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Cypen & Cypen
NEWSLETTER
for
FEBRUARY 16, 2006

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. WHOA -- FLORIDA COURT SAYS FIREFIGHTERS NOT MORE AT RISK FOR HEP C:

A recent Florida appellate decision is more notable for its obiter dicta than for its actual holding. Bartlett, a firefighter, sought workers’ compensation as a result of his hepatitis C. The judge of compensation claims found compensability, but on appeal, a Florida district court of appeal reversed. Bartlett could have established compensability of his hepatitis C in one of two ways: (a) he could meet the criteria necessary to qualify for the statutory presumption of compensability pursuant to Section 112.181(2), Florida Statutes or (b) he could present clear evidence to meet the elements necessary to establish his hepatitis C is an occupational disease. The higher court found that Bartlett failed to present evidence to establish compensability under either basis. To qualify for the statutory presumption, one must, “by written affidavit,” verify that, to the best of his knowledge and belief, he has not:

(1) been exposed, through transfer of bodily fluids, to any person known to have sickness or medical conditions derived from hepatitis, outside the scope of his employment;

(2) had a blood transfusion or blood components, other than a transfusion rising out of an accident or injury happening in connection with his present employment, or received any blood products for the treatment of a coagulation disorder since last undergoing medical tests for hepatitis, which tests failed to indicate the presence of hepatitis;

(3) engaged in unsafe sexual practices or other high-risk behavior, as identified by the Centers for Disease Control and Prevention or the Surgeon General of the United States, or had sexual relations with a person known to him to have engaged in such unsafe sexual practices or other high-risk behavior; or

(4) used intravenous drugs not prescribed by a physician.

Bartlett failed to submit the required affidavit, although he gave essentially the same information required by the affidavit during a deposition. However, “depositions cannot take the place of the written affidavit required by statute.” (C’mon.) Bartlett did testify that, during the relevant time, he had engaged in unprotected sex with approximately 20 women.

Bartlett’s alternate theory of compensability, of course, was that hepatitis C is an occupational disease pursuant to Section 440.151(2), Florida Statutes. The statutory criteria to establish entitlement for recovery under an occupational disease theory have been interpreted to require the following four-part test be met:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;

(2) the disease must be actually contracted during employment in the particular occupation;

(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be higher in the occupation than in usual occupations; and

(4) if the disease is an ordinary disease of life, the incidence of such disease must be substantially higher in the particular occupation than in the general public.

Again, Bartlett failed to present sufficient evidence to satisfy this test. He was required to establish causation by introducing clear evidence of each element of the four-part test. Even though Bartlett testified to needle sticks during his tenure as a firefighter, he did not know whether the sticks involved people infected with hepatitis C. He also testified he had blood-to-blood contact during his employment, but, again, did not know whether any of the individuals were hepatitis C positive. Testimony at the hearing was that the most common causes of hepatitis C were illegal intravenous drug usage (70%); receiving blood transfusions prior to 1990 (10%); engaging in unprotected sex (5%); unknown causes (4%); and needle sticks (2%). (Note: what about the other 9%?) So, Bartlett loses because he does not have the benefit of the statutory presumption and cannot independently show employment-related causation. Okay. But, the court went on to state, although not part of its holding:

Significantly, the only expert testimony comparing the prevalence of hepatitis C in firefighters to that occurring in the general population was that the disease occurred in both with the exact same frequency. Consequently, there is no evidence that being a firefighter presents a particular hazard of contracting the disease, or that the incidence of the disease is substantially higher in firefighters than in the general public.

We certainly hope that this passing statement does not develop “legs.” When courts rule, they ought to stop there and skip the nonessential issues. Seminole County Government v. Bartlett, 31 Fla. L. Weekly D333 (Fla. 1st DCA, January 31, 2006).

