Cypen & Cypen
NOVEMBER 25, 2009
Stephen H. Cypen, Esq., Editor
A. Miami-Dade County v. Davis, 34 Fla. L. Weekly D2418 (Fla. 1st DCA, November 24, 2009). Miami-Dade County appealed an order of a judge of compensation claims finding the County responsible for workers’ compensation benefits on account of Davis’s heart disease, on purported authority of Section 112.18(1), Florida Statutes. On facts of the case, which included undisputed diagnosis of heart disease at time of a preemployment physical, the judge of compensation claims erred in ruling Davis's preexisting heart disease compensable. The statute gave rise to no presumption of compensability, and, without the presumption, the facts rule out industrial causation. When a firefighter suffers a condition or impairment of health caused by heart disease resulting in total or partial disability, the heart disease is deemed a compensable occupational disease, unless the employer is able to rebut the statutory presumption of compensability. But the presumption only arises if the firefighter has successfully passed a physical examination upon entering into any such service as a firefighter, which examination failed to reveal any evidence of any such condition. Davis first worked as a firefighter with the City of Gainesville in 1972. The judge of compensation claims found that Davis had passed a certification examination, which failed to reveal any evidence of heart disease, before he began work for the City of Gainesville. He left firefighting, and eventually began working as a firefighter for Miami-Dade County in 1995, at which time he underwent a medical examination revealing heart disease and a history of open heart surgery performed at the City of Gainesville's expense. (The examining physician apparently was not aware of the National Fire Protection Association's medical standards that should have disqualified Davis as a firefighter for Miami-Dade County, based upon his history of coronary artery bypass surgery.) While employed by Miami-Dade County, although off-duty, Davis suffered a cardiac incident surfing. Davis’s treating physician testified she had no doubt that Davis had chronic underlying coronary artery disease when Miami-Dade County hired him seven years earlier. Miami-Dade County denied compensability on the ground that Davis's heart disease predated his employment with Miami-Dade County, and that a mere “certification” examination almost thirty years before did not entitle Davis to benefit of the presumption because his subsequent preemployment physical examination for Miami-Dade County revealed that he suffered from heart disease. The judge of compensation claims accepted Davis’s argument that the 1972 certification examination (in Gainesville) was the only relevant examination for purposes of Section 112.18(1), Florida Statutes. In reversing, the appellate court disagreed that Chapter 633, Florida Statutes, the one calling for certification upon entering service as a firefighter, should be read in pari materia with Section 112.18, Florida Statutes. And, if there was any doubt as to that interpretation, the 2000 amendment to Section 943.13(6), Florida Statutes, resolved the doubt. That section pertains to law enforcement officers and forbids use of a physical examination from a former employing agency for purposes of claiming the presumption set forth in Section 112.18, Florida Statutes, against the current employing agency. Inasmuch as Section 112.18, Florida Statutes, makes no distinction between firefighters and law enforcement officers, the Legislature clearly read Section 112.18, Florida Statutes, exactly the way Miami-Dade County did. In sum, “no examination in 1972 gave rise to the presumption set forth in section 112.18 so as to make Miami-Dade County responsible for workers' compensation benefits on account of the off-duty cardiac event Mr. Davis experienced in 2002 while employed with Miami-Dade County, employment that only began in 1995, after a preemployment physical revealed that he suffered from heart disease before he ever began working for Miami-Dade County.”
