STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELORES McCALL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1779

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The date of hearing was October 22, 1982, in Room 409, Richard P. Daniel Building, 111 Coast Line Drive East, Jacksonville, Florida. This Recommended Order is being entered following the filing of excerpted testimony with the Division of Administrative Hearings on November 24, 1982. 1/

APPEARANCES

For Petitioner: Kenneth Vickers, Esquire

437 East Monroe Street Jacksonville, Florida 32202

For Respondent: Stanley M. Danek, Esquire

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

ISSUES

The issues presented concern the question of whether Petitioner, as a surviving spouse of Frederick A. McCall, is entitled to receive a pension, premised upon the fact that Officer McCall died in the line of duty, while employed with the Jacksonville Sheriff's Office.

FINDINGS OF FACT

1. On February 7, 1982, Frederick A. McCall, a uniformed patrol officer with the Jacksonville Sheriff's Office, Jacksonville, Duval County, Florida, died during the course of a routine arrest of a suspect for disorderly conduct and intoxication. Officer McCall is survived by his widow, Delores McCall, Petitioner in this action, who seeks the grant of a survivor's pension, in keeping with Subsection 121.091(7)(c)1., 2/ Florida Statutes, based upon the belief that her husband died in line of duty within the meaning of Subsection

   121.021(14), 3/ Florida Statutes. The pension has been denied Petitioner by proposed action on the part of Respondent and that decision is contested by Petitioner in this Subsection 120.57(1), Florida Statutes, hearing. The date of hearing de novo was October 22, 1982, and the Recommended Order is being entered as a part of the hearing process.

   
   

2. Officer McCall had been employed by the Jacksonville Sheriff's Office for more than ten (10) years. Some of the duty assignments which Officer McCall had performed prior to assignment to the uniformed patrol division included "pawn shop" detail. In that position he surveyed pawn shops to determine if those businesses were receiving illegal or stolen property. He was transferred from that assignment to a burglary detail conducting investigations in burglary cases.

   
   

3. Testimony of his supervisors indicated that he performed in a satisfactory manner in those assignments. The only evidence of any problem concerns a counseling session and written reprimand related to over-utilization of a departmental automobile. This disciplinary action report may be found as Respondent's Exhibit No. 1, admitted into evidence, dating from August 20, 1981.

   
   

4. In November, 1981, McCall was transferred to the uniformed patrol division. The basis for this transfer was not established in the course of the hearing. Nonetheless, the evidence is sufficient to demonstrate that the Jacksonville Sheriff's Office was satisfied that McCall could perform the duties of a uniformed patrol officer. In that position, McCall was assigned to several duty watches throughout the 24-hour duty cycle. These shifts were eight hours in length and McCall's duty watch would rotate on a monthly basis such that he would serve on each of the eight-hour duty shifts within the 24-hour duty cycle.

   
   

5. Among the duty functions of a uniformed patrol officer within the Jacksonville Sheriff's Office are those functions of investigating disturbances "on the street," at business locations and residences. Testimony by various officers within the hearing established that the investigation of residential disturbance causes more apprehension on the part of an officer than those matters "on the street" or in business establishments. This is due to the familiarity of the suspect with his surroundings and the fact that the suspect might be more prone to act in a proprietary way in his home to impress family members or friends, at the expense of an arresting officer's safety.

   
   

6. Officer McCall, in his duty shift of February 7, 1982, was dispatched to investigate a disturbance at 1139 North Laura Street, Jacksonville, Florida. This occurred at around 12:50 P.M. on that date. He was in the company of Officer Samuel Aldridge, in keeping with the custom of the Sheriff's Office to dispatch two (2) officers when dealing with residential disturbances. The officers had been informed that the nature of the complaint concerned a disturbance being caused by an intoxicated suspect. McCall was the primary responding officer.

   
   

7. When the officers arrived, they went inside the residence and found the suspect Samuel Riley, standing on a stairway. Riley was reported as drinking and had broken out a window in the residence and turned over a can of paint. McCall asked Riley if he was the individual who had broken the window and the suspect informed McCall that he had broken out the window while he was "aggravated." McCall instructed Riley to stand against the wall. Riley complied and a "shake-down" check was made of his person to determine if he was carrying a weapon. Riley was not armed and McCall then took him by the belt in the back of Riley's trousers and began to escort Riley to the door of the

   residence. This procedure of supporting the suspected intoxicated person is pursuant to a policy of the Jacksonville Sheriff's Office. The suspect informed McCall that he did not need to be held by the pants and McCall responded that he would "help the suspect along." During the course of these matters, Riley was advised by McCall that he was under arrest for disorderly intoxication. Before they exited the door, Riley indicated that his shoe was coming off. When they reached the sidewalk outside the residence, Riley again complained about his shoe coming off and turned toward Officer McCall. This movement on the part of the suspect was not aggressive. Aldridge reached to get Riley by the arm and before this could be accomplished, McCall and the suspect toppled to the ground. McCall fell as a result of heart failure, not actions by Riley. Riley got up from the ground and was handcuffed. A rescue unit was called at 12:59 P.M. and left for a local hospital at 1:25 P.M., arriving at 1:31 P.M. At 2:00 P.M. Officer McCall was pronounced dead as a result of a heart attack.

