State of Florida Department of Corr. v. Andrew Junod , 2017 Fla. App. LEXIS 5231 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF FILE MOTION FOR REHEARING AND
CORRECTIONS, NORTHWEST DISPOSITION THEREOF IF FILED
FLORIDA RECEPTION
CENTER ANNEX/DIVISION CASE NO. 1D15-5259
OF RISK MANAGEMENT,
Appellants,
v.
ANDREW JUNOD,
Appellee.
_____________________________/
Opinion filed April 13, 2017.
An appeal from an order of the Judge of Compensation Claims.
Laura Roesch, Judge.
Date of accident: April 19, 2010.
Colleen Cleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellants.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
KELSEY, J.
The Employer/Carrier appeals a final order of the Judge of Compensation
Claims holding that Claimant is entitled to benefits under the heart-lung statute,
section 112.18 of the Florida Statutes. We reverse.
Claimant’s Employment and Heart Attack.
After applying for a job as a correctional officer trainee, Claimant completed
a pre-employment medical history questionnaire, and underwent a pre-employment
physical at a local walk-in clinic in December of 2008.1 On the questionnaire, he
denied having ever been diagnosed with vascular disorders, high blood pressure,
heart disease, heart murmur, or obesity. He was 5 feet, 8 inches tall and weighed 210
pounds. He disclosed that he had a family history of heart disease or heart attack. He
had a normal electrocardiogram. The lab report revealed elevated glucose, but no
other abnormalities among the factors tested. His blood labs did not include a lipid
panel, so the pre-employment physical included no information about cholesterol
levels. There was also no indication of his blood pressure. The examining physician
nevertheless checked boxes indicating that his examination did not reveal evidence
of tuberculosis, heart disease, or hypertension.
Claimant accepted a position as a correctional officer trainee beginning
January 9, 2009. It was undisputed below that trainees are not correctional officers.
Trainees do not engage in “supervision, protection, care, custody, and control, or
1
Before correctional officers were added to the heart-lung statute in 2002, the law
required firefighters and law enforcement officers to successfully pass a physical
examination upon entering service, before being entitled to benefits under the
statute. § 112.18(1)(a), Fla. Stat. (2001). In 2007, the pre-employment physical
requirement was extended to cover correctional officers and correctional probation
officers under § 943.13(6).
2
investigation, of inmates within a correctional institution.” § 943.10(2), Fla. Stat.
(2009) (defining correctional officers). After his initial hire date in January of 2009,
Claimant participated in a training program based away from the correctional facility
compound. During training, he injured his back and was unable to complete the
training program, in an incident that the E/C accepted as compensable. His employer
gave him light-duty work reading mail in the mail room for about four months. When
he was deemed fully recovered from the back injury, he returned to the training
program and completed it successfully, becoming a certified correctional officer on
January 6, 2010.
Just over three months after becoming certified and beginning work as a
correctional officer, Claimant suffered a heart attack while asleep at home. He
notified his employer of the heart attack, and returned to work within a couple of
weeks. A captain asked Claimant if the heart attack was work-related, and Claimant
said it was not. He continued to work at that correctional facility until December of
2011, when he left to take another job. He did not assert a claim for benefits arising
out of the heart attack before leaving this job, nor within the year after he left and
worked elsewhere.2 He was re-hired at the correctional facility in December of 2012.
2
Under an amendment to the statute enacted in 2010, the presumption does not apply
if a claim for benefits is not made “prior to or within 180 days after leaving the
employment of the employing agency.” § 112.18(1)(b)4., Fla. Stat. (2010). This
Court in Scherer v. Volusia Cty. Dep’t of Corr., 171 So. 3d 135, 139-40 (Fla. 1st
DCA 2015), by a 2-1 vote, construed this provision as not applying to claims arising
3
Claimant first made a claim for benefits arising out of his 2010 heart attack in
December of 2014—four years and eight months after the heart attack. He asserted
that he did not know until November of 2014 that his heart attack might be covered
under the heart-lung statute. He argued that the statute of limitations did not begin
to run until November of 2014 when he claims he first became aware of the heart-
lung statute. The JCC accepted this argument and found the claim to be timely—a
finding that we do not reach. We conclude that even if the claim was timely, the
claim should have been denied because the E/C successfully rebutted the
presumption of compensability under the heart-lung statute and there was no
competent, substantial evidence of occupational causation.
