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2010-03-12 BOD Meeting10:00 a.m. Consent Agenda PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING Terrace Hotel Lakeland, FL March 12, 2010 AGENDA Call To Order John Litton, Chairperson 1. Request Approval of November 13, 2009 Board Meeting Minutes 2. Request Approval of Treasurer's Report as of December 31, 2009 Any Board Member may request to have an item removed from the Consent Agenda and placed on the Regular Agenda for further discussion. Regular Agenda 3. Executive Director's Report Ross Furry, Executive Director A. Auditor and Actuary Reports B. Request Board Approval of 2010- 11Administrative Budget C. 2010 Educational Conference D. 2011 Member Notice to Withdraw E. On -Site Property Appraisals i. Scheduled in 2010 ii. Scheduled in 2011 4. Insurance Advisor's Report Glenn Tobey, Tobey & Associates A. Six Year Loss Analysis B. 2010 to 2011 Loss Fund Calculation Recommendation C. Insurance Advisor Job Description 5. Broker's Report Andy Cooper, World Risk Management A. 2010 Renewal o Property — Pricing, limits, carriers o Liability — Pricing, limits, carriers o Public Officials E &O — Pricing, limits, carriers o Workers' Compensation — Pricing, limits, carriers o Crime — Pricing, limits, carriers o Excess Liability — Pricing, limits, carriers o Boiler & Machinery — Pricing, limits, carriers o Gallagher Bassett — Pricing B. Members Who Have Given Notice o RFP's o Members not out to bid 6. Chairperson's Items John Litton, Chairperson A. Request Approval to Utilize Surplus to Offset Member Loss Fund Contributions B. Approval of 2010 -11 Total PRM Program Renewal as presented by World Risk Management C. Executive Director's Evaluation 7. Legal Update 8. Board Member Items A. Election of Officers — June Board Meeting Donovan Roper, Esquire Public Comment: State full name and address. Discussion must be limited to a maximum of five (5) minutes per person. Adjournment PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 CONSENT AGENDA SUMMARY 1. Request Approval of November 13, 2009 Board Meeting Minutes Background: Meeting Minutes attached 2. Request Approval of Treasurer's Report as of December 31, 2009 Background: Financial Reports Attached o d Action: Approved Denied Deferred Other 1. BOARD MEETING MINUTES 11/13/09 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING TERRACE HOTEL, LAKELAND, FL November 13, 2009 MINUTES Attendance: Preferred Members: Kathy Bennett, City of Avon Park; Lester Baird, Barron Water Control District; J. P. Murphy, Town of BeIleair; Steve Baumgartner, City of Brooksville; Ted Byrd, City of Clewiston; Jerry Hill, DeSoto County BOCC; Mike Sheppard, City of Eustis; Mark Ben- Asher, City of Florida City; Phyllis Kirk, City of Fort Meade; Denise Manuel, Gulf County BOCC; Mercedes Perez, City of Gulfport; Jane Long, Hardee County BOCC; Jennifer Davis, Hendry County BOCC; Sandy Sanders, City of Indian Rocks Beach; Susan Scrogham, Town of Kenneth City; Lisa Smith, City of LaBelle; Deanna Cox, Town of Lady Lake; John Litton, City of Lake Mary; Fred Moody, Levy County BOCC; Gerald Wilson, Town of Longboat Key; Katrina Powell, City of Longwood; Jeff Sutton, City of New Port Richey; Steve Gailbreath, City of North Port; Robbie Chartier, Okeechobee County BOCC; Connie Collins, City of Oviedo; Pam Zeigler, City of Port Richey; Phil Wickstrom, City of Punta Gorda; Bill Cropsey, City of Safety Harbor; Martin Lange, Sarasota /Manatee Airport Authority; Mike Eastman, City of Sebring; Gary Behnke, City of St. Pete Beach; Dana March, Sun `n Lake of Sebring Improvement District; Crissy Bublitz, City of Tavares; Woody Hubbard, City of Temple Terrace; Terri Svendsen, City of Wauchula, Frank Gilbert, City of Winter Garden; Katrina Bouthot, City of Zephyrhills Non - Voting Attendees: Standard Members [S]: Deborah McAfee, agent representing the City of Key Colony Beach [S]; Theresa Walker, City of Maitland [S] Absent: City of Belle Glade, City of Crystal River, Glades County BOCC, Holmes County BOCC, Town of Lake Placid, City of Lake Wales, Town of Lantana [S], City of Moore Haven, City of Okeechobee, City of Pahokee, Port of Palm. Beach [S], Seacoast Utility Authority [S], South Florida Conservancy District, City of South Pasadena Chairperson John Litton called the meeting to order at 10:10 a.m. with a quorum present. Six new members were welcomed — Preferred Member, City of Florida City; Standard Members, City of Key Colony Beach, Town of Lantana, City of Maitland, Port of Palm Beach, Seacoast Utility Authority Consent Agenda 1. Request Approval of June 19, 2009 Board Meeting Minutes 2. Request Approval of Treasurer's Report as of September 30, 2009 Lester Baird made a motion to approve the minutes of the 6/19/09 meeting. Jane Long seconded the motion, and it was unanimously approved. Jane Long made a motion to 11/13/09 approve the 9/30/09 Treasurer's Report. Steve Gailbreath seconded the motion, and it was unanimously approved. Regular Agenda 3. Executive Director's Report A. 2010 On -Site Property Appraisals — Two members [City of Indian Rocks Beach and Sun 'n Lake of Sebring Improvement District] are scheduled for on -site property appraisals in 2010. Members were reminded to forward any additions, changes, or deletions on their property to CBIZ throughout the year. B. H1N1 Claims — Mr. Furry advised members that H1N1 (swine flu) is not a Workers' Compensation covered item and any claims submitted will be denied. C. Phone -In Claims Reporting — Bonnie Mims explained the Telephonic Claims Reporting Program offered by Gallagher Bassett Services through ClaimZone that PRM staff recommends implementing. Members will call in claims to an assigned 800 number, which will be manned 24/7. Members will receive a loss number upon completion of the call. Using this reporting method will eliminate paperwork and accelerate the process of getting claims into the system. Cost per telephonic claim is $15. The annual cost of claim reporting is $22,000 and can be paid from the file for each claim or expensed. For the first twelve months, PRM will assume the cost, up to $30,000, under the PRM Administration Fee budget. Upon Board approval, this service will be established within 45 days. Robbie Chortler made a motion to approve implementation of Telephonic Claims Reporting through ClaimZone. Terri Svendsen seconded the motion, and it was unanimously approved. [Representative from Town of Belleair entered the meeting at 10:29 a.m.] D. On -Line Training — To further enhance loss prevention services provided by PRM, on -line training was researched. PRM staff recommends utilizing the National Safety Council's on -site training programs, as well as E- Learning. An initial purchase of 1200 hours /300 seats of classroom training as well as 1200 hours /300 seats for E- Learning are being recommended for Board approval. The total cost of $25,268 will be covered under the PRM Administration Fee budget. Mr. Baird made a motion to approve initiating classroom and E- Learning training through the National Safety Council. Connie Collins seconded the motion, and it was unanimously approved. 11/13/09 2 E. FEMA Training & HR Roundtables — Ms. Mims reviewed the regional FEMA workshops and HR Roundtables that have been held and sponsored by PRM. The services of Jane O'Connor, TPS Solutions, were utilized to present FEMA 101 workshops. Ms. Mims facilitated informal HR Roundtables where members were able to discuss employment related responsibilities. Brian Koji of Allen, Norton & Blue provided his assistance in these sessions. The approximate costs were $3,000 for FEMA workshops and $500 for HR Roundtables. PRM staff recommends continuing these events on an annual basis. 4. Insurance Advisor's Report A. What Competition Offers Compared to PRM — Mr. Tobey provided an in -depth comparison of coverage provided by PRM and our competitors. Mr. Tobey offered his availability to meet with members' councils /commissions to review the PRM program and encouraged members to contact him. 5. Broker's Report Mr. Caldwell reviewed marketing strategy that allowed the addition of six members to the Pool, as a result of By -Law changes approved at the June meeting. By offering the ability to purchase one or more lines of coverage allowed PRM to be more competitive. Continued growth is anticipated. The Coverage Document and declarations of coverage were provided on a USB flash pen drive and distributed to members at the meeting. The broker apologized for the delay in providing policies and emphasized this tardiness would not recur. A. New Members to PRM Mr. Cooper advised of the time- involved process on reviewing losses and exposures for a potential member in order to prepare a quote. Forty -five submissions for quotations were received. Six new members were secured with good prospects for next year. B. Marketing Brochure & Inserts — The new marketing brochure being utilized for prospective members was exhibited. C. Renewal Applications — Status — Mr. Cooper advised, with the change in carriers, the format for the renewal application was not a preferred method and alterations will be made next year. All information has been received and the broker is ready to contact carriers. 11/13/09 3 D. Market Conditions — The broker indicated the market is soft and staying soft. E. Coverage for Inverse Condemnation & Non Monetary Claims — For the 4/1/10 renewal, optional coverage for Inverse Condemnation and Non - Monetary Damages has been recommended to further enhance coverage with PRM. This coverage includes legal defense and matches the competition's coverage offerings. Phil Wickstrom made a motion to approve offering optional coverage for Inverse Condemnation & Non - Monetary Damages for the 4/1/10 renewal. Jeff Sutton seconded the motion, and it was unanimously approved. 6. Legal Update A. Hammer vs. Punta Gorda /Okeechobee Lawsuit — Mr. Roper advised Hammer Construction filed suit to recoup $7 -8 million owed to them for hurricane restoration work because the statute of limitations was expiring. PRM was also named a party when a judge ruled the coverage document did not list individual entities, only PRM. Bob Shearman of Henderson, Franklin, Starnes & Holt is representing the City of Punta Gorda and Okeechobee County. Mr. Roper is representing PRM. A meeting was held with Hammer Construction representatives and their legal counsel, Mr. Shearman, Mr. Furry, and Mr. Roper to review outstanding issues. Hammer's attorney is preparing an Assignment Agreement allowing Hammer to proceed directly against the reinsurers, accompanied by a release that Hammer would not seek recovery from Punta Gorda /Okeechobee for any non - covered expenses. 7. Board Member Items A. 2010 Meetings /Locations — Under Article 7.1 of the By -Laws, meetings of the Executive Board will be held at least four times a year and regular Board of Directors meetings may meet up to four times a year. At their August meeting, the Executive Board had approved meeting dates for 2010. Recommendation was made to change the 2010 meeting dates for the Executive Board and establish two meeting dates for the Board of Directors to coincide with budgets and renewals to allow approval of same by the Board of Directors. A motion was made by Frank Gilbert to approve 2010 meeting dates. Mr. Sutton seconded the motion, and it was unanimously approved. 