04-000266 Areani T. Deleon, O/B/O Jorge Deleon vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, February 23, 2005.

Summary: Petitioner`s husband, a law enforcement officer, died of a condiiton caused by his pre-existing heart disease, which was aggravated by job-related stress. Petitioner is eligible for in "line of duty" benefits under Section 112.18, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AREANI T. DELEON, o/b/o JORGE )

DELEON, )

)

Petitioner, )

)

vs. ) C ase No. 04 - 0266

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case before Administrative

Law Judge Carolyn S. Holifield by video teleconference on

October 5, 2004, at sites in Tallahassee and Tampa, Florida,

with Petitioner appearing at the Tam pa site and Respondent and

the undersigned appearing at the Tallahassee site.

APPEARANCES

For Petitioner: David J. Plante, Esquire

Plante, Komninos & Fowkes Law

Group, LLC

709 West Azeele Street

Tampa, Florida 33606

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner, Areani T.

DeLeon, is entitled to receive "in line of duty" death benefits

under the Florida Retirement System.

PRELIMINARY STATEMENT

After her husband, Deputy Jorge DeLeon of the Hillsborough

County Sheriff's Office, died unexpectedly on May 5, 2003,

Petitioner, Areani T. DeLeon, applied for "in line of duty"

benefits under the Florida Retirement System ("FRS"). By letter

dated September 10, 2003, Respondent, the Department of

Management Services, Division of Retirement ("Division" or

"Respondent"), notified Petitioner that her application for

in - line - of - duty death benefits from the retirement account of

the deceased member of the FRS was denied. Petitioner

challenged the decision and timely requested a formal hearing.

Thereafter, th e Division referred the matter to the Division of

Administrative Hearings. The undersigned initially scheduled

the final hearing for March 31, 2004, but rescheduled the

hearing several times after the parties requested and were

granted continuances. As n oted above, the final hearing was

held on October 5, 2004.

On October 4, 2004, Petitioner filed a Motion for Partial

Summary Judgment and a Motion in Limine. Prior to the

evidentiary part of the final hearing, argument on the motions

by counsel for the pa rties was heard. The undersigned denied

both motions.

At the hearing, Petitioner testified on her own behalf

through the assistance of her English/Spanish language

translator, Deacon Jose R. Rios. Petitioner offered and had

received into evidence two ex hibits, the depositions of the

following witnesses: Charity Cosby, a deputy with the

Hillsborough County Sheriff’s Office; and John C. Dormois, M.D.,

a cardiologist who was accepted as an expert in that field.

Respondent presented the testimony of Ms. St anley Colvin, a

benefits administrator with the Division, who was accepted as an

expert in the area of survivor benefits under the FRS.

Respondent's Exhibit 1, Deputy DeLeon's pre - employment physical

report, was offered and received into evidence. Respon dent

offered its Exhibit 2 into evidence, but that document was

rejected. Respondent then proffered Exhibit 2. Additionally,

at Respondent’s request, the undersigned took official

recognition of Chapter 121, Florida Statutes (2003); Subsections

121.021(1 4), 121.09(7), and 121.118(1), Florida Statutes (2003);

and Florida Administrative Code Rules 60S - 4.008 and 60S - 6.001.

The parties also offered and had received into evidence as

Joint Exhibits 1 through 5, the depositions of the following

witnesses and th e exhibits related or attached thereto: S. Rao

Korabathina, M.D., a general practitioner; Benedict S.

Maniscalco, M.D., a cardiologist and expert witness in that

field; Sergeant Carmine Pisano, an employee of the Hillsborough

County Sheriff's Office; Depu ty Arturo Peralta, an employee of

the Hillsborough County Sheriff’s Office; and Susan S. Ignacio,

M.D., an associate medical examiner, who was accepted as an

expert in that field, as well as a medical expert.

