The First District Court Makes it Easier for Correctional Officers to Obtain Presumption Benefits
George A. Helm III, Esquire
Public Entity Legal Services

As most of you are aware, effective July 1, 2002 the Florida State Legislature added correctional officers to the protected classes of employees covered by Section 112.18, Florida Statutes, commonly referred to as The Heart and Lung Bill.  Since the presumption statute’s inception,  by this writer believed to be in approximately 1965, it has contained a pre-employment physical requirement.  Simply put, before July 1, 2002, in order to avail himself or herself of the benefits of section 112.18, Florida Statutes, the employee had to successfully pass a pre-employment physical examination which failed to reveal evidence of the heart disease, hypertension or tuberculosis.  In Cumbie v City of Milton, 496 So.2d 923 (Fla. 1st DCA 1986), the First District Court ruled when a fireman did not undergo a physical examination upon entering employment as a fireman, the fireman was not entitled to the benefit of the presumption.  In Milton, the court ruled:

“The statute creating the presumption is very clear and unambiguous and requires a physical examination upon entering into any service as a fireman as a pre-requisite to entitlement to the presumption.  A physical examination prior to receiving the benefit of the presumption is a reasonable requirement in order to determine if any of the conditions covered by the statute existed prior to employment.”  Cumbie v City of Milton, 496 So.2d at 924.

In Cumbie v City of Milton it is important to note the claimant successfully passed a post employment physical examination given approximately two years after beginning employment. 

Unfortunately, in 2002 when the legislature amended Section 112.18, they failed to include any language predicating application of the presumption to correctional officers on a successfully passed pre-employment physical examination.
Section 112.18, Florida Statutes (2002) reads in its pertinent part as follows:

(1)   Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in S.943.10(1), (2) or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.

 However, any such firefighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition…” [emphasis added]

Clearly, the 2002 version of the statute does not require correctional officers to undergo a pre-employment physical examination.  However, given the reasoning the First District Court used in Cumbie v City of Milton, that is, a physical examination prior to receiving the benefit of the presumption is a reasonable requirement in order to determine if any of the conditions covered by the statute existed prior to employment, it’s pretty clear to this author that correctional officers should have to undergo a pre-employment physical examination before they can benefit from the section 112.18 presumption.  Unfortunately, due to the rather clear language of the 2002 statute, in Gray v Department of Corrections and Division of Risk Management, 2005 WL 292 1959 (Fla. 1st DCA 2005), and State v Reese, 911 So.2d 1291 (Fla. 1st DCA 2005), the First District Court ruled the distinction made for correctional officers was not due to a mere legislative oversight.  To the author, the Court seems to be saying the drafters of the 2002 statute couldn’t have made a mistake that obvious, or could they?

To me, the mistake is obvious.  There is no logical reason to afford the section 112.18 presumption benefits to correctional officers in a manner easier than firefighters or law enforcement officers.  Nonetheless, only time will tell.  If the legislature quickly fixes the statute, we will have our answer.  In the meantime, I suggest you bring this matter to the attention of your local representative.  If we wait too long, we may see a push by firefighters and law enforcement officers to have the pre-employment physical requirement eliminated for them as well.