CITY OF TARPON SPRINGS AND FLORIDA LEAGUE OF CITIES, INC., APPELLANTS,
v.
MICHAEL VAPORIS, APPELLEE
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The City of Tarpon Springs appealed an award of workers' compensation benefits to firefighter Michael Vaporis under Florida's firefighter's presumption statute. The court reversed, holding that the presumption merely shifts the burden of proof to the employer and can be overcome by competent evidence showing non-occupational causation, rather than requiring proof of a specific hazard as the lower court demanded.
The court held that the employment physical was successfully passed upon entry into service despite being partially completed after employment began. The firefighter's presumption merely shifts the burden of proof to the employer/carrier and may be overcome by competent evidence showing the disease was caused by a non-work-related factor, not by proving a specific or non-occupational hazard.
[1] A firefighter's presumption of accidental injury in the line of duty for heart disease, tuberculosis, or hypertension applies if the firefighter successfully passed a phy…
[2] A physical examination completed shortly before and after a firefighter's commencement of employment satisfies the statutory requirement of passing a physical examination…
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Join FLexlaw to unlock all legal intelligence“Any condition or impairment of health of any ... firefighter ... 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.”
States the statutory presumption that must be properly applied and defines what evidence is required to overcome it
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Join FLexlaw to unlock all legal intelligenceMichael Vaporis began employment as a firefighter on January 27, 1986. His initial employment physical was partially administered ten days before he s…
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PER CURIAM.
Appellant seeks review of an award of benefits to Appellee/Claimant via application of the “firefighter’s presumption,” section 112.18, Florida Statutes (2005). We reverse, and address the proper application of this presumption.
Claimant began employment as a firefighter on January 27, 1986. His initial employment physical was partially administered ten days before he began working, and the remainder of the physical was completed fifteen days after he began working. On February 14, 2005, Claimant suffered a heart attack. In seeking workers’ compensation benefits, he sought to take advantage of section 112.18, which provides as follows:
Any condition or impairment of health of any ... firefighter ... 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 ... shall have successfully passed a physical examination upon entering into any such service ..., which examination failed to reveal any evidence of any such condition....
§ 112.18, Fla. Stat. (2005).
Contrary to Appellant’s position, we hold that the examination was successfully passed upon Claimant’s entry into service as a firefighter. We distinguish Cumbie v. City of Milton, 496 So. 2d 928 (Fla. 1st DCA 1986), on factual grounds, noting that the examination there was not given until two years after employment commenced. And we distinguish Sledge v. City of Fort Lauderdale, 497 So. 2d 1281 (Fla. 1st DCA 1986), on legal grounds, noting that the characterization of the examination as “preemployment” is mere dicta, as the issue at hand was whether the statute of limitations had run.
We also hold that the firefighter’s presumption merely switches the burden of proof from claimant to employer/carrier, and may be overcome by, as the statute plainly states, “competent evidence.” In the instant case, it appears the judge of compensation claims (JCC) erroneously applied a greater burden of proof to the employer/carrier, as she explicitly stated that the sole medical testimony “[fell] far short of establishing that some other specific hazard or non-occupational hazard was the cause of claimant’s disease.” All that the statute requires to overcome the presumption is competent substantial evidence that convinces a JCC that the disease was caused by some non-work-related factor, not that it was caused by any sort of “specific hazard or nonoccupational hazard,” as the JCC concluded here.
Accordingly, we REVERSE the order and REMAND for the JCC to consider the evidence under the proper burden of proof.
BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.
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Punsky v. Clay Cnty. Sheriff's Off. & Scibal Ins. Grp., 18 So. 3d 577 (Fla. 1st DCA 2009)…Talpesh v. Village of Royal Palm Beach, 994 So. 2d 353 (Fla. 1st DCA 2008); Lentini v. City of West Palm Beach, 980 So. 2d 1232 (Fla. 1st DCA 2008); Saldana v. Miami-Dade County, 978 So. 2d 823 (Fla. 1st DCA 2008); City of Tarpon Springs v. Vaporis, 953 So. 2d 597, 599 (Fla. 1st DCA 2007); Seminole County Sheriff's Office v. Johnson, 901 So. 2d 342 (Fla. 1st DCA 2005). In at least three cases, however, we have noted the “clear and convincing” and “specific non-work related event or exposure” language of Caldw…1 / 2
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Graymond Butler v. City OF Jacksonville, 980 So. 2d 1250 (Fla. 1st DCA 2008)…ct a required quantum of proof, is dicta, because the employer presented no competent evidence on an issue as to which it had the burden. Second, this statement conflicts directly with this court’s pronouncement in City of Tarpon Springs v. Vaporis, 953 So. 2d 597, 599 (Fla. 1st DCA 2007): “All that the statute requires to overcome the presumption is competent substantial evidence that convinces a JCC that the disease was caused by some non-work-related factor.... ” See also Saldana v. Miami-Dade County and D…
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Lentini v. City OF W. Palm Beach, 980 So. 2d 1232 (Fla. 1st DCA 2008)…stantial evidence that convinces a [judge of compensation claims] that the disease was caused by some non-work-related factor, not that it was caused by any sort of ‘specific hazard or non-occupational hazard’ ...” City of Tarpon Springs v. Vaporis, 953 So. 2d 597, 599 (Fla. 1st DCA 2007); see also Saldana v. Miami-Dade County, 978 So. 2d 823 (Fla. 1st DCA 2008). Since the record here contains competent substantial evidence supporting the judge of compensation claims’ conclusion that the employer/carrier su…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burge v. State, 496 So. 2d 928 (Fla. 1st DCA 1986)
- In re the Interest of V.E.P., 497 So. 2d 1281 (Fla. 4th DCA 1986)