The Transcript of the final hearing was filed with the

Division of Administrative Hearings on October 15, 2004 . At the

conclusion of the hearing, the time for filing proposed

recommended orders was set for ten days after the Transcript was

filed. On or about October 26, 2004, Petitioner re quested and

was granted an extension of time to file her proposed

recommended order. The Division and Petitioner filed their

Proposed Recommended Orders on October 28 and November 1, 2004,

respectively. Both Proposed Recommended Orders have been

carefull y considered in preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at

hearing and on the entire record of this proceeding, the

following Findings of Fact are made.

1. From November 2002, until his d eath on May 5, 2003,

Jorge DeLeon ("Deputy DeLeon") served and was employed as a

deputy sheriff for the Hillsborough County Sheriff's Office

("Sheriff's Office"). During the seven months Deputy DeLeon was

employed as a deputy sheriff in Hillsborough Count y, he was a

probationary employee.

2. On the morning of May 5, 2003, between 9:00 a.m. and

9:30 a.m., while off - duty from the Sheriff's Office, Deputy

DeLeon died while sitting in a chair at the bait and tackle

fishing shop that he owned. At the time of his death, Deputy

DeLeon was 40 years old and was survived by his wife,

Petitioner, Areani T. DeLeon, and their minor son.

3. Deputy DeLeon was a member of the FRS, which is

administered by the Division.

4. In order to vest in the FRS, an individual m ust have

participated in the FRS for a period of six years. As a result

of Deputy DeLeon’s combined service with the Sheriff’s Office

and the Stuart Police Department in Stuart, Florida, Deputy

DeLeon had five and one - half years of credited service in

the FRS.

5. In October 2002, prior to Deputy DeLeon's being

accepted for employment with the Sheriff’s Office, he underwent

a pre - employment physical examination administered at the

University Community Hospital.

6. As part of Deputy DeLeon's pre - employment physical

examination, an electrocardiogram (EKG) was performed; the

results of the EKG were normal.

7. At the time the pre - employment physical examination was

performed, Deputy DeLeon suffered from and was being treated for

high blood pressure, also know n as hypertension. The physician

who conducted Deputy DeLeon's physical noted on the pre -

employment physical examination report that Deputy DeLeon had

high blood pressure. S. Rao Korabathina, M.D., a general

practitioner, first saw and began treating Dep uty DeLeon for

high blood pressure on July 17, 2002.

8. Although Deputy DeLeon suffered from hypertension, the

condition did not impede his being employed by the Sheriff's

Office. In fact, Deputy DeLeon not only passed the pre -

employment physical exami nation, but the physician who conducted

the examination certified that the physical examination of

Deputy DeLeon did not "evidence any acute or chronic illness,

congenital abnormality, acquired deformity or disability which

would prevent the applicant from performing the essential job

functions of the Sheriff’s office."

9. In November 2002, the month after his physical

examination, Deputy DeLeon was employed as a deputy with the

Sheriff's Office.

10. On January 13, 2003, two months after he was employed

wi th the Sheriff's Office, Deputy DeLeon went to Dr. Korabathina

for a regular office visit. During that visit, Dr. Korabathina

examined Deputy DeLeon and found that his blood pressure was

significantly down from the level noted during Deputy DeLeon's

first office visit in July 2002. Also, during the January 13,

2003, office visit, Deputy DeLeon reported that he was feeling

fine and that his pre - employment physical examination was

normal.

11. Throughout his tenure with the Sheriff's Office,

Deputy DeLeon wa s assigned to work primarily in the Town and

Country area of Hillsborough County ("Town and Country" or

"area"), an area with a very large Hispanic population, which

included many people who spoke only Spanish. Nevertheless, only

a few bilingual deputies, including Deputy DeLeon, were assigned

to work in that area.

12. Because Deputy DeLeon spoke and understood both

Spanish and English, he was required to provide Spanish to

English and English to Spanish translating services for the

calls of other deputi es who could not speak and understand

Spanish. The translation services which Deputy DeLeon was

required to provide were in addition to the other regular job

responsibilities he was required to perform as a deputy.

