IN THE SUPREME COURT FOR THE STATE OF FLORIDA. Petitioners, OJCC: LKL vs. D/A: Approx. 11/23/01 RESPONDENT S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT FOR THE STATE OF FLORIDA SEBRING INTERNATIONAL, Supreme Court Case No.: SC05-26 RACEWAY, INC., and CLAIMS CENTER, 1st DCA Case No.: 1D Petitioners, OJCC: LKL vs. D/A: Approx. 11/23/01 GEORGE W. HARPER, Respondent. / RESPONDENT S JURISDICTIONAL BRIEF ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA BRADLEY GUY SMITH Florida Bar No SMITH, FEDDELER, SMITH & MILES, P.A P. O. Drawer 1089 Lakeland, Florida Ph: (863) SUSAN W. FOX Florida Bar No FOX & LOQUASTO, P.A. 112 N. Delaware Ave. Tampa, Florida Ph: (813) Fax: (813) WENDY S. LOQUASTO Florida Bar No FOX & LOQUASTO, P.A. 314 W. Jefferson St. Tallahassee, Florida Ph: Fax: (850) Attorneys for Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE DECISION OF THE DISTRICT COURT DOES NOT CONFLICT WITH ANY PRIOR DECISION OF THIS COURT... 4 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE i

3 TABLE OF AUTHORITIES CASES Gandy v. State, 846 So. 2d 1141 (Fla. 2003)... 4 Harper v. Sebring International Raceway, Inc., 886 So. 2d 288 (Fla. 1st DCA 2004)... 2, 3, 7, 9 Hastings v. City of Fort Lauderdale Fire Department 178 So. 2d 106 (Fla. 1965)... 7 Mystan Marine, Inc. v. Harrington, 339 So. 2d 200 (Fla.1976)... 4 Richards Department Store v. Donin, 365 So. 2d 385 (Fla.1978)... 7 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)... 1 State v. Klayman, 835 So. 2d 248 (Fla. 2002)... 1 Victor Wine & Liquor, Inc. v. Beasley, 141 So. 2d 581 (Fla. 1962)...3-7, 9 Warman v. Metropolitan Dade County, 228 So. 2d 908 (Fla. 1969)... 7 Yates v. Gabrio Electric Co., 167 So. 2d 565 (Fla. 1964)... 8 Zundell v. Dade County School Board, 636 So. 2d 8 (Fla. 1994)... 6 ii

4 STATUTES Section (36), Florida Statutes (1994)... 3 Section (1)(b), Florida Statutes (1994)... 3 OTHER Article V, Section 3(b) of the Florida Constitution... 4 John Dubreuil, C.P.C.U., Florida Workers Compensation Handbook, 2003 section iii

5 STATEMENT OF THE CASE AND OF THE FACTS In a brief on jurisdiction based on conflict of decisions, the only facts to be considered are those stated in the court s opinion. State v. Klayman, 835 So. 2d 248 (Fla. 2002) (stating the relevant facts are set forth in the district court opinion. ) Even facts stated in a dissenting or concurring opinion are irrelevant. Stallworth v. Moore, 827 So. 2d 974, 977 (Fla. 2002). Therefore, this court should consider only the facts stated in the First District opinion, which are as follows: Claimant, who was sixty years of age at the time of the final hearing, testified that he had worked as a fire protection team member for the employer, Sebring International Raceway, since 1997 and had worked in and around races since Claimant described his position with the employer as consisting of fire protection for the raceway s customers, clean-up, maintenance, course safety, EMS, and reconstruction of tire barriers. Claimant testified that he worked three to five days a week during the raceway s busy season, which started near the end of October and continued through March. Claimant further testified, Basically we sit and wait for something to happen. If no accident occurred, claimant would turn his radio in, park his truck at the operations building, and return home. On November 23, 2001, a vehicle racing on the raceway had a suspension failure while traveling at approximately 160 miles per hour and crashed into a nine-inch-thick retaining wall. Claimant, who was one of the first fire rescue workers to arrive at the accident scene, unloaded the fire extinguishers and carried a hydraulic pump, weighing 125 pounds, and its two attachments, each weighing approximately forty to forty-five pounds, to the scene. Using the pump, claimant attempted to extricate the driver of the vehicle, who was lapsing in and out of consciousness. Due to his medical background, claimant also assisted the EMS workers with the driver. According to claimant, all four fire protection team members used the pump, i.e., the jaws of life. While some cut, others 1

