STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARILYN KUGLER,
Petitioner,
vs.
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,
Respondent.
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) Case No. 02-2578
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RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on September 4, 2002, at sites in Tallahassee and Miami, Florida.
APPEARANCES
For Petitioner: Jerome S. Reisman, Esquire
Reisman & Abraham, P.A.
3006 Aviation Avenue, Suite 4B Coconut Grove, Florida 33133
For Respondent: Thomas E. Wright, Esquire
Department of Management Services 4050 Esplanade Way, Suite 260
Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner, whose husband, a county police officer, died of heart failure at work, is entitled to receive “in line of duty” death benefits under the Florida Retirement System, which Respondent administers.
PRELIMINARY STATEMENT
After her husband, Officer Randall Kugler of the Miami-Dade Police Department, died suddenly of a fatal heart arrhythmia on March 10, 2000, Petitioner Marilyn Kugler applied for “in line of duty” death benefits under the Florida Retirement System. By letter dated September 25, 2001, Respondent Department of Management Services, Division of Retirement, denied Petitioner’s request, ruling that Officer Kugler’s death had not been caused by the performance of his duties as a police officer.
Petitioner timely requested a formal hearing, and Respondent referred the matter to the Division of Administrative Hearings. There, the case was assigned to an Administrative Law Judge, who scheduled a final hearing for September 4, 2002.
The final hearing commenced on September 4, 2002, as scheduled. Both parties appeared, and each was represented by counsel. Petitioner testified on her own behalf and called Charles Duncan of the Miami-Dade Police Department. She also introduced into evidence the depositions of the following witnesses: Ray Fernandez, M.D., Associate Medical Examiner, and Michael Bell, M.D., Deputy Chief Medical Examiner, both of whom are pathologists in the Miami-Dade County Medical Examiner Department; Robert Grimm of the Fort Lauderdale Police Department; Curt Picunko and Jose D. Marrero, who are inspectors of the U.S. Customs Service; and cardiologist James Margolis,
M.D. Finally, Petitioner offered nine exhibits, numbered 1 through 9, which were admitted.
Respondent presented the testimony of its Benefits Administrator, Ms. Stanley Colvin, and moved Respondent’s Exhibits numbered 1 through 3 into evidence. Additionally, at Respondent’s request, official recognition was taken of Chapter 121, Florida Statutes (2000); Section 112.18, Florida Statutes
(1997); Section 112.18, Florida Statutes (1999); and Section
, Florida Statutes (2001).
The final hearing transcript was filed with the Division of Administrative Hearings on October 30, 2002. The parties timely filed their respective proposed recommended orders within 25 days after that date, as directed. The undersigned has considered the parties’ post-hearing submissions.
FINDINGS OF FACT
The Dispute, in a Nutshell
On the morning of March 10, 2000, while on duty, Officer Randall Kugler (“Officer Kugler”) of the Miami-Dade Police Department suffered a fatal heart arrhythmia and died at the wheel of his police cruiser. He was 37 years old. Officer Kugler’s wife, Petitioner Marilyn Kugler (“Mrs. Kugler”), and their two minor children survive him.
Officer Kugler was a member of the Florida Retirement System (“FRS”), which is administered by Respondent Department
of Management Services, Division of Retirement (“Division”). Mrs. Kugler maintains that she is the surviving spouse of a member “killed in the line of duty” and thus is entitled to receive generous “in line of duty” death benefits under the FRS. The Division disagrees with her position and, thus, has denied Mrs. Kugler’s application for such benefits. Their dispute spawned the instant administrative litigation.
The Events Preceding Officer Kugler’s Death
Officer Kugler was an expert in inspecting heavy equipment (cranes, trucks, bulldozers, etc.) to determine if such property might have been stolen or otherwise involved in criminal activity. As a specialist in this area, Officer Kugler was assigned to an auto theft task force that conducted investigations in cooperation with other local law enforcement agencies as well as the FBI and the U.S. Customs Service.
At about 9:00 a.m. on March 10, 2000, Officer Kugler arrived at the King Ocean Yard in Port Everglades, Florida, where he had been sent to assist U.S. Customs Service inspectors with the examination of two heavy machines destined for export. The pieces——a crane and a bulldozer——were very large; each weighed many tons.
A crucial object of such inspections is to locate the public identification number, or PIN, of the subject piece of equipment. The PIN is a starting point in determining whether
the machine is stolen. Finding the PIN on heavy equipment can be difficult because, among other reasons, the area to be searched is large; the numbers are frequently hidden in hard-to- access places (to thwart those who might want to remove them); and the numbers are often covered by paint, rust, dirt, and grease.
As he went about his work that morning, Officer Kugler climbed aboard and poked around the equipment. His on-the-job activities——e.g. bending, crawling, climbing, walking——clearly involved some physical exertion. In addition, to expose concealed PINs, Officer Kugler was required to scrape or brush away paint and other obstructions, and this, too, entailed physical exertion.
To facilitate the removal of layers of paint, rust, grease, and the like, Officer Kugler customarily used solvents marketed for cleaning carburetors and removing gaskets. These products contained a chemical known as Xylene. The Miami-Dade Police Department issued its officers, including Officer Kugler, two different brands of such cleaning agents, which were packaged in aerosol spray cans. Officer Kugler used one or both of these employer-issued sprays on March 10, 2000, and thus was exposed to Xylene.1
Officer Kugler’s inspection of the crane and bulldozer took about one hour. After finishing his work at King Ocean
Yard, Officer Kugler left Port Everglades to return to Miami. Sadly, less than an hour later, he was found in Opa Locka, Florida, slumped over the steering wheel of his vehicle with the engine running and the doors locked, having died, still on duty, en route to his next assignment at Kauff’s Towing.
Causes of Death
The record contains the depositions of three physicians who opined as to the causes of Officer Kugler’s death. Two of these doctors are pathologists who were, at all times material to this case, medical examiners in the Miami-Dade Medical Examiner Department; as such, they participated in Officer Kugler’s autopsy. The third is a cardiologist named James Margolis. Mrs. Kugler retained Dr. Margolis as an expert witness for purposes of this litigation.
The testimony of these experts is generally consistent——that is, their opinions do not conflict on any material matters. All are in agreement (and the undersigned finds) that the immediate cause of Officer Kugler’s death was a sudden and unexpected fatal heart rhythm disturbance (or arrhythmia). There is also no genuine dispute (and the undersigned finds) that Officer Kugler’s left descending coronary artery was partially blocked at the time of his death. (His other vessels, however, were normal.) This type of
blockage (or occlusion) is associated with a common form of heart disease known as arteriosclerosis.
Officer Kugler’s diseased artery was about 50 to 70 percent obstructed. Such blockage tends to become symptomatic at around 70 percent. As it happened, Officer Kugler had not experienced any symptoms, been diagnosed as having, or been treated for any heart disease.