13. The normal schedule for deputies was a rotating shift

which consisted of working 12 - hour shifts, five days one week

and then working 12 - hour shifts, two days the following week.

14. As an employee of the Sheriff's Office, Deputy

DeLeon's on - the - job activities, at times, involved high levels

of physical and mental exertion and stress. In any given week,

deputies were required to answer calls for service; conduct

timely criminal investigations; and write criminal activity

reports for all criminal investigations. In some instances, if

a superv isor or someone in the chain - of - command determined that

the written reports were inadequate, deputies were required to

rewrite or correct the report.

15. Although deputies were required to complete the

written reports of an investigation immediately or soo n after

their investigations were completed, bilingual deputies,

including Deputy DeLeon, were often unable to accomplish this

task because they were routinely required to leave their calls

and go to provide translation services to non - Spanish - speaking

dep uties.

16. At all times pertinent to this proceeding, Deputy

DeLeon and another bilingual deputy, Deputy Arturo Peralta, a

14 - year veteran of the Sheriff's Office, were frequently

required to serve as translators for other deputies.

17. As a result of the ir being required to provide

translation services to non - Spanish - speaking deputies, bilingual

deputies, including Deputies DeLeon and Peralta, assigned to the

Town and Country area were overworked and under stress.

18. Employees of the Sheriff's Office were aware that the

bilingual deputies assigned to Town and Country had a heavier

workload than the non - Spanish - speaking deputies and were under

more stress because of the workload.

19. According to the credible testimony of Deputy DeLeon's

direct supervis or, Sergeant Carmine Pisano, "an individual

[deputy] who is bilingual, it's almost a curse in Town and

Country, because we have an enormous influx of Spanish - only

speaking individuals moving into the area and we do not have

enough Spanish - speaking deputies ."

20. A probationary deputy, Deputy Charity Cosby, who spoke

only English and began working for the Sheriff's Office the same

day that Deputy DeLeon started work there, testified credibly

that the bilingual deputies had more work to do than non -

Spanish - speaking deputies. Deputy Cosby attributed the

bilingual deputies' extra workload to the fact that they were

required to go not only on their calls, but also on the calls of

non - Spanish - speaking deputies when translation services were

needed.

21. Deputy Auturo Peralta, a 14 - year deputy with the

Sheriff's Office and the other bilingual deputy who worked with

Deputy DeLeon, testified credibly that he was required to

perform translation services in addition to his regular duties

and that the additional work load was frustrating and stressful

and "added undue stress" to his job as a deputy.

22. Deputy DeLeon was conscientious about performing his

job as deputy with the Sheriff's Office and had some good skills

because of his previous experience in law enforc ement. However,

Sergeant Pisano believed that Deputy DeLeon was deficient with

regard to the amount of time it took him to complete his

investigations and written investigation reports, as well as the

quality of the reports. These were areas in which Ser geant

Pisano expected Deputy DeLeon to improve. To this end, Sergeant

Pisano talked to Deputy DeLeon about his being deficient and

needing to improve in those areas.

23. In the week prior to his death, Deputy DeLeon worked

for the Sheriff's Office fiv e days. On each of those days,

Deputy DeLeon worked his normal 12 - hour shift. Three of those

five days, May 2, 3 and 4, 2003, were the days immediately prior

to Deputy DeLeon's death.

24. During the consecutive three days before his death,

Deputy DeLeon was under a high - level of stress due to his work -

related responsibilities at the Sheriff’s Office. In addition

to the stress of being a relatively new and probationary

employee with the Sheriff's Office, Deputy DeLeon had been

counseled for being too slow in his investigations and pressed

to improve his report writing. Moreover, Deputy DeLeon had the

added responsibility of providing translating services for other

deputies, in addition to his other job responsibilities.

25. At approximately 6:00 a.m. on May 4, 2004, the day

before his death, Deputy DeLeon, while on a call providing

translating services to Deputy Cosby, advised her that "he

wasn’t feeling very good" and that he "had had heartburn all

weekend."