Claimant’s First Report form and his first Petition for Benefits did not rely on
any sudden accident or unusual exertion as causing his heart attack. Rather, Claimant
asserted in both documents that he “developed disabling arterial and cardiovascular
hypertension and or heart disease over course of career as a certified corrections
officer which became disabling on or about 4/19/2010 [the date of his heart attack].”
(Emphasis added.)3 The E/C denied the claim in its entirety on grounds of expiration
before July 1, 2010. Because we resolve this appeal on other grounds, we do not
reach this issue.
3
In light of Claimant’s own concessions in the report form and PFB that he had
worked in a qualifying occupation for only about three months before having a heart
attack while sleeping at home, we have examined the employment tenures involved
in our previous heart-lung opinions, and in records on appeal for cases dating back
4
of the statute of limitations, untimely notice, failure to meet the statutory
presumption, and rebuttal of the statutory presumption.
Independent Medical Examiners (IMEs).
Claimant’s IME, Dr. Borzak, reviewed Claimant’s medical records without
examining Claimant. Dr. Borzak acknowledged Claimant’s non-occupational risk
factors, and concluded that he was not able to determine the cause of Claimant’s
heart attack.
The E/C’s IME, Dr. Pedone, reviewed Claimant’s medical records and
examined Claimant. Dr. Pedone concluded within a reasonable degree of medical
certainty that Claimant developed atherosclerosis over a period of years prior to his
employment as a correctional officer, and that the atherosclerosis in turn was caused
by Claimant’s multiple risk factors unrelated to his employment. These risk factors
included a history of heavy smoking—between two and three-and-a-half packs a day
as far as we have retained records (2006). We have found no cases applying the
heart-lung presumption that involved an employment tenure of less than 10 years,
and cases involving careers of up to 33 years. See Fuller v. Okaloosa Corr. Inst., 22
So. 3d 803, 804-05 (Fla. 1st DCA 2009) (10 years); City of Jacksonville Fire &
Rescue Dep’t v. Battle, 148 So. 3d 795, 796 (Fla. 1st DCA 2014) (33 years).
Nevertheless, section 112.18 on its face does not impose an express tenure
requirement. Claimant himself refused to sign the report form that asserted he
“developed” disabling conditions “over course of career as a certified corrections
officer.” Above the signature block on the report form is the caution that “Any
person who, knowingly and with intent to injure, defraud, or deceive . . . files a
statement of claim containing any false or misleading information commits
insurance fraud . . . .” The signature line bears the words “refused to sign.”
5
for 20 years, ending ten years before he took the trainee job; male gender; over age
45 (age 55); family history of early-onset heart disease as evidenced by his mother’s
cardiac bypass surgery at age 55 and subsequent heart transplant and death; obesity;
dyslipidemia; increased abdominal girth; and elevated glucose levels. The E/C’s
IME concluded within a reasonable degree of medical certainty that these factors,
and not Claimant’s employment, caused Claimant’s heart attack.
Expert Medical Advisor (EMA).
Although there was no conflict between the IME opinions because one
physician could not determine a cause and the other opined that the cause was non-
occupational, the JCC made no findings on the IME opinions, and the parties agreed
to the appointment of an expert medical advisor (EMA). The JCC appointed Dr.
Leonard Pianko as an EMA to evaluate Claimant and advise the JCC. Dr. Pianko
recognized Claimant had several coronary risk factors traditionally associated with
coronary artery disease, but concluded that the predominant etiology of the heart
disease was work-related. By the time Claimant saw Dr. Pianko on August 18, 2015,
it had been five years and four months since Claimant’s heart attack. Dr. Pianko
admitted that when he examined Claimant and prepared the EMA report, he did not
know that Claimant had worked as a correctional officer for only about three months
before the heart attack. Instead, he assumed Claimant had worked as a correctional
officer for “several years” or about “2 years” after passing his December 2008 pre-
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employment physical. Given that mistaken factual foundation, the E/C objected to
the EMA’s opinion and moved to strike it.
The EMA also opined that Claimant’s heart attack was work-related based on
articles by Dr. Stefanos Kales, describing epidemiological studies covering only
police officers and firefighters. These articles are not in the record, but the EMA
described them as showing “a markedly increased incidence of coronary artery
disease” among police and firefighters compared to the general population. The
EMA acknowledged that the Kales articles did not cover correctional officers, and
he knew of no studies that did pertain to correctional officers. He nevertheless
considered the Kales articles analogous based on his own experience, primarily in
Dade County. There was no evidence of studies or Dr. Pianko’s experience involving
correctional officers with work tenures of only a few months. Dr. Pianko
acknowledged that Claimant had other risk factors, but expressly based his opinion
of occupational causation directly on the Kales articles.
