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First DCA: New Rule for Heart Attacks Caused by Emotional Stress

By David A. McCranie, Esq.

My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment.  Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

 

• HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL 

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing."  Id. at 587.  Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one.  "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment."  Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978). 

 

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury.  Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

• THE FACTS IN SPEED

The claimant in Speed was riding on an elevator when, on 12/18/2006, it malfunctioned, resulting in a series of "drop and catch" episodes whereby the elevator would drop for a distance, catch, and then start dropping again. He experienced what he described as a "panic attack," fear of impending death, weakness, and stress.  A series of diagnostic studies later showed that he had actually suffered a minor heart attack. (Although this fact does not appear in the district court's opinion, the JCC's order noted that there was no evidence that the claimant had any pre-existing heart problems).

 

• PROCEEDINGS BEFORE THE JCC 

Citing the aforementioned footnote in Perdue, the claimant argued that the compensability of the heart attack should be decided under a straightforward "major contributing cause" analysis.  Indeed, the claimant's independent medical examiner, the only expert who testified in the case, said that the "major contributing cause" of the heart attack was the elevator incident.  The employer/carrier, on the other hand, denied the compensability of the claimant's heart attack, citing the 2003 enactment of §440.093(1), Fla. Stat., which provides:

(1) A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter (emphasis added). 

The JCC concluded that he was faced with "a case of first impression" and agreed with the employer/carrier that §440.093(1) applied in determining the compensability of the claimant's heart attack. He further concluded that the enactment of this statute "makes what may have been a compensable case into a non-compensable case," i.e., that the statute implicitly overrules Zundell.

 

Applying the last sentence of §440.093(1), he found that the claimant clearly suffered a "physical injury."  And, even though there was no psychiatric testimony to support the finding, he found that the claimant unquestionably suffered a "mental or nervous injury."  Nevertheless, the JCC said, because the claimant suffered no "bumps, bruises, lacerations, sprains, or any musculoskeletal injury" which required medical treatment, the heart attack was "unaccompanied by physical trauma requiring medical treatment," and thus the claimant's heart attack was not compensable under §440.093(1). You can read the JCC's decision here.

 

• THE FIRST DISTRICT'S DECISION

On appeal, the First District reversed and remanded, concluding that the JCC made two errors: (1) that the claimant had suffered a "mental or nervous injury"; and (2) that the claimant did not suffer a "physical trauma requiring medical treatment."

 

Without citing its earlier footnote in Perdue, the court simply held that §440.09(1) requires a claimant to establish that a workplace incident was more than 50% responsible for his injuries.  That requirement was satisfied, said the First District, through the undisputed medical testimony that the claimant's heart attack was caused by a "stress response" to the elevator incident.  "Thus," they said, "the burden shifted to the E/C to prove within a reasonable degree of medical certainty, based on objective, relevant medical evidence, that the major contributing cause of Claimant's heart attack was a nervous or mental injury."  The E/C did not satisfy that burden because they presented no "expert medical testimony or other objective medical evidence that Claimant was diagnosed with a mental or nervous injury, nor that such injury, if it existed, was the major contributing cause of his heart attack."

 

The court then concluded that the claimant's heart attack itself constituted a "physical trauma which required medical treatment."  Therefore, said the court, "even if there had been evidence that Claimant had suffered a mental or nervous injury, his heart attack would have been compensable under section 440.093(1), Florida Statutes. . . ." (emphasis added).  The order was therefore reversed and the case remanded to the JCC for further proceedings.

 

• MY THOUGHTS

It appears to me that, without expressly saying so, the court has now held what it said in dicta in Perdue, that is, that the legislature's enactment of §440.09(1) has done away with the need for the claimant to prove that his heart attack is the result of an "unusual strain or over-exertion."  Rather, the heart attack is compensable if the claimant's employment is the "major contributing cause" of that condition.

 

It also appears to me that in cases where the claimant's heart attack or other internal failure arguably results from emotional stress, the burden is on the employer/carrier to prove by medical evidence that the heart attack was caused by "mental or nervous injuries," not on the claimant to prove that his heart attack was not caused by "mental or nervous injuries." 

 

Finally, it seems to me that under the court's holding, even if the employer/carrier does prove by medical evidence that the heart attack was caused by "mental or nervous injuries," it is still compensable if the "mental or nervous injuries" are not "unaccompanied by physical trauma requiring medical treatment."  And, since the heart attack itself apparently constitutes the "physical trauma" required by the statute, under what circumstances would a heart attack not be compensable under this statute?

 

 

Full post as published by Florida Workers’ Compensation Law Blog on September 09, 2008 (boomark / email).