26. Later on May 4, 2003, Sergeant Pisano ord ered Deputy

DeLeon to leave a child abuse investigation that Deputy DeLeon

was conducting in order to answer a call and provide translation

services involving a call for service in which a vendor selling

Mother’s Day flowers was accused of trespassing.

27 . In the days prior to his death, Deputy DeLeon told his

wife that he was upset and having problems with his supervisor,

because the supervisor was being unjustifiably critical of him.

28. On May 4, 2003, while on duty with the Sheriff's

Office, Deputy DeL eon called his house several times to check on

his wife and son. During one of those telephone conversations,

Deputy DeLeon told his wife that he was very frustrated about

being pulled from his investigations before he had completed

them in order to rende r translation services for other deputies.

Later that day, Deputy DeLeon telephoned his wife, again, and

told her that he was going to be late because he had been

ordered by his supervisor to drop everything and re - do a

previously completed investigation report that had been "kicked

back," causing him to leave another investigation unfinished.

In order to re - do the report, Deputy DeLeon had to re - interview

the Spanish - speaking witnesses in that particular case. This

was not the first time that Deputy DeL eon's supervisor had

required him to re - do an investigation report.

29. At or near the end of Deputy DeLeon's 12 - hour shift

with the Sheriff's Office, the evening before his death,

Sergeant Pisano observed that Deputy DeLeon "looked extremely

tired and pa le." In describing Deputy DeLeon’s appearance on

the evening prior to his death, Sergeant Pisano testified as

follows:

As I had said, he -- he looked tired to me

and pale. It -- was enough that I

recognized that.

* * *

Tired -- tired and -- pale. Thr ee 12 - hour

shifts wear on you. And -- if you're

running and running and running, it -- will

take its toll. . . He just had that look in

him that he was extremely – - more to the

extreme end of being tired, and his – - his

skin was pale.

30. Deputy DeLeon was still pale when he arrived home on

May 4, 2003, after completing his third 12 - hour shift in three

consecutive days. He reported to his wife that he was

physically exhausted and extremely fatigued. He also told his

wife that over the last two days, h e had been experiencing pains

in his chest and arms while at work. Deputy DeLeon reported to

his wife that he had experienced the sensation of something

coming up into his throat approximately 20 times while at work

that day.

31. On the evening of May 4, 2003, Deputy DeLeon also

reported to his wife that he was very angry due to problems he

was experiencing with his supervisor. As he had in a telephone

conversation with his wife earlier that day, Deputy DeLeon again

told his wife that he was upset about his supervisor pulling him

off his investigations before he was finished with them. He

also explained to his wife his frustration at being pulled from

what he considered to be a priority investigation of child abuse

to a much lesser priority call that inv olved a Spanish - speaking

vendor selling Mother’s Day flowers. He reported to his wife

that every time there was a call in which a Spanish - speaking

deputy was needed as a translator, he was called. Deputy DeLeon

was "very upset" about these events.

32. O n the evening of May 4, 2003, after playing with

his 3 - or 4 - year - old son a little while and talking to his wife

about the matters discussed in paragraphs 30 and 31, Deputy

DeLeon went to bed around 9:30 p.m.

33. Deputy DeLeon was off duty from the Sheriff 's Office

the following day, May 5, 2003. That morning, as he usually did

on his days off, Deputy DeLeon went to work at the bait and

tackle shop that he owned. Deputy DeLeon was happy and enjoyed

being the owner and manager of the bait shop and consider ed his

responsibilities there to be more of a hobby than work. He

enjoyed his time there because it gave him an opportunity to

talk to friends and to teach and talk to people about fishing.

34. At about 9:15 a.m. on May 5, 2003, Deputy DeLeon was

found d ead in his bait and tackle shop. This was about 12 hours

after he got home from his job with the Sheriff's Office.