At the EMA’s deposition and at trial, the E/C objected to the EMA’s opinion
on the grounds that the EMA improperly relied on the Kales articles and failed to
satisfy the requirements of section 90.702 of Florida’s Evidence Code and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 4 Claimant did not
4
We are aware of the Florida Supreme Court’s decision declining to adopt Daubert
“to the extent it is procedural.” In re: Amends. to the Fla. Evid. Code, 42 Fla. L.
Weekly S179 (No. SC16-181) (Fla. Feb. 16, 2017). See also Anderson v. State, __
7
request a pre-trial ruling on the Daubert objection, and did not request the
assignment of an alternate EMA.
The Heart-Lung Statute.
Florida’s heart-lung statute was enacted in 1965, covering firemen only.
§ 112.18, Fla. Stat. (1965) (codifying Ch. 65-480, Laws of Fla. (Senate Bill 149)).
An earlier Florida Supreme Court decision held that medical incidents such as heart
attacks could be compensable events even without the occurrence of a literal
“accident,” if they resulted from unusual work-related exertion. Victor Wine &
Liquor, Inc. v. Beasley, 141 So. 2d 581, 588-89 (Fla. 1961) (On Rehearing Granted).
Subsequent changes in the law broadened applicability of the statutory presumption
of compensability. See Ch. 73-125, § 1, at 196, Laws of Fla. (abolishing previous
requirement that the presumption operated only in regard to pension and retirement
benefits); Caldwell v. Div. of Ret., 372 So. 2d 438, 440-41 (Fla. 1979) (broadening
compensability to encompass firemen’s disabilities accruing over a period of time
Fla. L. Weekly ___ (No. SC12-1252, 14-881) (Fla. Mar. 9, 2017) (describing
Daubert as “more lenient” than Frye). We reaffirm that Daubert continues to apply
in workers compensation proceedings as we held in Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385, 388 (Fla. 1st DCA 2014). See also Baricko v. Barnett Transp., Inc.,
42 Fla. L. Weekly D174 (Fla. 1st DCA Jan. 17, 2017) (Wetherell, J., concurring)
(noting that supreme court’s failure to adopt the procedural aspects of Daubert “will
have no impact whatsoever on the applicability of the Daubert test in workers’
compensation proceedings”). On the facts of this case, as we explain herein, we
conclude that the result here would be the same under either Daubert or Frye; but
that comparative analysis should not be construed as suggesting any departure from
Giaimo.
8
as hazards are “constantly faced” over the course of a career); Ch. 2002-236, § 3, at
1720, Laws of Fla. (adding law enforcement officers and correctional officers as
covered occupations); Ch. 2010-175, § 2, at 2184, Laws of Fla. (amending statute to
add correctional probation officers, impose time limits on claims, and eliminate the
presumption of occupational causation for claimants who have materially departed
from a prescribed medical course of treatment resulting in aggravation of a covered
condition).
The first paragraph of the 2009 statute in effect when Claimant had his heart
attack was otherwise largely unchanged from the original law, providing as follows:
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.
§ 112.18(1), Fla. Stat. (2009).
9
Rebutting the Statutory Presumption.
The heart-lung statute provides that the E/C can rebut the statutory
presumption with competent evidence of non-occupational causation. Id. (“unless
the contrary be shown by competent evidence”). The Florida Supreme Court in
Caldwell described the presumption created in section 112.18 as an expression of
social policy, and thus held that it affects the burden of proof. 372 So. 2d at 440.
Caldwell held that the statutory presumption can be rebutted with medical evidence
that “some other specific hazard or non-occupational factor was the cause of the
disease.” Id. at 441.
We have held that, if the claimant relies solely on the statutory presumption,
the E/C can rebut that presumption with competent evidence; but if the claimant
adduces competent evidence of occupational causation in addition to the
presumption, the E/C must have clear and convincing evidence to rebut the
presumption. Punsky v. Clay Cty. Sheriff’s Office, 18 So. 3d 577, 584 (Fla. 1st DCA)
(On Rehearing En Banc) (certifying question of great public importance as to the
E/C’s proper burden of proof), review denied, 22 So. 3d 539 (Fla. 2009). The E/C’s
rebuttal evidence must be medical evidence established to a reasonable degree of
medical certainty. Fuller v. Okaloosa Corr. Inst., 22 So. 3d 803, 806 (Fla. 1st DCA
2009). If the JCC’s ultimate conclusion is not supported by competent, substantial
evidence, we must reverse. Punsky, 18 So. 3d at 584.