11/13/09 4 Executive Board 2010 Meeting Dates February 12 May 14 August 13 November 12 Board of Directors 2010 Meeting Dates March 12 June 18 (Marco Island) There was no public comment. Meeting adjourned at Noon. Respectfully submitted, Judith A. Hearn Assistant Executive Director Secretary, PRM Board of Directors JAH:smb O:1Judy \BD MTGS\Board of Directors Meeting 11 -13 -09 11/13/09 5 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING NOVEMBER 13, 2009 @ 10:00 A.M. [Std Member — Non Voting] Rcvd Manuals Avon Park, City of Barron Water Control District V Belleair, Town of Belle Glade, City of Brooksville, City of Clewiston, City of Crystal River, City of DeSoto County BOCC Eustis, City of Florida City, City of Fort Meade, City of Glades County BOCC Gulf County BOCC Gulfport, City of Hardee County BOCC Hendry County BOCC Vivian Hunter adJ Steve Baumgartner Ted Byrd 4/d-2 Deanna Rowe LAKELAND, FLORIDA Sarah Adelt June Shivers Susan Lee Diana Hughes T. Jennene Norman -Vacha Laurie Lindsey Linda S son Paul Erickson Ann Isaacs Phyllis Kirk Deena Ware Robert Giesler Denise Manuel Mary Ann Dotson Don Butler Dan Carpenter Danny Weeks Karson Turner Revd Manuals Holmes County BOCC Ma 'SF Monty Merchant Indian Rocks Beach, City of -. Kenneth City, Town of Key Colony Beach, City of LaBelle, City of Lady Lake, Town of Lake Mary, City of ✓ Lake Placid, Town of Lake Wales, City of Lantana, Town of atiek Levy County BOCC Longboat Key, Town of Longwood, City of Maitland, City of Moore Haven, City of New Port Richey, City of North Port, City of Sandy Sanders ei Nett" Vickie Bollinger (contact) Arlene Tuck Sandra Davis eresa Walker Maxine tley Steve Gailbreath Sherry Fitzpatrick Chuck Coward Tahia O'Neal Jacqueline Sova Phil Williams Jacqueline Martin Thomas Kelley Melissa Arnold Thomas O'Neill Sherry Borgsdorf Okeechobee, City of Okeechobee County BOCC Oviedo, City of Pahokee, City of Port of Palm Beach Port Richey, City of Punta Gorda, City of Safety Harbor, City of Sarasota/Manatee Airport Seacoast Utility Authority Sebring, City of South Florida Conservancy South Pasadena, City of St. Pete Beach, City of Sun n' Lake of Sebring Tavares, City of Temple Terrace, City of Rcvd Manuals Sharon Alliso Robbie Vharder Brian Whitehall ..41e4 Lyndon Bonner Connie Collins Keith Straw Derrek Moore Paul Zielinski (contact) Phil Wickstrom : 1 C •psey Hope Dexter (contact) John Clark David Davis James Graham Crissy Bublitz % Lori Tucker Pam Zeigler David Drury Alan Zimmet John Schussler Elsie King Mike Bonfield Ileana Martinez Woody +� +b. d Kim D. Leinbach Wauchula, City of Winter Garden, City of Zephyrhills, City of Preferred Members = 48 Standard Members = 5 Rcvd Manuals James Braddock Terri Svendsen Frank Gilbert Peggy Carpenter enter Rick Moore GUESTS / ADDITIONAL ATTENDEE SIGN IN SHEET Entity / Company NOVEMBER 13, 2009 2. TREASURER'S REPORT AS OF 12/31/09 PUBLIC RISK MGMT OF FL BALANCE SHEET DECEMBER 31, 2009 CURRENT ASSETS PETTY CASH $ 75.00 OPERATING - BB & T 34,000,138.51 CASH - C.D. 20,000,000.00 A/R MEMBERSHIPS 69,531.19 A/R TRADE 3,218.46 A/R - PRM GR HLTH 830,038.23 A/R CONSULTANT FEE - MEMBERS 2,083.45 A/R- REINSURANCE RECOVERIES (6,203,267.68) A/R OTHER 2,300.61 A/R -STATE W/C ASSESSMENT 72,594.41 A/R- APPRAISALS 767.00 A/R - ADDITIONAL INSURANCE 501.21 A/R - SCHOLARSHIP PROGRAM 8,705.00 DUE FROM MEMBERS 1,750,000.00 STATE ADMIN. FUND 1,962.22 TOTAL CURRENT ASSETS 50,538,647.61 PROPERTY AND EQUIPMENT FURNITURE & FIXTURES 33,422.72 LESS: ACCUM. DEPRECIATION (32,649.79) OFFICE MACHINES & EQUIPMENT 66,818.68 LESS: ACCUM. DEPRECIATION (44,881.02) AUTOMOBILE 116,538.79 ACCUMULATED DEPRECIATION (51,547.93) TOTAL PROPERTY & EQUIPMENT 87,701.45 OTHER ASSETS PREPAID INSURANCE 5,255,487.38 PREPAID FLOOD INSURANCE 94.49 PREPAID EXPENSES 24,634.79 DEFER MEMBER CONTR - 1987 -89 183,808.00 DEFER MEMBER CONTR- 1989 -90 295,679.00 DEPOSITS 5,665.06 TOTAL OTHER ASSETS TOTAL ASSETS LIABILITIES ACCOUNTS PAYABLE $ (123,921.32) A/P - GALLAGHER/RISX -FACS 657,213.17 FEDERAL TAXES PAYABLE (297.80) PEBSCO PAYABLE 207.18 A/P EMP LIFE INS 107.81 A/P - OTHER 4,840.49 A/P - LOSS PREVENTION 14,933.73 ACCRUED VACATION 41,121.55 DEFERRED REVENUE 7,318,510.92 ADVANCE FROM REINSURER 7,111,805.45 CLAIMS PAYABLE - 1987 -89 (582,189.87) CLAIMS PAYABLE - 1990 -91 (23,368.81) CLAIMS PAYABLE - 1991 -92 (5,840.48) CLAIMS PAYABLE - 1992 -93 64,596.66 CLAIMS PAYABLE - 1993 -94 33,954.72 CLAIMS PAYABLE - 1994 -95 37,842.82 CLAIMS PAYABLE - 1996/97 (45,239.16) CLAIMS PAYABLE - 1997/98 (1,730,285.43) CLAIMS PAYABLE - 1998/99 (97,444.24) CLAIMS PAYABLE - 1999/00 (181,857.83) CLAIMS PAYABLE - 2000/01 (377,406.62) CLAIMS PAYABLE - 2001/02 (461,963.07) CLAIMS PAYABLE - 2002/03 291,073.97 CLAIMS PAYABLE - 2003/04 (1,882,086.51) CLAIMS PAYABLE - 2004/05 757,698.44 CLAIMS PAYABLE - 2005/06 (684,186.59) CLAIMS PAYABLE - 2006/08 15,806,353.58 CLAIMS PAYABLE - 2008/09 3,873,862.88 5,765,368.72 56,391,717.78 NONCURRENT CLAIMS PAYABLE SUSPENSE - CLEARING ACCOUNT PUBLIC RISK MGMT OF FL BALANCE SHEET DECEMBER 31, 2009 (16,797,840.81) 14,495,419.00 TOTAL LIABILITIES 27,515,613.83 CAPITAL FUND BALANCE REVENUE IN EXCESS OF EXPENSE 30,073,213.58 (1,197,109.63) TOTAL CAPITAL 28,876,103.95 TOTAL LIABILITIES & CAPITAL $ 56,391,717.78 REVENUES MEMBERSHIP ASSESSMENTS INTEREST INCOME TOTAL REVENUES PUBLIC RISK MGMT OF FL INCOME STATEMENT FOR THE THREE MONTHS ENDING DECEMBER 31, 2009 CURRENT MONTH (48,141.42) 43,114.96 (5,026.46) YEAR TO DATE 3,939,900.68 56,903.15 3,996,803.83 EXPENSES OFFICERS' SALARIES 14,090.60 36,635.56 OFFICE SALARIES 49,143.95 127,774.27 PAYROLL TAXES 3,696.16 10,374.81 EMPLOYEE RETIREMENT BENEFITS 5,870.99 18,535.98 HEALTH INSURANCE- OFFICER 1,695.47 5,086.41 HEALTH INSURANCE- OFFICE 10,136.50 30,504.45 LIFE INSURANCE- OFFICER 85.26 255.78 LIFE INSURANCE - OFFICE 148.91 452.05 LTD INSURANCE 1,152.87 3,458.61 LEGAL FEES 1,500.00 6,228.53 APPRAISAL FEE EXPENSE 0.00 3,000.00 AUTO EXPENSE 1,621.57 1,928.35 TRAVEL EXPENSE 2,801.00 16,685.49 ASSOCIATION MEMBERSHIPS 350.00 350.00 DUES & SUBSCRIPTIONS 202.43 872.43 EDUCATION/TRAINING /CONFER 0.00 531.97 OFFICE LEASE 6,567.53 19,702.59 JANITORIAL / CLEANING 280.00 910.00 OFFICE /COMPUTER EQUIPMENT 3,125.00 9,803.42 TELEPHONE 1,904.41 4,854.34 COPY MACHINE LEASE 203.00 609.00 OFFICE SUPPLIES 319.50 4,193.28 NEWSLETTER 0.00 832.50 POSTAGE 547.64 911.82 PRINTING 0.00 2,003.17 LOSS PREV EQUIP & SUPPLIES 556.36 6,742.94 MARKETING & PROMOTION 44.52 44.52 MEETING EXPENSE 0.00 5,327.01 MISCELLANEOUS EXPENSE 693.03 1,007.27 GALLAGHER EXCESS INSURANCE 909,213.08 2,727,639.24 CLAIMS EXPENSE 691,330.33 2,073,990.99 INSURANCE CONSULTANT 36,333.34 72,666.68 TOTAL EXPENSES 1,743,613.45 5,193,913.46 REVENUE IN EXCESS OF EXPENSE $ (1,748,639.91) $ (1,197,109.63) STAFFING PUBLIC RISK MGMT OF FL EXPENSES TO BUDGET 04/01/09 - 03/31/10 FOR THE NINE MONTHS ENDING DECEMBER 31, 2009 MONTHLY MONTHLY Y -T -D Y -T -D TOTAL YEAR % of YTD ACTUAL BUDGET ACTUAL BUDGET BUDGET ACTUAL SALARY RELATED EXPENSES OFFICER'S' SALARIES 14,090.60 12,211.83 110,015.06 109,906.50 146,542.00 75.07% OFFICE SALARIES 49,143.95 42,454.08 383,909.43 382,086.75 509,449.00 75.36% PAYRLL TAXES 3,696.16 4,199.92 35,802.44 37,799.25 50,399.00 71.04% EMPLOYEE RETIREMENT BENEFIT: 5,868.88 5,757.50 48,871.85 51,817.50 69,090.00 7034% HELATH INSURANCE- OFFICER 1,695.47 1,663.75 14,502.63 14,973.75 19,965.00 72.64% HEALTH INSURANCE- OFFICE 10,136.50 10,135.92 86,792.47 91,223.25 121,631.00 71.36% LIFE INSURANCE- OFFICER 85.26 86.67 781.26 780.00 1,040.00 75.12% LIFE INSURANCE -OFFICE 148.91 148.50 1,559_60 1,336.50 1,782.00 87.52% LTD INSURANCE 1,152.87 1,192.50 10,333.14 10,732.50 14,310.00 72.21% TOTAL SALARY RELATED EXPENSE 86,018.60 77,850.67 692,567.88 700,656.00 934,208.00 74.13% GENERAL EXPENSES LEGAL FEES 1,500.00 1,250.00 18,479.46 11,250.00 15,000.00 123.20% LEGAL -PRE DEFENSE 0.00 416.67 154.60 3,750.00 5,000.00 3.09% AUDIT FEES 0.00 2,583.33 0.00 23250.00 31,000.00 0.00% ACTUARIAL STUDY 0.00 2,500.00 1,750.20 22,500.00 30,000.00 5.83% APPRAISAL FEE EXPENSE 0.00 481.25 4,500.00 4,331.25 5,775.00 77.92% AUTO EXPENSE 1,621.57 400.00 6,640.28 3,600.00 4,800.00 138.34% TRAVEL - EXPENSE 2,801.00 2,500.00 38,188.50 22,500.00 30,000.00 127.30% ASSOCIATION MEMBERSHIPS 350.00 166.67 350.00 1,500.00 2,000.00 17.50% DUES & SUBSCRIPTIONS 202.43 266.67 1,715.63 2,400.00 3,200.00 53.61% EDUCATION/TRAINING /CONFER 0.00 2,500.00 13,327.43 22,500.00 30,000.00 44.42% OFFICE LEASE 6,567.53 6,690.00 58,151.32 60,210.00 80,280.00 72.44% JANITORIAL/CLEANING 280.00 346.67 2,730.00 3,120.00 4,160.00 65.63% OFFICECOMPUTER EQUIPMENT 3,125.00 1,500.00 23,339.88 13,500.00 18,000.00 129.67% TELEPHONE 1,904.41 2,166.67 15,218.07 19,500.00 26,000.00 58.53% COPY MACHINE LEASE 203.00 250.00 1,827.00 2,250.00 3,000.00 60.90% REPAIRS & MAINT. - EQUIPMENT 0,00 166.67 0.00 1,500.00 2,000.00 0.00% OFFICE SUPPLIES 319.50 1,166.67 12,550.45 10,500.00 14,000.00 89.65% NEWSLETTER 0.00 333.33 2,497.50 3,000.00 4,000.00 62.44% POSTAGE 547.64 1,083.33 4,200.17 9,750.00 13,000.00 32.31% PRINTING 0.00 166.67 2,138.97 1,500.00 2,000.00 106.95% INSURANCE- FLOOD /GENERAL 0.00 250.00 0.00 2,250.00 3,000.00 0.00% LOSS PREV EQUIP & SUPPLIES 556.36 1,833.33 18,464.36 16,500.00 22,000.00 83.93% MARKETING & PROMOTION 44.52 375.00 475.35 3,375.00 4,500.00 10.56% MEETING EXPENSE 0.00 2,008.33 10,393.01 18,075.00 24,100.00 43.12% MISCELLANEOUS EXPENSE 693.03 208.33 3,303.83 1,875.00 2,500.00 132.15% CONFERENCE MEMBER ROOM EXI 0.00 631.33 6,837.00 5,682.00 7,576.00 90.25% TRAINING /SEMINAR PRESENTATIOI 0.00 333.33 0.00 3,000.00 4,000.00 0.00% WEB SITE MAINT 0.00 400.00 0.00 3,600.00 4,800.00 0.00% INSURANCE CONSULTANT 18,166.67 18,166.67 163,500.03 163,500.00 218,000.00 75.00% TOTAL GENERAL EXPENSES 38,882.66 51,140.92 410,733.04 460,268.25 613,691.00 66.93% TOTAL OPERATING EXPENSES 124,901.26 128,991.58 1,103,300.92 1,160,924.25 1,547,899.00 71.28% PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY 3. Executive Director's Report A. Auditor & Actuary Reports Ross Furry, Executive Director Both the Audit and Actuary Reports for FY 9 -30 -09 have been transmitted electronically to each Board and Alternate Board Member. Both the Auditor and Actuary made presentations to the Executive Board on 2/12/10. As presented in the reports, PRM remains financially sound and no significant audit exceptions were noted. Attachment B. Request Board Approval of 2010 -11 Administrative Budget The proposed Administrative Budget for the period 4/1/10 through 3/31/11 totals $1,242,851, a 14% overall decrease from the prior year's administrative budget. Total Personnel Budget is $973,270, a 4% increase over prior year's budget. Total Operating Expense is $371,989, a 6% decrease of approximately $24,000. Reserves for computer replacement and auto replacement remain the same as prior years. Additionally, a credit from the Group Health Trust in the same amount as last year to offset shared overhead expenses is again provided. The Insurance Consultant cost of $218,000 has been deleted. Effective 4/1, Mr. Tobey will be compensated totally by Accretive Insurance, however, he will still be assigned to the PRM account for our benefit. Last year with the pressure our members were under to reduce costs and in order for the PRM program to position itself against intense competition to buy our members' business, the membership approved the use of undesignated surplus, up to $1,500,000 to pay for the Administrative Budget. The net result of the use of this surplus money provided each member a direct savings equal to their prior year's PRM Administrative Budget allocation. It is noted that as of September 30, 2009, PRM did earn $303,859 in interest income that has increased members' surplus. The Executive Board approved the Administrative Budget on 2/12/10. Attached: Proposed Administrative Budget for FY 2010/11 Boar Action: Approved Denied Deferred Other 3.A. AUDITOR'S REPORT +'y O Cr 3a. rx o 0 a) O cad Q+ Li. E a1 ai a) to N 0 a) 5 O 4, ^c M ,4 R3 b V] 0 a) a) O .fl 0 w Q c> w o Q O +.., o b O a) a) � 7, E o O 8 d } - ti-• Q gt•. O ^O cu ,, g cci m a) cd cz E-± N y a) i ;!!bI 4 cd O 0 0 § 4 4 1 ) O O_ a) J O o U an magic EEa) W� W.1 Pa PI . U a! ''' O a) g :14, i i c) co • ,-. = qq 0 O :b 'O 0 o '' O 'O = b a) O c e O 0 as al 40 a■ 0 , bA O O O 0 Oc cct a) 0 .E O up cd 3 "Ci � s. ��H O o February 12, 2010 O a) a) a) 0 a) 0 0 O 0 0) a) 0 a' 0 -a7 0 a) 0) 0 0) a) 0 • U 0) U "O O 0 • U E O Op E O - 4-, (1) 4 ad U O 0. N i-r 0 U 0 Karen Fontenot V1 0 were required to be adopted for the o O bp cd ��0) s. �, > b ii.r 0- ob • 0 0 z. 0 0 '� ��,4"0�0 O to a) s0) 'O p y U ... >,.E .