   
   

8. Samuel Riley was twenty-four (24) years old at the time of the arrest. He was six (6) feet tall and 185 pounds, and known by the officers to have problems with intoxication. In the course of the incident, Riley had been verbally belligerent but had not been physically aggressive toward the officers and he was not charged with any form of resistance in the arrest process.

   
   

9. McCall had gone on duty at 7:00 A.M. on the date of his death and the number of incident responses that he had made in his capacity as police officer prior to the incident with Riley was not established, other than one call occasioned by a burglary alarm which proved to be false. McCall had commented to Officer Aldridge prior to the Riley incident that McCall felt sleepy and that he had a sensation of indigestion.

   
   

10. Nether Officer McCall nor the Department had any suspicion of a heart condition on the part of McCall, notwithstanding the fact that he was five (5) feet, nine (9) inches tall and 221 pounds at forty-five (45) years of age. It was only after an autopsy was performed that it was discovered that McCall suffered from a pre-existing heart condition.

    
    

11. Testimony of Dr. Bonifacio T. Floro and his autopsy report which is found as Respondent's Exhibit No. 3, establish that the cause of death was heart disease. There was an 80 percent occlusion by atherosclerosis of the left anterior descending and the left circumflex coronary arteries. The right coronary artery had 95 percent occlusion by atherosclerosis at the ostium and the remaining portion of the artery had a 75 percent occlusion. McCall's heart was a Class IV, the most dramatic condition possible in describing the seriousness of the occlusion. Four centimeters away from the ostium of the right coronary artery, a dark reddish gray occlusive thrombus was found. When the heart was transversely sectioned, a transmural white discoloration in the lateral wall of the left ventricle surrounding a 0.5 centimeter subendocardial area of marked hyperemia was found. This latter item indicated that he had suffered a previous myocardial infarction approximately six (6) weeks before. McCall also suffered from arteriosclerosis and his heart was enlarged.

    
    

12. McCall's heart was such that stress, when added to the pre-existing condition would affect the oxygen requirement and promote the heart failure.

    
    

13. While it is impossible to tell how long Officer McCall would have lived in view of the pre-existing heart condition, and recognizing that he may have died while asleep or by some other sedentary activity, the arrest circumstances involving the suspect was the incident that brought on the fatal heart attack.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57, Florida Statutes.

    
    

15. That proffered testimony from Ronald E. Bennett and Delores McCall dealing with comments made by the deceased are admitted.

    
    

16. To prevail in this action, Petitioner must establish that her husband's death was in the line of duty within the meaning of Subsection 121.021(14), supra.

    
    

17. In particular, it must be established that his death "arose out of," and "in the act of performing" his duties. As established by Bollinger v. Division of Retirement. State Department of Administration, 335 So.2d 568 (1st DCA Fla. 1976), the workman's compensation definition of "arising out of" and "in the course of employment" corresponds to the retirement concept of "arising out of" and "in the actual performance" of duty in the present statute. Using that comparison, "arising out of" refers to the origin or the cause of the fatality and "in actual performance" of duty refers to the time, place and circumstances of the fatality.

    
    

18. Consequently, the recovery standards used in worker's compensation cases related to heart attack, may be utilized.

    
    

19. The principal case in Florida dealing with compensation for heart attack or in this instance the right of Petitioner to recover pension benefits as the survivor of a heart attack victim, is Victor Wine and Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962). In discussing the entitlement to receive compensation in a heart attack situation, the court, at page 588, stated:

    
    

    When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a

    pre-existing non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.

    
    

20. Officer McCall's fatal heart attack was precipitated by work-connected exertion affecting his pre-existing heart condition, which condition was not of such dimension as to disable McCall from performing his duties; however, the stress or strain was not unusual and the amount of exertion necessary to carry out the arrest of Riley was nothing more than routine in the type of work McCall was accustomed to performing. While the type of arrest involved held a high place in the hierarchy of stressful circumstances for uniformed patrol officers, that form of arrest is common to their duty role and the facts of this encounter were not unusual or extraordinary. The suspect did not resist or in any tangible way cause this arrest to be seen as anything other than routine. Consequently, Petitioner is not entitled to recover pension benefits pursuant to Subsection 121.091(7)(c)1., Florida Statutes.

Based upon a full consideration of the facts found and the conclusions reached, it is

RECOMMENDED:

That a final order be entered which denies the death benefit claims of Petitioner.

DONE and ENTERED this 24th day of December, 1982, in 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 24th day of December, 1982.

ENDNOTES

1/ Respondent's counsel has submitted proposed findings of fact and conclusions of law and those matters have been reviewed prior to the entry of this Recommended Order. To the extent that the proposals and conclusions are consistent with this recommended Order, they have been utilized. To the extent that those proposals and conclusions are inconsistent with the Recommended Order, they are rejected.

2/ (c)1. 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).

3/ "Death in line of duty" means death arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require such proof as he deems necessary as to the time, date, and cause of death, including evidence from any available witnesses.

Workers' compensation records under the provisions of chapter 440 may also be used.

COPIES FURNISHED:

Kenneth Vickers, Esquire

437 East Monroe Street Jacksonville, Florida 32202

Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32301

Andrew J. McMullian, III Director, Division of Retirement Building C

Cedars Executive Center Tallahassee, Florida 32301

Docket for Case No: 82-001779

Orders for Case No: 82-001779