02-002578 Marilyn Kugler vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, January 21, 2003.

Summary: Petitioner whose husband, a county police officer, died of heart failure at work is entitled to receive "in line of duty" death benefits under the Florida Retirement System.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARILYN KUGLER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2578

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOM MENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 4, 2002, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Jerome S. Reisman, Esquire

Reisman & Abraham, P.A.

3006 Aviation Avenue, Suite 4B

Coconut Grove, Florida 33133

For Respondent: Thomas E. Wright, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

S TATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, whose

husband, a county police officer, died of heart failure at work,

is entitled to receive “in line of duty” death benefits under

the Florida Retirement System, which Respondent admin isters.

PRELIMINARY STATEMENT

After her husband, Officer Randall Kugler of the Miami - Dade

Police Department, died suddenly of a fatal heart arrhythmia on

March 10, 2000, Petitioner Marilyn Kugler applied for “in line

of duty” death benefits under the Flo rida Retirement System. By

letter dated September 25, 2001, Respondent Department of

Management Services, Division of Retirement, denied Petitioner’s

request, ruling that Officer Kugler’s death had not been caused

by the performance of his duties as a pol ice officer.

Petitioner timely requested a formal hearing, and Respondent

referred the matter to the Division of Administrative Hearings.

There, the case was assigned to an Administrative Law Judge, who

scheduled a final hearing for September 4, 2002.

T he final hearing commenced on September 4, 2002, as

scheduled. Both parties appeared, and each was represented by

counsel. Petitioner testified on her own behalf and called

Charles Duncan of the Miami - Dade Police Department. She also

introduced into evi dence the depositions of the following

witnesses: Ray Fernandez, M.D., Associate Medical Examiner, and

Michael Bell, M.D., Deputy Chief Medical Examiner, both of whom

are pathologists in the Miami - Dade County Medical Examiner

Department; Robert Grimm of t he Fort Lauderdale Police

Department; Curt Picunko and Jose D. Marrero, who are inspectors

of the U.S. Customs Service; and cardiologist James Margolis,

M.D. Finally, Petitioner offered nine exhibits, numbered 1

through 9, which were admitted.

Respondent presented the testimony of its Benefits

Administrator, Ms. Stanley Colvin, and moved Respondent’s

Exhibits numbered 1 through 3 into evidence. Additionally, at

Respondent’s request, official recognition was taken of Chapter

121, Florida Statutes (2000); Section 112.18, Florida Statutes

(1997); Section 112.18, Florida Statutes (1999); and Section

185.34, Florida Statutes (2001).

The final hearing transcript was filed with the Division of

Administrative Hearings on October 30, 2002. The parties timely

f iled their respective proposed recommended orders within 25

days after that date, as directed. The undersigned has

considered the parties’ post - hearing submissions.

FINDINGS OF FACT

The Dispute, in a Nutshell

1. On the morning of March 10, 2000, while on duty,

Officer Randall Kugler (“Officer Kugler”) of the Miami - Dade

Police Department suffered a fatal heart arrhythmia and died at

the wheel of his police cruiser. He was 37 years old. Officer

Kugler’s wife, Petitioner Marilyn Kugler (“Mrs. Kugler”), a nd

their two minor children survive him.

2. Officer Kugler was a member of the Florida Retirement

System (“FRS”), which is administered by Respondent Department

of Management Services, Division of Retirement (“Division”).

Mrs. Kugler maintains that sh e is the surviving spouse of a

member “killed in the line of duty” and thus is entitled to

receive generous “in line of duty” death benefits under the FRS.

The Division disagrees with her position and, thus, has denied

Mrs. Kugler’s application for such b enefits. Their dispute

spawned the instant administrative litigation.

The Events Preceding Officer Kugler’s Death

3. Officer Kugler was an expert in inspecting heavy

equipment (cranes, trucks, bulldozers, etc.) to determine if

such property might have b een stolen or otherwise involved in

criminal activity. As a specialist in this area, Officer Kugler

was assigned to an auto theft task force that conducted

investigations in cooperation with other local law enforcement

agencies as well as the FBI and the U.S. Customs Service.

4. At about 9:00 a.m. on March 10, 2000, Officer Kugler

arrived at the King Ocean Yard in Port Everglades, Florida,

where he had been sent to assist U.S. Customs Service inspectors

with the examination of two heavy machines destined for export.

The pieces —— a crane and a bulldozer —— were very large; each

weighed many tons.

5. A crucial object of such inspections is to locate the

public identification number, or PIN, of the subject piece of

equipment. The PIN is a starting point in determining whether

the machine is stolen. Finding the PIN on heavy equipment can

be difficult because, among other reasons, the area to be

searched is large; the numbers are frequently hidden in hard - to -

access places (to thwart those who might want to re move them);

and the numbers are often covered by paint, rust, dirt, and

grease.

6. As he went about his work that morning, Officer Kugler

climbed aboard and poked around the equipment. His on - the - job

activities —— e.g. bending, crawling, climbing, walking —— clearly

involved some physical exertion. In addition, to expose

concealed PINs, Officer Kugler was required to scrape or brush

away paint and other obstructions, and this, too, entailed

physical exertion.

7. To facilitate the removal of layers of pa int, rust,

grease, and the like, Officer Kugler customarily used solvents

marketed for cleaning carburetors and removing gaskets. These

products contained a chemical known as Xylene. The Miami - Dade

Police Department issued its officers, including Officer Kugler,

two different brands of such cleaning agents, which were

packaged in aerosol spray cans. Officer Kugler used one or both

of these employer - issued sprays on March 10, 2000, and thus was

exposed to Xylene. 1

8. Officer Kugler’s inspection of the crane and bulldozer

took about one hour. After finishing his work at King Ocean

Yard, Officer Kugler left Port Everglades to return to Miami.

Sadly, less than an hour later, he was found in Opa Locka,

Florida, slumped over the steering wheel of his vehic le with the

engine running and the doors locked, having died, still on duty,

en route to his next assignment at Kauff’s Towing.

Causes of Death

9. The record contains the depositions of three physicians

who opined as to the causes of Officer Kugler’s dea th. Two of

these doctors are pathologists who were, at all times material

to this case, medical examiners in the Miami - Dade Medical

Examiner Department; as such, they participated in Officer

Kugler’s autopsy. The third is a cardiologist named James

Margo lis. Mrs. Kugler retained Dr. Margolis as an expert

witness for purposes of this litigation.

10. The testimony of these experts is generally

consistent —— that is, their opinions do not conflict on any

material matters. All are in agreement (and the unde rsigned

finds) that the immediate cause of Officer Kugler’s death was a

sudden and unexpected fatal heart rhythm disturbance (or

arrhythmia). There is also no genuine dispute (and the

undersigned finds) that Officer Kugler’s left descending

coronary arter y was partially blocked at the time of his death.

(His other vessels, however, were normal.) This type of

blockage (or occlusion) is associated with a common form of

heart disease known as arteriosclerosis.

11. Officer Kugler’s diseased artery was abou t 50 to 70

percent obstructed. Such blockage tends to become symptomatic

at around 70 percent. As it happened, Officer Kugler had not

experienced any symptoms, been diagnosed as having, or been

treated for any heart disease.