� c .0, "0 . aS C cd . 0 0 O "C a) c) c O -0 O 0 0 0 t CI O a) O 0 0 +-' a) CL� v, 0 P. A .N y V a) O � Cb l'" C. 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X o C O o O ; vD O U O c ° O •5 O • 2 . a g 0 w 8 z� Comments No material weaknesses were identified. I am not aware of any documents containing the audited financial statements of Public Risk Management of Florida. a) 0 z a) 0 z I discussed the following issues with management: • With the exception of cash, accounts receivable, and accounts payable, balance sheets are not reconciled during the year. In particular, reinsurance receivable should be reconciled to ensure timely receipt of reinsurance recoveries. • The loss fund credit approved by the Board of Directors was $2 million; the actual loss fund credit applied was $2.014 million. a.) 0 z Area Significant deficiencies and material weaknesses in internal control I am a required to communicate all significant deficiencies and material weaknesses that were identified during the course of my audit. Other information in documents containing audited financial statements Disagreements with management Serious difficulties encountered in dealing with management when performing the audit Significant issues, is any, arising from the audit that were discussed, or the subject of correspondence, with management Consultation with other accountants 0 w a / 0 U AICPA ethics ruling regarding third -party service providers = m (.4 R ® J \.E/ «2 ` /± �§§� / ` /�� ) \ \A-u ° $ _ « 0 $ E \ \ =. M E% 7 a 8 . °/ Q e E § 0 \/ /� q 9 § 8= e a / -0 = t J 2 4 / « \ / \ / / ƒ g o 0 m§ "� a) u %� /ƒ'V>- 2§ /k k�� k�� = \ ƒ / /.2 c § • ( / \� � �-- /k ƒ/�/ƒ /QM \��.§ _ _ % .0 _ / • K .r0 .w H < § •) / \ / j 2 / = 0 2 ' 2 0 . 4 ) 7 . 5 w) / \$\g.§ 3.B. 2010 -11 ADMINISTRATIVE BUDGET Public Risk Management Of Florida Property / Casualty Proposed Administrative Budget FY 04/01/10 - 03/31/11 2008/2009 2008/2009 2009/2010 12/31/2009 2010/2011 % Change STAFFING Budget Actual Budget Actual Proposed Budget Officer Salary 140,906 140,141 146,542 110,015 153,869 5% Office Salary 565,167 533,519 511,098 383,909 531,542 4% Payroll Taxes 54,015 51,082 50,309 35,802 52,434 4% Florida Retirement 72,504 56,814 68,874 36,392 72,640 5% Health Ins. - Officer 21,396 17,943 19,588 14,503 20,346 4% Health Ins. - Office 124,500 112,537 121,382 86,792 123,168 1% Life Ins. - Officer 1,004 971 1,021 781 1,072 5% Life Ins. - Office 2,015 2,134 1,744 1,560 1,744 0% Long Term Disability 12,063 14,824 14,310 10,333 16,455 15% Total Personnel Budget 993,570 929,966 934,868 680,088 973,270 4% OPERATING EXPENSE Legal Fees 15,000 21,258 15,000 0 15,000 0% Pre - defense Legal 5,000 0 5,000 0 5,000 0% Audit Fees 31,000 32,300 31,000 0 31,000 0% Actuarial Study 15,000 37,567 30,000 0 27,000 -10% Appraisal Expense 5,775 5,750 5,775 0 5,775 0% Auto Expense 4,800 4,981 4,800 0 4,800 0% Travel Expense 30,000 46,817 30,000 0 27,000 -10% Association memberships 2,000 1,052 2,000 0 2,000 0% Dues /Subscriptions 3,200 1,969 3,200 0 2,880 -10% Education /Training /Confer. 30,000 19,918 30,000 0 27,000 -10% Office Lease 75,736 75,586 80,280 0 82,688 3% Janitorial / Cleaning 3,800 3,657 4,160 0 4,160 0% Office/Computer Equipment 18,000 22,496 18,000 0 16,200 -10% Telephone 26,000 19,835 26,000 0 23,400 -10% Copy Machine Lease 3,000 2,436 3,000 0 2,700 -10% Repairs /Maint.- Equipment 2,000 0 2,000 0 1,800 -10% Office Expense 14,000 19,880 14,000 0 12,600 -10% Newsletter 4,000 2,498 4,000 0 4,000 0% Postage 13,000 10,304 13,000 0 11,700 -10% Printing 2,000 4,719 2,000 0 2,000 0% Insurance-Flood /General 3,000 0 3,000 0 0 -100% Loss Prevention Expense 22,000 11,569 22,000 0 19,800 -10% Marketing & promotion 4,500 967 4,500 0 4,050 -10% Meeting Expense 24,100 12,732 24,100 0 21,690 -10% Miscellaneous Expense 2,500 3,569 2,500 0 2,250 -10% Conference Member Room Expense 7,576 6,938 7,576 0 7,576 0% Training /Seminar Presentation 4,000 424 4,000 0 3,600 -10% Web Site Maintenance 4,800 0 4,800 0 4,320 -10% Non - Budget -Board Approval 0 0 0 0 0 0% Total Operating Expense Total Admin. Budget 375,787 369,223 395,691 0 371,989 -6% 1,369,357 1,299,189 1,330,559 680,088 1,345,259 1% Computer Replacement Reserve 15,000 7,500 15,000 7,500 15,000 Auto Replacement Reserve 30.000 15.000 30,000 15.000 30.000 Admin Budget with Reserves 1,414,357 1,321,689 1,375,559 702,588 1,390,259 2% Group Helath Admin. Transfer - 143,480 - 143480 - 147,408 - 110,556 - 147,408 Admin Budget with Gr. Hlth. Credit 1,270,877 1,178,209 1,228,151 592,032 1,242,851 1% Insurance Consultant 218,000 90,833 218,000 163,500 0 Admin Budget with Ins. Consultant 1,488,877 1,269,042 1,446,151 755,532 ( 1,242,851 -14% **Staff salaries to remain the same, with a 4% Bonus. 2/17/2010 PRM Time Frame For Policy Period Beginning April 1, 2010 Policy Period Begins April 1st Last Day to Give Notice to Withdrawal for Next Year * March 31 st Last Day to Confirm Withdrawal for Upcoming Year March 22nd Date We Receive Figures for Upcoming Year's Policies March 12th PRM Presentation to City Council March 2nd Call PRM and Verify City Council Presentation February 18th * May give notice once during a five year period without any repercussions. More than once, at the option of the Executive Board, may be required to withdrawal. PRM Time Frame For All Future Policies Policy Period Begins April 1st Last Day to Give Notice to Withdrawal for Next Year * March 31st (Last Business Day Prior to April 1st, must be in PRM Office) Last Day to Confirm Withdrawal for Upcoming Year March 22nd (10 Days Prior to April 1st, must be in PRM Office) Date We Receive Figures for Upcoming Year's Policies (Board of Directors Meeting in March, 2nd Friday of Month) PRM Presentation to City Council (1st Meeting in March) Call and Verify PRM Presentation to City Council (2nd Week in February) Call and Invite PRM to Present to City Council (2nd Week in January) * May give notice once during a five year period without any repercussions. More than once, at the option of the Executive Board, may be required to withdrawal. PUBLIC RISK MANAGEMENT OF FLORIDA Any Preferred Member may withdraw from the Pool at the end of the policy year upon serving on the Pool by mail, fax or hand delivery at least one year's prior written notice. Any Standard Member may withdraw from the Pool at the end of the policy year upon serving on the Pool by mail, fax or hand delivery at least forty -five (45) days prior written notice. Such notice shall be addressed to the Executive Director of the Pool and shall be accompanied by a resolution of the governing body of the Member electing to withdraw from the Pool. 4.3. Actual Withdrawal /Required Withdrawal. Any Preferred Member who has served the Executive Director with prior written notice of its intent to withdraw at least one (1) year prior to the beginning of the policy year for which the notice to withdraw is applicable, shall serve in writing to the Executive Director, by mail, fax or hand delivery no later than ten (10) days prior to the beginning of such policy year, a verification as to whether the Member intends to actually withdraw from the Pool at the end of the current policy year. Failure to serve such verification no later than ten (10) days prior to the beginning of the policy year for which notice of intent to withdraw is applied, shall be deemed a revocation of the prior notice of intent to withdraw; thus, binding the Member to the Pool for the ensuing policy year. Provided, however, any Preferred Member who serves written notice of its intent to withdraw from the Pool more than once during any five (5) year period may be required, at the option of the Executive Board, to withdraw from the Pool on the second such notice. Said requirement shall not apply to Standard Members of the Pool. An action to expel a Preferred Member in this manner shall be taken by the Executive Board in the manner described in Article 17 hereafter. Any Standard Member who chooses to withdraw from the Pool shall serve the Executive Director with prior written notice of its intent to withdraw at least forty -five (45) days prior to the beginning of the policy year for which the notice to withdraw is applicable, in writing to the Executive Director, by mail, fax or hand delivery at the end of the current policy year. Failure to serve such verification at least forty -five (45) days prior to the beginning of the policy year for which the notice to withdraw is applicable shall be deemed as actual binding consent on the part of the Standard Member to remain a Standard Member of the Pool, binding that Member to the Pool for the ensuing policy year. 4.4. Admission of New Members. The Pool's Executive Board shall establish and periodically review standards and the approval process for the admission of new Members. Upon approval of these standards and of the approval process for admission by the Board of Directors, the Pool's Executive Board may grant or deny admission to proposed new Members based upon such criteria. Consideration of new Members will be communicated to all PRM Board Members by the Executive Director for any information or feedback that a Member may have regarding the prospective member. Article 5 - Commencement of the Pool 5.1. Commencement Date. The Pool shall commence operations on October 1, 1987. Article 6 - Board of Directors of the Pool 6.1. The Board. There is hereby established a Board of Directors (sometimes hereinafter referred to as the "Board ") of the Pool. Each Member shall appoint one (1) person to represent that body (the "Representative ") on the Board of Directors along with another person to serve as an alternate representative (the "Alternate ") when the Representative is unable to carry out that Representative's duties. The Representative and Alternate shall be appointed, in writing, by the governing body of the Member and a copy of the written appointment shall be provided to the Executive Director of the Pool. Once such appointments are made known to the Pool, the persons appointed shall remain in office until the Pool receives 12 PUBLIC RISK MANAGEMENT OF FLORIDA Any Member who disagrees with the Executive Board's determination may request in writing that the Board of Directors, at a regular scheduled meeting, take action to affirm, modify or reverse the decision of the Executive Board. The Member shall be provided a full opportunity to explain their position to the Board of Directors. The Board of Directors, by majority vote of the Members, may affirm, modify