The pathologists were largely noncommittal when asked to identify the trigger(s) that precipitated Officer Kugler’s fatal heart rhythm disturbance. Dr. Margolis, on the other hand, who had reviewed the depositions of the two medical examiners as well as those of the several law enforcement personnel who were with Officer Kugler at the King Ocean Yard before he died, did form an opinion as to the substantial cause of the fatal arrhythmia, which he expressed as follows:
It’s my opinion within a reasonable degree of medical probability that Mr. Kugler did, indeed, suffer a fatal arrhythmia and the fatal arrhythmia was caused either directly or indirectly by the heavy exertion in the presence of Xylene fumes, and that these in combination with what would have been otherwise a benign form of heart disease caused the fatal arrhythmia.
The undersigned accepts the uncontroverted opinion of Dr. Margolis as to causation and determines, as a matter of fact, that Officer Kugler’s death resulted from a combination of work-related activities and exposures operating in conjunction
with an undiagnosed and undetected preexisting condition (arteriosclerosis), which factors together precipitated the fatal heart arrhythmia.
On the Credibility of Dr. Margolis
The Division disputes the validity of Dr. Margolis’s opinion on causation, arguing that it is unfounded. Normally, the undersigned, as the trier of fact, does not explain why he has credited certain evidence. Dr. Margolis’s testimony, however, could be considered the linchpin of Petitioner’s case. Moreover, because Dr. Margolis did not testify in person at the final hearing, the undersigned was unable to witness his demeanor and other indicia of credibility that personal observation permits. Therefore, the undersigned will explicate several factors that he regarded as important in deciding to accept Dr. Margolis’s testimony.
To begin, as mentioned, Dr. Margolis’s opinion on causation was not refuted. The pathologists’ opinions——which, to be sure, stopped short of linking Officer Kugler’s death to the performance of job-required duties——were outcome neutral (and consistent with Dr. Margolis’s testimony) because neither medical examiner excluded work-related factors from among the contributing causes of Officer Kugler’s death. And the Division, it should be stressed, presented no expert medical testimony to contravene Dr. Margolis on the subject of
causation. While the undersigned, as the fact-finder, could reject unrebutted expert testimony, he would need to offer a reasonable explanation for doing so.2 He can think of none.
Instead of offering evidence, the Division elected merely to contend that Dr. Margolis’s opinion is unsupported, urging that the depositions of the witnesses who saw Officer Kugler at work on March 10, 2000, do not support the factual assumptions which underlie the expert’s testimony, namely, that Officer Kugler engaged in “heavy exertion in the presence of Xylene fumes.” The Division’s arguments are not persuasive for several reasons.
First, the Division failed to cross-examine Dr.
Margolis on these points. If Dr. Margolis had been asked, for example, what he meant by “heavy exertion” or otherwise been challenged to defend that description, perhaps he would have offered a brilliant explanation——or perhaps he would have stumbled and undermined his opinion. Absent such inquiry, however, the undersigned considers it basically irrelevant whether Officer Kugler’s exertion is characterized as “heavy” or not. The bottom line is, the expert concluded that Officer Kugler’s exertion was sufficiently “heavy” to help trigger the fatal arrhythmia, and the Division has not shown, through proof, that Dr. Margolis was incorrect in this regard.
Second, the record shows that Dr. Margolis reviewed all the pertinent evidence in rendering his opinion on causation.3 Indeed, Dr. Margolis examined the depositions that are in evidence in this case——the very depositions that the Division contends fail to support his opinion. The Division argues that the expert misinterpreted these data sources. The Division’s argument, however, is not evidence; Dr. Margolis’s opinion, in contrast, is. Without countervailing proof, the undersigned finds no reasonable grounds for second-guessing the cardiologist on medical matters within his area of expertise.
Finally, to the extent the Division contends that Dr.
Margolis is mistaken because Officer Kugler was not shown to have been exposed to Xylene, its position is untenable in light of the undersigned’s finding that Officer Kugler was, in fact, exposed to the chemical in the hours before his death.
CONCLUSIONS OF LAW
Section 121.091(7), Florida Statutes, prescribes the death benefits payable under the FRS. In pertinent part, this statute provides:
(d) Notwithstanding any other provision in this chapter to the contrary, with the exception of the Deferred Retirement Option Program, as provided in subsection (13):
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 or, if the member was vested, such surviving spouse may elect to receive a benefit as provided in paragraph (b). Benefits provided by this paragraph shall supersede any other distribution that may have been provided by the member's designation of beneficiary.
(Emphasis added).
While the verb “kill” in this context probably connotes, for most readers, an accidental death or murder, in common usage the word “kill” “merely states the fact of death caused by an agency in any manner[, as in] <killed in an accident><frost killed the plants>.” See Merriam-Webster® OnLine Dictionary. It is significant, then, that the legislature chose not to define or otherwise limit the specific phrase “killed in the line of duty.” The legislature must have intended that no particular cause of death——even death by disease——be automatically disqualifying for purposes of “in line of duty” death benefits.
The legislature did not intend, however, that “in line of duty” death benefits be awarded to the survivor of any member who happens to die at work. This is made clear in Section 121.021(14), Florida Statutes, which states:
“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 or her regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require
such proof as he or she 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.
Thus, for “in line of duty” death benefits to be payable, the deceased member must have died on the job, while actually performing a required duty; and the agency or instrumentality of death——the thing that killed the member——must have been causally connected to the performance of a required duty. In practical, succinct terms, actual performance of the job must have put the decedent in harm’s way.4
In this case, it is not disputed that Officer Kugler died during his regular working hours while actually performing job-required duties. The fundamental dispute here is whether the fatal arrhythmia that killed Officer Kugler arose out of a job-required duty——whether, in other words, he was put in harm’s way by virtue of his work. The Division’s position is that Officer Kugler’s preexisting heart disease killed him; that, stated another way (although the Division does not express its position in precisely these terms), Officer Kugler likely would have died that morning even if he had been off-duty and going about his everyday affairs, because there was nothing unusual, unique, or extraordinary about the routine job-related activities that he performed in the hours leading up to his
death. Petitioner, on the other hand, maintains that Officer Kugler’s on-the-job exertion that morning, coupled with the inhalation of Xylene, triggered the fatal condition, aggravating an otherwise benign heart disease; that, stated another way (although Petitioner does not express her position in precisely these terms), Officer Kugler likely would have survived his shift that day but for the performance of job-related duties.