B. Hunter v. Seminole County Fire/Rescue, 34 Fla. L. Weekly D2420 (Fla. 1st DCA, November 24, 2009). Hunter challenged the judge of compensation claims' ruling that he was not entitled to a presumption of compensation for the heart disease-related disability he suffered while employed as a firefighter. The appellate court affirmed, but wrote to clarify the difference between the Section 633.35, Florida Statutes, “pre-certification” physical examination and the Section 112.18, Florida Statutes, “pre-employment” physical examination. Anyone who wishes to work as a firefighter in Florida must pass the Section 633 “pre-certification” physical. By contrast, the Section 112 “pre-employment” physical is optional. If an employer chooses to exercise the Section 112 option and the examination does not reveal any evidence of heart disease, a presumption of compensation is available to the claimant for the covered conditions. In 1991, Hunter received a certificate of compliance qualifying him for employment as a firefighter in the State of Florida. This certification did not make him a firefighter, and it did not require him to become a firefighter. It simply qualified him to obtain employment as a firefighter. The physical examination he underwent as part of the firefighter certification process did not reveal any evidence of heart disease. Hunter eventually became a firefighter. Over the course of his firefighting career, Hunter held three separate firefighting jobs: Seminole County, City of Oviedo and again Seminole County. Upon each job change, the prospective employer exercised its option, and required Hunter to submit to a physical examination. The results of the latest pre-employment examination revealed evidence of heart disease. Between 2006 and 2007, Hunter suffered three heart related incidents, eventually resulting in disability. Below, Hunter argued that because the 1991 pre-certification physical examination revealed no signs of heart disease, he was entitled to the presumption that his disability was caused by his employment. The judge of compensation claims rejected this argument, ruling that because Hunter's latest pre-employment physical examination revealed evidence of heart disease pre-existing employment, the Section 112.18 presumption was not available to him. Pursuant to Section 633, Florida Statutes, an individual will not be certified to seek employment as a firefighter until he proves he is in good physical condition and passes a pre-certification physical examination. According to Section 112, Florida Statutes, an employer may require an applicant for a firefighter position to submit to a physical examination, even though already certified as a firefighter, upon entering into any such service as a firefighter. If the firefighter passes the physical examination, showing no evidence of heart disease, he is entitled to the presumption that any heart disease-related disability he suffers during that term of employment is compensable. Proof that a claimant underwent a Section 633 pre-certification examination that did not reveal signs of heart disease, in and of itself, has no bearing on whether he is entitled to the presumption of compensation in a subsequent compensation action. The Section 633 examination is one of several hurdles all prospective firefighters must clear to qualify for a firefighter's certificate of compliance. Simply put, whether an individual passes the Section 633 examination means little more than he is one step closer legally to working as a firefighter. On the other hand, the Section 112 physical examination sets forth a specific procedure by which employers and claimants alike can determine whether or not an employee will be entitled to a presumption of compensation should he suffer a heart-related disability while employed. The unambiguous language of the two sections clearly indicates that an individual is only entitled to the presumption of compensation if, upon entry into a specific term of employment, he underwent a physical examination that revealed no evidence of heart disease. General lesson to be learned from this case: if you are a firefighter or law enforcement officer, and your employer does not provide a physical that can be used to entitle you to the presumption under Section 112, Florida Statutes, either (1) insist upon one or (2) have an examination performed on your own and put the results on file with the employer.
C. Fuller v. Okaloosa Correctional Institution, 34 Fla. L. Weekly D2422 (Fla. 1st DCA, November 24, 2009). Fuller, a corrections officer, challenged an order of the judge of compensation claims denying compensation for a cardiac condition. He argued that competent substantial evidence did not support the judge of compensation claims' finding that the employer rebutted the presumption of compensability provided for in Section 112.18, Florida Statutes, by showing a non-occupational cause of the condition. The appellate court agreed, and reversed. In 1995, prior to entering into service as a corrections officer with the employer, Fuller suffered a fainting episode that required medical attention. He was hospitalized and underwent a battery of tests, all of which were negative for any cardiac condition or heart disease. In 1997, Fuller became employed with the employer as a corrections officer, after successfully passing a physical examination that failed to reveal any evidence of a cardiac condition. In 2003, while Fuller was employed by the employer, he had another fainting episode that was attributed either to sick sinus syndrome or vasovagal syncope, conditions which cause a decreased heart rate, which, in turn, causes an individual to become dizzy and pass out. As a result, a pacemaker was implanted