or reverse the decision of the Executive Board, subject to any insurance or reinsurance contractual obligations. Any Member may seek binding arbitration, if available, pursuant to the Pool's General Coverage Document and, is not required to appeal a coverage or indemnification declination to either the Executive Board or Board of Directors. Article 16 — Contractual Obligation 16.1 Enforcement: This document shall constitute a binding contract under the Florida Interlocal Cooperation Act of 1969 among those public agencies, which become Members of the Pool. The obligations and responsibilities of the Members set forth herein, including the obligation to take no action inconsistent with this Intergovernmental Agreement as originally written or validly amended, shall remain a continuing obligation and responsibility of the Member. The terms of this Intergovernmental Agreement may be enforce in a court of law by the Pool. The consideration for the duties herewith imposed upon the Members to take certain actions and to refrain from certain other actions shall be based upon the mutual promises and agreements of the Members set forth herein. This Intergovernmental Agreement may be executed in duplicate originals and its passage by the Member's governing body shall be evidenced by a certified copy of a resolution passed by the members of the governing body in accordance with the rules and regulations of such public agency, provided, however, that except to the extent of the limited financial contributions to the Pool agreed to herein or such additional obligations as may come about through amendments to this Intergovernmental Agreement no Member agrees or contracts herein to be held responsible for any claims in tort or contract made against any other Member. The Members intend in the creation of the Pool to establish an organization for Risk Management only within the scope herein set out and have not herein created as between Member and Member any relationship of surety, indemnification or responsibility for the debts of or claims against any Member. 16.2. Attorneys' Fees. In any legal action between the parties arising out of this Agreement, any attempts to enforce this Agreement, or any breach of this Agreement, the prevailing party may recover its expenses of such legal action including, but not limited to, its costs of litigation (whether taxed by the court or not) and its reasonable attorneys' fees (including fees generated on appeals) from the other party. Article 17 - Expulsion or Termination of Members 17.1. Expulsion. By the vote of two- thirds (2/3) of the Directors serving on the Board of Directors, and by a vote of at least five (5) out of seven (7) Members serving on the Executive Board on decisions, determinations or issues involving section 4.3 of this Intergovernmental Agreement, any Member may be expelled. Such expulsion may be carried out for one or more of the following reasons: 17.1.1. Failure to make any timely payments due to the Pool. 22 PUBLIC RISK MANAGEMENT OF FLORIDA 17.1.2. Failure to undertake or continue Toss reduction and prevention procedures adopted by the Pool. 17.1.3. Failure to allow the Pool reasonable access to all facilities of the Member and all records which relates to the purpose, powers or functioning of the Pool. 17.1.4. Failure to furnish full cooperation with the Pool's attorneys, claims adjusters, the Executive Director and any agent, employee, officer or independent contractor of the Pool relating to the purpose, powers and proper functioning of the Pool. 17.1.5. Failure to carry out any obligation of a Member which impairs the ability of the Pool to carry out its purpose or powers or functions. 17.1.6. The Preferred Member has given the one (1) year notice described in Section 4.2 and 4.3 above. 17.2. Notice. No Member may be expelled except after notice from the Pool of the alleged failure along with a reasonable opportunity of not Tess than thirty (30) days to cure the alleged failure. The Member may request a hearing before the Board before any decision is made as to whether the expulsion shall take place. The Board shall set the date for a hearing which shall not be Tess than fifteen (15) days after the expiration of the time to cure has passed. A decision by the Board to expel a Member after notice and hearing and a failure to cure the alleged defect shall be final. The Board of Directors may establish the date at which the expulsion of the Member shall be effective at any time not Tess than sixty (60) days after the vote expelling the Member has been made by the Board of Directors. If the motion to expel the Member made by the Board of Directors or a subsequent motion does not state the time at which the expulsion shall take place, such expulsion shall take place sixty (60) days after the date of the vote by the Board of Directors expelling the Member. 17.3. Responsibilities of Terminated Member. A former Member shall only continue to be fully responsible only for its' portion of any obligations incurred but not satisfied during the period of time they were a Member of the Pool. Such obligations may include, but not be limited to, premiums, loss fund payments, maintenance deductibles, workers' compensations, final audit and administrative fees, etc., owed or unpaid by the former Member. The former Member shall no longer be entitled to participate or vote on the Board of Directors. Article 18 - Special Provisions for Deferred Funding During the fiscal years commencing on October 1, 1987 and ending on September 30, 1990, the entire Annual "Loss Fund" Contribution was not required by the Board of Directors to be paid within the fiscal year to which it was applicable. The difference between the Annual "Loss Fund" Contribution and the amount required by the Board of Directors to actually be paid to the Pool during such year by a Member is referred to herein as Deferred Funding. Members and former Members during any year for which there existed Deferred Funding may be required by the Board of Directors upon recommendation of the Executive Director to pay their applicable portion of the Deferred Funding in subsequent years. Members or former members will be allowed forty-five (45) days after notification to make any payments of Deferred Funding. The amount of any payments required for Deferred Funding as to each Member shall be based upon the same formula as was used in establishing the Annual "Loss Fund" Contribution for that year. 23 PUBLIC RISK MANAGEMENT OF FLORIDA Any Preferred Member may withdraw from the Pool at the end of the policy year upon serving on the Pool by mail, fax or hand delivery at least one year's prior written notice. Any Standard Member may withdraw from the Pool at the end of the policy year upon serving on the Pool by mail, fax or hand delivery at least forty -five (45) days prior written notice. Such notice shall be addressed to the Executive Director of the Pool and shall be accompanied by a resolution of the governing body of the Member electing to withdraw from the Pool. 4.3. Actual Withdrawal /Required Withdrawal. Any Preferred Member who has served the Executive Director with prior written notice of its intent to withdraw at least one (1) year prior to the beginning of the policy year for which the notice to withdraw is applicable, shall serve in writing to the Executive Director, by mail, fax or hand delivery no later than ten (10) days prior to the beginning of such policy year, a verification as to whether the Member intends to actually withdraw from the Pool at the end of the current policy year. Failure to serve such verification no later than ten (10) days prior to the beginning of the policy year for which notice of intent to withdraw is applied, shall be deemed a revocation of the prior notice of intent to withdraw; thus, binding the Member to the Pool for the ensuing policy year. Provided, however, any Preferred Member who serves written notice of its intent to withdraw from the Pool more than once during any five (5) year period may be required, at the option of the Executive Board, to withdraw from the Pool on the second such notice. Said requirement shall not apply to Standard Members of the Pool. An action to expel a Preferred Member in this manner shall be taken by the Executive Board in the manner described in Article 17 hereafter. Any Standard Member who chooses to withdraw from the Pool shall serve the Executive Director with prior written notice of its intent to withdraw at least forty -five (45) days prior to the beginning of the policy year for which the notice to withdraw is applicable, in writing to the Executive Director, by mail, fax or hand delivery at the end of the current policy year. Failure to serve such verification at least forty -five (45) days prior to the beginning of the policy year for which the notice to withdraw is applicable shall be deemed as actual binding consent on the part of the Standard Member to remain a Standard Member of the Pool, binding that Member to the Pool for the ensuing policy year. 4.4. Admission of New Members. The Pool's Executive Board shall establish and periodically review standards and the approval process for the admission of new Members. Upon approval of these standards and of the approval process for admission by the Board of Directors, the Pool's Executive Board may grant or deny admission to proposed new Members based upon such criteria. Consideration of new Members will be communicated to all PRM Board Members by the Executive Director for any information or feedback that a Member may have regarding the prospective member. Article 5 - Commencement of the Pool 5.1. Commencement Date. The Pool shall commence operations on October 1, 1987. Article 6 - Board of Directors of the Pool 6.1. The Board. There is hereby established a Board of Directors (sometimes hereinafter referred to as the "Board ") of the Pool. Each Member shall appoint one (1) person to represent that body (the "Representative ") on the Board of Directors along with another person to serve as an alternate representative (the "Alternate ") when the Representative is unable to carry out that Representative's duties. The Representative and Alternate shall be appointed, in writing, by the governing body of the Member and a copy of the written appointment shall be provided to the Executive Director of the Pool. Once such appointments are made known to the Pool, the persons appointed shall remain in office until the Pool receives 12 PUBLIC RISK MANAGEMENT OF FLORIDA Any Member who disagrees with the Executive Board's determination may request in writing that the Board of Directors, at a regular scheduled meeting, take action to affirm, modify or reverse the decision of the Executive Board. The Member shall be provided a full opportunity to explain their position to the Board of Directors. The Board of Directors, by majority vote of the Members, may affirm, modify or reverse the decision of the Executive Board, subject to any insurance or reinsurance contractual obligations. Any Member may seek binding arbitration, if available, pursuant to the Pool's General Coverage Document and, is not required to appeal a coverage or indemnification declination to either the Executive Board or Board of Directors. Article 16 — Contractual Obligation 16.1 Enforcement: This document shall constitute a binding contract under the Florida Interlocal Cooperation Act of 1969 among those public agencies, which become Members of the Pool. The obligations and responsibilities of the Members set forth herein, including the obligation to take no action inconsistent with this Intergovernmental Agreement as originally written or validly amended, shall remain a continuing obligation and responsibility of the Member. The terms of this Intergovernmental Agreement may be enforce in a court of law by the Pool. The consideration for the duties herewith imposed upon the Members to take certain actions and to refrain from certain other actions shall be based upon the mutual promises and agreements of the Members set forth herein. This Intergovernmental Agreement may be executed in duplicate originals and its passage by the Member's governing body shall be evidenced by a certified copy of a resolution passed by the members of the governing body in accordance with the rules and regulations of such public agency, provided, however, that except to the extent of the limited financial contributions to the Pool agreed to herein or such additional obligations as may come about through amendments to this Intergovernmental Agreement no Member agrees or contracts herein to be held responsible for any claims in tort or contract made against any other Member. The Members intend in the creation of the Pool to establish an organization for Risk Management only within the scope herein set out and have not herein created as between Member and Member any relationship of surety, indemnification or responsibility for the debts of or claims against any Member. 