FLORIDA TASK FORCE ON PUBLIC EMPLOYEE DISABILITY PRESUMPTIONS RENDERS ITS REPORT

:  The Task Force on Public Employee Disability Presumptions was established pursuant to Chapter 2011-216, Laws of Florida, to review data related to operation and fiscal impact of statutory disability presumptions, review how other states handle disability presumptions, review evidentiary standards and burdens of proof for overcoming statutory disability presumptions and consider risk factors and epidemiological data and provide its findings and proposals for changes to existing statutory disability presumptions.  The Task Force issued its report to the Governor, Legislature and Chief Financial Officer on January 1, 2012.  The Task Force found generally that for all governmental entities represented, the incurred average cost per workers’ compensation claim is lower than the incurred average cost per disability presumption claim.  In addition, for all governmental entities, the percent of incurred cost for presumption claims relative to all workers’ compensation claims is higher than the percent of the number of presumption claims when compared to all workers’ compensation claims.  Among the 50 states, 35 have some form of disability presumption law.  These laws vary in coverage to include firefighters, emergency medical technicians, law enforcement officers and correctional officers.  In 26 states, including Florida, the presumption arises only if the claimant passed a pre-employment physical examination that did not reveal the presence of the disease or condition for which the benefits are claimed.  In 20 states, not including Florida, presumption compensability only arises after a first responder has served in the covered occupation for a specific number of years.  In 32 states (like Florida), the law provides for a rebuttable, rather than an absolute, presumption.  As could be expected from composition of the Task Force members, no consensus was reached on all of the findings and recommendations made by the Task Force, with the exception that members agreed a wellness program could help reduce group health claims and workers’ compensation claims generally, with the consequence of also reducing disability presumption claims.  Unless we misread the report, several “recommendations” were supported by less than a majority of Task Force members.  Here are some recommendations that were supported by at least five of the eight members:

• An individual must be under 37 years old to be eligible for a disability presumption.

• So that the requirement successfully to pass a physical examination is uniform, §175.231, Florida Statutes (fire), and §185.34, Florida Statutes (police) should be amended to conform with §112.18(1)(a), Florida Statutes.

• Any evidence of elevated blood pressure (defined as systolic pressure of 130 or higher or diastolic pressure of 80 or higher), as well as any EKG or other cardiac, coronary artery or heart abnormality, or positive tuberculosis test identified on the physical examination performed upon an employee entering into service with the employer against whom the disability presumption is being sought, shall be considered evidence of hypertension, heart disease or tuberculosis as a basis for denying application of a disability presumption.

• To be eligible to receive benefits for any disability presumption, a person would be required to be incapacitated from performing work for a minimum of 14 contiguous days as a result of treatment for a covered condition.

• Risk factors and epidemiological data relating to non-work-related conditions unique to an individual, such as blood cholesterol, body mass index, history of alcohol use, family history of hypertension or heart disease, diabetes or other medical conditions or behaviors that are associated with the disease or condition subject to a disability presumption shall be considered as a basis for denial or rebuttal of the application of a disability presumption.

• An individual shall forfeit a disability presumption if the individual has been or is a user of tobacco products.

• A disability presumption shall be overcome by a preponderance of the evidence (instead of the current clear and convincing evidence).

• The provisions of section 112.18(1)(b), Florida Statutes, relating to workers’ compensation claim and departure from a prescribed course of treatment shall apply to firefighters (the provisions are already applicable to a law enforcement officer, correctional officer or correctional probation officer).

• Amend §633.34(5), Florida Statutes, and §943.13(6), Florida Statutes, to provide that a medical examination for any person applying for employment as a firefighter may include, but not be limited to, history and profile review and analysis of risk factors and epidemiological data related to non-work-related conditions such as tobacco products use, body mass index, high cholesterol, alcohol use, family history of heart disease or hypertension and provisions of the National Fire Protection Association Standard 1582.

• Add a new provision as §633.34(7), Florida Statutes, requiring that employees hired after July 1, 2012, must continue to be a non-user of tobacco products with the employing entity during employment as a firefighter.

• Minimum fitness standards as to body mass ratio, lifting strength, cardio vascular endurance, alcohol consumption and tobacco product use should be required to be established by all governmental employers for all employees benefitting from disability presumption.  Fitness for duty should be determined before an employee is selected and hired, and should be incorporated as a routine part of continuing employment.

• Minimum hiring standards for fitness should be developed and provided to physicians assisting with pre-employment evaluation.

• Health and wellness promotion should be incorporated by design into agency operations, and health and wellness information should be available and accessible to employees at work and away from work.  Wellness programs should be instituted by agencies employing officers who are covered by presumption claim statutes.

• Personal contact and interactive support systems among colleagues, such as a mentoring program, should be developed as part of a wellness program to provide employees a vehicle to address traumatic events and release anxiety and frustration in a mutually supportive environment.

• That the Legislature provide funding for an actuarial special study to determine funding costs of presumption claims for in-line-of-duty disability presumptions. 

The Task Force consisted of the following:  an attorney representing injured workers, a county commissioner and the Governmental Relations Director of the Florida Professional Firefighters (all appointed by the President of the Senate); an attorney representing governmental entities, a city attorney and a municipal firefighter/engineer (all appointed by the Speaker of the House of Representatives); the assistant general counsel of the Department of Management Services (appointed by the Governor); and the Director of the Division of Risk Management (appointed by the Chief Financial Officer).  Despite the legislative mandate under Chapter 2011-216, Florida Statutes, that a member of a pension plan under Chapter 185, Florida Statutes, be a part of the Task Force, no such member was appointed.  Consequently, no input from this protected class was received by the Task Force.