6 pulled the vehicle s bracing in order to extricate the driver. In total, it took claimant and the other three fire protection team members approximately forty-five minutes to extricate the driver of the vehicle. After the driver was placed into a helicopter, claimant and his co-workers began disassembling the pump, cleaning the race track, packing tools in their trucks, and filling the pump with fuel. Claimant first began experiencing unusual symptoms, including dizziness and vision problems, five minutes after the helicopter lifted off the track. After losing consciousness, claimant was rushed to the hospital, where he learned that he had suffered a heart attack. Claimant underwent a triple bypass four or five days later. Prior to this incident, claimant had been diagnosed with high blood pressure and diabetes, conditions for which he had been taking medication. With respect to the accident, claimant testified that it was the first major accident that [he] had been involved with at the track since [he] started. Although claimant had been involved with serious accidents in the past, the accidents had occurred all over the United States while claimant was traveling with other race series. According to claimant, the EMS workers at the raceway would ask for his assistance maybe twice per year. William Berry, a fellow member of the fire protection team, similarly testified that the extrication at issue was definitely the longest one [he had] ever worked on. The raceway s president and general manager, William Stephenson, testified that, while there are accidents pretty much every week, drivers only had to be extricated from their vehicles [p]robably a couple times a year. Stephenson also testified that the driver s injuries in this case were more extreme than usual. Harper v. Sebring Int l. Raceway, Inc., 886 So. 2d 288, (Fla. 1st DCA 2004). The Petitioner quotes only selected portions of the facts stated in First District s opinion, and supplements those facts with quotations from Harper s appellate brief filed with the First District. The quotations from Harper s appellate brief are irrelevant because they cannot contribute to a finding of conflict. Moreover, conflict must be 2

7 determined based on the facts as a whole and not isolated phrases plucked from the opinion. On page 9 of the Petitioner s jurisdictional brief, Petitioner poses the question whether the Victor Wine opinion (on which Petitioner relies for conflict) has been repealed by statute and replaced by the major contributing cause standard found in sections (36) and (1)(b), Florida Statutes (1994). This question was not presented below or resolved by the First District and thus is not an appropriate basis for conflict jurisdiction, however, even if it were, the First District s opinion confirms that the medical testimony showed the workplace activity, i.e., the extrication of the driver, was the major contributing cause of the aggravation of claimant s underlying [heart] condition. Harper, 886 So. 2d at 290, n.1. However, since the JCC did not reach the issue of medical causation, and the district court does not engage in factfinding, the case was remanded for findings as to medical causation. SUMMARY OF ARGUMENT This court lacks jurisdiction. The First District recognized and applied the decisions cited for conflict. Petitioner relies on a tortured reading of the cases in order to present a basis for conflict, contending that by leaving out two words from the paraphrase, the First District degraded this court s opinion. Considering this court s own explanation in the primary opinion cited for conflict and the subsequent opinions 3

8 of this court construing that opinion, it is readily apparent that the First District followed the opinion and did not expressly and directly conflict with it on the same question of law. The petition for review should be denied. ARGUMENT THE DECISION OF THE DISTRICT COURT DOES NOT CONFLICT WITH ANY PRIOR DECISION OF THIS COURT The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). See also Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla.1976) ( Time and again we have noted the limitations on our review and have refused to become a court of select errors. ). Petitioner seeks review on the basis that the district court opinion expressly and directly conflicts with a decision of this court on the same question of law. Specifically, Petitioner argues that express and direct conflict may be found in the First District s omission of the words type of from its paraphrase of the test stated in Victor Wine & Liquor, Inc. v. Beasley, 141 So. 2d 581, (Fla. 1962): When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a preexisting non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or over-exertion 4