to prevent recurrence of such syncopal events. Fuller filed a claim for compensation for this condition, and the judge of compensation claims found that whether Fuller was suffering from sick sinus syndrome or vasovagal syncope, both were cardiac conditions, and, thus, Fuller was entitled to the presumption afforded by Section 112.18(1), Florida Statutes. Nevertheless, the judge of compensation claims found the employer had rebutted the presumption because logic dictated that the same condition that caused the decreased heart rate resulting in the 1995 syncopal episode (predating Fuller's employment) was also responsible for the 2003 event. Significantly, the finding was supported by opinion testimony of the employer's independent medical examiner, who testified that the most likely diagnosis was vasovagal syncope, which was pre-existing, and, thus, not job-related. On a prior appeal, the court affirmed the judge of compensation claims' finding and the resulting denial of compensation. In 2007, Fuller had another fainting episode, this time, resulting from rapid heart rate. The cardiologist conducting Fuller’s independent medical examination ruled out vasovagal syncope as cause of the 2007 event, opining that the most likely diagnosis was right ventricle outflow tract tachycardia. The cardiologist conducting the employer’s independent medical examination again ascribed Fuller’s condition to vasovagal syncope. Fuller’s doctor could not state whether Fuller had RVOT tachycardia prior to his employment. Fuller filed a claim for compensability of the RVOT tachycardia, which the judge of compensation claims found was the only suggested diagnosis that would explain why Fuller suffered the 2007 syncope. Nevertheless, the judge of compensation claims again found that the employer rebutted the presumption because he found it reasonable and logical to conclude RVOT tachycardia caused not only the 2007 episode, but the 1995 and 2003 episodes, as well. On appeal, the employer did not challenge the judge of compensation claims’ conclusion that Fuller had disabling RVOT tachycardia, a cardiac condition. Thus the appellate court’s opinion was predicated on a presumed, but rebuttable, finding that Fuller's 2007 episode was caused by RVOT tachycardia, which was accidental and suffered in the line of duty pursuant to Section 112.18(1), Florida Statutes. Because Fuller successfully passed the pre-employment physical, a necessary condition for application of the presumption, the 1995 fainting episode became relevant only to the extent, if any, that it supported the employer's burden in rebutting the presumption of occupational causation relative to the RVOT tachycardia. It was incumbent on the employer to demonstrate by medical testimony established within a reasonable degree of medical certainty that the RVOT tachycardia was caused by some non-work-related factor. Because no medical evidence established a non-occupational cause of Fuller's RVOT tachycardia within a reasonable degree of medical certainty, the court reversed since competent substantial evidence did not support the judge of compensation claims’ finding that the employer rebutted the statutory presumption of compensability afforded by Section 112.18(1), Florida Statutes. A close brush for Fuller, we would say.
2. LABOR DEPARTMENT PULLS INVESTMENT ADVICE RULE: The U.S. Department of Labor has officially killed a Bush administration rule that would have cleared the way for mutual fund companies, through their affiliates, to offer direct one-on-one investment advice to defined contribution plan participants. In a release, the department's Employee Benefits Security Administration said withdrawal of the rule was based on public comments that raised sufficient doubts as to whether conditions of the final rule and the class exemption associated with it could adequately protect interests of plan participants and beneficiaries. EBSA plans to issue a new proposed regulation on investment advice.
3. SPONSORS OF TEN UNDERFUNDED PLANS PAID EXECUTIVES $350 MILLION IN COMPENSATION SHORTLY BEFORE TERMINATION: In a Report to the Chairman, Committee on Education and Labor, House of Representatives, United States Government Accountability Office found that forty executives for ten companies received approximately $350 Million in pay and other compensation in the years leading up to the termination of their companies’ underfunded pension plans. GAO identified salaries, bonuses and benefits provided to small groups of high-ranking executives at these companies during the five years leading up to termination of their pension plans. For example, beyond the tens of millions of dollars in base salaries received, GAO found that executives also received millions of dollars in stock awards, income tax reimbursements, retention bonuses, severance packages and supplemental executive-only retirement plans. In some cases, plan participants had their benefits reduced due to underfunding of the plan when it was terminated. One retired pilot saw his monthly pension payment reduced by two-thirds. The reduction in benefits occurred because federal law caps benefits Pension Benefits Guaranty Corp. can guarantee when it takes over an underfunded pension plan. In addition, PBGC has no oversight power with regard to executive compensation prior to a company’s bankruptcy. During bankruptcy, executive compensation must be approved by the bankruptcy court, and after such approval, PBGC has extremely limited ability to recover those payments to executives. GAO did not find any illegal activity with respect to executive compensation on the part of either the ten companies or the forty executives under review. GAO-10-77 (0ctober 2009). Why are we not surprised?