35. When advised by the police of her husband’s death,

Mrs. DeLeon told the Port Richey Police Department investigators

that Deputy DeLeon h ad been complaining of chest and arm pains

over the last couple of days and that she advised Deputy DeLeon

that he should go see a doctor, but he did not do so.

36. An autopsy was performed on May 6, 2003, by Susan S.

Ignacio, M.D., an associate medical ex aminer for the Sixth

District, which includes Pinellas and Pasco Counties, Florida.

Dr. Ignacio is a Florida - licensed physician, who is board -

certified in anatomic pathology.

37. Following the completion of the autopsy, Dr. Ignacio

prepared an autopsy rep ort which found that Deputy DeLeon had

severe atherosclerosis, left descending artery; that the cause

of death was atherosclerosis cardiovascular disease; and that

the manner of death was "natural."

38. Dr. Ignacio included the following observations in t he

autopsy report: "The left anterior descending artery has severe

atherosclerosis with up to 90% stenosis [blockage] by

atheromatous plaque. The left circumflex artery has moderate

atherosclerosis. The right coronary artery has moderate

atherosclerosi s."

39. Atherosclerosis implies that there is cholesterol

plaque, that is, fatty build - up within the arteries. The

disease has a long incubation period and is, thus, pre - clinical

for a "very very long time." Although, the development of the

atheroscleros is begins early in childhood and is chronic and

progressive, the disease is relatively silent and may not be

evident until an event occurs.

40. Deputy DeLeon had high blood pressure at the time of

his pre - employment examination. However, all the medical

e xperts in this case agree; and it is found, that high blood

pressure, or hypertension, does not evidence the condition of

atherosclerosis.

41. After reviewing the information provided by the

Sheriff's Office and/or Petitioner , Ms. Stanley Colvin, acting

on behalf of the Division, concluded that Petitioner was not

entitled to regular in - line - of - duty death benefits because

Deputy DeLeon's death did not occur while he was on duty, but

while he was at his bait shop. The Division's decision was

based solely on the location of Deputy DeLeon’s body at the time

of death and did not consider the possibility of a nexus between

Deputy DeLeon's work - related duties and responsibilities and his

death.

42. The Division also determined that Deputy DeLeon

suffered from hy pertension prior to employment with the

Sheriff's Office. Based on that determination, the Division

concluded that the statutory presumption set forth in Section

112.18, Florida Statutes (2003), did not apply.

43. At the time of his death, Deputy DeLeon had a

cardiovascular disease (as the autopsy reflected) that had

developed over a prolonged period of time, even though the

condition had never been diagnosed. The diagnosis of

atherosclerosis was a post - mortem diagnosis, and prior to his

death, there was no evidence or indication that Deputy DeLeon

suffered from the disease.

44. As a result of the atherosclerosis process, the blood

vessels are narrowed. Even with the blockage in the artery,

however, there was continued, but restricted, blood flow throu gh

Deputy DeLeon's severely narrowed artery.

45. The condition of a person with atherosclerosis is

exacerbated by stress. The reason is that stress,

physiologically, is attended by increases in the production of

noradrenalin, norepinephrin compounds from the adrenal glands,

which increases heart rate and blood pressure and causes

vasconstriction or narrowing of the arteries. This situation

increases the demand for blood flow and oxygen to the heart.

However, in a person with atherosclerosis, this increas ed demand

may not be met because stress may "greatly aggravate" or further

the narrowing of the arteries, thereby further decreasing the

blood flow to the heart. This decreased blood flow to the heart

can lead to heart attack and/or sudden death.

46. Symp toms or manifestations of inadequate or decreased

blood flow to the heart are angina (chest pain), shoulder pain,

heartburn, fatigue, and/or shortness of breath, with angina

being the most common symptom.

47. There is no evidence that Deputy DeLeon was

exp eriencing an acute stressful situation on the day of his

death.