9 not routine to the type of work he was accustomed to performing. (Emphasis added.) Petitioner argues that omission of the words type of degrades the test and allows compensation for heart attacks that occur under peak load work conditions. Under Petitioner s analysis of Victor Wine, if a worker has a heart attack while performing the type of work he was hired to perform, the circumstances contributing to the heart attack are irrelevant as merely a peak to average load comparison. Instead, no matter how great the exertion, no matter how extreme the conditions, no matter how unusual and non-routine such exertion actually is to the employment, under Petitioner s analysis, Victor Wine bars compensation if the employee has any prior indication of heart disease. Petitioner s analysis of the Victor Wine rule is incorrect, as explained not only in Victor Wine but in subsequent decisions of this court, therefore, this court cannot find conflict. First, Victor Wine itself explains that if there is competent substantial medical testimony that the strain and exertion of a specifically identified effort, over and above the routine of the job, combined with a pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred from the normal progression of the disease, the employee has a right to... compensation. 141 So. 2d at 589 (emphasis added). The court s own explanation thus clarifies that the unusualness of the strain or over-exception is determined based 5

10 on the routine of the job. The Court did not state routine to the type of job as Petitioner infers. Thus, in determining what is routine to the job, the test looks to the actual job, not the broad spectrum of activities that might be encompassed in the type of job, so as to include as routine extreme emergencies requiring super-human efforts such as the one which caused Harper s heart attack in this case. In its most recent discussion of this rule, this court explained the Victor Wine rule as follows: The rule of law announced in Victor Wine was intended to deal with the peculiar problem that arises when a worker s compensation claimant suffers a cardiovascular injury on the job that appears at least partly to have been caused by a preexisting medical condition. Under Victor Wine, a claimant whose injury may have been exacerbated by such a condition may be unable to recover without first showing that the injury occurred during a job-related exertion over and above normal working conditions. * * * [W]e believe it would be inherently unfair to deny compensation here, when Zundell s injury so clearly arose from a situation inherent in the workplace, which Zundell normally would not have encountered in his non-work life. The entire policy of worker s compensation is to ensure that workers are swiftly and fairly compensated for work-related injuries. Worker s compensation was not intended to erect arcane rules that would deny employees compensation for injuries clearly arising from workplace conditions. Zundell v. Dade County Sch. Bd., 636 So. 2d 8, (Fla. 1994) (emphasis added). Petitioner s argument is clearly out of step with this analysis of Victor Wine. 6

11 Petitioner criticizes the First District s use of the term normal working conditions as a misstatement of Victor Wine, but ignores the fact that this explanation of Victor Wine originated with this court in Zundell (Pet. Brief at 5). This court frequently gives significant consideration to a district court s certification of conflict. Here, however, the court should recognize that the First District, which has sole appellate jurisdiction over workers compensation claims, saw no conflict but was applying the very cases Petitioner cites for conflict. The First District announced, as its guiding principle that it was applying the general rule regarding the compensability of a heart attack as stated in Victor Wine and Richards Department Store v. Donin, 365 So. 2d 385 (Fla. 1978). Harper, 886 So. 2d at 291. The First District found support for its analysis in several decisions of this court applying Victor Wine. For example, in Warman v. Metropolitan Dade County, 228 So. 2d 908, (Fla. 1969), this court affirmed the award under the Victor Wine test, noting that the unusual strain was caused by a job duty performed maybe once a year. Likewise in Hastings v. City of Fort Lauderdale Fire Department, 178 So. 2d 106, (Fla. 1965), the claimant s heart attack was compensable where the claimant s regular duties on his twenty-four hour stint as an engineer/driver at the firehouse included cleaning and sweeping the fire station, preparing meals, cleaning and polishing the fire truck, and making sure the truck was always in good running 7