4. STATE TRIES TO BLOCK FORMER GOVERNOR’S PENSION: Attorneys for the State of Illinois told the Illinois Supreme Court that imprisoned former Governor George Ryan should not be allowed to collect any of his state pension after being convicted of corruption. According to pantagraph.com, the state's highest court heard arguments in Ryan's bid to collect about $5,700 a month in state pension benefits for the time he worked as a state lawmaker, lieutenant governor and county official. Ryan has already forfeited pension benefits he earned while serving as governor and secretary of state, because he was convicted on corruption charges based on time in those offices. Ryan’s counsel, former Governor Jim Thompson, argued that each position Ryan held was a separate job, so Ryan should still collect his pension for the offices in which he was not accused of being corrupt. A state board originally denied Ryan his full pension in 2006 (see C&C Newsletter for December 7, 2006, Item 5). However, an appeals court ruled that Ryan could keep that part of his pension related to government service other than as governor and secretary of state. The state is seeking overturn the latter ruling. A recent Florida case answered the same question by determining that, in similar circumstances, a former public official was required to forfeit his entire pension, regardless of the different positions held (see C&C Newsletter for September 4, 2008, Item 1).
5. BLACK FIREFIGHTERS OBJECT TO PROMOTIONS: We just reported that white firefighters in New Haven, Connecticut have requested the district court to promote them in accordance with the United States Supreme Court ruling in their favor (see C&C Newsletter for November 19, 2009, Item 12). Now, boston.com reports that a group of black firefighters hopes to block those promotions. They argued that they still have a right to challenge validity of the promotional exam. They say there still has been no finding that the promotional tests were valid and that they have the right to challenge their validity and require the city to show they were valid before officials make promotions from them. Ironically, lurking claims of black firefighters have been made a central and somewhat bombastic piece of litigation -- without the black firefighters even having had opportunity to be heard on the issue, they argued.
6. COP’S PERSONAL CELL PHONE RECORD MAY BE DISCOVERABLE IN COURT: A recent New Mexico Court of Appeals decision raised the question to what extent are records from a police officer’s personal cell phone subject to public review in a criminal trial if the phone is carried while on duty. The state appealed from a district court’s order dismissing charges against defendant, with prejudice, in part due to the state’s failure to comply with a discovery order. The lower court determined that defendant had made a threshold showing that the discovery requested was potentially material to the defense and ordered the state to identify whether any such material evidence existed. The state chose not to comply in any manner with the district court’s order, and the court dismissed the case with prejudice. The high court concluded that the lower court acted within its discretion. In connection with a stop and subsequent arrest, a videotape contained a gap of six minutes and 35 seconds. Defendant requested copies and access to evidence of all oral, electronic, telephonic or written communications made between the officer and any other person during the incident. The state explained that the video camera taping during the missing period was not related to the stop, but showed only that the officer was patrolling before the stop. The trial court granted defendant’s motion to compel specific discovery from the officer’s cell phone records during the “gap” period of time. The state responded that the officer did not provide his personal cell phone records to the state, and that it could not compel him to give up his personal cell phone records. Eventually, the trial court found the actions of the state to be in bad faith, arguably intentionally preventing the trial from going forward, and granted defendant’s motion to dismiss with prejudice. In affirming, the Supreme Court said that, logically extended, the State’s position would result in the following untenable consequence: even if an officer is permitted to use his cell phone to obtain information that he believes creates a lawful basis for a stop, even if the personal cell phone records of the on-duty officer who is investigating a possible crime actually contain information relevant and material to the lawful basis for an investigative stop and even if the information is helpful and critical to preparation of the defense, the State would not even have to ask to review the cell phone records, much less attempt to obtain and then disclose them. “We will not tie into a position that leads to what appears to us to be an unreasonable if not absurd result.” State of New Mexico v. Ortiz, Case No. 27,544 (NM, August 13, 2009).