10
The E/C Successfully Rebutted the Presumption.
Although the E/C raises several issues on appeal including statute of
limitations, which we do not reach, we reverse because the E/C successfully rebutted
the statutory presumption with competent medical evidence; and the JCC’s
conclusion of occupational causation was not supported by competent, substantial
evidence. See id. Dr. Borzak, Claimant’s IME, performed a records review only,
with no personal interaction with Claimant. He could provide no opinion regarding
causation. In contrast, the E/C’s IME, Dr. Pedone, examined Claimant and his
records, and testified with the requisite degree of medical certainty that Claimant
suffered from multiple pre-existing risk factors that, alone or in combination, caused
Claimant’s atherosclerosis and resulting myocardial infarction. He excluded any
work-related causes.
Although there was no conflict between the two IME opinions, because
Claimant’s IME physician had no opinion regarding causation, the JCC nevertheless
appointed Dr. Pianko as EMA. Dr. Pianko acknowledged Claimant’s coronary risk
factors traditionally associated with coronary artery disease, but concluded that the
predominant cause of Claimant’s heart disease was work-related. An EMA opinion
is presumptively correct to the extent it addresses disagreements in the opinions of
healthcare providers. § 440.13(9)(c), Fla. Stat. (“The opinion of the expert medical
advisor is presumed to be correct unless there is clear and convincing evidence to
11
the contrary as determined by the judge of compensation claims.”). 5 However, an
EMA opinion also must comply with the Florida Evidence Code, including Daubert.
See U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla. 2002) (“First, the Florida
Evidence Code applies in workers’ compensation proceedings.”) (citing Alford v. G.
Pierce Woods Mem’l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993)); Giaimo,
154 So. 3d at 387. Under the Evidence Code as amended in 2013 to codify Daubert,
expert testimony must be “based on sufficient facts or data”; be “the product of
reliable principles and methods”; and be applied “reliably to the facts of the case.”
§ 90.702, Fla. Stat. We conclude that the E/C’s Daubert objection to Dr. Pianko’s
opinion was well-founded, because the opinion (1) lacked an accurate factual basis,
and (2) relied on improper bolstering. It therefore provided no legally sufficient
evidentiary basis for the JCC’s ruling in favor of Claimant, and required judgment
for the E/C. Punsky, 18 So. 3d at 584.
5
An EMA opinion is admissible as provided in § 440.25(4)(d), Fla. Stat., when there
is a conflict in the medical evidence. However, an EMA opinion is not presumptively
correct under § 440.13(9)(c) to the extent that it exceeds the scope of any identified
disagreement between other authorized medical opinions. Lowe's Home Centers,
Inc. v. Beekman, 187 So. 3d 318, 322 (Fla. 1st DCA 2016) (“Therefore, the opinions
intended to carry the presumption of correctness are only those that address already
identified disagreements in medical opinions; all other medical opinions expressed
by the EMA carry the same weight as that of an independent medical examiner or
an authorized treating physician.”). In that situation, the EMA opinion is no more
than a potential “source of assistance to the JCC.” Id. (quoting Fitzgerald v. Osceola
Cty. Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008)).
12
(1) Inaccurate Factual Foundation. We have held that an expert must
establish accurate essential foundation facts in support of the expert’s opinion. Lang
Pools v. McIntosh, 415 So. 2d 842, 843 (Fla. 1st DCA 1982) (rejecting expert’s
opinion based on premise that claimant suffered a fall, when claimant’s own
testimony was to the contrary, rendering the expert’s factual foundation erroneous);
see also Arkin Constr. Co. v. Simpkins, 99 So. 2d 557, 561-62 (Fla. 1957) (“It is
elementary that the conclusion or opinion of an expert witness based on facts or
inferences not supported by the evidence in a cause has no evidential value.”). Dr.
Pianko admitted that when he examined Claimant in August of 2015, he was not
aware that Claimant had worked as a correctional officer for only about three months
before suffering the heart attack at issue. Rather, the doctor had assumed that
Claimant had worked as a correctional officer for several years or at least two years
before the heart attack. He related that Claimant had talked to him about the stresses
of working as a correctional officer.
