Pay and Investigate Rule and the Heart and Lung Presumptios
Florida statute 440.192(8) requires the employer carrier to pay and investigate while determining the compensability of a case.
In Rushing v. Sumter Correctional Institute, OJCC No. 06- 025674JEM, correctional officer rushing was employed by for County Sheriff’s office from 1993 until 2000. In July of 2000, he was hired by the State of Florida Department of Corrections.
In 1997 he had a pacemaker surgically implanted and suffers from coronary artery disease, hypertension, and diabetes.
Correctional officer Rushing claimed as of January 6, 2006, he was entitled to Florida workers’ compensation benefits. F.S. Section 943.13 states that:
“in order to be eligible for the presumption of F. S. 112.18 a “correctional officer must have successfully passed the physical examination required by this subsection upon entering service as a… correctional officer… with the employee agency, which examination must have failed to reveal any evidence of… heart disease or hypertension. A… correctional officer… may not use a physical examination from a former employing agency for the purposes of claiming the presumption against the current employing agency.”
JCC Murphy found that when Rushing became employed by the Department of Corrections the physical examination revealed he had both heart disease and hypertension (140/100).
While the claim for compensability should be denied because his heart disease and hypertension preexisted his employment, Rushing argued that Sumter Correctional Institute could not denying compensability of his occupational disease since they entered into the mediation agreement in November 2006. Sumter County agreed to authorize a cardiologist, pay out-of-pocket medical expenses and money benefits.
It is important to note that Sumter County did not learn the heart disease was pre-existing until two months after accepting the condition is compensable. They argue they have the right in any point challenge a previous conclusion that the employment was the major contributing cause of the heart disease.
Judge Murphy disagreed. He found that the presumptions establish that an occupational disease is and remains the major contributing cause. Judge Murphy found that when the presumption is “relied upon the burden then shifts to the employer/carrier to establish that the condition preexisted the correctional officers entry into service with the employing agency.”
The Florida workers’ compensation statute requires that the employer/carrier do a reasonable investigation within 120 days and issue a “pay and investigate” letter. Sumter Correctional Institute did not issue a pay and investigate letter and did not limit their stipulation in the mediation agreement to the “effect that they were only accepting the claimants coronary artery disease as compensable.”
Sumter Correctional Institute placed into evidence employment records and included a preemployment medical examination report which clearly put them on notice of Rushing’s pre-existing hypertension and heart disease. Judge Murphy found there was “simply no reasonable basis upon which the employer/carrier should be relieved of the burden established by statute by their own agreement with the claim.”
Impairment benefits and medical treatment was awarded.
Nancy Cavey, a Tampa Bay based First Responder lawyer, can anwer all your questions about your rights to Florida Workers’ Compensation benefits.
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