12. The pathologists were largely noncommittal when asked

to identify the trigger(s) that precipitated Officer Kugler’s

fatal heart rhythm disturbance. Dr. Margolis, on the other

hand, who had reviewed the depositions of the two medical

examiners as well as those of the several l aw enforcement

personnel who were with Officer Kugler at the King Ocean Yard

before he died, did form an opinion as to the substantial cause

of the fatal arrhythmia, which he expressed as follows:

It’s my opinion within a reasonable degree

of medical proba bility that Mr. Kugler did,

indeed, suffer a fatal arrhythmia and the

fatal arrhythmia was caused either directly

or indirectly by the heavy exertion in the

presence of Xylene fumes, and that these in

combination with what would have been

otherwise a benig n form of heart disease

caused the fatal arrhythmia.

13. The undersigned accepts the uncontroverted opinion of

Dr. Margolis as to causation and determines, as a matter of

fact, that Officer Kugler’s death resulted from a combination of

work - related act ivities and exposures operating in conjunction

with an undiagnosed and undetected preexisting condition

(arteriosclerosis), which factors together precipitated the

fatal heart arrhythmia.

On the Credibility of Dr. Margolis

14. The Division disputes the v alidity of Dr. Margolis’s

opinion on causation, arguing that it is unfounded. Normally,

the undersigned, as the trier of fact, does not explain why he

has credited certain evidence. Dr. Margolis’s testimony,

however, could be considered the linchpin of P etitioner’s case.

Moreover, because Dr. Margolis did not testify in person at the

final hearing, the undersigned was unable to witness his

demeanor and other indicia of credibility that personal

observation permits. Therefore, the undersigned will explic ate

several factors that he regarded as important in deciding to

accept Dr. Margolis’s testimony.

15. To begin, as mentioned, Dr. Margolis’s opinion on

causation was not refuted. The pathologists’ opinions —— which,

to be sure, stopped short of linking Officer Kugler’s death to

the performance of job - required duties —— were outcome neutral

(and consistent with Dr. Margolis’s testimony) because neither

medical examiner excluded work - related factors from among the

contributing causes of Officer Kugler’s deat h. And the

Division, it should be stressed, presented no expert medical

testimony to contravene Dr. Margolis on the subject of

causation. While the undersigned, as the fact - finder, could

reject unrebutted expert testimony, he would need to offer a

reason able explanation for doing so. 2 He can think of none.

16. Instead of offering evidence, the Division elected

merely to contend that Dr. Margolis’s opinion is unsupported,

urging that the depositions of the witnesses who saw Officer

Kugler at work on Mar ch 10, 2000, do not support the factual

assumptions which underlie the expert’s testimony, namely, that

Officer Kugler engaged in “heavy exertion in the presence of

Xylene fumes.” The Division’s arguments are not persuasive for

several reasons.

17. Firs t, the Division failed to cross - examine Dr.

Margolis on these points. If Dr. Margolis had been asked, for

example, what he meant by “heavy exertion” or otherwise been

challenged to defend that description, perhaps he would have

offered a brilliant explana tion —— or perhaps he would have

stumbled and undermined his opinion. Absent such inquiry,

however, the undersigned considers it basically irrelevant

whether Officer Kugler’s exertion is characterized as “heavy” or

not. The bottom line is, the expert conc luded that Officer

Kugler’s exertion was sufficiently “heavy” to help trigger the

fatal arrhythmia, and the Division has not shown, through proof,

that Dr. Margolis was incorrect in this regard.

18. Second, the record shows that Dr. Margolis reviewed

all the pertinent evidence in rendering his opinion on

causation. 3 Indeed, Dr. Margolis examined the depositions that

are in evidence in this case —— the very depositions that the

Division contends fail to support his opinion. The Division

argues that the exp ert misinterpreted these data sources. The

Division’s argument, however, is not evidence; Dr. Margolis’s

opinion, in contrast, is . Without countervailing proof, the

undersigned finds no reasonable grounds for second - guessing the

cardiologist on medical m atters within his area of expertise.

19. Finally, to the extent the Division contends that Dr.

Margolis is mistaken because Officer Kugler was not shown to

have been exposed to Xylene, its position is untenable in light

of the undersigned’s finding that Officer Kugler was, in fact,

exposed to the chemical in the hours before his death.

CONCLUSIONS OF LAW

20. Section 121.091(7), Florida Statutes, prescribes the

death benefits payable under the FRS. In pertinent part, this

statute provides:

(d) Notwith standing any other provision in

this chapter to the contrary, with the

exception of the Deferred Retirement Option

Program, as provided in subsection (13):

1. The surviving spouse of any member

killed in the line of duty may receive a

monthly pension equ al to one - half of the

monthly salary being received by the member

at the time of death for the rest of the

surviving spouse's lifetime or, if the

member was vested, such surviving spouse may

elect to receive a benefit as provided in

paragraph (b). Benefit s provided by this

paragraph shall supersede any other

distribution that may have been provided by

the member's designation of beneficiary.

(Emphasis added).

21. While the verb “kill” in this context probably

connotes, for most readers, an accidental de ath or murder, in

common usage the word “kill” “merely states the fact of death

caused by an agency in any manner[, as in] < killed="" in="">

accident>.” See Merriam - Webster®

OnLine Dictionary. It is significant, then, that the

legisl ature chose not to define or otherwise limit the specific

phrase “killed in the line of duty.” The legislature must have

intended that no particular cause of death —— even death by

disease —— be automatically disqualifying for purposes of “in line

of duty” de ath benefits.

22. The legislature did not intend, however, that “in line

of duty” death benefits be awarded to the survivor of any member

who happens to die at work. This is made clear in Section

121.021(14), Florida Statutes, which states:

“Death in l ine of duty” means death arising

out of and in the actual performance of duty

required by a member's employment during his

or her regularly scheduled working hours or

irregular working hours as required by the

employer. The administrator may require

such proof as he or she deems necessary as

to the time, date, and cause of death,

including evidence from any available

witnesses. Workers' compensation records

under the provisions of chapter 440 may also

be used.

Thus, for “in line of duty” death benefits to be payable, the

deceased member must have died on the job, while actually

performing a required duty; and the agency or instrumentality of

death —— the thing that killed the member —— must have been causally

connected to the performance of a required duty. I n practical,

succinct terms, actual performance of the job must have put the

decedent in harm’s way. 4

23. In this case, it is not disputed that Officer Kugler

died during his regular working hours while actually performing

job - required duties. The fundam ental dispute here is whether

the fatal arrhythmia that killed Officer Kugler arose out of a

job - required duty —— whether, in other words, he was put in harm’s

way by virtue of his work. The Division’s position is that

Officer Kugler’s preexisting heart dis ease killed him; that,

stated another way (although the Division does not express its

position in precisely these terms), Officer Kugler likely would

have died that morning even if he had been off - duty and going

about his everyday affairs, because there wa s nothing unusual,

unique, or extraordinary about the routine job - related

activities that he performed in the hours leading up to his

death. Petitioner, on the other hand, maintains that Officer

Kugler’s on - the - job exertion that morning, coupled with the

inhalation of Xylene, triggered the fatal condition, aggravating

an otherwise benign heart disease; that, stated another way

(although Petitioner does not express her position in precisely

these terms), Officer Kugler likely would have survived his

shift t hat day but for the performance of job - related duties.