48. Given the severe obstruction in the coronary artery,

the symptoms Deputy DeLeon complained of in the days immediately

prior to his death (tightness in his chest and pain in his left

arm and shoulder) were consistent with someone having unstable

angina, that is, intermittent chest pain for some time period

before his death.

49. Dr. Benedict S. Maniscalco, the Division's expert,

testified credibly that Deputy DeLeon's death was precipitate d

by a "rhythm disturbance," also known as arrhythmia and that

this could have been caused by transient decreased blood flow to

the heart. However, Dr. Maniscalco did not "attribute any

significant contribution of stress to his [Deputy DeLeon's]

demise." The reason Dr. Maniscalco did not believe Deputy

DeLeon's death was caused by job - related stress was that the

data he reviewed and relied on in forming his opinion did not

address the environmental stress factors that Deputy DeLeon

experienced in his job with the Sheriff's Office in the days

immediately prior to his death.

50. Because Deputy DeLeon had restricted blood flow to the

heart, one of several factors, including stress, could have

tipped the balance and created a situation that contributed to

Depu ty DeLeon's death.

51. In light of the stress that Deputy DeLeon was under

while at his job with the Sheriff's Office on the days preceding

his death and the impact that stress had on Deputy DeLeon (i.e.,

constriction of blood vessels, spasm of blood vesse l, mediated

by autonomic nervous system), as evidenced by his symptoms,

Dr. Dormois testified, with a reasonable degree of medical

certainty, that job - related stress was a contributing cause to

Deputy DeLeon's death.

52. Considering the record as a whole, including the

opinions of the experts, the greater weight of the evidence

established that job - related stress was a contributing cause and

factor to Deputy DeLeon's death.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2004).

54. Subsection 121.091(7), Florida Statutes (2003),

prescribes the benefits payable under the FRS and provides in

pertinent p art:

(d) Notwithstanding 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 equal 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

p aragraph (b). Benefits provided by this

paragraph shall supersede any other

distribution that may have been provided by

the member's designation of beneficiary.

55. Subsection 121.021(14), Florida Statutes (2003),

provides in pertinent part:

(14) "De ath in line 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 requi re 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.

56. For "in line of duty" benefits to be payable pursuant

to Subsection 121.09(7), Florida Statutes (2003), the deceased

member must have died on the job while actually performing a

required duty. See Kugler v. Department of Management Services,

Division of Retirement , Case No. 02 - 2578 (DO AH January 21, 2003)

(Final Order April 4, 2003).

57. It is undisputed that at the time of Deputy DeLeon's

death, he was not on duty with the Sheriff's Office and was not

performing duties required by that office. Therefore, benefits

are not payable to P etitioner, as the surviving spouse, under

Subsection 121.091(7), Florida Statutes (2003).

58. Although she is not eligible for benefits pursuant to

Subsection 121.091(7), Florida Statutes (2003), Petitioner seeks

benefits under Subsection 112.18(1), Flori da Statutes (2003),

which provides the following :

Firefighters and law enforcement or

correctional officers; special provisions

relative to disability. --

(1) Any condition or impairment of health

of any Florida state, municipal, county,

port authorit y, 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 examinatio n upon entering

into any such service 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 o r disability

insurance, unless the insurer and insured

have negotiated for such additional benefits

to be included in the policy contract.

59. By enacting Subsection 112.18(1), Florida Statutes

(2003), the Legislature recognized the risks and dangers

i nvolved in the covered categories of employees and provided a

statutory presumption making it easier for such employees or

their survivors to collect benefits. Pursuant to that

provision, any impairment of health of any law enforcement

officer caused by h eart disease resulting in death is presumed

to have suffered in the line of duty unless the contrary is

shown by competent evidence. Moreover, in order for the

presumption to apply, the law enforcement officer must have

successfully passed a physical exam ination which failed to

reveal evidence of such condition.

