of heavy-duty firefighting equipment.

On November 24, 1972, Mr. Cundy suffered a heart attack while watching television in the late evening at his home in Miami.

As of December 1973, the applicant was approved by the Division of Retirement for disability retirements benefits on the basis that his arteriosclerotic heart disease, as diagnosed by the reporting physicians, rendered him totally and permanently disabled.

Applicant contends that by virtue of the presumption in Section 112.18, F.S. and the stress of his work, his heart disease "arose out of an in the actual performance of duty," as provided in Section 121.021(13), F.S. As discussed in its conclusion of law, below, the Commission rejects the application of the presumption.

With regard to the contention of stress, the record shows that the 1972 heart attack occurred in the applicant's home, during the thanksgiving holidays and immediately following a week

during which he had worked a total of only sixteen hours. While the applicant testified that his supervisor and his own assistant had been on leave for a time just prior to the heart attack, he was unable to specify how their absences contributed to any overload of duties. In fact, the assistant's leave was approved by the applicant.

As primarily an administrative and supervisory officer, actual on-scene participation in firefighting was not regularly required of this employee. He could not recall attending a fire within several months prior to his heart attack. Any stressful conditions associated with Mr. Cundy's duties as a Fire Captain were not objectively present in the hours and days immediately proceeding his heart attack.

CONCLUSIONS OF LAW

Consistent with our ruling in prior cases, we conclude that, without a clear showing or legislative intent that the special provisions in Section 112.18(1), F.S. require the application of the presumption in determining "disability in line of duty" as defined in Section 121.021(13), F.S., the presumption does not apply and the applicant has the burden at the outset to show that he qualifies for in-line-of-duty benefits of the Florida Retirement System.

We conclude that Mr. Cundy in this case has not sustained this burden. Further, we cannot speculate as a Commission whether or not our decision would be the same, had the presumption been applied.

ORDER

Based on the foregoing findings of fact and conclusions of law, the State Retirement Commission orders that Mr. Cundy's application for in-line-of-duty benefits is denied.

DONE AND ORDERED of the State Retirement Commission this 24th day of December 1976.

JOHN F. TINGLE, Chairman

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JANUARY TERM, A. D. 1978.

JEROME CUNDY, SR. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION AND

Petitioner, DISPOSITION THEREOF IF FILED.

vs. CASE NO. EE-372

DOAH CASE NO. 75-1645

DIVISION OF RETIREMENT FLORIDA DEPARTMENT OF ADMINISTRATION

Respondent.

/ Opinion filed January 16, 1978.

A Petition for review of an order of the Florida Retirement Commission.

Richard A. Sicking and Joseph C. Segor of Kaplan, Dorsey, Sicking & Hessen, P. A., Miami, for Petitioner.

L. Keith Pafford, Dept. of Administration, Div. of Retirement, and Nancy G. Linnan, State Retirement Commission, Tallahassee, for Respondents.

PER CURIAM.

The petition for review is GRANTED, the order of Retirement commission is QUASHED, and the case is REMANDED to the Commission for further proceedings giving appropriate effect to the presumption accorded Section 112.18(1), Florida Statutes (1875). Caldwell v. Division of Retirement, 344 So.2d 923 (Fla. 1st DCA 1977).

SMITH, Acting Chief Judge, ERVIN and BOOTH, JJ., CONCUR.

Docket for Case No: 75-001645

Orders for Case No: 75-001645