24. As a threshold matter, the undersigned disagrees with

the Division’s suggestion (which is implicit in its argument)

that, for “in line of duty” benefits to be awarded, Officer

Kugler’s death must have been brought about by an unusual strain

or exertion not routine to his customary duties. To accept this

argument effectively would incorporate the Victor Wine

doctrine —— a judicially created limitation on workers’

compensation coverage for heart atta cks and similar “internal

failures” such as strokes —— into Chapter 121. 5 The courts,

however, expressly have refused to apply Victor Wine in

controversies arising under Chapter 121. 6 It is concluded,

therefore, that Petitioner was not required to show tha t Officer

Kugler’s death was precipitated by an atypical or otherwise

extraordinary work - related duty.

25. Next, as stated above, the undersigned has found

that, as a matter of fact, the duties which Officer Kugler

performed on the job the morning he di ed were a cause of his

death, in that his work - related activities (including the

inhalation of Xylene), though routine, precipitated the fatal

heart arrhythmia that killed him. So too, however, was the

preexisting heart disease a cause of death. Performa nce of the

job duties alone would not have killed Officer Kugler, nor would

the preexisting, asymptomatic arteriosclerosis, alone , have been

fatal. Rather, it was the work coupled with the preexisting

heart disease that triggered the abnormal heart arrhyt hmia from

which death immediately ensued. 7

26. The outcome of this case, then, turns on whether a

death which resulted at least in part from the performance of

job - required duties is a death “arising out of” those duties

within the contemplation of Sect ion 121.021(14), Florida

Statutes. The discussion below examines this question from two

different angles. Consideration is first given to whether Mrs.

Kugler can take advantage of a presumption that might supply the

element of connection between her husb and’s death and his duties

as a policeman and then —— once it is decided that Mrs. Kugler can

use the presumption in aid of her proof —— to whether the Division

defeated the presumption. After that, the causation question is

answered without reference to the presumption, offering an

additional and alternative rationale for decision.

IS MRS. KUGLER ENTITLED TO A PRESUMPTION

THAT HER HUSBAND DIED IN THE LINE OF DUTY?

27. Firefighters and policemen who are stricken with

certain cardiovascular or pulmonary pr oblems have a much easier

time establishing entitlement to “in line of duty” benefits than

other employees, thanks to certain presumptions that the

legislature has enacted for their benefit. One of the these

statutory presumptions is found in Section 185. 34, Florida

Statutes, which provides:

For any municipality, chapter plan, local

law municipality, or local law plan under

this chapter, any condition or impairment of

health of any and all police officers

employed in the state caused by

tuberculosis, hyper tension, heart disease,

or hardening of the arteries, resulting in

total or partial disability or death, shall

be presumed to be accidental and suffered in

line of duty unless the contrary be shown by

competent evidence. Any condition or

impairment of hea lth caused directly or

proximately by exposure, which exposure

occurred in the active performance of duty

at some definite time or place without

willful negligence on the part of the police

officer, resulting in total or partial

disability, shall be presum ed to be

accidental and suffered in the line of duty,

provided that such police officer shall have

successfully passed a physical examination

upon entering such service, which physical

examination including electrocardiogram

failed to reveal any evidence o f such

condition, and, further, that such

presumption shall not apply to benefits

payable under or granted in a policy of life

insurance or disability insurance. This

section shall be applicable to all police

officers only with reference to pension and

re tirement benefits under this chapter.

28. In her Petition for Administrative Hearing, Mrs.

Kugler invoked Section 185.34, Florida Statutes, and asserted

that the Division would have the burden to prove that Officer

Kugler’s heart disease - related death wa s caused by non - work

related factors. As the Division correctly pointed out at the

beginning of the final hearing, however, Section 185.34 applies

only to municipal police pensions, a proposition which the

definitions of the terms “chapter plan,” 8 “local law

municipality,” 9 “local law plan,” 10 and “police officer” 11

suffice to verify. Officer Kugler was not a municipal police

officer but a county police officer. 12 Therefore, Mrs. Kugler

cannot take advantage of the presumption set forth in Section

184.35, Florida Statutes.

29. The other statutory presumption is found in Section

112.18(1), Florida Statutes (2002), which provides:

Any condition or impairment of health of any

Florida state, municipal, county, port

authority, special tax district, or fire

con trol 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 servic e as a firefighter or

law enforcement officer, which examination

failed to reveal any evidence of any such

condition. Such presumption shall not apply

to benefits payable under or granted in a

policy of life insurance or disability

insurance, unless the i nsurer and insured

have negotiated for such additional benefits

to be included in the policy contract.

30. Since the presumption of Section 112.18(1), Florida

Statutes (2002), is available for the benefit of “any law

enforcement officer” killed by heart disease, Mrs. Kugler

appears to be entitled to make use of it. The applicability of

the statue is not so straightforward, however, because the

presumption was not expanded to encompass all law enforcement

officers until 2002 —— after Officer Kugler passed a way. Indeed,

until 1999, only firefighters were entitled to rely upon this

particular presumption.

31. In the following table, the pertinent eligibility

provisions of Section 112.18(1), as the statute existed in the

years through 1998 - 99, 1999 - 2002, an d 2002 - present,

respectively, is excerpted —— with emphasis on newly added or

amended language —— to show at a glance how the presumption’s

reach has been extended over the past few years:

Through any Florida municipal, county, port authority, speci al

1998 - 99 tax district, or fire control district firefighter

1999 - any Florida state , municipal, county, port authority,

2002 special tax district, or fire control district

firefighter or state law enforcement officer

2002 - any Florida state, municipal, c ounty, port authority,

present 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)

32. The version of the presumption that was in effect at

the time Officer K ugler died (hereafter “P - 99”) included within

its ambit “state law enforcement” officers —— but no other police.

Mrs. Kugler argues, on various grounds, that her husband should

be deemed a state law enforcement officer for purposes of P - 99,

notwithstanding the undisputed fact that he was a county

employee. Though it has some equitable appeal, Mrs. Kugler’s

position cannot be squared with the statute’s plain language.

33. The term “state law enforcement officer” is versatile

enough to refer broadly to all sworn police officers working in

the state —— or narrowly just to state - employed police; hence, its

intended meaning in a particular situation must be taken from

the context in which the term is used. In Section 112.18(1),

Florida Statutes (2001), the term “state law enforcement

officer” is juxtaposed against the itemization of firefighters

entitled to claim P - 99, creating a clear and telling contrast

between the legislature’s respective descriptions of eligible

firefighters and police officers:

any Florid a state, municipal, [any] state law enforcement

county, port authority, special officer

tax district, or fire control

district firefighter

34. This obviously unbalanced syntactical arrangement

dictates the interpretive result. By mentioning specificall y,

in the very same sentence no less, state , municipal, county ,

port authority, special tax district, and fire control district

firefighters, on the one hand, and only state law enforcement

officers on the other, the legislature unambiguously manifested

it s intention that county police officers —— unlike county

firefighters —— be excluded. 13

35. Further, it is clear that the legislature used the

word “state” in connection with firefighters to specify a

particular employer (distinct from municipal, county, a nd other

governmental employers) rather than as a geographical reference.

Cf. State Department of Corrections v. Clark , 593 So. 2d 585,

586 (Fla. 1st DCA 1992)(state - employed fireman not entitled to

presumption under pre - 1999 version of Section 112.18(1), which

did not mention state firefighters). Given that, it is highly

unlikely (and hence would be unreasonable to conclude) that the

legislature used the word “state” in connection with police

officers as a geographical reference rather than to specify an

employer. The only reasonable interpretation of “state law

enforcement officer” is state - employed law enforcement officer. 14

36. Consequently, if P - 99 is controlling, Petitioner must

make her case without the aid of a statutory presumption.