16.2. Attorneys' Fees. In any legal action between the parties arising out of this Agreement, any attempts to enforce this Agreement, or any breach of this Agreement, the prevailing party may recover its expenses of such legal action including, but not limited to, its costs of litigation (whether taxed by the court or not) and its reasonable attorneys' fees (including fees generated on appeals) from the other party. Article 17 - Expulsion or Termination of Members 17.1. Expulsion. By the vote of two- thirds (2/3) of the Directors serving on the Board of Directors, and by a vote of at least five (5) out of seven (7) Members serving on the Executive Board on decisions, determinations or issues involving section 4.3 of this Intergovernmental Agreement, any Member may be expelled. Such expulsion may be carried out for one or more of the following reasons: 17.1.1. Failure to make any timely payments due to the Pool. 22 PUBLIC RISK MANAGEMENT OF FLORIDA 17.1.2. Failure to undertake or continue loss reduction and prevention procedures adopted by the Pool. 17.1.3. Failure to allow the Pool reasonable access to all facilities of the Member and all records which relates to the purpose, powers or functioning of the Pool. 17.1.4. Failure to furnish full cooperation with the Pool's attorneys, claims adjusters, the Executive Director and any agent, employee, officer or independent contractor of the Pool relating to the purpose, powers and proper functioning of the Pool. 17.1.5. Failure to carry out any obligation of a Member which impairs the ability of the Pool to carry out its purpose or powers or functions. 17.1.6. The Preferred Member has given the one (1) year notice described in Section 4.2 and 4.3 above. 17.2. Notice. No Member may be expelled except after notice from the Pool of the alleged failure along with a reasonable opportunity of not less than thirty (30) days to cure the alleged failure. The Member may request a hearing before the Board before any decision is made as to whether the expulsion shall take place. The Board shall set the date for a hearing which shall not be less than fifteen (15) days after the expiration of the time to cure has passed. A decision by the Board to expel a Member after notice and hearing and a failure to cure the alleged defect shall be final. The Board of Directors may establish the date at which the expulsion of the Member shall be effective at any time not less than sixty (60) days after the vote expelling the Member has been made by the Board of Directors. If the motion to expel the Member made by the Board of Directors or a subsequent motion does not state the time at which the expulsion shall take place, such expulsion shall take place sixty (60) days after the date of the vote by the Board of Directors expelling the Member. 17.3. Responsibilities of Terminated Member. A former Member shall only continue to be fully responsible only for its' portion of any obligations incurred but not satisfied during the period of time they were a Member of the Pool. Such obligations may include, but not be limited to, premiums, loss fund payments, maintenance deductibles, workers' compensations, final audit and administrative fees, etc., owed or unpaid by the former Member. The former Member shall no longer be entitled to participate or vote on the Board of Directors. Article 18 - Special Provisions for Deferred Funding During the fiscal years commencing on October 1, 1987 and ending on September 30, 1990, the entire Annual "Loss Fund" Contribution was not required by the Board of Directors to be paid within the fiscal year to which it was applicable. The difference between the Annual "Loss Fund" Contribution and the amount required by the Board of Directors to actually be paid to the Pool during such year by a Member is referred to herein as Deferred Funding. Members and former Members during any year for which there existed Deferred Funding may be required by the Board of Directors upon recommendation of the Executive Director to pay their applicable portion of the Deferred Funding in subsequent years. Members or former members will be allowed forty-five (45) days after notification to make any payments of Deferred Funding. The amount of any payments required for Deferred Funding as to each Member shall be based upon the same formula as was used in establishing the Annual "Loss Fund" Contribution for that year. 23 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY Executive Director's Report continued C. 2010 Educational Conference For the 2009 Conference, the Board approved one night's stay for the Board Member and Alternate at the Marco Island Hilton Beach Resort and allocated $12,126 from surplus funds for estimated 94 attendees at $129 a night. The actual cost was $7,645 for 55 attendees. 2010 Estimated Room Cost: June 16 -18, 2010 Conference — Hilton Beach Resort, Marco Island 48 Preferred Board Members @ $129 Daily Room Rate = $ 6,192 48 Preferred Alternate Members @ $129 Daily Room Rate = 6,192 96 Total Members Estimated Cost $12,384 The Executive Board approved the use of surplus funds for one night's room accommodation for each Preferred Board Member and Alternate of the P&C Pool. D. 2011 Member Notice to Withdraw Gulf County BOCC E. On -Site Property Appraisals i. Scheduled in 2010 - As a reminder, CBIZ will be contacting the following members to schedule their on -site property appraisals in 2010: Barron Water Control District, including Port LaBelle CDD City of Indian Rocks Beach Sun 'n Lake of Sebring Improvement District ii. Scheduled in 2011 - The following members are scheduled for 2011 and were advised of the estimated cost for budgeting purposes: City of Temple Terrace City of Zephyrhills PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY 4. Insurance Advisor's Report Glenn Tobey, Tobey & Associates A. Six Year Loss Analysis - Attachment B. 2010 to 2011 Loss Fund Calculation Recommendation C. Insurance Advisor Job Description - Attachment 4.A. SIX YEAR LOSS ANALYSIS 6 YEARS LOSS ANALYSIS DATES Dec. 09- 3 yrs 03 -04 Dec. 06 Dec. 09- Dec. 06 3 yrs 04 -05 Dec. 09- } 3 yrs 05 -06 Dec. 06 Valued as of 12 -31 -09 LOSSES LOSS FUNDS % Variance 11,958,760. 10,251,173. 16.6% 15,294,999. 1,707,587. 9,122,452. 7,583,772. 1,538,680. 12,587,966. 9,386,084. 3,201,882. 20.3% 34.1% 13,981,825. 16,150,994. 78% 67% 65% 54% 78% 58% Dec. 09- 2 yrs 06 -08 Dec. 07 13,208,113. 9,814,311. 3,393,802. 34.6% 25,500,000. 59% 52% Dec. 09- } 1 yrs 08 -09 Dec. 08 9,116,354. 6 117 742 J}4 2,998,612. 9% 14,43 7,103. 63% 57% April 10- Dec. 09 9 months Projected 3 Months New Members Surplus Loss Fund 6,754,857. 5,066,143. 1,688,714. 6,754,857. @133.9 %. 9,044,753. 132,819. 8,911,934. 2,000,000. 8,290,007. 10,290,009. -71-Glen Tobey of Tobey & Associates 33.9% 8,290,007. 81% 61% 107% 86% H h H 0 V a . 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D V VuNNmmh Nm H N N H M H N N N H H H H H H H mN NN 0001001004( OONHNHHOHN O ID 00 m N 01 H H H M N H 0 m ID( IDN0nm V ID0HIDNID00(ID['Il1ID -4 m tnh mmh OMHN ID0Hmh 0Mhm m V 14) H mm IDH000H01O V V'(4)NNmmh N00 H HH HMH/V N(VH H HHHH H H 105914523 145006130 168514565 10 IO N 0 c7,0 O H 01 W 10 m H c%1 H 0 U V mH Na hp H U H a m O V'W N 77,. 400 0 0 (4(0 O 00 N H m O H 0 OOU)o 0 O W$ W ( N H N H H H H H V H H H H 0 0 0 0 0 V M N H o aa0(UW1 NNNHHHHHHHHHH000000000 4.C. INSURANCE ADVISOR JOB DESCRIPTION Glenn R. Tobey Tobey & Associates Insurance Advisor tobevassociates ( vahoo.com 407 - 383 -7341 General Description • Provides stability and professional support to Public Risk Management (PRM) through servicing all exiting members and prospective new members. • Participates with World Risk Management (WRM) insurance brokers in all aspects of Property and Casualty Insurance Coverages for PRM including the renewal marketing negotiations on behalf of PRM securing all areas of Risk Management Services. These include: I. Insurance Terms and Conditions II. Self- Insured Retentions III. Loss Fund IV. Specific Coverages V. Claims Assistance VI. Program Training VII. Member Meetings VIII. Conference, Meetings and Presentations Insurance Advisor's Specific Responsibilities As an insurance advisor to PRM my specific responsibly is to work directly with the Executive Director, Executive Board and Full Board, as it relates to all of the above. It is my responsibility to review with the Executive Director and his staff the following Strategic Plan • What are our goals, objectives and action plans, both short term & long term? • How do we evaluate and measure our progress, member's satisfaction, and financial strength? • What will changes in the existing program cost? Can it be measured? Can we afford or not afford it? What is the real opportunity? • Who /How will we implement and monitor changes • How will we execute and stay on track? I. Insurance Terms and Conditions Each member receives a Coverage Document which provides terms and conditions of the insurance program which includes, but not limited to the following: • Self- Insured Retentions • Specific Excess Insurance Coverage • Multiple Lines of Loss Protection • Excess Loss Protection • Excess Limits of Coverage • Conditions of Coverage • Exclusions of Coverage • Definition of Coverage • Insurance Agreements o Property, Liability, Workers' Compensation, Professional Liability (Public Officials, Errors & Omissions) Employee Benefits Liability and Crime. In addition to the above PRM produces a Risk Management Manual whereby Section8 provides Contract Review and Insurance Requirements along with Insurance Risk Management Terms. 