As a threshold matter, the undersigned disagrees with the Division’s suggestion (which is implicit in its argument) that, for “in line of duty” benefits to be awarded, Officer Kugler’s death must have been brought about by an unusual strain or exertion not routine to his customary duties. To accept this argument effectively would incorporate the Victor Wine doctrine——a judicially created limitation on workers’ compensation coverage for heart attacks and similar “internal failures” such as strokes——into Chapter 121.5 The courts, however, expressly have refused to apply Victor Wine in controversies arising under Chapter 121.6 It is concluded, therefore, that Petitioner was not required to show that Officer Kugler’s death was precipitated by an atypical or otherwise extraordinary work-related duty.
Next, as stated above, the undersigned has found that, as a matter of fact, the duties which Officer Kugler performed on the job the morning he died were a cause of his
death, in that his work-related activities (including the inhalation of Xylene), though routine, precipitated the fatal heart arrhythmia that killed him. So too, however, was the preexisting heart disease a cause of death. Performance of the job duties alone would not have killed Officer Kugler, nor would the preexisting, asymptomatic arteriosclerosis, alone, have been fatal. Rather, it was the work coupled with the preexisting heart disease that triggered the abnormal heart arrhythmia from which death immediately ensued.7
The outcome of this case, then, turns on whether a death which resulted at least in part from the performance of job-required duties is a death “arising out of” those duties within the contemplation of Section 121.021(14), Florida Statutes. The discussion below examines this question from two different angles. Consideration is first given to whether Mrs. Kugler can take advantage of a presumption that might supply the element of connection between her husband’s death and his duties as a policeman and then——once it is decided that Mrs. Kugler can use the presumption in aid of her proof——to whether the Division defeated the presumption. After that, the causation question is answered without reference to the presumption, offering an additional and alternative rationale for decision.
IS MRS. KUGLER ENTITLED TO A PRESUMPTION THAT HER HUSBAND DIED IN THE LINE OF DUTY?
Firefighters and policemen who are stricken with certain cardiovascular or pulmonary problems have a much easier time establishing entitlement to “in line of duty” benefits than other employees, thanks to certain presumptions that the legislature has enacted for their benefit. One of the these statutory presumptions is found in Section 185.34, Florida Statutes, which provides:
For any municipality, chapter plan, local law municipality, or local law plan under this chapter, any condition or impairment of health of any and all police officers employed in the state caused by tuberculosis, hypertension, heart disease, or hardening of the arteries, resulting in total or partial disability or death, shall be presumed to be accidental and suffered in line of duty unless the contrary be shown by competent evidence. Any condition or impairment of health caused directly or proximately by exposure, which exposure occurred in the active performance of duty at some definite time or place without willful negligence on the part of the police officer, resulting in total or partial disability, shall be presumed to be accidental and suffered in the line of duty, provided that such police officer shall have successfully passed a physical examination upon entering such service, which physical examination including electrocardiogram failed to reveal any evidence of such condition, and, further, that such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance. This section shall be applicable to all police
officers only with reference to pension and retirement benefits under this chapter.
In her Petition for Administrative Hearing, Mrs.
Kugler invoked Section 185.34, Florida Statutes, and asserted that the Division would have the burden to prove that Officer Kugler’s heart disease-related death was caused by non-work related factors. As the Division correctly pointed out at the beginning of the final hearing, however, Section 185.34 applies only to municipal police pensions, a proposition which the definitions of the terms “chapter plan,”8 “local law municipality,”9 “local law plan,”10 and “police officer”11 suffice to verify. Officer Kugler was not a municipal police officer but a county police officer.12 Therefore, Mrs. Kugler cannot take advantage of the presumption set forth in Section 184.35, Florida Statutes.
The other statutory presumption is found in Section 112.18(1), Florida Statutes (2002), which provides:
Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) 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.
However, any such firefighter or law enforcement officer shall have successfully
passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. Such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance, unless the insurer and insured have negotiated for such additional benefits to be included in the policy contract.
Since the presumption of Section 112.18(1), Florida Statutes (2002), is available for the benefit of “any law enforcement officer” killed by heart disease, Mrs. Kugler appears to be entitled to make use of it. The applicability of the statue is not so straightforward, however, because the presumption was not expanded to encompass all law enforcement officers until 2002——after Officer Kugler passed away. Indeed, until 1999, only firefighters were entitled to rely upon this particular presumption.
In the following table, the pertinent eligibility provisions of Section 112.18(1), as the statute existed in the years through 1998-99, 1999-2002, and 2002-present, respectively, is excerpted——with emphasis on newly added or amended language——to show at a glance how the presumption’s reach has been extended over the past few years:
Through 1998-99 | any Florida municipal, county, port authority, special tax district, or fire control district firefighter |
1999- 2002 | any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or state law enforcement officer |
2002- present | any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) |
The version of the presumption that was in effect at the time Officer Kugler died (hereafter “P-99”) included within its ambit “state law enforcement” officers——but no other police. Mrs. Kugler argues, on various grounds, that her husband should be deemed a state law enforcement officer for purposes of P-99, notwithstanding the undisputed fact that he was a county employee. Though it has some equitable appeal, Mrs. Kugler’s position cannot be squared with the statute’s plain language.
The term “state law enforcement officer” is versatile enough to refer broadly to all sworn police officers working in the state——or narrowly just to state-employed police; hence, its intended meaning in a particular situation must be taken from the context in which the term is used. In Section 112.18(1), Florida Statutes (2001), the term “state law enforcement officer” is juxtaposed against the itemization of firefighters entitled to claim P-99, creating a clear and telling contrast between the legislature’s respective descriptions of eligible firefighters and police officers:
any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter
[any] state law enforcement officer
This obviously unbalanced syntactical arrangement dictates the interpretive result. By mentioning specifically, in the very same sentence no less, state, municipal, county, port authority, special tax district, and fire control district firefighters, on the one hand, and only state law enforcement officers on the other, the legislature unambiguously manifested its intention that county police officers——unlike county firefighters——be excluded.13
Further, it is clear that the legislature used the word “state” in connection with firefighters to specify a particular employer (distinct from municipal, county, and other governmental employers) rather than as a geographical reference. Cf. State Department of Corrections v. Clark, 593 So. 2d 585,
586 (Fla. 1st DCA 1992)(state-employed fireman not entitled to presumption under pre-1999 version of Section 112.18(1), which did not mention state firefighters). Given that, it is highly unlikely (and hence would be unreasonable to conclude) that the legislature used the word “state” in connection with police officers as a geographical reference rather than to specify an
employer. The only reasonable interpretation of “state law enforcement officer” is state-employed law enforcement officer.14
Consequently, if P-99 is controlling, Petitioner must make her case without the aid of a statutory presumption.