37. The que stion next arises, then, whether the current,

more inclusive statutory presumption (call it “P - 02”) should

apply. More precisely, the question is whether P - 02 can

permissibly be given retroactive effect, for even Petitioner

appears to concede (and the und ersigned concludes) that Officer

Kugler’s death was the “operative event” that triggered the

statutory remedy. 15

38. The undersigned suggested at the end of the final

hearing that the parties discuss the subject of retroactivity in

their proposed recomm ended orders. Petitioner declined to do

so. For its part, the Division recited the general rule that a

statute affecting substantive rights, liabilities, and duties is

presumed to apply prospectively absent a clear legislative

intent to the contrary —— an incontrovertible principle, see ,

e.g. , Metropolitan Dade County v. Chase Federal Housing Corp. ,

737 So. 2d 494, 499 (Fla. 1999); Campus Communications, Inc. v.

Earnhardt , 821 So. 2d 388, 395 (Fla. 5th DCA 2002) —— and

observed, correctly, that the legislatur e chose to remain silent

with respect to whether P - 02 should apply retroactively. There

is, however, more to it than the Division would have —— and more

than Petitioner seems to appreciate.

39. As the Florida Supreme Court has recognized, “the

presumptio n in favor of prospective application generally does

not apply to ‘remedial’ legislation; rather, whenever possible,

such legislation should be applied to pending cases in order to

fully effectuate the legislation’s intended purpose.” Arrow

Air, Inc. v. W alsh , 645 So. 2d 422, 424 (Fla. 1994); see also

City of Orlando v. Desjardins , 493 So. 2d 1027 (Fla. 1986)(“If a

statute is found to be remedial in nature, it can and should be

retroactively applied in order to serve its intended

purposes.”). There is, in other words, an exception to the

“default rule” that legislation be presumed to look forward, 16

which allows so - called “remedial” statutes to reach back. This

exception holds unless the statute in question “accomplishes a

remedial purpose by creating subs tantive new rights or imposing

new legal burdens” or by taking away vested rights. Arrow Air ,

645 So. 2d at 424.

40. A statute should not lightly be labeled “remedial.”

For, as the Fifth DCA has noted, “[m]ost statutory changes are

designed to improve a pre - existing situation and to bring about

an improved state of affairs.” Basel v. McFarland & Sons, Inc. ,

815 So. 2d 687, 695 (Fla. 5th DCA 2002). This means that most

statutes could plausibly be considered remedial in some sense.

In a retroactivity a nalysis, however, a “remedial” statute is

one that neither establishes a new right nor impairs a vested

right but instead confirms an existing right or advances an

existing remedy. Ziccardi v. Strother , 570 So. 2d 1319, 1320 - 21

(Fla. 2d DCA 1990).

41. I n deciding whether Section 112.18(1), Florida

Statutes (2002), is remedial, the undersigned initially finds

instructive the persuasive, if non - binding, comments of Judge

Ervin, who wrote of the pre - 1999 predecessor statute —— in a

concurring opinion with whi ch Judge Smith concurred 17 —— that “the

presumption is remedial legislation, designed to relax the

burden of proof formerly placed upon the designated classes of

firefighters[.]” State Department of Corrections v. Clark , 593

So. 2d 585, 586 (Fla. 1st DCA 19 92)(Ervin, J., concurring).

Although Judge Ervin did not dub the statute “remedial” for

purposes expressly having to do with retroactivity (which was

not an issue in Clark ), his point was well taken and applies

with equal force in this context.

42. In i ts pre - 1999 form, the presumption rested upon the

legislature’s recognition that each of the enumerated pulmonary

and cardiovascular diseases is an occupational hazard that all

firefighters face. Caldwell v. Division of Retirement, Florida

Dept. of Admini stration , 372 So. 2d 438, 440 - 41 (Fla. 1979).

Having accepted this underlying premise, the requirement that a

particular firefighter prove that his heart attack was caused by

work - related activities or exposures in order to receive “in

line of duty” benef its presumably struck the legislature as an

unnecessary burden that could trip up deserving claimants. To

mitigate the claimant’s burden in these situations where the

disease is an inherent occupational hazard, the legislature

shifted the burden of proof to the claimant’s opponent,

requiring the latter to persuade the fact - finder that non -

occupational factors caused the firefighter’s disease. Id. at

441. There is little doubt that the pre - 1999 presumption was a

“remedial” act of legislation as that label has been applied in

retroactivity cases. Cf. Desjardins , 493 So. 2d at 1029

(exemption from Public Records Act for work product of agencies’

attorneys mitigated Act’s harsh provisions and was properly

applied retroactively, as remedial legislation).

43. When the legislature expanded the presumption in 1999

to include state police officers, it must have assumed that, as

with firefighters, the specified heart and lung diseases are

hazards inherent in police work. Thus, P - 99 was remedial

legislation for t he same reasons that its predecessor was.

Ironically, however, the 1999 enactment created a new anomaly:

Despite being exposed to the same occupational hazards as their

state - employed counterparts, county police officers were denied

the presumption’s adv antage. 18 (Adding insult to irony, as it

were, the 1999 legislation increased the counties’ FRS

contribution rates to cover the actuarial risk associated with

including county police in the presumption. 19 )

44. The legislature eliminated this anomaly in 2 002.

Because it corrects an inequitable situation, allowing county

police officers to avail themselves of a presumption that by

then applied to all state (and many municipal 20 ) policemen, P - 02

falls neatly into the category of “remedial” legislation as the

term is used for retroactivity purposes.

45. The heart - lung presumption, moreover, as originally

enacted and as subsequently amended, did not establish new

rights, impose new legal burdens, or infringe vested rights. As

a legal matter, a statute such a s Section 112.18(1), Florida

Statutes, that determines who carries the burden of persuasion

is considered procedural , not substantive. Southwest Florida

Water Management Dist. v. Charlotte County , 774 So. 2d 903, 909

(Fla. 2d DCA 2001 ), rev. denied , Pinel las County v. Southwest

Florida Water Management Dist. , 800 So. 2d 615 (2001). Being

procedural in nature, burden of proof requirements can be

modified retroactively, because no one has a vested right in a

particular mode of procedure. Walter & LaBerge, Inc. v.

Halligan , 344 So. 2d 239, 243 (Fla. 1977); see also Stuart L.

Stein, P.A. v. Miller Industries, Inc. , 564 So. 2d 539, 540

(Fla. 4th DCA 1990)(remedial legislation that increased

plaintiff’s burden of proof by imposing “clear and convincing”

standar d was not substantive change in statutory scheme and thus

applied retrospectively); accord Ziccardi V. Stother , 570 So. 2d

1319 (Fla. 2d DCA 1990).

46. Beyond that, the presumption plainly does not either

change the definition of “death in line of duty” or increase the

benefits payable therefor. Thus, the presumption neither

bestows new substantive rights on firefighters’ and policemen’s

survivors, whose eligibility for enhanced benefits depends on

the same finding of “death in line of duty” as that of o ther

claimants, nor does it impose new substantive burdens on the

Division, whose obligation to pay “in line of duty” death

benefits for —— but only for —— “deaths in line of duty” subsists

regardless of the presumption. In short, the presumption is not

meant to make possible “in line of duty” benefits awards in

cases where a death or illness did not in fact arise out of and

in the actual performance of job - required duties; rather, it is

designed to make sure that such benefits are not denied for want

of proof in cases where the death or illness did in fact arise

out of and in the actual performance of job - required duties.