1 Glenn R. Tobey Tobey & Associates Insurance Advisor tobeyassociatesayahoo.com 407 - 383 -7341 II. Self- Insured Retentions The Executive Director, Insurance Broker and Consultant work together each year to develop the best SIR per insurance coverage line as it relates to pricing, loss fund exposures and loss experience. III. Loss Fund Each year the Executive Director, Insurance Brokers and Insurance consultant review all Loss Runs developed by Gallagher- Bassett. Loss Funds are reviewed on and individual member bases on past history. The actuary provides their analysis each year and a full review and analysis is done by each party to reach the most economical Loss Fund as possible. Past Years and Loss Trends are also calculated to reach a final Loss Pick Figure. In past years surplus has been used as a protective safe guard since aggregate excess protection is no longer purchased. IV. Specific Coverages Insurance Consultant conducts annual meetings with the Executive Director, and Insurance Broker to enhance the overall coverage documentation in order to provide the best available coverages in the marketplace. Enhances coverage in comparison to competition as no margin clause or coinsurance increased coverage for Demolition and increased cost of Construction, Debris Removal, Landscaping unscheduled locations, Architect and Engineering Fees and many other coverage enhancements continue to be researched. V. Claims Assistance From a consultant bases my involvement comes into play for most part in major catastrophe During the 04/05 and 05/06 Hurricane Losses a large part of my time and WRM was dedicated to the areas hardest hit. I spent many weeks of traveling to the PRM members affected by the storms to assist in organizing claim relief and coverage determination. I had discussions with excess property carriers for many reimbursements, contractors and appraisals to help the process move forward for many months after the storm. All of this was at the directions of the Executive Director, who took the lead in all these areas. VI. Program Training Whenever a member needs training regarding how the PRM program works, a meeting is set with whomever staff members are present. Member and Prospect calls are made continuously throughout the year. VII. Member Meeting Similar to the above, it is my responsibility to attend all Executive Board Meetings and General Board Meetings. Each meeting I have made various presentations as they relate to PRM, the Marketplace, Competition and any other relative topics appropriate for the Pool. I have attended almost every company meetings for renewal terms and conditions. I have attended almost every member meeting requested regarding any issues a member may have and I have made General Member and Prospect calls through each year. 2 Glenn R. Tobey Tobey & Associates Insurance Advisor tobeyassociateseyahoo.com 407 - 383 -7341 VIII. Conference Meetings & Presentations I attend the annual AGRIP Conference, Summer PRM Conference, FCCMA Conference, Allen, Norton and Blue conferences and any other conferences whereby attending would be beneficial, for example, Florida RIMS, Florida PRIMA, and National PRIMA. The more underwriters and wholesalers we meet the more insight we have to what is happening in the marketplace. Presentations have been made at some of these conferences, especially with underwriters and wholesalers. 3 5. Broker's Report PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY Andy Cooper, World Risk Management A. 2010 Renewal - Attachment o Property — Pricing, limits, carriers o Liability — Pricing, limits, carriers o Public Officials E &O — Pricing, limits, carriers o Workers' Compensation — Pricing, limits, carriers o Crime — Pricing, limits, carriers o Excess Liability — Pricing, limits, carriers o Boiler & Machinery — Pricing, limits, carriers o Gallagher Bassett — Pricing B. Members Who Have Given Notice - Attachment o RFP's o Members not out to bid 5.A. 2010 RENEWAL an c L a O co V a a •L — t`)- t`)- Oo Lim 0 Q) O u _. w N E j w .47--- an N c u O< = O 00 * V ....v .-_-_- in (1) E -3 •v V o gik qy o C N 2s av) cii A Beacon of Financial Strength & Innovation W 0 0 N L a) 0 E O L O a. O ^L 0 a) U 111 O O Z a) � W Z D0 o Marketing by Line of Coverage: co J = W c O co cn c a) Excess Workers Com a) 0 Z i CU L i V a) c U 0 Liberty Mutua Indication Received C i73 C c C 0 U W W W 0- 0 0 nsurance 0. w u Note: Only a handful of carriers are comfortable with a $100,000 attachment point. A Beacon of Financial Strength & Innovation CU 0 Z Marketing by Line of Coverage: O O O O X O CO cn c a) Excess Workers Com cu in a 0 o. 0 cu ce a) 4-+ CO L L f0 N i 3 v CU a) C .471 CO C c0 U OA Liberty Mutua L a) 4▪ - o o 4--+ a) N _o a--+ 0 CO f L 4--' L Q CO c ai cNi cu CD >. c L CO a-' CD CO 4-• 0 c U a 0 Safety Nationa C U a) 0 c 0) E a) to co c co 2 N 13 i co .a 2 a) C CO L f0 D CID 45 co a- n - "0 L a) L a) CO c > a) N N L c0 N CO J 0.0 -o c U a) 0 L N 0) O 0. E w N a) .2 N 0) o Q E a) 0) -o a) c U a 0 s u I- < Note: We are in a 2 year plan with Liberty Mutual with a guaranteed rate. A Beacon of Financial Strength & Innovation ma; i Cr) 0 v 0 a� J ›* CO 1Z 6/1/2010 Rene i CU • fa V PML Analysis complete N E CU U X CU 0 0 btO X 0 O *PML Completed. Indiciation received at "flat." A Beacon of Financial Strength & Innovation CU N 0 Q. CU co 0 v 0 as >1% 74= a� AL /GL /POL Package: i cu co 4J U 0 w Excess carrier for FMIT U 0 c1 V One Beacon No Response L. V co U Munich Re No Response L ca 2 A Beacon of Financial Strength & Innovation cn W 0 Z Marketing by Line of Coverage: N AL /GL /POL Packa W in C ^0^ /Lf. tn W CC U fB 73 O 'C O N u.. 0 a C U — X Q) w u L C O f0 t— L O cn O ▪ ▪ '— O • CC CL O L L 0 O O Target too low CD CD C C w V) Q) a O o Z L a) ca H L 0 N O) N A Beacon of Financial Strength & Innovation v) C1 +-+ O z CI; CM CO CD 0 0 O � 0 2 C Q ■- J co . .> .o C C6 nimri C �U L 0 .0 RS 2 . 0_ CU o C 0 C. cc N Cr SUA /Tower (formerly ASI) Declination due to FMIT v c U 0 N M 0 Q N 0 co O Q Q z V Q L O 0 0 O 00 79 M UJ CU CU N ♦.' u VII O 0 0 O rn v +-, co 0 ._ 0 No Response Do not do Master Policy N C U 0 Diamond State (PGIT Company) cu c U 0 a a E s 0 Not comfortable with v c U 0 5 master policies. Q) CO 0 la c A Beacon of Financial Strength & Innovation Marketing by Line of Coverage: Boiler & Machinery: vl au O Z 5% Rate Reduction -o a) O 0 4J O C cr co - v tio L LE N L >. a -c > eL0 (13 L s u s. 3 N O CL) 4--' 0 Cf Hartford Steamboilder av U a) A Beacon of Financial Strength & Innovation PUBLIC RISK MANAGEMENT OF FLORIDA Various A -Rated N L L m V $55M xs $20M 0 0 to o N .X J E L CL Z c c 0 0 0 _ N ti c 0 a 0 Q. 0 0 of Financial Strength & Innovation PUBLIC RISK MANAGEMENT OF FLORIDA taturory Limit 0 ra 7 0 c oj c v c (S C= u- 0 0 ^+ lJ P3 0 O 0) O 3N 0 H x x Q Y M N 0 co 0 co O 0 N m ow X ai 2 co AL /GL /POL 0 0 N A Beacon of Financial Strength & Innovation 5.B. MEMBER NOTICES PUBLIC RISK MANAGEMENT OF FLORIDA � ] w membersh tent to withdr w c k k ■ PRM Membe CU cc Comments 0 MI 00 E 0 c o k / w E E E V 1 E J CU 0 SI CO '0 >. § 2 c 0 ez ati ( 5 k In c 2 m 0 O 0 0 § -a & c a o g c cu CU O m § \ „ cn 0 cu c ce � ■ ® 2 e ©_l S E w .0 ( _ _ . ■ l _ -o 0 0 2 2 a c 2 0 E2u E k c§ c f a) S ■ ■ E 2 2 . re ' $ re a 2 z cc 3 2 2 Z ( • o - o u w No RFP released to date RFP submitted o 0 \ e q % Q - .-I d c %cf 0000 a ■ 8 c I o w X I RFQ to be released in February PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY Chairperson's Items John Litton, Chairperson A. Request Approval to Utilize Surplus to Offset Member Loss Fund Contributions In past years PRM has utilized the surplus of the Pool to effectively lower members' costs. For example, in 1999 $500,000 was provided as a participation credit. In 2002 a million dollars was restricted from surplus in order to take advantage of minimum /maximum Loss Fund required by reinsurers. In 2006 $2,000,000 was paid from surplus to reduce the cost of property premiums. Additionally in 2006, $2,250,000 was restricted from surplus in replacement of purchasing aggregate excess reinsurance. In 2009 the Board approved the use of surplus to fund the Administrative Budget, the extension of property coverage from April 2010 through June 2010 and a loss fund credit for a total of $4,598,478. PRM as of 9/30/09 has $5,200,150 in designated member equity and $21,489,240 in unrestricted undesignated member equity (surplus). Again, as our members are under intense pressure to reduce costs, it is recommended that $4,000,00Q of surplus be utilized as a participation credit to reduce each member's Loss Fund contribution. Boa01 Action: Approved Denied Deferred Other B. Approval of 2010 -11 Total PRM Program Renewal as presented by World Risk Management Board Action: ✓ Approved Denied Deferred Other 1 :c G-‘ PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY Chairperson's Items continued C. Executive Director Evaluation The Board of Directors is responsible each year for the annual performance evaluation of the Executive Director. The annual review provides the basis for any merit increase awarded by the Board. The performance appraisal is a two -tier process that includes an evaluation by each member along with a more thorough evaluation by the Executive Committee. The latter is due to their generally having more interaction with the Executive Director and observation in dealing with policy issues for the pool as a whole. The Executive Board approved a 5% salary increase for the Executive Director on 2/12/10. t/L.L(_' e Board Action: Approved Denied Deferred Other PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 12, 2010 REGULAR AGENDA SUMMARY 7. Legal Update Donovan Roper, Esquire 8. Board Member Items John Litton, Chairperson A. Election of Officers — June Board Meeting The term of office for Chairperson, Treasurer and two Representatives expire 9/30/10. Individuals interested in serving in one of the positions fora 2 -year term, beginning 10/1/10, should submit their bios to the PRM office by May 1. Nominations from the floor will also be taken. Elections will be held at the June 18th Board Meeting. Chairperson — John Litton, 10/1/08- 9/30/10 Treasurer — Mike Sheppard, 10/1/08 - 9/30/10 Representative — Frank Gilbert, 10/1/09- 9/30/10 Representative — Lester Baird, 10/1/09- 9/30/10 The next meeting will be held on June 18th during the Annual Conference at Marco Island. Public Comment: Discussion must be limited to a maximum of five (5) minutes per person. Adjourn Dono\an A. Roper, Esquire Teresa S. Roper. Esquire Andrew 1. Danes, Esquire Yvonne Patterson, Esquire Sophia E. Langley, Esquire* * Of Counsel Cynthia A. Todd, Paralegal Lori M. Loftis, Paralegal ROPER & ROPER, P.A. ATTORNEYS AT LAW 116 North Park Avenue Apopka, Florida 32703 February 23, 2010 Mr. Ross Furry PRM 3434 Hancock Bridge Parkway, Suite 203 N. Ft. Myers, FL 33903 Telephone: 4O7- 88- 1- 99 -1 -t Facsimile: 407- SS- t -13 -13 E -Mail: emdi l a rover ndroper com Web: t∎vv%v ri erandiopercom Satellite Offices in Palatka, Florida RE: Firefighter Presumption of Compensability Dear Ross: I have reviewed the appeal cases of Miami -Dade v. Davis and Hunter v. Seminole County Fire /Rescue on the issue of presumption of compensability. In the case of Miami -Dade v. Davis, Miami -Dade County appealed the order of a judge of compensation claims finding the county was responsible for workers' compensation benefits on account of William Davis' heart disease. Davis was certified as a firefighter by the City of Gainesville in 1972 and no heart disease was found during his initial physical for certification. Later, in 1995, Davis was diagnosed with heart disease during a pre- employment physical for Miami -Dade County, but the doctor found no reason Davis could not perform his duty. In 2002, Davis had a heart attack while off duty, and was subsequently provided a presumption of compensability. In overturning the decision of the lower court, the 