By the time of this examination and discussion, however, Claimant was
describing the experiences of nearly five years in that job. Dr. Pianko admitted that
it was important to his analysis that he thought Claimant had worked under the real
and anticipatory stress of the correctional officer job for several years prior to his
heart attack, and that he was mistaken. This was a significant factual error that went
to the very heart of Dr. Pianko’s causation opinion, rendering that opinion
13
incompetent. See Daubert, 509 U.S. at 591 (requiring accurate connection between
expert testimony and the actual facts of the case to satisfy requirement of relevance);
Shartz v. Miulli, 127 So. 3d 613, 620-21 (Fla. 2d DCA 2013) (rejecting as legally
insufficient an expert’s causation testimony that relied on conjecture to extrapolate
several years back in time to determine the decedent’s then-existing medical
condition). Dr. Pianko’s opinion, materially lacking an accurate factual foundation,
could not support the JCC’s ruling. Punsky, 18 So. 3d at 584.
(2) Improper Bolstering. We also find that Dr. Pianko improperly bolstered
his opinion. Experts are prohibited from bolstering their opinions by reference to the
opinions of non-testifying experts or opinions expressed in treatises authored by
others. § 90.706, Fla. Stat.; Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla. 2006).
These principles apply in workers’ compensation cases under either Daubert or
Frye. Henson, 823 So. 2d at 109 (adopting for application in workers’ compensation
cases the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that
expert testimony must be based on precepts generally accepted in the scientific
community); Booker v. Sumter Cty. Sheriff’s Office, 166 So. 3d 189, 194 (Fla. 1st
DCA 2015) (rejecting, after Legislature’s adoption of Daubert, pure opinion
testimony based only on clinical experience and training, and requiring expert
opinions to be based on scientific knowledge to assure relevance and reliability). In
14
this case, Dr. Pianko’s testimony was not competent evidence, because he
improperly bolstered his opinion.
Dr. Pianko as EMA admitted that Claimant had several risk factors for heart
disease, including male gender, family history of heart disease, and personal history
of heavy cigarette smoking. However, he found these factors less significant than
factors addressed in articles written by another expert, dealing with firefighters and
law enforcement officers. Dr. Pianko’s written EMA report stated as follows with
respect to his reliance on such articles (emphasis added):
I have reviewed several articles that have looked at police
officers and firefighters written by Kales, which on an epidemiological
basis shows a markedly increased incidence of coronary artery disease
in the general population. [Claimant’s] development of heart attack 2
years later appeared to be work related based on the epidemiological
data of [K]ales.
At his deposition, which was admitted into evidence for purposes of the final
evidentiary hearing, Dr. Pianko admitted that the Kales articles did not deal with
correctional officers. He nevertheless testified that in his opinion, based in part on
conversations he has had with other unspecified experts, the articles involving police
officers in particular should relate to correctional officers. When asked specifically
whether this opinion was supported by any medical treatises or journals, he said he
was relying on his own experience, particularly in Dade County.
Dr. Pianko was not entitled to bolster his opinion by reference to other experts’
opinions or publications. The seminal case on improper bolstering is Linn v. Fossum,
15
which prohibits experts from bolstering their opinions by reference to other experts
or treatises. 946 So. 2d at 1039. We have applied Linn to prohibit experts from using
published materials or hearsay consultations to bolster their opinions. Duss v.
Garcia, 80 So. 3d 358, 364 (Fla. 1st DCA 2012); Hargrove v. Howell, 884 So. 2d
960, 962 (Fla. 1st DCA 2004); see also Liberatore v. Kaufman, 835 So. 2d 404, 407
(Fla. 4th DCA 2003) (collecting cases prohibiting bolstering of expert opinions on
direct examination). This result flows from section 90.706 of the Florida Evidence
Code, which prohibits the use of authoritative literature except on cross-
examination. The EMA’s reliance on the Kales articles as well as other unspecified
publications and discussions was improper, and rendered the EMA opinion
incompetent and not a valid evidentiary basis for the JCC’s finding in favor of
Claimant. Punsky, 18 So. 3d at 584.
Conclusion.
Because the E/C successfully rebutted the statutory presumption of section
112.18, and the EMA’s opinion was not competent, substantial evidence of
occupational causation, Claimant was not entitled to benefits under the heart-lung
statute.
REVERSED and REMANDED for entry of judgment in favor of the E/C.
ROWE and JAY, JJ., CONCUR.
16