47. For the above reasons, it is concluded that Section

112.18(1), Florida Statutes (2002), is a remedial statute that

does not affect th e underlying substantive right to receive “in

line of duty” death benefits in consequence of a member’s death

arising out of and in the actual course of performing his work.

Therefore, P - 02 can and should be given retroactive effect, and

Mrs. Kugler is en titled to take advantage of it.

DID THE DIVISION OVERCOME THE PRESUMPTION THAT

OFFICER KUGLER’S DEATH OCCURRED IN THE LINE OF DUTY?

48. Having determined that P - 02 applies in this case, it

must yet be decided whether the Division defeated the

presumpti on, which is rebuttable. Caldwell v. Division of

Retirement, Florida Dept. of Administration , 372 So. 2d 438, 441

(Fla. 1979). 21

49. To overcome the presumption, the Division must “show

that the disease causing disability or death was caused by a

specifi c, non - work related event or exposure.” Id. In

addition,

[w]here the evidence is conflicting, the

quantum of proof is balanced and the

presumption should prevail. This does not

foreclose the employer from overcoming the

presumption. However, if there is evidence

supporting the presumption the employer can

overcome the presumption only by clear and

convincing evidence. In the absence of

cogent proof to the contrary the public

policy in favor of job relatedness must be

given effect.

Id.

50. In Caldw ell , a county fireman who was unable to work

following an on - the - job heart attack sought “in line of duty”

disability benefits. He lost at the trial level and in the

district court, the First DCA holding that though the medical

testimony was conflicting, there was substantial competent

evidence to support a finding that the fireman’s heart attack

had been caused by a preexisting condition (arteriosclerosis)

unrelated to the performance of his job. Id. at 440. In

reversing, the Florida Supreme Court expla ined that the

presumption “supplie[d] the element of service - connection”

linking the arteriosclerosis and the fireman’s duties, id. , and

ruled that the agency had failed to prove otherwise by clear and

convincing evidence.

51. While the evidence in this case establishes without

genuine dispute that arteriosclerosis was a cause of Officer

Kugler’s death, there is no persuasive evidence in the record

(and thus no evidential conflict) as to whether this disease was

or was not related to his duties as a polic eman. More

important, to the extent the evidence is in conflict or would

support conflicting inferences regarding causation, there is

certainly no clear and convincing evidence, medical or

otherwise, that Officer Kugler’s arteriosclerosis —— or his death

fo r that matter —— was caused by a specific, non - work related

event or exposure. Thus, as in Caldwell , so too in this case

the Section 112.18(1) presumption supplies the element of

service - connection, tying Officer Kugler’s arteriosclerosis and

death to the p erformance of job - required duties.

52. It is concluded, therefore, that Section 112.18(1),

Florida Statutes (2002), dictates a finding that Officer

Kugler’s death occurred in the line of duty. 22

WOULD MRS. KUGLER PREVAIL WITHOUT

THE BENEFIT OF THE PRESUM PTION?

53. As an alternative approach to resolving this dispute,

the undersigned carefully has reviewed the record to determine

whether Mrs. Kugler would prevail without the presumption.

54. Neither party has cited —— and the undersigned has not

found —— a n appellate decision on all fours that articulates a

formula for determining whether a death arose out of a job -

required duty, where the death —— though triggered at work and

thus at least somewhat causally associated therewith —— can also

be blamed on a preex isting disease whose origins are not so

clearly job - related. It is necessary, therefore, to induce

general rules from the largely fact - specific cases that comprise

the body of “in line of duty” benefits law.

55. A useful starting point is Bolinger v. D ivision of

Retirement, State Dept. of Administration , 335 So. 2d 568, 570

(Fla. 1st DCA 1976), an early case which involved a claim for

“in line of duty” disability benefits. There, the First

District Court of Appeal announced that because the phrase

“ari sing out of and in the actual course of performance” closely

resembles the test for workers’ compensation coverage, the

legislature must have intended that judicial standards developed

in the context of workers’ compensation be applied in cases

arising und er Chapter 121. Thus, the court concluded,

consistent with workers’ compensation law, the term “arising out

of” refers to the origin of the cause of the injury, while “in

the actual performance of duty” refers to the time, place, and

circumstances under w hich the accident occurs. Id. at 570 - 71.

56. The Bolinger court’s attempt to superimpose workers’

compensation principles over “in line of duty” benefits law was

not entirely successful. As we have already seen, the Victor

Wine doctrine, which limits workers’ compensation coverage for

certain types of illnesses, was deemed inapplicable in Chapter

121 disputes. The First DCA attached another qualification to

Bolinger in Walker v. State Division of Retirement , 360 So. 2d

1291 (Fla. 1st DCA 1978), cert. denied , 368 So. 2d 1375 (1979).

In Walker the issue was whether the widow of a deputy sheriff

who had been killed in a car crash on the way home from work was

entitled to “in line of duty” death benefits. Id. at 1292.

Under the “going and coming” rule established in workers’

compensation law —— which holds that traveling to and returning

from work are not ordinarily considered activities falling

within the course of employment 23 —— the answer would have seemed,

at first blush, to be “no.” There was, however , an exception to

the “going and coming rule” for police officers that allowed

them to receive workers’ compensation benefits for injuries

sustained while en route to or on the way home from work. 24 The

widow, citing Bolinger , asserted plausibly that the “ policeman’s

exception” should apply to her claim for “in line of duty” death

benefits.

57. The court rejected the widow’s contention. It

distinguished Bolinger on the ground that the employee there

“undoubtedly” had been injured on the job; thus, the pr incipal

issue in Bolinger (as here) was whether the claimant’s injury

had arisen out of her employment. Id. In contrast, the court

explained, in the case then under review the critical question

was not whether the deputy’s death had arisen out of a job -

r equired duty, but whether the decedent had been killed while in

the actual performance of duty. Workers’ compensation rules

were ill suited for resolving this question, because

[w]hile “in the actual performance of duty,”

like “in the course of employment ,” is a

test concerned with the time, place, and

circumstances in which the injury or death

occurred, those two tests are not identical.

We do not conceive that the phrase “in the

actual performance of duty” can reasonably

be read to embrace the policeman ’s exception

to the going and coming rule, established by

decisions under the workmen’s compensation

law.

Id. (citation omitted).

58. The Division cites Walker for the proposition that the

“test for causation” applicable to “in line of duty” cases

diff ers from that used to determine coverage under the workers’

compensation law. This is incorrect. Walker says nothing about

causation and thus leaves intact the interpretation of the term

“arising out of” (as referring to the “origin of the cause”)

arrive d at in Bolinger . Walker is an “actual performance of

duty” case, not an “arising out of” case, and for that reason

is, in the end, inapposite here. 25

59. More analogous is Robinson v. Department of Admin.,

Div. of Retirement , 513 So. 2d 212 (Fla. 1st DCA 1987). There,

“in line of duty” death benefits were sought by the widow of a

law enforcement officer who had died of a heart attack in his

sleep about 24 hours after a stressful on - the - job incident

during which the decedent had helped other deputies subd ue an

unruly inmate. Id. at 212 - 13. According to the court, the

decedent’s “medical history was lengthy and poor, including a

preexisting heart condition for which he was under treatment.”