The question next arises, then, whether the current, more inclusive statutory presumption (call it “P-02”) should apply. More precisely, the question is whether P-02 can permissibly be given retroactive effect, for even Petitioner appears to concede (and the undersigned concludes) that Officer Kugler’s death was the “operative event” that triggered the statutory remedy.15
The undersigned suggested at the end of the final hearing that the parties discuss the subject of retroactivity in their proposed recommended orders. Petitioner declined to do so. For its part, the Division recited the general rule that a statute affecting substantive rights, liabilities, and duties is presumed to apply prospectively absent a clear legislative intent to the contrary——an incontrovertible principle, see, e.g., Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494, 499 (Fla. 1999); Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388, 395 (Fla. 5th DCA 2002)——and observed, correctly, that the legislature chose to remain silent with respect to whether P-02 should apply retroactively. There
is, however, more to it than the Division would have——and more than Petitioner seems to appreciate.
As the Florida Supreme Court has recognized, “the presumption in favor of prospective application generally does not apply to ‘remedial’ legislation; rather, whenever possible, such legislation should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994); see also City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla. 1986)(“If a statute is found to be remedial in nature, it can and should be retroactively applied in order to serve its intended purposes.”). There is, in other words, an exception to the “default rule” that legislation be presumed to look forward,16 which allows so-called “remedial” statutes to reach back. This exception holds unless the statute in question “accomplishes a remedial purpose by creating substantive new rights or imposing new legal burdens” or by taking away vested rights. Arrow Air, 645 So. 2d at 424.
A statute should not lightly be labeled “remedial.” For, as the Fifth DCA has noted, “[m]ost statutory changes are designed to improve a pre-existing situation and to bring about an improved state of affairs.” Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 695 (Fla. 5th DCA 2002). This means that most statutes could plausibly be considered remedial in some sense.
In a retroactivity analysis, however, a “remedial” statute is one that neither establishes a new right nor impairs a vested right but instead confirms an existing right or advances an existing remedy. Ziccardi v. Strother, 570 So. 2d 1319, 1320-21 (Fla. 2d DCA 1990).
In deciding whether Section 112.18(1), Florida Statutes (2002), is remedial, the undersigned initially finds instructive the persuasive, if non-binding, comments of Judge Ervin, who wrote of the pre-1999 predecessor statute——in a concurring opinion with which Judge Smith concurred17—— that “the presumption is remedial legislation, designed to relax the burden of proof formerly placed upon the designated classes of firefighters[.]” State Department of Corrections v. Clark, 593 So. 2d 585, 586 (Fla. 1st DCA 1992)(Ervin, J., concurring). Although Judge Ervin did not dub the statute “remedial” for purposes expressly having to do with retroactivity (which was not an issue in Clark), his point was well taken and applies with equal force in this context.
In its pre-1999 form, the presumption rested upon the legislature’s recognition that each of the enumerated pulmonary and cardiovascular diseases is an occupational hazard that all firefighters face. Caldwell v. Division of Retirement, Florida
Dept. of Administration, 372 So. 2d 438, 440-41 (Fla. 1979). Having accepted this underlying premise, the requirement that a
particular firefighter prove that his heart attack was caused by work-related activities or exposures in order to receive “in line of duty” benefits presumably struck the legislature as an unnecessary burden that could trip up deserving claimants. To mitigate the claimant’s burden in these situations where the disease is an inherent occupational hazard, the legislature shifted the burden of proof to the claimant’s opponent, requiring the latter to persuade the fact-finder that non- occupational factors caused the firefighter’s disease. Id. at
441. There is little doubt that the pre-1999 presumption was a “remedial” act of legislation as that label has been applied in retroactivity cases. Cf. Desjardins, 493 So. 2d at 1029 (exemption from Public Records Act for work product of agencies’ attorneys mitigated Act’s harsh provisions and was properly applied retroactively, as remedial legislation).
When the legislature expanded the presumption in 1999 to include state police officers, it must have assumed that, as with firefighters, the specified heart and lung diseases are hazards inherent in police work. Thus, P-99 was remedial legislation for the same reasons that its predecessor was. Ironically, however, the 1999 enactment created a new anomaly: Despite being exposed to the same occupational hazards as their state-employed counterparts, county police officers were denied the presumption’s advantage.18 (Adding insult to irony, as it
were, the 1999 legislation increased the counties’ FRS contribution rates to cover the actuarial risk associated with including county police in the presumption.19)
The legislature eliminated this anomaly in 2002.
Because it corrects an inequitable situation, allowing county police officers to avail themselves of a presumption that by then applied to all state (and many municipal20) policemen, P-02 falls neatly into the category of “remedial” legislation as the term is used for retroactivity purposes.
The heart-lung presumption, moreover, as originally enacted and as subsequently amended, did not establish new rights, impose new legal burdens, or infringe vested rights. As a legal matter, a statute such as Section 112.18(1), Florida Statutes, that determines who carries the burden of persuasion is considered procedural, not substantive. Southwest Florida Water Management Dist. v. Charlotte County, 774 So. 2d 903, 909 (Fla. 2d DCA 2001), rev. denied, Pinellas County v. Southwest Florida Water Management Dist., 800 So. 2d 615 (2001). Being procedural in nature, burden of proof requirements can be modified retroactively, because no one has a vested right in a particular mode of procedure. Walter & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977); see also Stuart L.
Stein, P.A. v. Miller Industries, Inc., 564 So. 2d 539, 540 (Fla. 4th DCA 1990)(remedial legislation that increased
plaintiff’s burden of proof by imposing “clear and convincing” standard was not substantive change in statutory scheme and thus applied retrospectively); accord Ziccardi V. Stother, 570 So. 2d 1319 (Fla. 2d DCA 1990).
Beyond that, the presumption plainly does not either change the definition of “death in line of duty” or increase the benefits payable therefor. Thus, the presumption neither bestows new substantive rights on firefighters’ and policemen’s survivors, whose eligibility for enhanced benefits depends on the same finding of “death in line of duty” as that of other claimants, nor does it impose new substantive burdens on the Division, whose obligation to pay “in line of duty” death benefits for——but only for——“deaths in line of duty” subsists regardless of the presumption. In short, the presumption is not meant to make possible “in line of duty” benefits awards in cases where a death or illness did not in fact arise out of and in the actual performance of job-required duties; rather, it is designed to make sure that such benefits are not denied for want of proof in cases where the death or illness did in fact arise out of and in the actual performance of job-required duties.
For the above reasons, it is concluded that Section 112.18(1), Florida Statutes (2002), is a remedial statute that does not affect the underlying substantive right to receive “in line of duty” death benefits in consequence of a member’s death
arising out of and in the actual course of performing his work. Therefore, P-02 can and should be given retroactive effect, and Mrs. Kugler is entitled to take advantage of it.
DID THE DIVISION OVERCOME THE PRESUMPTION THAT OFFICER KUGLER’S DEATH OCCURRED IN THE LINE OF DUTY?