2. MORTGAGE APPLICATIONS CONTINUE TO SLIDE:

Mortgage applications in the United States fell for a second week as a measure of home purchases declined to the lowest level since the end of last year, according to the Daily Business Review. The Mortgage Bankers Association’s weekly index of applications to buy a home and refinance mortgages dropped 1.2% to 619.3 during last week from 626.8. The average rate on a 30-year fixed mortgage increased to the highest level since December 9, 2005. Higher prices and mortgage rates are forecast to let some steam out of the housing market, which set sales records in each of the last five years and powered the economy. But job and income growth may still be enough to keep demand from plunging. Consumer borrowing through credit cards and other nonmortgage loans increased 3% last year, the smallest gain since 1992. At the same time, people spent more, borrowing against equity in their homes to do so. The share of cashout refinancing in the fourth quarter for loans owned by Federal Home Loan Mortgage Corporation (Freddie Mac), the number two buyer of mortgages, rose to the highest in five years.

3. FOR FLSA PURPOSES, FIREFIGHTERS’ SICK LEAVE BUY-BACK PROGRAM INCLUDED IN REGULAR RATE OF PAY:

One hundred current and former firefighters brought suit against the city for failing to include a series of payments in the firefighters’ regular rate of pay, in violation of 28 U.S.C. §207(e) (Fair Labor Standards Act). Subsequently, the parties settled as to certain types of payments, leaving at issue only sick leave buy-back monies, which the federal district court ruled should be included in the firefighters’ regular rate of pay. Under the city’s sick leave buy-back program, firefighters who work 24 hour work shifts during the course of one year accumulate 10 days of sick leave. Firefighters who fail to use their sick leave are entitled to “sell back” any of the 10 unused sick days to the city in exchange for a lump sum payment equal to 75% of their regular hourly pay, provided the firefighter has amassed at least six months sick leave. (The firefighters contended that all monies received from sale of sick leave should be included in their regular rate of pay, which calculation is critical because it provides the base point from which the firefighters’ overtime compensation is calculated.) Basically, FLSA provides that all remuneration from employment paid to or in behalf of the employee must be included in the employee’s regular rate of pay. On appeal, the appellate court affirmed. The authority of the federal regulations promulgated under FLSA, coupled with the statutory presumption favoring inclusion of all monies in regular rate of pay, mandates that lump sum payments awarded under the city’s sick leave buy-back program be included in firefighters’ regular rate of pay. Acton v. City of Columbia, Missouri, Case No. 04-3985 (U.S. 8th Cir., February 8, 2006).

4. FLASH -- ACTUARIES ARE MORE INTERESTING THAN ACCOUNTANTS!:

Or at least that’s the claim in a recent Financial Times piece entitled “Why actuaries count themselves lucky not to be accountants.” (Everyone has heard the joke about an actuary being someone who rejected accountancy on the grounds that it was too exciting.) In any event, here’s the bottom line: what actuaries do is more interesting than what accountants do. Being an actuary is about judgment -- there are no wrong or right answers. Accountants tend to look at what happened within a very fixed framework. Prognosticating is intrinsically more interesting and more of an art than looking at what has happened already. Hmmm. Verrrrrrry interesting. Not.

5. RICH GETTING RICHER FASTER:

According to msn.Money, two new studies find the rich are getting richer at a faster pace. A study released in late January, from the Center on Budget and Policy Priorities and the Economic Policy Institute, found that the gap between the highest- and lowest-income families is significantly wider than it was 25 years ago. And an analysis of income-tax data by Congressional Budget Office found that the top 1% of households own nearly twice as much of the nation’s corporate wealth as they did just 15 years ago. The studies come among a growing push to increase the federal minimum wage of $5.15 an hour for the first time in nine years. (Here’s a little dose of reality: an employee working full-time at the federal minimum wage makes $10,712 a year. About 7% of the workforce earns minimum wage.) Five states with the largest income gap between top and bottom fifths of families are New York, Texas, Tennessee, Arizona and Florida.

6. QUOTE OF THE WEEK:

From George Carlin -- “Think about how stupid the average person is, then realize that half the population is stupider.” He’s come a long way from being Al Sleet, the Hippie Dippie weatherman.


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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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