Id. at 213. In denying benefits, the Division had rejected the

hearing officer’s finding, which was based on the testimony of

the widow’s medical expert, that the work - related incident had

“precipitated a sudden death syndrome,” preferring the testimony

of its own expert that the decedent’s preexisting heart

condition was responsible for the fatal heart attack. Id. The

court reversed the Division’s order, holding that the testimony

of the widow’s expert constituted substantial competent evidence

in support of the hearing officer’s finding of fact as to

causation, whi ch, so supported, could not be disturbed. Id.

60. Unlike Walker , Robinson was an “arising out of” case,

as is this one. 26 Although the Robinson court did not detail the

hearing officer’s fact - findings, it is clear (because other

deputies participated in the same struggle and were not killed 27 )

that the workplace incident would not have been fatal but for

the decedent’s “lengthy and serious” preexisting heart

condition. Performing job - required duties had put the decedent

in harm’s way, exposing him to conditions that, operating in

conjunction with preexisting medical problems, caused his death.

61. Though factually somewhat similar, there are

differences between this case and Robinson . Unlike the decedent

in Robinson , who was receiving ongoing medica l treatment for

longstanding and potentially life - threatening health problems,

Officer Kugler did not have a lengthy and poor medical history,

nor was he under treatment for a known heart condition before he

died. Additionally, in Robinson the Division pr esented an

expert witness at hearing who expressed the opinion that the

decedent’s underlying medical condition, rather than the

workplace incident, had caused his fatal heart attack, whereas

here the Division did not call a physician to rebut the

testimon y of Petitioner’s expert witness on causation. On the

other hand, the decedent in Robinson was involved, the day

before his death, in a discrete, dramatic incident. Officer

Kugler, in contrast, spent his last hours on the job performing

more prosaic, les s remarkable responsibilities. Nothing in the

Robinson opinion, however, suggests that the struggle in which

the decedent had participated was extraordinary (for police

officers) either in its happening or its stressfulness; and,

more important, nothing i n Chapter 121 limits “in line of duty”

benefits to those killed while performing heroic duties. All

things considered, Petitioner’s case is no less compelling than

that presented in Robinson —— and in some respects it is stronger.

62. Unfortunately, the court in Robinson did not

articulate a legal standard for determining, in situations where

a preexisting condition is involved, whether the causal

relationship between job - required duties and the member’s

ensuing death is sufficient to satisfy the “arising out of”

requirement. For guidance in this regard, we must turn to cases

dealing with “in line of duty” disability benefits, wherein this

issue has been examined in greater detail.

63. The term “disability in line of duty” is defined to

mean “injury or illness arising out of and in the actual

performance of duty required by a member’s employment during his

or her regularly scheduled working hours or irregular hours as

required by the employer.” Section 121.021(13), Florida

Statutes. This language is ob viously very similar to that used

in the definition of “death in line of duty.” Disability cases

entail a more involved causation analysis, however, because not

all work - related injuries or illnesses are disabling; and,

conversely, not all disabilities ar e work - related. That is, a

person can suffer an injury or illness arising out of and in the

actual performance of a job - required duty and not become

disabled as a result, just as a person can become disabled

without ever having suffered an injury or illne ss arising out of

and in the actual performance of a job - required duty.

Accordingly, the definition of “disability in line of duty” must

be read together with Section 121.091(4)(c)3., Florida Statutes,

which requires each person seeking “in line of duty” disability

benefits to prove

by competent medical evidence that the

disability was caused by a job - related

illness or accident which occurred while the

member was in an employee/employer

relationship with his or her employer.

64. Combining the condition s set forth in Section

121.021(13), Florida Statutes, with the burden of proof

specified in Section 121.091(4)(c)3, Florida Statutes, courts

have developed a unified test for awarding “in line of duty”

disability benefits, namely,

whether an injury or ill ness, arising out of

and in the actual performance of a duty

required by a member’s employment, was the

substantial producing cause or an

aggravating cause of the member’s total and

permanent disability.

E.g. Westbrook v. Division of Retirement , 699 So. 2 d 813, 814

(Fla. 1st DCA 1997). This test considers causation at two

levels: (1) Did the injury or illness “arise out of” a job -

required duty? and (2) If so, was the injury or illness the

substantial producing or an aggravating cause of the disability?

For ease of reference, the first level of causation will be

referred to herein as “threshold causation” and the second,

“ultimate causation.”

65. Before proceeding, the undersigned pauses to note that

in determining whether “in line of duty” death benefi ts are

awardable, it is not necessary to distinguish between threshold

and ultimate causation. If the death occurred on the job, as

here, the only remaining question is whether the death “arose

out of” a job - required duty. While this particular distincti on

should be borne in mind when consulting the disability cases,

however, it does not necessarily render them inapposite.

66. Indeed, as it happens, the disability cases can be

grouped into two broad categories. The first are cases where

the member was, without question, physically injured in a

workplace accident or incident. Because there is no dispute

that the member suffered a work - related injury, these cases

focus on ultimate causation. The question, in other words, is

not whether the member’s ackn owledged workplace injury or

illness arose out of his or her employment, but rather: Which

illness or injury caused the disability, the work - related one,

or another (usually a preexisting condition)? These cases

establish that a work - related injury which aggravates a

preexisting condition and thereby leads to disability satisfies

the test for “in line of duty” disability benefits. E.g.

Westbrook v. Division of Retirement , 699 So. 2d 813, 814 (Fla.

1st DCA 1997), Pridgeon v. State Div. of Retirement , 662 So. 2d

1028 (Fla. 1st DCA 1995); Glisson v. State Dept. of Management

Services, Div. of Retirement , 621 So. 2d 543 (Fla. 1st DCA

1993); Havener v. Division of Retirement , 461 So. 2d 231 (Fla.

1st DCA 1984); Blanton v. Division of Retirement , 480 So. 2d 134

(Fla. 1st DCA 1985); Bolinger v. Division of Retirement, State

Dept. of Administration , 335 So. 2d 568, 570 (Fla. 1st DCA

1976). These decisions are the least helpful here because this

case does not present a question analogous to that of ultimate

causat ion.

67. The other category of disability cases involves

situations where the member’s illness or injury, typically a

heart attack or stroke, allegedly was caused by the stress of

the work environment. In these cases, the issue is not what

caused the di sability ( e.g. the heart attack), for that is

undisputed, but instead whether the disabling injury or illness

arose out of the performance of job - required duties (as opposed

to, for example, a preexisting condition). The dispute

therefore concerns thresho ld causation, not ultimate causation.

In these cases the courts almost invariably conflate threshold

and ultimate causation, 28 asking whether the performance of job -

required duties, by aggravating a preexisting condition, brought

about the disabling heart attack, stroke, or other illness.

See , e.g. , Burd v. Division of Retirement , 581 So. 2d 973 (Fla.

1st DCA 1991); Otero v. State Retirement Com’n , 720 So. 2d 1147

(Fla. 5th DCA 1998); Andersen v. Division of Retirement , 538 So.

2d 929 (Fla. 1st DCA 1989); Dixon v. Department of Admin. Div.

of Retirement , 481 So. 2d 52 (Fla. 1st DCA 1985); Division of

Retirement v. Allen , 395 So. 2d 1192 (Fla. 1st DCA 1981);

Division of Retirement v. Putnam , 386 So. 2d 824 (Fla. 1st DCA

1980). These cases are pertinent here because they demonstrate

that the “arising out of” condition for “in line of duty”

benefits is met when job - required duties aggravate a preexisting

condition.

