1.
WHOA -- FLORIDA COURT SAYS FIREFIGHTERS NOT MORE AT RISK
FOR HEP C:
A recent Florida appellate decision is
more notable for its obiter dicta than for its actual holding.
Bartlett, a firefighter, sought workers’ compensation
as a result of his hepatitis C. The judge of compensation
claims found compensability, but on appeal, a Florida district
court of appeal reversed. Bartlett could have established
compensability of his hepatitis C in one of two ways: (a)
he could meet the criteria necessary to qualify for the
statutory presumption of compensability pursuant to Section
112.181(2), Florida Statutes or (b) he could present clear
evidence to meet the elements necessary to establish his
hepatitis C is an occupational disease. The higher court
found that Bartlett failed to present evidence to establish
compensability under either basis. To qualify for the statutory
presumption, one must, “by written affidavit,”
verify that, to the best of his knowledge and belief, he
has not:
(1) been exposed, through transfer of
bodily fluids, to any person known to have sickness or
medical conditions derived from hepatitis, outside the
scope of his employment;
(2) had a blood transfusion or blood
components, other than a transfusion rising out of an
accident or injury happening in connection with his present
employment, or received any blood products for the treatment
of a coagulation disorder since last undergoing medical
tests for hepatitis, which tests failed to indicate the
presence of hepatitis;
(3) engaged in unsafe sexual practices
or other high-risk behavior, as identified by the Centers
for Disease Control and Prevention or the Surgeon General
of the United States, or had sexual relations with a person
known to him to have engaged in such unsafe sexual practices
or other high-risk behavior; or
(4) used intravenous drugs not prescribed
by a physician.
Bartlett failed to submit the required
affidavit, although he gave essentially the same information
required by the affidavit during a deposition. However,
“depositions cannot take the place of the written
affidavit required by statute.” (C’mon.) Bartlett
did testify that, during the relevant time, he had engaged
in unprotected sex with approximately 20 women.
Bartlett’s alternate theory of compensability,
of course, was that hepatitis C is an occupational disease
pursuant to Section 440.151(2), Florida Statutes. The statutory
criteria to establish entitlement for recovery under an
occupational disease theory have been interpreted to require
the following four-part test be met:
(1) the disease must be actually caused
by employment conditions that are characteristic of and
peculiar to a particular occupation;
(2) the disease must be actually contracted
during employment in the particular occupation;
(3) the occupation must present a particular
hazard of the disease occurring so as to distinguish that
occupation from usual occupations, or the incidence of
the disease must be higher in the occupation than in usual
occupations; and
(4) if the disease is an ordinary disease
of life, the incidence of such disease must be substantially
higher in the particular occupation than in the general
public.
Again, Bartlett failed to present sufficient
evidence to satisfy this test. He was required to establish
causation by introducing clear evidence of each element
of the four-part test. Even though Bartlett testified to
needle sticks during his tenure as a firefighter, he did
not know whether the sticks involved people infected with
hepatitis C. He also testified he had blood-to-blood contact
during his employment, but, again, did not know whether
any of the individuals were hepatitis C positive. Testimony
at the hearing was that the most common causes of hepatitis
C were illegal intravenous drug usage (70%); receiving blood
transfusions prior to 1990 (10%); engaging in unprotected
sex (5%); unknown causes (4%); and needle sticks (2%). (Note:
what about the other 9%?) So, Bartlett loses because he
does not have the benefit of the statutory presumption and
cannot independently show employment-related causation.
Okay. But, the court went on to state, although not part
of its holding:
Significantly, the only expert testimony
comparing the prevalence of hepatitis C in firefighters
to that occurring in the general population was that the
disease occurred in both with the exact same frequency.
Consequently, there is no evidence that being a firefighter
presents a particular hazard of contracting the disease,
or that the incidence of the disease is substantially
higher in firefighters than in the general public.
We certainly hope that this passing statement
does not develop “legs.” When courts rule, they
ought to stop there and skip the nonessential issues. Seminole
County Government v. Bartlett, 31 Fla. L. Weekly D333 (Fla.
1st DCA, January 31, 2006).
2.