Having determined that P-02 applies in this case, it must yet be decided whether the Division defeated the presumption, which is rebuttable. Caldwell v. Division of Retirement, Florida Dept. of Administration, 372 So. 2d 438, 441 (Fla. 1979).21
To overcome the presumption, the Division must “show that the disease causing disability or death was caused by a specific, non-work related event or exposure.” Id. In addition,
Id.
[w]here the evidence is conflicting, the quantum of proof is balanced and the presumption should prevail. This does not foreclose the employer from overcoming the presumption. However, if there is evidence supporting the presumption the employer can overcome the presumption only by clear and convincing evidence. In the absence of cogent proof to the contrary the public policy in favor of job relatedness must be given effect.
In Caldwell, a county fireman who was unable to work
following an on-the-job heart attack sought “in line of duty” disability benefits. He lost at the trial level and in the
district court, the First DCA holding that though the medical testimony was conflicting, there was substantial competent evidence to support a finding that the fireman’s heart attack had been caused by a preexisting condition (arteriosclerosis) unrelated to the performance of his job. Id. at 440. In reversing, the Florida Supreme Court explained that the presumption “supplie[d] the element of service-connection” linking the arteriosclerosis and the fireman’s duties, id., and ruled that the agency had failed to prove otherwise by clear and convincing evidence.
While the evidence in this case establishes without genuine dispute that arteriosclerosis was a cause of Officer Kugler’s death, there is no persuasive evidence in the record (and thus no evidential conflict) as to whether this disease was or was not related to his duties as a policeman. More important, to the extent the evidence is in conflict or would support conflicting inferences regarding causation, there is certainly no clear and convincing evidence, medical or otherwise, that Officer Kugler’s arteriosclerosis——or his death for that matter——was caused by a specific, non-work related event or exposure. Thus, as in Caldwell, so too in this case the Section 112.18(1) presumption supplies the element of service-connection, tying Officer Kugler’s arteriosclerosis and death to the performance of job-required duties.
It is concluded, therefore, that Section 112.18(1), Florida Statutes (2002), dictates a finding that Officer Kugler’s death occurred in the line of duty.22
WOULD MRS. KUGLER PREVAIL WITHOUT THE BENEFIT OF THE PRESUMPTION?
As an alternative approach to resolving this dispute, the undersigned carefully has reviewed the record to determine whether Mrs. Kugler would prevail without the presumption.
Neither party has cited——and the undersigned has not found——an appellate decision on all fours that articulates a formula for determining whether a death arose out of a job- required duty, where the death——though triggered at work and thus at least somewhat causally associated therewith——can also be blamed on a preexisting disease whose origins are not so clearly job-related. It is necessary, therefore, to induce general rules from the largely fact-specific cases that comprise the body of “in line of duty” benefits law.
A useful starting point is Bolinger v. Division of Retirement, State Dept. of Administration, 335 So. 2d 568, 570 (Fla. 1st DCA 1976), an early case which involved a claim for “in line of duty” disability benefits. There, the First District Court of Appeal announced that because the phrase “arising out of and in the actual course of performance” closely resembles the test for workers’ compensation coverage, the
legislature must have intended that judicial standards developed in the context of workers’ compensation be applied in cases arising under Chapter 121. Thus, the court concluded, consistent with workers’ compensation law, the term “arising out of” refers to the origin of the cause of the injury, while “in the actual performance of duty” refers to the time, place, and circumstances under which the accident occurs. Id. at 570-71.
The Bolinger court’s attempt to superimpose workers’ compensation principles over “in line of duty” benefits law was not entirely successful. As we have already seen, the Victor
Wine doctrine, which limits workers’ compensation coverage for certain types of illnesses, was deemed inapplicable in Chapter
121 disputes. The First DCA attached another qualification to Bolinger in Walker v. State Division of Retirement, 360 So. 2d 1291 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1375 (1979). In Walker the issue was whether the widow of a deputy sheriff who had been killed in a car crash on the way home from work was entitled to “in line of duty” death benefits. Id. at 1292. Under the “going and coming” rule established in workers’ compensation law——which holds that traveling to and returning from work are not ordinarily considered activities falling within the course of employment23——the answer would have seemed, at first blush, to be “no.” There was, however, an exception to the “going and coming rule” for police officers that allowed
them to receive workers’ compensation benefits for injuries sustained while en route to or on the way home from work.24 The widow, citing Bolinger, asserted plausibly that the “policeman’s exception” should apply to her claim for “in line of duty” death benefits.
The court rejected the widow’s contention. It distinguished Bolinger on the ground that the employee there “undoubtedly” had been injured on the job; thus, the principal issue in Bolinger (as here) was whether the claimant’s injury had arisen out of her employment. Id. In contrast, the court explained, in the case then under review the critical question was not whether the deputy’s death had arisen out of a job- required duty, but whether the decedent had been killed while in the actual performance of duty. Workers’ compensation rules were ill suited for resolving this question, because
[w]hile “in the actual performance of duty,” like “in the course of employment,” is a test concerned with the time, place, and circumstances in which the injury or death occurred, those two tests are not identical. We do not conceive that the phrase “in the actual performance of duty” can reasonably be read to embrace the policeman’s exception to the going and coming rule, established by decisions under the workmen’s compensation law.
Id. (citation omitted).
The Division cites Walker for the proposition that the “test for causation” applicable to “in line of duty” cases
differs from that used to determine coverage under the workers’ compensation law. This is incorrect. Walker says nothing about causation and thus leaves intact the interpretation of the term “arising out of” (as referring to the “origin of the cause”) arrived at in Bolinger. Walker is an “actual performance of duty” case, not an “arising out of” case, and for that reason is, in the end, inapposite here.25
More analogous is Robinson v. Department of Admin., Div. of Retirement, 513 So. 2d 212 (Fla. 1st DCA 1987). There, “in line of duty” death benefits were sought by the widow of a law enforcement officer who had died of a heart attack in his sleep about 24 hours after a stressful on-the-job incident during which the decedent had helped other deputies subdue an unruly inmate. Id. at 212-13. According to the court, the decedent’s “medical history was lengthy and poor, including a preexisting heart condition for which he was under treatment.” Id. at 213. In denying benefits, the Division had rejected the hearing officer’s finding, which was based on the testimony of the widow’s medical expert, that the work-related incident had “precipitated a sudden death syndrome,” preferring the testimony of its own expert that the decedent’s preexisting heart condition was responsible for the fatal heart attack. Id. The court reversed the Division’s order, holding that the testimony of the widow’s expert constituted substantial competent evidence
in support of the hearing officer’s finding of fact as to causation, which, so supported, could not be disturbed. Id.