1St DCA held Mr. Davis' 1995 pre - employment physical revealed his heart disease, and therefore, did not give rise to a presumption of occupational causation. Miami -Dade County v. Davis, 34 Fla. L. Weekly D2418 (1st DCA November 24, 2009). In the case of Hunter v. Seminole County Fire/Rescue, Jerry Hunter challenged the judge of compensation claims' ruling that he was not entitled to a presumption of compensation for heart disease he suffered while employed as a firefighter. Although Hunter's pre - certification physical indicated he had not heart disease; his most recent pre- employment physical revealed evidence of heart disease. Anyone who wishes to serve as a firefighter in Florida must pas a pre - certification physical under Chapter 633, Florida Statute. However, an employer may require an optional pre - employment physical under Chapter 112, Florida Statutes. If the employer chooses to require the optional physical and that physical reveals evidence of heart disease, a presumption of compensation is not available to the claimant for the condition. Hunter v. Seminole Comity, 34 Fla. L. Weekly (1'` DCA November 24, 2009). Should you need any further information or have any concerns, please do not hesitate to contact me. n erely, Donavon A. R DAR/11 -"-[1c So.3d - - - -, 2009 WI, 4030S25 (FIa.App. 1 Dist.), 3 -1 Fla. L. Weekly D2420 (Cite as: 200') WE - 1030825 (F'la.App. 1 Dist.)) c NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PER - MANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITEIDRAW- AL. District Court of Appeal of Florida, First District. Jerry Dean HUNTER, Appellant, v. SEMNOLE COUNTY FIRE /RESCUE and Johns Eastern Co., Inc., Appellees. No. 1 D09 -0986. Nov. 24, 2009. Background: Claimant sought review of decision of the Judge of Compensation Claims (JCC), Thomas W. Sculco, denying him presumption of compensation for heart disease related disability. Holding: The District Court of Appeal of Florida, Hawkes, C.J., held that claimant seeking statutory presumption of compensation must prove that he or she underwent physical examination upon entering period of employment during which condition arises, and that examination did not show any evid- ence of heart disease. Affirmed. Wetherell, J., concurred with opinion. West Headnotes [11 Workers' Compensation 413 X1365 413 Workers' Compensation 413XVI Proceedings to Secure Compensation 413XVI(L) Presumptions and Burden of Proof Pa;, 2 of 7 Page 1 413XVI(L)2 Particul.- Matteis 413k1356 Injuries or Death for Which Compensation May Be Ilad 413k 1365 k. Particular Diseases. Most Cited Cases Proof that a workers' compensation claimant has undergone a statutorily- required pre - certification examination that did not reveal signs of heart dis- ease, in and of itself, has no bearing on whether he is entitled to the statutory presumption of compens- ation for firefighters in a subsequent compensation action. West's F.S.A. §§ 112.18, 633.01 et seq. f2J Workers' Compensation 413 C - .21365 413 Workers' Compensation 413XV1 Proceedings to Secure Compensation 413XVI(L) Presumptions and Burden of Proof 413XVI(L)2 Particular Matters 413k1356 Injuries or Death for Which Compensation May Be Had 413k1365 k. Particular Diseases. Most Cited Cases A worker's compensation claimant seeking to rely on the statutory presumption of compensation for firefighters concerning a heart disease related dis- ability must prove that: (1) he or she underwent a physical examination upon entering the period of employment during which the condition arises, and (2) the examination did not show any evidence of heart disease. West's F.S.A. § 112.18. Michael Clelland, Winter Park, and Bill McCabe, Longwood, for Appellant. James R. Spears and John D.W. Beamer of Brous- sard, Cullen & DeGailler, P.A., Orlando, for Ap- pellees. HAWKES, C.J. The Claimant challenges the Judge of Compensa- tion Claims' (JCC's) ruling that he was not entitled to a presumption of compensation for the heart dis- © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http : / /web2.westlaw.com/ print/ printstream .asox ?sv= Snlit &nrft= 1: -1TMT 1 / 1 '1 Incti A So.3d - - - -, 2009 WL, 4030525 (Fla.App. 1 Dist.), 3,1 Fla. L. Weekly D2420 (Cite as: 2009 WI, 4030325 (Fla. App. 1 Dist.)) ease related disability he suffered whi!e employed as a firefighter. We affirm. We write to clarity the difference between the section 633.35, Florida Stat- utes, "pre - certification" physical examination and the section 112.18, Horida Statutes, "pre - employment" physical examination. Anyone who wishes to work as a firefighter in Flor- ida must pass the section 633 "pre - certification" physical. By Contrast, the section 112 "pre - employment" physical is optional. If an em- ployer chooses to exercise the section 112 option and the examination does not reveal any evidence of heart disease, a presumption of compensation is available to the claimant for the covered conditions. Relevant Facts In 1991, the Claimant received a certificate of com- pliance qualifying him for employment as a fire- fighter. This certification did not make him a fire- fighter, nor did it require him to become a firefight- er. It simply qualified him to obtain employment as a firefighter. The physical examination he under- went as part of the firefighter certification process did not reveal any evidence of heart disease. Claimant utilized his certification and became a firefighter. Over the course of his firefighting ca- reer, the Claimant held three separate firefighting jobs. He was employed by Seminole County, by the City of Oviedo, and again by Seminole County. Upon each job change, his prospective employer exercised their option and required him to submit to a physical examination. The results of the latest pre - employment examination revealed evidence of heart disease. Between 2006 and early 2007, the Claimant suffered three heart related incidents, eventually resulting in disablement. At hearing, the Claimant argued that because the 1991 pre - certification phys- ical examination revealed no signs of heart disease, he was entitled to the presumption that his disabil- ity was caused by his employment. The JCC rejec- Pagc 3 of 7 Page 2 ted this argument, ruling.; that because the Claimant's latest pre- emplo'n;ent physical examin- ation revealed evidence of heart disease pre - existing to employment, the section 1 12.1 S pre- sumption was not available to him. The Section 633 Pre - Certification Physical Ex- amination Pursuant to section 633, Florida Statutes (2006), an individual will not be certified to seek employment as a firefighter until he proves he is in "good phys- ical condition" and passes a pre - certification phys- ical examination. See Fla. Stat. § 633.34 (2006) (providing any person "applying for employment as a firefighter" must "[bje in good physical condition as determined by a medical examination "); see also Fla. Stat. § 633.35 (2006) (further providing an in- dividual must pass a physical examination as a pre- requisite to obtaining the certificate of compliance necessary to be eligible for employment as a fire- fighter). Section 633 lists the firefighter training and certification requirements as follows: 633.35. Firefighter training and certification (1) The division shall establish a firefighter training program of not less than 360 hours, administered by such agencies and institutions as it approves for the purpose of providing basic employment training for firefighters. Nothing herein shall re- quire a public employer to pay the cost of such training. (2) The division shall issue a certificate of compli- ance to any person satisfactorily complying with the training program established in subsection (I ), who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in s. 633.34, except s. 633.34(5). (emphasis added). The Section 112 Pre - Employment Physical Ex- © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http : / /web2.westlaw.com/p tint/ nrintstream .asnx ?sv= SnlitRrnrft= l-1TM1 PR.' ifm. r„ *eo*2 —* 1 11' /-1A1n So.3d - - - -, 2000 WI, 4030S25 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2 -I20 (Cite as: 2009 WVL 403052; (Fla.App. 1 Dist.)) anrination According to section 112, an employer may require an applicant for a firefighter position to submit to a physical examination, even thouh already certified as a firefighter, "upon entering any such service as a firefighter." See Fla. Stat. § 112.18(1) (2006). If the firefighter passes the physical examination, showing no evidence of heart disease, he is entitled to the presumption that any heart disease related disability he suffers during that term of employ- ment is compensable. Conversely, if the physical examination reveals evidence of a pre - existing heart condition, he is not entitled to the presump- tion of compensation for any subsequent heart dis- ease related disability. Id Specifically, section 112.18(1) provides: 112.18. Firefighters and law enforcement or cor- rectional officers; special provisions relative to disability (1) Any condition or impairment of health of any Florida state ... firefighter ... caused by ... heart disease ... 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 un- less the contrary be shown by competent evid- ence. However, any such firefighter or law en- forcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement of- ficer, which examination failed to reveal any evidence of any such condition.... Statutory Interpretation [1] Proof that a claimant underwent a section 633 pre - certification examination that did not reveal signs of heart disease, in and of itself, has no bear- ing on whether he is entitled to the presumption of compensation in a subsequent compensation action. The section 633 examination is one of several hurdles all prospective firefighters must clear to qualify for a firefighter's certificate of compliance. Pagc4of7 Page 3 Passing the examination and receivin; the certific- ate does net guarantee that an individual N%ill Ivor: as a firefighter, nor does it entitle the individual to the pros nnption that any heart disease related dis- ability he may suffer is the result of being a certi- fied firefightcr.F" Put simply, whether an indi- vidual passes the section 633 examination means little more than he is one step closer to legally working as a firefighter. On the contrary, the section 112 physical examina- tion sets forth a specific procedure by which em- ployers and claimants alike can determine whether or not an employee will be entitled to a presump- tion of compensation should he suffer a heart re- lated disability while employed. Section 112 states that if an individual takes a physical examination " upon entering any such service," and the examina- tion reveals signs of heart disease, the individual is not entitled to the presumption that any subsequent heart disease related disability was caused by his employment. The unambiguous, plain language of these two sec- tions clearly indicates that an individual is only en- titled to the presumption of compensation if, upon entry into a specific term of employment, he under- went a physical examination that revealed no evid- ence of heart disease.F "z Claimant's Argument The Claimant argues that because he passed his section 633 pre - certification physical, he is entitled to the presumption that any heart disease related disability he suffers while his firefighter certifica- tion remains valid is a result of his employment as a firefighter. Of course, under this argument, all cer- tified firefighters would virtually always be entitled to the presumption, and much of the language of section 112.18 is rendered meaningless. Claimant's reasoning would also render meaning- less the decisions in which this Court extended or denied the presumption of compensation based on 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http:// web2 .westlaw.com/nrint/nrintstream acriy9ev- Q.,l;tRr.,�41- 111'1\ ,rr 1C D.:e So.3d - - - -, 2009 1VL 4030825 (Fla.App. I Dist.), 3 -1 Fla. L. Weekly D2 -120 (Cite as: 2000 W L 4030325 (Fla.App. 1 Dist.)) liethcr or not an employee submitted to a section 112 physical "upon entering into service as a fire- fighter." In Cur,;bie v. City of Ihiton, we dcclinAl to extend the presumption where the claimant failed to undergo a pre - employment physical. 