68. It is concluded, therefore, that in determining

whether a member’s death arose out of a j ob - required duty, the

relevant question is whether performance of the required work

was a causative factor in the creation of the fatal environment,

not whether such work was the only reason or even the major

reason that the decedent was placed in harm’s w ay. See Robinson

v. Department of Admin., Div. of Retirement , 513 So. 2d 212

(Fla. 1st DCA 1987). Further, it is concluded that the

requisite causal link is established by showing that actual

performance of a required duty was the substantial producing

c ause or an aggravating cause of the member’s death.

69. Under this standard, it is clear, even without

resorting to a statutory presumption, that Officer Kugler’s

death arose out of the actual performance of required duties,

for his on - the - job activiti es aggravated a preexisting

condition, triggering a fatal heart arrhythmia.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order

awarding Mrs. Kugler the “in line of duty” death benefits to

which she is entitled under the Florida Retirement System.

It is further ORDERED that Petitioner’s Request to Reserve

Jurisdiction is denied because Mrs. Kugler has not articulated a

statutory basis for awarding attorneys’ fees and costs in this

case.

DONE AND ENTERED this 21st day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of January, 2003.

ENDNOTES

1 / While there is no direct evidence concerning the particular

spray that Officer Kugler used that morning, the undersigned has

inferred this fact from the plentiful (and unrefuted) evidence

as to the routine practices a nd procedures of the Miami - Dade

Police Department.

2 / Wiederhold v. Wiederhold , 696 So. 2d 923, 924 (Fla. 4th DCA

1997)

3 / See Robinson v. Department of Admin., Div. of Retirement , 513

So. 2d 212, 213 (Fla. 1st DCA 1987).

4 / The Division argues that the job duties must have “actually

caused” the member’s death. This position, however, clearly

stems from an erroneous interpretation of the pertinent

statutes, as one example will show. If, heaven forbid, a

homicide bomber blew himself up in a state off ice building,

killing a receptionist, then the decedent’s spouse surely would

be entitled to receive “in line of duty” death benefits, even

though the decedent’s job duties, per se , would not have

“actually caused” the member’s death. Thus, the “arising o ut of

and in the actual performance of duty” conditions should be

thought of as requiring that the work have put the member in

harm’s way; to require that the work have killed the member

would be unduly restrictive and plainly contrary to the

legislative i ntent.

5 / See Victor Wine & Liquor, Inc. v. Beasley , 141 So. 2d 581,

588 - 89 (Fla. 1961)(heart attack precipitated by work - connected

exertion affecting a preexisting heart disease is compensable

only if employee was at the time subject to unusual strain o r

over - exertion not routine to his customary work); see also

Richard E. Mosca & Co., Inc. v. Mosca , 362 So. 2d 1340, 1342

(Fla. 1978)(extending Victor Wine rule for “heart cases” to

cover aneurysms and other internal failures of the

cardiovascular system).

6 / See Dixon v. Department of Admin. Div. of Retirement , 481

So. 2d 52, 54 (Fla. 1st DCA 1985)(courts have “consistently

refused to apply” Victor Wine standard to “in line of duty”

disability cases); Division of Retirement v. Allen , 395 So. 2d

1192, 11 94 (Fla. 1st DCA 1981); Division of Retirement v.

Putnam , 386 So. 2d 824, 824 - 25 (Fla. 1st DCA 1980)(for purposes

of Chapter 121, disabling illness need not be precipitated by

unusual strain or exertion).

7 / There is no dispute that Officer Kugler died f rom a fatal

heart arrhythmia.

8 / As defined in Section 185.02(3), Florida Statutes, the term

“chapter plan” means

a separate defined benefit pension plan for

police officers which incorporates by

reference the provisions of this chapter and

has been ad opted by the governing body of a

municipality as provided in s. 185.08.

Except as may be specifically authorized in

this chapter, provisions of a chapter plan

may not differ from the plan provisions set

forth in ss. 185.01 - 185.341 and 185.37 -

185.39. Actu arial valuations of chapter

plans shall be conducted by the division as

provided by s. 185.221(1)(b).

(Emphasis added).

9 / A “local law municipality” is “any municipality in which

there exists a local law plan.” Section 185.02(9), Florida

Statutes.

10 / The term “local law plan” denotes

a defined benefit pension plan for police

officers or for police officers and

firefighters, where included, as described

in s. 185.35, established by municipal

ordinance or special act of the Legislature,

which enactme nt sets forth all plan

provisions. Local law plan provisions may

vary from the provisions of this chapter,

provided that required minimum benefits and

minimum standards are met. Any such

variance shall provide a greater benefit for

police officers. Actua rial valuations of

local law plans shall be conducted by an

enrolled actuary as provided in s.

185.221(2)(b).

Section 185.02(10), Florida Statutes.

11 / For purposes of Chapter 185, Florida Statutes, a “police

officer” is

any person who is elected, ap pointed, or

employed full time by any municipality , who

is certified or required to be certified as

a law enforcement officer in compliance with

s. 943.1395, who is vested with authority to

bear arms and make arrests, and whose

primary responsibility is th e prevention and

detection of crime or the enforcement of the

penal, criminal, traffic, or highway laws of

the state. This definition includes all

certified supervisory and command personnel

whose duties include, in whole or in part,

the supervision, trai ning, guidance, and

management responsibilities of full - time law

enforcement officers, part - time law

enforcement officers, or auxiliary law

enforcement officers, but does not include

part - time law enforcement officers or

auxiliary law enforcement officers as the

same are defined in s. 943.10(6) and (8),

respectively. For the purposes of this

chapter only, “police officer” also shall

include a public safety officer who is

responsible for performing both police and

fire services. Any plan may provide that

t he police chief shall have an option to

participate, or not, in that plan.

Section 185.02(11), Florida Statutes (emphasis added).

12 / Officer Kugler served in the Miami - Dade Police Department,

which is a Department of Miami - Dade County not to be confused

with the similarly named City of Miami Police Department, a

municipal police force. See City of Miami v. Fraternal Order of

Police, Miami Lodge 20, Health Insust , 559 So. 2d 627 (Fla.

3d DCA), rev. denied , 569 So. 2d 1279 (1990).

13 / Expressio unius est exclusio alterius . (The mention of one

thing implies the exclusion of another.)

14 / Legislative history ratifies this conclusion (but is not

necessary to reach it, since the statute is unambiguous on its

face). In 1999, during the legislative sess ion that resulted in

the enactment of P - 99, a bill was introduced in the Senate (SB

2530) that would have extended the presumption to any “law

enforcement officer” without reference to geography or employer.

Senate Bill 2530 was rejected, however, in favo r of House Bill

1883, wherein the qualified term “state law enforcement officer”

was used. House Bill 1883 became law. See Ch. 99 - 392, Laws of

Florida. In 2001, bills were filed in both chambers that would,

if adopted, have brought county police officer s within the ambit

of Section 112.18(1), Florida Statutes. Senate Bill 848

proposed to make the presumption available to any “state or

county law enforcement officer.” House Bill 649 sought to amend

the statute to include any “state, county, or municipal law

enforcement officer.” Neither bill was passed into law.

Ultimately, of course, the statute was revised in 2002 to

embrace any law enforcement officer —— the expansion that had been

rejected in 1999 with the defeat of SB 2530.