Unlike Walker, Robinson was an “arising out of” case, as is this one.26 Although the Robinson court did not detail the hearing officer’s fact-findings, it is clear (because other deputies participated in the same struggle and were not killed27) that the workplace incident would not have been fatal but for the decedent’s “lengthy and serious” preexisting heart condition. Performing job-required duties had put the decedent in harm’s way, exposing him to conditions that, operating in conjunction with preexisting medical problems, caused his death.
Though factually somewhat similar, there are differences between this case and Robinson. Unlike the decedent in Robinson, who was receiving ongoing medical treatment for longstanding and potentially life-threatening health problems, Officer Kugler did not have a lengthy and poor medical history, nor was he under treatment for a known heart condition before he died. Additionally, in Robinson the Division presented an expert witness at hearing who expressed the opinion that the decedent’s underlying medical condition, rather than the workplace incident, had caused his fatal heart attack, whereas here the Division did not call a physician to rebut the testimony of Petitioner’s expert witness on causation. On the other hand, the decedent in Robinson was involved, the day
before his death, in a discrete, dramatic incident. Officer Kugler, in contrast, spent his last hours on the job performing more prosaic, less remarkable responsibilities. Nothing in the Robinson opinion, however, suggests that the struggle in which the decedent had participated was extraordinary (for police officers) either in its happening or its stressfulness; and, more important, nothing in Chapter 121 limits “in line of duty” benefits to those killed while performing heroic duties. All things considered, Petitioner’s case is no less compelling than that presented in Robinson——and in some respects it is stronger.
Unfortunately, the court in Robinson did not articulate a legal standard for determining, in situations where a preexisting condition is involved, whether the causal relationship between job-required duties and the member’s ensuing death is sufficient to satisfy the “arising out of” requirement. For guidance in this regard, we must turn to cases dealing with “in line of duty” disability benefits, wherein this issue has been examined in greater detail.
The term “disability in line of duty” is defined to mean “injury or illness arising out of and in the actual performance of duty required by a member’s employment during his or her regularly scheduled working hours or irregular hours as required by the employer.” Section 121.021(13), Florida Statutes. This language is obviously very similar to that used
in the definition of “death in line of duty.” Disability cases entail a more involved causation analysis, however, because not all work-related injuries or illnesses are disabling; and, conversely, not all disabilities are work-related. That is, a person can suffer an injury or illness arising out of and in the actual performance of a job-required duty and not become disabled as a result, just as a person can become disabled without ever having suffered an injury or illness arising out of and in the actual performance of a job-required duty.
Accordingly, the definition of “disability in line of duty” must be read together with Section 121.091(4)(c)3., Florida Statutes, which requires each person seeking “in line of duty” disability benefits to prove
by competent medical evidence that the disability was caused by a job-related illness or accident which occurred while the member was in an employee/employer relationship with his or her employer.
Combining the conditions set forth in Section 121.021(13), Florida Statutes, with the burden of proof specified in Section 121.091(4)(c)3, Florida Statutes, courts have developed a unified test for awarding “in line of duty” disability benefits, namely,
whether an injury or illness, arising out of and in the actual performance of a duty required by a member’s employment, was the substantial producing cause or an
aggravating cause of the member’s total and permanent disability.
E.g. Westbrook v. Division of Retirement, 699 So. 2d 813, 814 (Fla. 1st DCA 1997). This test considers causation at two levels: (1) Did the injury or illness “arise out of” a job- required duty? and (2) If so, was the injury or illness the substantial producing or an aggravating cause of the disability? For ease of reference, the first level of causation will be referred to herein as “threshold causation” and the second, “ultimate causation.”
Before proceeding, the undersigned pauses to note that in determining whether “in line of duty” death benefits are awardable, it is not necessary to distinguish between threshold and ultimate causation. If the death occurred on the job, as here, the only remaining question is whether the death “arose out of” a job-required duty. While this particular distinction should be borne in mind when consulting the disability cases, however, it does not necessarily render them inapposite.
Indeed, as it happens, the disability cases can be grouped into two broad categories. The first are cases where the member was, without question, physically injured in a workplace accident or incident. Because there is no dispute that the member suffered a work-related injury, these cases focus on ultimate causation. The question, in other words, is
not whether the member’s acknowledged workplace injury or illness arose out of his or her employment, but rather: Which
illness or injury caused the disability, the work-related one, or another (usually a preexisting condition)? These cases establish that a work-related injury which aggravates a preexisting condition and thereby leads to disability satisfies the test for “in line of duty” disability benefits. E.g.
Westbrook v. Division of Retirement, 699 So. 2d 813, 814 (Fla. 1st DCA 1997), Pridgeon v. State Div. of Retirement, 662 So. 2d 1028 (Fla. 1st DCA 1995); Glisson v. State Dept. of Management
Services, Div. of Retirement, 621 So. 2d 543 (Fla. 1st DCA 1993); Havener v. Division of Retirement, 461 So. 2d 231 (Fla. 1st DCA 1984); Blanton v. Division of Retirement, 480 So. 2d 134 (Fla. 1st DCA 1985); Bolinger v. Division of Retirement, State
Dept. of Administration, 335 So. 2d 568, 570 (Fla. 1st DCA 1976). These decisions are the least helpful here because this case does not present a question analogous to that of ultimate causation.
The other category of disability cases involves situations where the member’s illness or injury, typically a heart attack or stroke, allegedly was caused by the stress of the work environment. In these cases, the issue is not what caused the disability (e.g. the heart attack), for that is undisputed, but instead whether the disabling injury or illness
arose out of the performance of job-required duties (as opposed to, for example, a preexisting condition). The dispute therefore concerns threshold causation, not ultimate causation. In these cases the courts almost invariably conflate threshold and ultimate causation,28 asking whether the performance of job- required duties, by aggravating a preexisting condition, brought about the disabling heart attack, stroke, or other illness.
See, e.g., Burd v. Division of Retirement, 581 So. 2d 973 (Fla. 1st DCA 1991); Otero v. State Retirement Com’n, 720 So. 2d 1147 (Fla. 5th DCA 1998); Andersen v. Division of Retirement, 538 So. 2d 929 (Fla. 1st DCA 1989); Dixon v. Department of Admin. Div. of Retirement, 481 So. 2d 52 (Fla. 1st DCA 1985); Division of Retirement v. Allen, 395 So. 2d 1192 (Fla. 1st DCA 1981); Division of Retirement v. Putnam, 386 So. 2d 824 (Fla. 1st DCA 1980). These cases are pertinent here because they demonstrate that the “arising out of” condition for “in line of duty” benefits is met when job-required duties aggravate a preexisting condition.
It is concluded, therefore, that in determining whether a member’s death arose out of a job-required duty, the relevant question is whether performance of the required work was a causative factor in the creation of the fatal environment, not whether such work was the only reason or even the major reason that the decedent was placed in harm’s way. See Robinson
v. Department of Admin., Div. of Retirement, 513 So. 2d 212 (Fla. 1st DCA 1987). Further, it is concluded that the requisite causal link is established by showing that actual performance of a required duty was the substantial producing cause or an aggravating cause of the member’s death.