60. The initial burden of proof is on Petitioner to

establish the facts upon which the presumption is based. If

those facts are established, the burden then shifts to the

Division, which may rebu t the presumption by establishing by

competent evidence that the disease was caused by some other

specific hazard or non - occupational hazard. However, the

statutory presumption prevails where the medical evidence is

conflicting and the quantum of proof is balanced. See Caldwell

v. Division of Retirement v. Department of Administration ,

372 So. 2d 438 (1979).

61. Petitioner has met her initial burden. The evidence

established the following facts that give rise to the

presumption in Subsection 112.18(1), F lorida Statutes (2003):

(1) Deputy DeLeon was a law enforcement officer; (2) Deputy

DeLeon suffered or was stricken with a condition caused by heart

disease and that lead to or resulted in his death; and

(3) Deputy DeLeon successfully passed a physical ex amination

upon entering his job as a law enforcement officer which failed

to reveal any evidence of heart disease, the condition that

caused his death.

62. Petitioner also presented competent and substantial

evidence that job - related stress aggravated Depu ty DeLeon's,

previously undiagnosed heart disease which resulted in his

death.

63. The Division argues that the presumption should not

apply because Deputy DeLeon's pre - employment physical revealed

that he suffered from high blood pressure or hypertension .

While that fact is not disputed, the argument is rejected in

that it is inconsistent with the plain meaning of language in

Subsection 112.18(1), Florida Statutes (2003). According to the

plain meaning of that statute, if all other facts are

established , the presumption will apply unless the condition

that was revealed in the physical examination upon entering the

job was the same condition that caused or resulted in the

covered employee's death.

64. In this case, there is no dispute that the condition

t hat resulted in Deputy DeLeon's death was heart disease, not

high blood pressure or hypertension. The undisputed evidence

also established that hypertension and heart disease are two

separate conditions and that the fact that a person has high

blood press ure or hypertension is not evidence of or an

indication that the person has heart disease.

65. In order to rebut the presumption, the Division must

establish by competent evidence that the disease was caused by

some other specific hazard or non - occupationa l hazard. The

Division failed to provide any such evidence.

66. To rebut the presumption, the Division presented

medical testimony that Deputy DeLeon's death was the result of a

rhythm disturbance caused by the atherosclerosis, a pre - existing

condition, a nd was not caused by or related to stress on his job

as a deputy with the Sheriff's Office. Notwithstanding this

assertion, the Division's medical expert testified that his

opinion was based on data that he reviewed. However, he

acknowledged that he was provided no information which indicated

Deputy DeLeon had experienced stress on his job with the

Sheriff's Office in the days immediately prior to his death.

Therefore, this evidence is not persuasive.

67. Contrary to the assertions of the Division, the

e vidence established that in the days prior to his death, Deputy

DeLeon was under stress in connection with his job

responsibilities as a deputy with the Sheriff's Office and that

the pre - existing condition, atherosclerosis, was aggravated by

the job - relate d stress.

68. The fact that the atherosclerosis was a pre - existing

condition, does not eliminate the possibility of work - related

aggravation causing the death or disability of a covered

employee. See City of Temple Terrace v. Bailey , 481 So. 2d

49, 51 ( Fla. 1st DCA 1985).

69. Considering the entire record in this case, the

greater weight of the evidence established that Deputy DeLeon's

pre - existing heart disease was aggravated by the job - related

stress he experienced on the days prior to his death, and a s a

result thereof, he died. Thus, Petitioner is entitled to the

presumption in Subsection 112.18(1), Florida Statutes (2003).

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Respondent, the D epartment of Management

Services, Division of Retirement, issue a final order finding

that Petitioner, Areani T. DeLeon, is qualified to receive "in

line of duty" benefits.

DONE AND ENTERED this 23rd day of February, 2005, in

Tallahassee, Leon County, Flo rida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 2005.

COPIES FURNISHED :

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32 399 - 0950

David J. Plante, Esquire

Plante, Komninos & Fowkes Law

Group, LLC

709 West Azeele Street

Tampa, Florida 33606

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 323 99 - 9000

Alberto Dominguez, General Counsel

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.