7. NEW YORK’S HIGHEST COURT UPHOLDS GAY MARRIAGE BENEFITS: Plaintiff/taxpayers challenged two directives by executive and county officials that recognized out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. In a 4-3 decision, the New York Court of Appeals concluded that the actions were properly dismissed. Four states -- Massachusetts, Connecticut, Iowa and Vermont -- now issue marriage licenses to same-sex couples, without any residency requirement. As a consequence, many same-sex couples who are residents of New York State have traveled to those jurisdictions and married. In light of these developments, several state and county officials have recently issued general directives relating to recognition of those out-of-state same-sex marriages. The present actions involved facial challenges to legality of two of these directives, namely a Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service and an Executive Order issued by the County Executive in the County of Westchester. A taxpayer suit lies only when the acts complained of are fraudulent or a waste of public money in the sense that they represent use of public property or funds for entirely illegal purposes. Because plaintiffs alleged no fraud, their action could succeed only if they stated a claim for illegal dissipation of municipal funds. Here, plaintiffs have not identified any specific impact that the Executive Order has had on any public funds or private individual. Even assuming allegations in the complaint to be true, plaintiffs failed to specify a circumstance where taxpayer funds were expended that would not have been expended in absence of the Executive Order. Plaintiffs also alluded to the separation of powers doctrine, claiming that defendants acted inconsistently with the Legislature's pronouncements on spousal benefits. The statute itself refutes plaintiffs' claim: the head of the Civil Service Commission is expressly given authority to define "spouse." In addition, the statute does not restrict the head's provision of health insurance to spouses and dependent children; the language is of entitlement, not restriction. Godfrey v. Spano, Case Nos. 147 and 148 (NY, November 19, 2009).
8. WHEN DO OBLIGATIONS OF CLASS COUNSEL END?: What are obligations of class counsel when he learns that defendant in the class action he is prosecuting has ceased operations, sold its assets to a third party and intends to file for bankruptcy? In a case before the California Court of Appeal, counsel obtained a stipulated default and a default judgment that included more than $4 Million in aggregate damages for the class, plus more than $1 Million in prejudgment interest. So far, so good. But counsel then asserted that his job would be completed once his motion for attorney fees was heard and that he had no obligation to enforce the judgment on behalf of the class. The trial court disagreed, ruling that by assuming responsibility of pursuing claims on behalf of the class, class counsel assumed the obligation to pursue it until the end (that is, enforcement of the judgment) and not just until judgment. Based upon principles guiding class actions, the appellate court agreed that class counsel’s obligations to the class do not end with the entry of judgment, and held that class counsel’s obligations continue until all class issues are resolved, which may include enforcement of the judgment. Here, plaintiffs, and the class they sought to represent, were employees of West Coast Digital GSM, Inc. Plaintiffs alleged causes of action against WCD for damages arising out of WCD’s alleged unlawful deductions from wages, failure to pay overtime and failure to provide meal and rest breaks. Among other things, the court noted that a well-known practice guide warns of the disadvantages of class actions, including that class counsel may find themselves caught in a class action that has proved to be undesirable due to costs involved, because they are unable to dismiss class claims or parties without court approval. Barboza v. West Coast Digital GSM, Inc., Case No. B215454 (Cal. App. 2d, November 19, 2009).
9. FLORIDA WANTS MORE DISCLOSURE ON PENSION PLACEMENT AGENTS: Investment companies bidding to advise Florida’s $107 Billion public pension fund, fourth largest in the United States, will have to disclose more about their arrangements with middlemen known as placement agents, according to Bloomberg News. The fund's trustees -- Governor Charlie Crist, Chief Financial Officer Alex Sink and Attorney General Bill McCollum -- directed fund staff to draw up requirements for financial firms to disclose when they use placement agents as intermediaries, and to detail their fees. Placement agents approach pension funds on behalf of investment firms seeking to win contracts in the $2 Trillion public pension industry. The U.S. Securities and Exchange Commission and New York’s Attorney General are investigating placement agents. California has enacted a law requiring more disclosure after a placement agent was found to have earned almost $70 Million from firms seeking contracts from the $200 Billion California Public Employees Retirement System, the largest U.S. state pension. We have written several articles on the subject, and many of our clients have already adopted guidelines we prepared (see C&C Newsletter for June 11, 2009, Item 1).