Under this standard, it is clear, even without resorting to a statutory presumption, that Officer Kugler’s death arose out of the actual performance of required duties, for his on-the-job activities aggravated a preexisting condition, triggering a fatal heart arrhythmia.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order awarding Mrs. Kugler the “in line of duty” death benefits to which she is entitled under the Florida Retirement System.
It is further ORDERED that Petitioner’s Request to Reserve Jurisdiction is denied because Mrs. Kugler has not articulated a statutory basis for awarding attorneys’ fees and costs in this case.
DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003.
ENDNOTES
1/ While there is no direct evidence concerning the particular spray that Officer Kugler used that morning, the undersigned has inferred this fact from the plentiful (and unrefuted) evidence as to the routine practices and procedures of the Miami-Dade Police Department.
2/ Wiederhold v. Wiederhold, 696 So. 2d 923, 924 (Fla. 4th DCA 1997)
3/ See Robinson v. Department of Admin., Div. of Retirement, 513 So. 2d 212, 213 (Fla. 1st DCA 1987).
4/ The Division argues that the job duties must have “actually caused” the member’s death. This position, however, clearly stems from an erroneous interpretation of the pertinent statutes, as one example will show. If, heaven forbid, a homicide bomber blew himself up in a state office building, killing a receptionist, then the decedent’s spouse surely would be entitled to receive “in line of duty” death benefits, even though the decedent’s job duties, per se, would not have “actually caused” the member’s death. Thus, the “arising out of and in the actual performance of duty” conditions should be thought of as requiring that the work have put the member in harm’s way; to require that the work have killed the member
would be unduly restrictive and plainly contrary to the legislative intent.
5/ See Victor Wine & Liquor, Inc. v. Beasley, 141 So. 2d 581, 588-89 (Fla. 1961)(heart attack precipitated by work-connected exertion affecting a preexisting heart disease is compensable only if employee was at the time subject to unusual strain or over-exertion not routine to his customary work); see also Richard E. Mosca & Co., Inc. v. Mosca, 362 So. 2d 1340, 1342 (Fla. 1978)(extending Victor Wine rule for “heart cases” to cover aneurysms and other internal failures of the cardiovascular system).
6/ See Dixon v. Department of Admin. Div. of Retirement, 481 So. 2d 52, 54 (Fla. 1st DCA 1985)(courts have “consistently refused to apply” Victor Wine standard to “in line of duty” disability cases); Division of Retirement v. Allen, 395 So. 2d 1192, 1194 (Fla. 1st DCA 1981); Division of Retirement v.
Putnam, 386 So. 2d 824, 824-25 (Fla. 1st DCA 1980)(for purposes of Chapter 121, disabling illness need not be precipitated by unusual strain or exertion).
7/ There is no dispute that Officer Kugler died from a fatal heart arrhythmia.
8/ As defined in Section 185.02(3), Florida Statutes, the term “chapter plan” means
a separate defined benefit pension plan for police officers which incorporates by reference the provisions of this chapter and has been adopted by the governing body of a municipality as provided in s. 185.08.
Except as may be specifically authorized in this chapter, provisions of a chapter plan may not differ from the plan provisions set forth in ss. 185.01-185.341 and 185.37-
185.39. Actuarial valuations of chapter plans shall be conducted by the division as provided by s. 185.221(1)(b).
(Emphasis added).
9/ A “local law municipality” is “any municipality in which there exists a local law plan.” Section 185.02(9), Florida Statutes.
10/ The term “local law plan” denotes
a defined benefit pension plan for police officers or for police officers and firefighters, where included, as described in s. 185.35, established by municipal ordinance or special act of the Legislature, which enactment sets forth all plan provisions. Local law plan provisions may vary from the provisions of this chapter, provided that required minimum benefits and minimum standards are met. Any such variance shall provide a greater benefit for police officers. Actuarial valuations of local law plans shall be conducted by an enrolled actuary as provided in s.
185.221(2)(b).
Section 185.02(10), Florida Statutes.
11/ For purposes of Chapter 185, Florida Statutes, a “police officer” is
any person who is elected, appointed, or employed full time by any municipality, who is certified or required to be certified as a law enforcement officer in compliance with
s. 943.1395, who is vested with authority to bear arms and make arrests, and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers, but does not include part-time law enforcement officers or auxiliary law enforcement officers as the same are defined in s. 943.10(6) and (8), respectively. For the purposes of this chapter only, “police officer” also shall include a public safety officer who is
responsible for performing both police and fire services. Any plan may provide that the police chief shall have an option to participate, or not, in that plan.
Section 185.02(11), Florida Statutes (emphasis added).
12/ Officer Kugler served in the Miami-Dade Police Department, which is a Department of Miami-Dade County not to be confused with the similarly named City of Miami Police Department, a municipal police force. See City of Miami v. Fraternal Order of Police, Miami Lodge 20, Health Ins. Trust, 559 So. 2d 627 (Fla. 3d DCA), rev. denied, 569 So. 2d 1279 (1990).
13/ Expressio unius est exclusio alterius. (The mention of one thing implies the exclusion of another.)
14/ Legislative history ratifies this conclusion (but is not necessary to reach it, since the statute is unambiguous on its face). In 1999, during the legislative session that resulted in the enactment of P-99, a bill was introduced in the Senate (SB 2530) that would have extended the presumption to any “law enforcement officer” without reference to geography or employer. Senate Bill 2530 was rejected, however, in favor of House Bill 1883, wherein the qualified term “state law enforcement officer” was used. House Bill 1883 became law. See Ch. 99-392, Laws of Florida. In 2001, bills were filed in both chambers that would, if adopted, have brought county police officers within the ambit of Section 112.18(1), Florida Statutes. Senate Bill 848 proposed to make the presumption available to any “state or county law enforcement officer.” House Bill 649 sought to amend the statute to include any “state, county, or municipal law enforcement officer.” Neither bill was passed into law.
Ultimately, of course, the statute was revised in 2002 to embrace any law enforcement officer——the expansion that had been rejected in 1999 with the defeat of SB 2530.
15/ A statute’s application is not retroactive if the relevant trigger occurred after its enactment, regardless whether material events took place before the effective date of the subject statute. See A.G. Edwards & Sons, Inc. v. Davis, 559 So. 2d 235, 237 (Fla. 2d DCA 1990)(application of statute adopted after cause of action had accrued but prior to operative triggering event is not “retroactive”); accord Hemmerle v.
