The Law of First Responders – One Step Forward…Two Steps Back

In 2002, a law went into effect in the state of Florida titled “Move-Over America,” however, very few motorists are aware of it. The National Safety Commission, the organization responsible for the nationwide “Move-Over America” campaign conducted a poll that found that more than 70 percent of Americans are unaware of the Move-Over requirement. Even though most were unaware of the law, the poll showed that 90 percent believe that traffic stops are dangerous for emergency personnel. 

In fact, Nationwide, between 1999 and 2008, 154 law enforcement officers were killed while conducting traffic stops or aiding motorists; that is more than one per month.

One Step Forward
On August 24, 2009, the Florida Highway Patrol announced an initiative to target drivers who fail to Move-Over when passing emergency vehicles. Florida’s Move-Over Law requires motorists who encounter an emergency vehicle with its emergency lights flashing, to Move-Over into the opposite lane or, if they are unable to move into the opposite lane, to slow down to 20 mph below the posted speed limit. Forty six states have passed similar laws to protect emergency workers who are working alongside the road.

According to the FBI, traffic crashes kill more law enforcement officers than any other cause of death in the line of duty, including shootings. Many state laws not only include fire and police emergency personnel but tow truck operators as well. According to the Towing and Recovery Association of America, tow truck operators are killed at a rate of more than 2 per month while conducting recovery operations on the side of the road.

The FHP’s “Move-Over” campaign has been very successful in protecting our first responders on roadways and in educating the public on these safety measures.

Yet, while the state, vis-à-vis the Florida Highway Patrol have made great strides in trying to protect first responders from being severely injured or even killed in the line of duty, the First DCA, has unfortunately passed law in the latter end of 2009 that have taken away the rights of first responders once they are injured – specifically, with regards to the presumption in favor of providing benefits in cases of heart disease.

Two Steps Back
On November 24, 2009, the ruling came down from the 1st DCA on the matter of Miami-Dade County v. Davis

Miami-Dade County brought forth this appeal after the JCC had found them responsible to provide the Claimant with Workers Compensation benefits due to his heart disease under section 112.18(1), Florida Statutes 2001.   Essentially section 112.18(1) provides a presumption in favor of providing benefits under the Workers Compensation system to first responders who suffer heart attacks or other heart diseases in the line of duty.  However, the Davis case seems to take away that presumption.  

Specifically, the law finds that when a first responder, in the case of Davis – a fire fighter – suffers a “condition of impairment of health … caused by … heart disease … resulting in total or partial disability,” the heart disease is deemed a compensable condition, unless the employer is able to rebut the statutory presumption of compensability., City of Mary Esther v. McArtor, 902 So. 2d 942, 942 (Fla. 1st DCA 2005). 

It is well-established Florida law, that section 112.18(1) establishes a statutory presumption that heart disease suffered by a first responder is connected with exertions of his work so long as the first responder passes a pre-employment physical examination without evidence of such disease.

In Davis, the claimant first worked as a firefighter in 1972 for City of Gainesville and passed a physical at that time that did not reveal heart disease.  During his time as a firefighter with Gainesville, he developed heart disease which required him to undergo bypass surgery.  After some time out of the field, in 1995, he was hired as a firefighter for the City of Miami and underwent a medical examination which confirmed that he did have heart disease and that despite his prior bypass surgery, he had “less than what we would term a normal heart.”

Claimant argued that the 1972 certification examination which was performed and found not to have heart disease should be the only relevant testing for purposes of 112.18(1) presumption.  This was based upon a solid argument that the statutes for certification of firefighters under section 163.490(6), Fla. Stat. (1971) should be read in pari materia with 112.18(1) and that only the first physical examination done by a fire fighter when he goes into the field is the test that should be considered. 

The ruling in Davis basically has a chilling effect on first responders ability to move to different cities within the state of Florida because they will have to be re-examined and the new test results can be used to trump the once-strong presumption in favor or providing Workers’ Compensation benefits.  If Davis had suffered his most recent episode while still employed with the City of Gainesville, there is a strong argument that his case would have been found compensable because the examination would have related back to 1972.

Therefore, in our state’s classic style, we have taken one step forward to protect our first responders, and then taken a giant leap back by taking away a once-strong presumption in favor of provision of benefits for heart disease to first responders.  First Responders, if you are reading this, don’t let your protections be stripped away from you – fight the fight!

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