15 / A statute’s applicat ion is not retroactive if the relevant

trigger occurred after its enactment, regardless whether

material events took place before the effective date of the

subject statute. See A.G. Edwards & Sons, Inc. v. Davis , 559

So. 2d 235, 237 (Fla. 2d DCA 1990)(app lication of statute

adopted after cause of action had accrued but prior to operative

triggering event is not “retroactive”); accord Hemmerle v.

Bramalea, Inc. , 547 So. 2d 203, 204 (Fla. 4th DCA 1989), rev.

denied , 558 So. 2d 18 (1990), cert. denied , 496 U. S. 926, 110

S.Ct. 2620, 110 L.Ed.2d 641 (1990). In this case, it is clear

that Section 112.18(1), Florida Statutes, “springs to life” at

the moment a member firefighter or police officer dies, not upon

the happening of some later event in the process of a pplying for

“in line of duty” death benefits. Thus, the issue of

retroactivity cannot be sidestepped.

16 / Chase Federal , 737 So. 2d at 500.

17 / Although Judge Ervin’s views persuaded a majority of the

panel, he did not write for the court.

18 / This a pparently was not the result of a legislative

determination that county police officers were at less risk that

state police officers but rather the product of political

compromises. The sticking point involved workers’ compensation:

Unlike Section 185.34 , Florida Statutes, which the courts had

found to be in applicable in workers’ compensation proceedings,

see City of Miami v. Fraternal Order of Police, Miami Lodge 20,

Health Insurance Trust , 559 So. 2d 627, 629 (Fla. 3d DCA 1990),

Section 112.18(1) had be en held applicable to workers’

compensation claims, see South Trail Fire Control Dist. v.

Johnson , 449 So. 2d 947 (Fla. 1st DCA 1984). Consequently,

according to contemporaneous legislative analyses, some local

governments, fearing that the inclusion of m unicipal and county

police officers (their employees) within the group of persons

eligible to benefit from the Section 112.18(1) presumption would

lead to higher workers’ compensation insurance premiums, opposed

the measure. (This bit of legislative histo ry is offered simply

for informational purposes and is not intended as a fact -

finding.)

19 / The Division’s representative admitted this fact at hearing.

It is confirmed, incidentally, in the legislative analyses of

bills introduced in 2001 and 2002 to ex pand the presumption to

all law enforcement officers.

20 / Municipal police, although still excluded from Section

112.18(1), Florida Statutes, were entitled to claim the

presumption set forth in Section 185.34, Florida Statutes, if

covered by a qualified m unicipal pension plan.

21 / There was no dispute that Officer Kugler successfully passed

a pre - employment physical examination that failed to reveal

evidence of any heart disease or hypertension. Thus, the

satisfaction of that prerequisite for applying Se ction

112.18(1), Florida Statutes, was never in doubt.

22 / Ms. Colvin, the Division’s representative, conceded at

hearing that Mrs. Kugler quite likely would be entitled to

receive “in line of duty” death benefits if the presumption were

applicable.

23 / The “going and coming” rule is now codified in Section

440.092(2), Florida Statutes.

24 / This exception, which had been declared legislatively

abrogated by the enactment in 1982 of Section 440.091, Florida

Statutes, see City of Fort Lauderdale v. Abrams , 561 So. 2d

1294, 1295 (Fla. 1st DCA), rev. denied , 574 So. 2d 139 (1990),

was (largely) codified in 2001 when the legislature adopted an

amendment to Section 440.092(2), Florida Statutes, that added

the following language:

For the purposes of this subsec tion and

notwithstanding any other provisions of law

to the contrary, an injury to a law

enforcement officer as defined in s.

943.10(1), during the officer's work period

or while going to or coming from work in an

official law enforcement vehicle, shall be

presumed to be an injury arising out of and

in the course of employment unless the

injury occurred during a distinct deviation

for a nonessential personal errand. If,

however, the employer's policy or the

collective bargaining agreement that applies

to t he officer permits such deviations for

nonessential errands, the injury shall be

presumed to arise out of and in the course

of employment.

Chapter 2001 - 168, Laws of Florida.

25 / Though the outcome in Walker is defensible, the stated

rationale leaves much to be desired. It is generally not

helpful to be told that “two tests are not identical” without an

explanation as to how the tests differ and why the differences

matter. At bottom, the court merely stated what the “actual

performance of duty” test is n ot , without offering guidance as

to what it is . Further, the court did not adequately explain

why the “policeman’s exception” could not be followed, even as

it was applying (albeit without acknowledging the fact) the

“going and coming” principle.

26 / Cur iously, given that the officer in Robinson had died at

home in bed, the court did not discuss how his death could be

characterized as having occurred “in the actual performance of

duty . . . during [the decedent’s] regularly scheduled working

hours” —— or ev en hint that this could be an issue. A literal

reading of Section 121.021(14), Florida Statutes, would appear

to preclude the award of “in line of duty” death benefits in a

situation where an employee suffers a fatal wound at work but

lingers for some tim e, only to expire after regularly scheduled

working hours. No opinion need be offered here, however, as to

whether such a reading would be correct.

27 / The undersigned assumes that no harm befell the other

deputies since the opinion mentions none.

28 / T he notable exception to this pattern is Botner v. State

Dept. of Admin., Div. of Retirement , 438 So. 2d 94 (Fla. 1st DCA

1983). In that case, the claimant was a teacher who had retired

after suffering a breakdown. He sought “in line of duty”

disability b enefits, urging that job - induced stress had

contributed to his psychological difficulties. Id. at 94. The

Retirement Commission heard his case and denied the claim,

making a fact - finding based on expert medical testimony that the

teacher’s mental illness could have progressed through the

passage of time alone and probably would have been aggravated no

matter what work he did. Id. The appellate court affirmed,

holding that, though the evidence was conflicting, the trier’s

findings on the ultimate facts w ere supported by competent

substantial evidence. Id. at 94 - 95. Interestingly, while

acknowledging that the record contained psychiatric testimony

which supported the teacher’s contentions, the court drew no

distinction between (a) the job - related factors that apparently

were shown, by some psychiatric testimony, actually to have

aggravated the teacher’s illness and prompted his breakdown and

(b) the hypothetical factors that would or could have done so

had he pursued some other vocation.

Botner , it sho uld be stressed, is an exceptional case that

has been limited to its specific facts. See Dixon v. Department

of Admin. Div. of Retirement , 481 So. 2d 52, 54 - 55 (Fla. 1st DCA

1985). Botner is distinguishable from this case because the

undersigned trier of fact does not find (and doubts that the

evidence would even legally support a finding) that Officer

Kugler’s fatal heart arrhythmia would have occurred at the time

and place and in the manner it did no matter what he happened to

be doing then and there —— o r simply as a result of the passage of

time. Rather, Officer Kugler’s death was in fact triggered by

the performance of job - required duties which in fact aggravated

a preexisting heart disease.

COPIES FURNISHED :

Jerome S. Reisman, Esquire

Reisman & Abr aham, P.A.

3006 Aviation Avenue, Suite 4B

Coconut Grove, Florida 33133

Thomas E. Wright, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

Erin Sjostrom, Director

Department of Management Services

D ivision of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Monesia Taylor Brown, Acting General Counsel

Department of Management Services

Division of Retirement

4050 Esplanade Way

Tallahassee, Florid a 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.