10. DESIGNATED JOB TITLE DOES NOT DETERMINE WHETHER PSAs OR CSOs ARE LAW ENFORCEMENT OFFICERS: Duties of law enforcement personnel, rather than their designated job title, determine whether public service aides and community service officers are subject to certification by the Criminal Justice Standards and Training Commission as law enforcement officers or auxiliary law enforcement officers defined in Section 943.10(1) and (8), Florida Statutes. A letter to Florida’s Attorney General, requesting an opinion, raised concerns that local jurisdictions may be employing non-sworn personnel to accomplish the duties and responsibilities of sworn law enforcement officers. Section 943.10(1), Florida Statutes, defines law enforcement officer as any person who is elected, appointed or employed full time by any municipality or the state or any political subdivision thereof who is vested with authority to bear arms and make arrests and whose primary responsibility is prevention and detection of crime or enforcement of penal, criminal, traffic or highway laws of the state. Terminology used to characterize a position is not dispositive of whether certification is required for employment as a law enforcement officer; it is the nature and duties of the position that require application of the Criminal Justice Standards and Training Commission statutes. To the extent that a local law enforcement agency creates positions requiring performance of duties and responsibilities designated by statute to law enforcement officers, the persons filling those positions must meet minimum standards of the Criminal Justice Standards and Training Commission. Factual determination of an employee’s primary responsibility must be made by the employing agency, which, of course, will take into consideration lives and property of citizens of, and visitors to, the state who are dependent upon competent qualified personnel to provide protection and safety. AGO 2009-42 (September 15, 2009).
11. PBGC ISSUES FINAL REGULATIONS ON USERRA BENEFITS: Pension Benefit Guaranty Corporation has issued final regulations amending its benefit payment rules to implement provisions of Uniformed Services Employment and Reemployment Rights Act of 1994. USERRA provides that an individual who leaves his job to serve in the uniformed services is generally entitled to reemployment by his previous employer, and, upon reemployment, to receive credit for benefits, including employee pension plan benefits that would have accrued but for the employee's absence due to the military service. The final rule amends PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans to address a narrow but important issue regarding PBGC's guarantee of benefits for participants who are serving in the uniformed services at time that their pension plan terminates. Under PBGC's existing regulations, a benefit is guaranteed only if the participant satisfies conditions for entitlement to the benefit on or before the plan's termination date. PBGC is providing an exception to this rule in the unique circumstances of persons serving in the uniformed services as of the plan's termination date, consistent with USERRA's statutory mandate to treat such persons, upon reemployment, as if they had never left employ of their former employer. The final rule provides that so long as a service member is reemployed within the time limits set by USERRA, even if reemployment occurs after the plan's termination date, PBGC will treat the participant as having satisfied the reemployment condition as of the termination date. The rule ensures that pension benefits of reemployed service members, like those of other employees, will generally be guaranteed for periods up to the plan's termination date. The amendments will apply to reemployments under USERRA initiated on or after December 12, 1994. Starting December 17, 2009, PBGC will begin adjusting final benefit determinations of affected participants and will make back payments with interest. 74 FR 59093-November 17, 2009.
12. YOU COULD HAVE HEARD A PIN DROP: At a time when our president and other politicians tend to apologize for our country`s prior actions, here`s a refresher on how some of our former patriots handled negative comments about our country :
Robert Whiting, an elderly gentleman of 83, arrived in Paris by plane. At French Customs, he took a few minutes to locate his passport in his carry-on. "You have been to France before, Monsieur?" the customs officer asked sarcastically.
Mr. Whiting admitted that he had been to France previously.
"Then you should know enough to have your passport ready."
The American said, “The last time I was here, I didn't have to show it."
"Impossible...Americans always have to show your passports on arrival in France !"
The American senior gave the Frenchman a long hard look. Then he quietly explained, ''Well, when I came ashore at Omaha Beach on D-Day in 1944 to help liberate this country, I couldn't find a single Frenchman to show a passport to."
You could have heard a pin drop
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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.