12 condition, and his heart attack occurred while engaged in a large fire drill, which, while normally a monthly event, did not take place every month. Similarly, the district court relied on Yates v. Gabrio Electric Co., 167 So. 2d 565, 567 (Fla. 1964), in which this court concluded that the claimant s heart attack was compensable given the testimony that ninety percent of the claimant s time was devoted to relatively light work and that only ten percent was devoted intermittently to what could be described as heavy work, such as bending conduits and operating the ditch digger, and given the testimony that the lifting and loading of heavy concrete blocks was not routine to the type of work the claimant generally performed. In none of these cases did the court adopt the reasonably foreseeable peak load analysis Petitioner espouses (Pet. Brief at 5-6), nor does the court state that peak load conditions are to be considered routine. Applying these cases to the present case, the First District stated: Like the heavy equipment operator in Warman who suffered a heart attack after digging and chopping weeds, which was only necessary maybe once a year, the engineer/driver in Hastings who suffered a heart attack while engaged in a large fire drill, which happened approximately once a month, and the electrician in Yates who suffered a heart attack while engaged in heavy work, which consumed only ten percent of the claimant s time, claimant only assisted the EMS workers approximately twice a year and was involved in extrications [p]robably a couple times a year. Thus, such duties were not routine to claimant s job as a fire protection team member. Had claimant suffered a heart attack while sitting in his truck awaiting an accident to occur, a task which, according to the evidence, was routine to claimant s job, the JCC s ruling would be correct. However, given the facts of this case, the JCC s finding that 8

13 claimant s heart attack is not compensable is not supported by competent, substantial evidence. Harper, 886 So. 2d at The real point of departure between the Petitioner s argument and the First District s opinion is whether normal working conditions are even relevant to the determination of compensability. In the present case, the JCC found that the infrequency of fire protection incidents involving serious injuries, the severity of the emergency to which Harper was responding, and the longer period than average that it took to extricate the driver were all irrelevant because Harper had previously engaged in similar tasks, although never to this extreme. The First District found that occasional prior performance of similar tasks did not make the tasks routine to his job and thus render the heart attack noncompensable, stating when applying the Victor Wine test, the circumstances surrounding a claimant s performance of his or her job duties must be considered and are not, as found by the JCC, irrelevant to the compensability determination. Harper, 886 So. 2d at 295. This statement is consistent with Victor Wine and its progeny. Petitioner attempts to show that the First District s prior cases interpreting Victor Wine have been criticized by a leading Florida text, citing John Dubreuil, C.P.C.U., Florida Workers Compensation Handbook, 2003 section Dubreuil is not a lawyer; his text is an insurance industry handbook, not a legal treatise. 9

14 Petitioner s counsel is cited in the Dubreuil text as an editor, adviser, [and] mentor to Dubreuil, and thus may be presumed to have been influential in Dubreuil s analysis of the legal issues. Accordingly, the source of the stated criticism demonstrates that it is not an independent legal analysis which should cause any legitimate concern. CONCLUSION The petition for review should be denied. This court lacks jurisdiction. Respectfully submitted, WENDY S. LOQUASTO, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 314 W. Jefferson St. Tallahassee, FL Ph: (850) Fax: (850) SUSAN W. FOX, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 112 N. Delaware Ave. Tampa, Florida Ph: (813) Fax: (813) and BRADLEY GUY SMITH, ESQ. Florida Bar No SMITH, FEDDELER, SMITH & MILES, P.A. P. O. Drawer 1089 Lakeland, Florida Ph: (863) Attorneys for Respondent CERTIFICATE OF SERVICE 10

15 I HEREBY CERTIFY that a copy of the foregoing has been furnished, by U.S. Mail, to H. George Kagan, Esq., Miller, Kagan, Rodriguez and Silver, P.A., 250 Australian Avenue South, Suite 1600, West Palm Beach, FL 33401; and to Pat T. DiCesare, II, Esq., Post Office Box 7160, Lakeland, FL , this day of February, Attorney CERTIFICATE OF TYPEFACE COMPLIANCE I further certify that this brief is typed in Times New Roman 14-point font, which complies with the font requirements as set forth in Florida Rule of Appellate Procedure (2001). Attorney 11