MORTGAGE APPLICATIONS CONTINUE TO SLIDE:
Mortgage applications in the United States
fell for a second week as a measure of home purchases declined
to the lowest level since the end of last year, according
to the Daily Business Review. The Mortgage Bankers Association’s
weekly index of applications to buy a home and refinance
mortgages dropped 1.2% to 619.3 during last week from 626.8.
The average rate on a 30-year fixed mortgage increased to
the highest level since December 9, 2005. Higher prices
and mortgage rates are forecast to let some steam out of
the housing market, which set sales records in each of the
last five years and powered the economy. But job and income
growth may still be enough to keep demand from plunging.
Consumer borrowing through credit cards and other nonmortgage
loans increased 3% last year, the smallest gain since 1992.
At the same time, people spent more, borrowing against equity
in their homes to do so. The share of cashout refinancing
in the fourth quarter for loans owned by Federal Home Loan
Mortgage Corporation (Freddie Mac), the number two buyer
of mortgages, rose to the highest in five years.
3.
FOR FLSA PURPOSES, FIREFIGHTERS’ SICK LEAVE BUY-BACK
PROGRAM INCLUDED IN REGULAR RATE OF PAY:
One hundred current and former firefighters
brought suit against the city for failing to include a series
of payments in the firefighters’ regular rate of pay,
in violation of 28 U.S.C. §207(e) (Fair Labor Standards
Act). Subsequently, the parties settled as to certain types
of payments, leaving at issue only sick leave buy-back monies,
which the federal district court ruled should be included
in the firefighters’ regular rate of pay. Under the
city’s sick leave buy-back program, firefighters who
work 24 hour work shifts during the course of one year accumulate
10 days of sick leave. Firefighters who fail to use their
sick leave are entitled to “sell back” any of
the 10 unused sick days to the city in exchange for a lump
sum payment equal to 75% of their regular hourly pay, provided
the firefighter has amassed at least six months sick leave.
(The firefighters contended that all monies received from
sale of sick leave should be included in their regular rate
of pay, which calculation is critical because it provides
the base point from which the firefighters’ overtime
compensation is calculated.) Basically, FLSA provides that
all remuneration from employment paid to or in behalf of
the employee must be included in the employee’s regular
rate of pay. On appeal, the appellate court affirmed. The
authority of the federal regulations promulgated under FLSA,
coupled with the statutory presumption favoring inclusion
of all monies in regular rate of pay, mandates that lump
sum payments awarded under the city’s sick leave buy-back
program be included in firefighters’ regular rate
of pay. Acton v. City of Columbia, Missouri, Case No. 04-3985
(U.S. 8th Cir., February 8, 2006).
4.
FLASH -- ACTUARIES ARE MORE INTERESTING THAN ACCOUNTANTS!:
Or at least that’s the claim in a
recent Financial Times piece entitled “Why actuaries
count themselves lucky not to be accountants.” (Everyone
has heard the joke about an actuary being someone who rejected
accountancy on the grounds that it was too exciting.) In
any event, here’s the bottom line: what actuaries
do is more interesting than what accountants do. Being an
actuary is about judgment -- there are no wrong or right
answers. Accountants tend to look at what happened within
a very fixed framework. Prognosticating is intrinsically
more interesting and more of an art than looking at what
has happened already. Hmmm. Verrrrrrry interesting. Not.
5.
RICH GETTING RICHER FASTER:
According to msn.Money, two new studies
find the rich are getting richer at a faster pace. A study
released in late January, from the Center on Budget and
Policy Priorities and the Economic Policy Institute, found
that the gap between the highest- and lowest-income families
is significantly wider than it was 25 years ago. And an
analysis of income-tax data by Congressional Budget Office
found that the top 1% of households own nearly twice as
much of the nation’s corporate wealth as they did
just 15 years ago. The studies come among a growing push
to increase the federal minimum wage of $5.15 an hour for
the first time in nine years. (Here’s a little dose
of reality: an employee working full-time at the federal
minimum wage makes $10,712 a year. About 7% of the workforce
earns minimum wage.) Five states with the largest income
gap between top and bottom fifths of families are New York,
Texas, Tennessee, Arizona and Florida.
6.
QUOTE OF THE WEEK:
From George Carlin -- “Think about
how stupid the average person is, then realize that half
the population is stupider.” He’s come a long
way from being Al Sleet, the Hippie Dippie weatherman.
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