Langham: Injury and Sufficiency Debates

Friday, May 11, 2018 | 0

A recent news story reminded me of heart attack cases in Florida. I recall trying to explain Florida heart attack law to many clients years ago in my practice.

Judge David Langham

An accountant was summoned by the Chicago Blackhawks to serve as emergency backup goaltender for an NHL game. The headline made me think the team had put one of its own accountants in the game, and thus this post. 

As the story turns out, the accountant did not work for the team until he was signed to an amateur tryout contract. He has signed these previously and attended the games. This is commonly just a chance to watch from really great seats. But this time the amateur took the ice and played, to resounding cheers and great results.

However, my initial thought that they were putting their accountant in the game made me think of overexertion and how well such a situation might illustrate it. What if it really was the team's accountant and he had a heart attack from the excitement or exertion of being a goalie in the NHL?

Cardiovascular claims in Florida workers' compensation might be divided into three categories. In that regard, three authorities are worthwhile reading — two Florida Supreme Court cases and a statute. 

In Victor Wine & Liquor v. Beasley, the Florida Supreme Court addressed cardiovascular disease in the context of Florida workers' compensation. The worker, Beasley, suffered two attacks, one on a Friday, followed by "an acute heart attack the following Tuesday." That event occurred "while engaged in his usual employment of lifting, carrying and stacking cases of whiskey on a truck."

The court stated the issue: "Is a heart attack suffered by an employee, while at his usual work with its accustomed physical exertions, a compensable injury ‘by accident’?" 

And the court perceived the issue as "whether we have workmen's (sic) compensation, or whether we have health insurance."

The court concluded that workers' compensation is not "to take the place of general health and accident insurance." Instead, the purpose of workers' compensation "is to shoulder on industry the expense incident to the hazards of industry."

This is a debate that rages in the workers' compensation community, with some advocates believing too much is covered and others contending not enough is covered by workers' compensation. 

The court in Victor Wine concluded that the evidence did not support the conclusion that "claimant was subjected to overexertion uncommon to the type of work that he was accustomed to." 

For many years, the "Victor Wine Test" — the overexertion test — was applied to cardiovascular events claimed as Florida work accidents. The test was later explained by Coca Cola Bottling v. Perdue.

The court explained that in determining "physical activity beyond his accustomed performance in either the scope or nature," the injured worker would have to demonstrate the "average" exertion, but also a "range" of highs and lows. And work "within this range" would not satisfy the "unusual strain or overexertion" test of Victor Wine. That seemingly simple explanation has been decried by some as an impractical burden to meet. 

Thus there is a general rule that differentiates cardiovascular events generally from those that are precipitated by some extraordinary effort or exertion. The former is generally not compensable under Florida workers' compensation, and the later potentially so. 

The Florida Supreme Court addressed causation again in 1994, in Zundell v. Dade County School Board. There, the court explained that the Victor Wine standard or rule was applicable where a cardiovascular injury "appears at least partly to have been caused by a pre-existing medical condition." When such condition is present, and work interacts with that condition, the worker must demonstrate the "job-related exertion over and above normal working conditions." 

However, if there is no pre-existing condition, then "workplace cardiovascular injuries generally should be analyzed like any other workplace injury."

The court concluded that Zundell was entitled to workers' compensation because "it was a physical injury arising from a workplace exertion and was not attributable to any ascertainable pre-existing condition." The Zundell decision is not mentioned by the District Court in Coca Cola. 

So there are two discernible paths a cardiovascular claim might take — one involving a worker with a pre-existing condition that is aggravated (Victor Wine), and one in which there is no demonstration of pre-existing condition (Zundell). 

The third path is different and is for those who are firefighters, law enforcement and correctional officers. For those workers, a "condition or impairment of health" is "presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence."

This presumption changes the burden of proof (the employee in most instances must prove the accident or illness is work-related, but when it is presumed related, the employer is liable unless it proves the condition is not related). The legal standard remains, but the statute changes who must prove what. 

The court in Victor Wine noted, "can the courts, in their sympathy for the unfortunate, question the wisdom and policy of the Legislature in this regard." And, thus, the court concluded that "the wisdom and policy of legislative acts is a matter for the Legislature to determine." So, presumably, is the wisdom of a special circumstance for first responders, "for the Legislature to determine." 

So, the Blackhawks goalie: Since he was signed to be a goalie, not just a company accountant stepping in, then there is likely nothing extraordinary about the exertions and excitements that evening.

But conjecturing momentarily on a hypothetical company accountant who was asked to step in for a game, the "physical activity beyond his accustomed" work would matter only if there were proof of a preexisting condition (Victor Wine). And of course, he would not be a "first responder" in classic legal parlance, though some might argue his role as goaltender is not that different from any other guard. 

There is an intriguing element in all of this: Should workers' compensation provide benefits for conditions unrelated to, or peripherally related to, the work? Some argue that coverage for such comorbidities or conditions should not fall on the employer, and they see this as cost-shifting from either patient or group health onto workers' compensation.

Others complain that the employer hired the "whole" employee, and when medical complications arise following a work event, the employer should be responsible for all contingencies. To do otherwise, they contend, is "cost-shifting" away from the employer. 

There is certainly room to argue either position. Having concluded that Someone Has to Pay when there is injury or illness, the question that remains is, who? And there will be a degree of Goldilocks likely involved.

Regardless of the volume of responsibility placed on employers, some will say it is "too much," others "not enough," and some perhaps "just right." There will be assertions of cost-shifting, but perspective will dictate in which direction the shift will be perceived. 

As sufficiency of benefits is debated and discussed, there will be legal challenges. The question will be whether judicial restraint is engaged, a nod to the role of the legislative process and its wisdom, or whether courts will judge sufficiency strictly in the context of each particular case, rather than in the system as a whole. It is an intriguing discussion, and the future promises interesting debates.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.