Bramalea, Inc., 547 So. 2d 203, 204 (Fla. 4th DCA 1989), rev.
denied, 558 So. 2d 18 (1990), cert. denied, 496 U.S. 926, 110
S.Ct. 2620, 110 L.Ed.2d 641 (1990). In this case, it is clear that Section 112.18(1), Florida Statutes, “springs to life” at the moment a member firefighter or police officer dies, not upon the happening of some later event in the process of applying for “in line of duty” death benefits. Thus, the issue of retroactivity cannot be sidestepped.
16/ Chase Federal, 737 So. 2d at 500.
17/ Although Judge Ervin’s views persuaded a majority of the panel, he did not write for the court.
18/ This apparently was not the result of a legislative determination that county police officers were at less risk that state police officers but rather the product of political compromises. The sticking point involved workers’ compensation: Unlike Section 185.34, Florida Statutes, which the courts had found to be inapplicable in workers’ compensation proceedings, see City of Miami v. Fraternal Order of Police, Miami Lodge 20, Health Insurance Trust, 559 So. 2d 627, 629 (Fla. 3d DCA 1990), Section 112.18(1) had been held applicable to workers’ compensation claims, see South Trail Fire Control Dist. v.
Johnson, 449 So. 2d 947 (Fla. 1st DCA 1984). Consequently, according to contemporaneous legislative analyses, some local governments, fearing that the inclusion of municipal and county police officers (their employees) within the group of persons eligible to benefit from the Section 112.18(1) presumption would lead to higher workers’ compensation insurance premiums, opposed the measure. (This bit of legislative history is offered simply for informational purposes and is not intended as a fact- finding.)
19/ The Division’s representative admitted this fact at hearing. It is confirmed, incidentally, in the legislative analyses of bills introduced in 2001 and 2002 to expand the presumption to all law enforcement officers.
20/ Municipal police, although still excluded from Section 112.18(1), Florida Statutes, were entitled to claim the presumption set forth in Section 185.34, Florida Statutes, if covered by a qualified municipal pension plan.
21/ There was no dispute that Officer Kugler successfully passed a pre-employment physical examination that failed to reveal evidence of any heart disease or hypertension. Thus, the satisfaction of that prerequisite for applying Section 112.18(1), Florida Statutes, was never in doubt.
22/ Ms. Colvin, the Division’s representative, conceded at hearing that Mrs. Kugler quite likely would be entitled to receive “in line of duty” death benefits if the presumption were applicable.
23/ The “going and coming” rule is now codified in Section 440.092(2), Florida Statutes.
24/ This exception, which had been declared legislatively abrogated by the enactment in 1982 of Section 440.091, Florida Statutes, see City of Fort Lauderdale v. Abrams, 561 So. 2d 1294, 1295 (Fla. 1st DCA), rev. denied, 574 So. 2d 139 (1990),
was (largely) codified in 2001 when the legislature adopted an amendment to Section 440.092(2), Florida Statutes, that added the following language:
For the purposes of this subsection and notwithstanding any other provisions of law to the contrary, an injury to a law enforcement officer as defined in s.
943.10(1), during the officer's work period or while going to or coming from work in an official law enforcement vehicle, shall be presumed to be an injury arising out of and in the course of employment unless the injury occurred during a distinct deviation for a nonessential personal errand. If, however, the employer's policy or the collective bargaining agreement that applies to the officer permits such deviations for nonessential errands, the injury shall be presumed to arise out of and in the course of employment.
Chapter 2001-168, Laws of Florida.
25/ Though the outcome in Walker is defensible, the stated rationale leaves much to be desired. It is generally not helpful to be told that “two tests are not identical” without an explanation as to how the tests differ and why the differences matter. At bottom, the court merely stated what the “actual performance of duty” test is not, without offering guidance as to what it is. Further, the court did not adequately explain why the “policeman’s exception” could not be followed, even as
it was applying (albeit without acknowledging the fact) the “going and coming” principle.
26/ Curiously, given that the officer in Robinson had died at home in bed, the court did not discuss how his death could be characterized as having occurred “in the actual performance of duty . . . during [the decedent’s] regularly scheduled working hours”——or even hint that this could be an issue. A literal reading of Section 121.021(14), Florida Statutes, would appear to preclude the award of “in line of duty” death benefits in a situation where an employee suffers a fatal wound at work but lingers for some time, only to expire after regularly scheduled working hours. No opinion need be offered here, however, as to whether such a reading would be correct.
27/ The undersigned assumes that no harm befell the other deputies since the opinion mentions none.
28/ The notable exception to this pattern is Botner v. State Dept. of Admin., Div. of Retirement, 438 So. 2d 94 (Fla. 1st DCA 1983). In that case, the claimant was a teacher who had retired after suffering a breakdown. He sought “in line of duty” disability benefits, urging that job-induced stress had contributed to his psychological difficulties. Id. at 94. The Retirement Commission heard his case and denied the claim, making a fact-finding based on expert medical testimony that the teacher’s mental illness could have progressed through the passage of time alone and probably would have been aggravated no matter what work he did. Id. The appellate court affirmed, holding that, though the evidence was conflicting, the trier’s findings on the ultimate facts were supported by competent substantial evidence. Id. at 94-95. Interestingly, while acknowledging that the record contained psychiatric testimony which supported the teacher’s contentions, the court drew no distinction between (a) the job-related factors that apparently were shown, by some psychiatric testimony, actually to have aggravated the teacher’s illness and prompted his breakdown and
(b) the hypothetical factors that would or could have done so had he pursued some other vocation.
Botner, it should be stressed, is an exceptional case that has been limited to its specific facts. See Dixon v. Department of Admin. Div. of Retirement, 481 So. 2d 52, 54-55 (Fla. 1st DCA 1985). Botner is distinguishable from this case because the undersigned trier of fact does not find (and doubts that the evidence would even legally support a finding) that Officer
Kugler’s fatal heart arrhythmia would have occurred at the time and place and in the manner it did no matter what he happened to be doing then and there——or simply as a result of the passage of time. Rather, Officer Kugler’s death was in fact triggered by the performance of job-required duties which in fact aggravated a preexisting heart disease.
COPIES FURNISHED:
Jerome S. Reisman, Esquire Reisman & Abraham, P.A.
3006 Aviation Avenue, Suite 4B Coconut Grove, Florida 33133
Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260
Tallahassee, Florida 32399-0950
Erin Sjostrom, Director Department of Management Services Division of Retirement
Cedars Executive Center Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
Monesia Taylor Brown, Acting General Counsel Department of Management Services
Division of Retirement 4050 Esplanade Way
Tallahassee, Florida 32399-1560
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 01, 2003 | Agency Final Order | |
| Jan. 21, 2003 | Recommended Order | Petitioner whose husband, a county police officer, died of heart failure at work is entitled to receive "in line of duty" death benefits under the Florida Retirement System. |
