CovId-19anddeathBenefItsruLIngsforfIrstresPonders
Workers ’ Compensation Section Chairs : AnthonyV . Cortese – AnthonyV . Cortese , AttorneyatLaw , IreneRodriguez – IreneM . Rodriguez , PA & Ya ’ SheakaWilliams – Quintairos , Prieto , Wood & Boyer
CovId-19anddeath benefitclaimswere evaluatedunder section112 , floridastatutes .
In two recent firefighters ’ appeals , COVID-19 and death benefit claims were evaluated under Florida Statute Section 112 , and the opinions are instructive .
In Sienna v . Orange County Fire Rescue , 1D2022-0958 ( 1 DCA Oct . 25 , 2023 ), a firefighter was diagnosed with cancer on April 23 , 2020 , and requested and received benefits under Florida Statute 112.1816 ( 2 ), which provides medical care and a $ 25,000 indemnity payment . He died on May 11 , 2021 .
His widow then pursued death benefits through chapter 440 and through chapter 112 , specifically sections 112.191 ( 2 )( a ) and 112.1816 ( 4 )( c ). The chapter 112 death benefits were paid voluntarily , but the chapter 440 death benefit was denied .
There is specific statutory language that says that if an employee elects benefits under Florida Statute 112.1816 ( 2 ), the employee may not also receive benefits under Chapter 440 . The Employer / Carrier argued that the statute also prevents the widow from receiving benefits after the death of the employee , or alternatively , that the widow was not permitted to receive benefits
under Chapter 112.191 ( 2 )( a ) and 112.1816 ( 4 )( c ), and also make an additional claim for benefits under Chapter 440 . The Judge of Compensation Claims reviewed the language and held that the receipt of benefits by her husband during his lifetime did not bar her from a death benefit claim after he died . The Judge then noted that there was no exclusionary language which would prevent a claim under Chapter 440 after receipt of the other benefits under Chapter 112 . The Judge did not address the question of whether the firefighter or his wife could have waived the Chapter 440 benefits for a dependent such as a wife before his death . ( In Longshore cases , a widow ’ s cause of action is independent and cannot be waived or settled prior to death . Cortner v . Chevron Oil , 20 BRBS 218 ( 1989 )).
COVID-19 was found to be the cause of another firefighter ’ s heart attack and heart transplant in Seminole County and Johns Eastern v . Braden , 1D2021-3530 ( 1 DCA , December 13 , 2023 ). The injured worker proved that he worked during two 24-hour shifts with three other firefighters who later tested positive during the six days before the injured worker tested positive for COVID-19 . There was also evidence that the injured worker lived with his girlfriend and was visited by his son and daughter and none of them ever tested positive .
The injured worker started as a firefighter in 1993 after a clean physical and had cardiac problems in the early 2000 ’ s , which Seminole County accepted as compensable . He received treatment including ablation of the heart , followed with yearly heart evaluations , and was always released to full duty work . Seminole County argued that COVID-19 was the cause of the heart attack and need for transplant , and the Judge agreed . The parties agreed that the elements for the statutory presumption for a first responder of work causation of the heart condition were met . Seminole County argued that the evidence it provided rebutted the presumption . There was conflicting expert evidence , but the Judge considered all the evidence and held that the presumption of causation under F . S . 112 applied to this first responder . and that it had not been rebutted . Therefore , the heart attack and transplant were compensable , and the First District affirmed . n
Author : Anthony V . Cortese – Anthony V . Cortese , Attorney at Law
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