496 So.2d 923, 924 (Fla. 1st DCA 1986). Specifically, we held that "a physical examination prior to receiving the benefit of employment is a reasonable require- ment in order to determine if any of the conditions covered by the statute existed prior to employ- ment." Id. Because the claimant in Cumbie did not undergo a section 112 examination "upon entering" employment with the employer he filed his petition for benefits against, we denied the claimant the pre- sumption. Id. In finding the Claimant's argument to be correct we would effectively overrule our decision in Cumbie. If the claimant in Cumbie had not passed his section 633 physical and had not received a certificate of compliance, he could not have legally been em- ployed as a firefighter. Obviously, Cumbie would never have reached this Court had the claimant not passed a pre - certification physical and become li- censed to legally work as a firefighter. Accord- ingly, our opinion about him not having had a pre- employment physical would be a nullity unless we were referring to a different, section 112, physical upon entering employment. In City of Tarpon Springs v. Vaporis, this Court elaborated on the Cumbie analysis and held that claimants must take a section 112 examination "upon entering" employment to be eligible to re- ceive the presumption; and, that the term "upon en- tering" could mean up to fifteen days after the term of employment begins. Like Cumbie, this case rein- forces the JCC's position that a claimant must pass a physical examination prior to his employment to be eligible for the presumption. Again, if our analysis in Vaporis was referring to the section 633 examination, it would have been fu- tile to address how the phrase "upon entering" re- lated to the timing of the examination. The claimant would have been unemployable had he not already Pa",' 5 of 7 Page 4 passed the 633 examination and received a certific- ate of compliance before he applied for a firefighter position. Accordingly, the examination "upon en- tering" employment that this case analyzes could not have been anything other than a separate, sec- tion 112 "pre- employment" examination. The common thread in Curable and Vaporis, as well as other cases from this court including Sledge v. City of Fort Lauderdale, 497 So.2d 1231 (Fla. 1st DCA 1986) and City of Port Orange v. Sedacca, 953 So.2d 727, 728 -29 (Fla. 1st DCA 2007) is that our analysis of whether a claimant is entitled to the presumption focuses on the timing and results of the section 112 physical examination the claimant took "upon entering" employment with the employ- er against whom he filed a petition for benefits. None of the above cases refer to the section 633 pre - certification physical. Conclusion [2] If, as the Claimant asserts, the 633 pre - certification physical examination is all that is ne- cessary to entitle an employee to the presumption of compensation, there would be no reason to ex- amine the timing of a pre - employment physical ex- amination, as the results of the examination would be irrelevant to whether the employee was entitled to the presumption. Reading section 633 and sec- tion 112 in pari materia does not support an infer- ence that the only medical examination required by law for firefighters is the pre - certification medical examination. Accordingly, we agree with the JCC's reading of section 112.18, and hold that a claimant seeking to rely on the statutory presumption therein must prove (1) he or she underwent a physical ex- amination upon entering the period of employment during which the condition arises; and (2) the ex- amination did not show any evidence of heart dis- ease. AFFIRMED. BENTON, J., concurs; WETHERELL, J., concurs 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.west1aw.com/ print /printstream.aspx ?sv= Split &prft= HTMLE &ifm= NotSet &mt___ 1 /12/2010 So.3d - - - -, 2009 WL 4030825 (FIa.App. 1 Dist.), 34 Fla. L. Weekly D2420 (Cite as: 2009 WL 4030825 (FIa.App. 1 Dist)) vpith opinion.WETII RF.LL, J., concurring. 1 agree NVith the JCC and the majority that Claimant is not entitled to rely on the presumption in section 112.18(1) to establish that his heart disease related disability is compensable. 1 also agree that the per- tinent physical for the statutory presumption is not the "pre- certification" physical required under chapter 633, but as I read the record and the briefs, that was not the issue framed by Claimant or de- cided by the JCC. Rather, the issue presented is whether the pertinent physical was the February 1993 physical that preceded Claimant's first em- ployment as a firefighter or whether it was the April 1999 physical that preceded Claimant's cur- rent period of employment with Appellee Seminole County Fire/Rescue. Claimant likely focused on his first "pre- employment" FV3 physical in February 1993 rather than his pre - certification physical in October 1990 because the pre - certification physical showed evidence of hypertension, whereas the February 1993 physical did not show any evidence of hyper- tension or heart disease. In light of the results of the October 1990 physical, even if we had determined that the pre - certification physical was the pertinent physical, the outcome of this case would have been the same. Turning to the specific issue framed by Claimant, I agree with the JCC that interpreting section 112.18 (1) to mean that the pertinent physical is the fire- fighter's first pre - employment physical would lead to absurd results. As pointed out by the JCC: claimant's construction would require that the pre- sumption apply for a firefighter that enters into service as a municipal firefighter with a clean physical in 1990, retires 6 months later, takes an- other job in the private sector, suffers 3 heart at- tacks and is diagnosed with massive heart dam- age, then applies for work again as a municipal firefighter, undergoes a physical that reveals heart disease, and then suffers another heart at- tack shortly after starting work. It is difficult to conceive that the legislature could have intended Pagc 6 of 7 Page 5 the presumption in Section 112.18 to apply in such circumstances. ,Moreover, such an inteiprct- ation could 10.7d emph ing agenci.'s to avoid hir- ing former firefighters that later developed heart dis,:a ', a result the legislature would not lik ely have intended (Emphasis added). Additionally, although I agree that section 112.18 (1) should be construed in pari materia with section 633.34(5),F \1 that statute provides no support for Claimant's argument that "the only medical exam- ination required by law for a firefighter is the pre - certification medical examination ... which is taken upon entering into service as a firefighter." To the contrary, section 633.34(5) refers to both the pre - certification physical that is required "before an in- dividual is eligible for admission into a firefighter training program," see § 633.34(5), Fla. Stat. (last sentence), and the pre - employment physical that is required to determine whether a person "applying for employment as a firefighter" is "in good physic- al condition." Id. (first sentence). Thus, although a firefighter will likely have only one pre - certification physical, he may have multiple pre- employment physicals over the course of his career if he changes employers. Moreover, as re- cognized by the majority in footnote 2, an employer might choose to rely on the pre - certification physic- al (or a prior pre- employment physical) as proof of the firefighter- applicant's "good physical condi- tion," but if the employer requires the firefighter -ap- plicant to undergo a new pre - employment physical prior to entering into service with that employer, I agree that the new physical is the pertinent one for purposes of the presumption in section 112.18(1). In this case, the pertinent physical is the April 1999 physical, and because that physical documented Claimant's prior history of heart problems and hy- pertension, the JCC correctly determined that Claimant was not entitled to rely on the presump- tion in section 112.18(1) to establish that his heart disease related disability was compensable. There- fore, I agree that the order on appeal should be af- firmed. cC 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http : / /web2.westlaw.com/ print /printstream.aspx ?sv= Split &orft= HTMLE &ifm= NotSet &mt___ 1/12/2010 So.3d - - - -, 2009 \VL 4030S25 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2420 (Cite as: 2009 111 4030325 (FIa.App. 1 Dist.)) FN 1. Upon receiving the 633 certificate of compliance, prospective firef ihters are eligible to seek employment provided they do not allow their certification to lapse. To retain this certification, an individual need only be listed as "active as a firefighter" or included on a fire department's roster as "a volunteer firefighter" once every three years. See Fla. Stat. § 633.352 (2006) (regarding retention of firefighter certifica- tion). FN2. This opinion does not address the parameters of what an employer may in- clude in, or use as, a section 112 pre- employment physical. Nor does it prohibit an employer from affirmatively allowing a section 633 pre - certification examination to act as a pre - employment physical in those narrow circumstances where a fire- fighter starts his service shortly after be- coming certified. To do so might be a cost effective option for the employer. However, a section 633 pre - certification examination, just by virtue of having oc- curred sometime before an individual star- ted his career as a firefighter, does not per se qualify as a section 112 pre - employment physical. FN3. I use this term merely as a short -hand reference and I recognize that it is some- what of a misnomer in light of our opinion in City of Tarpon Springs v. Vaporis, 953 So.2d 597 (Fla. 1st DCA 2007). However, unlike that case, there is no dispute here that the February 1993 and April 1999 physicals were completed by Claimant pri- or to him entering into the respective peri- ods of service following the physicals. FN4. Section 633.34(5), Florida Statutes (2006), provides: Any person applying for employment as a firefighter must: 3 Pa;c 7 of 7 Page 6 (5) Be in good physical condition as de- termined by a medical examination given by a physician, surgeon, or physician as- sistant licensed to practice in the state pur- suant to chapter 458; an osteopathic physi- cian, surgeon, or physician assistant li- censed to practice in the state pursuant to chapter 459; or an advanced registered nurse practitioner licensed to practice in the state pursuant to chapter 464. Such ex- amination may include, but need not be limited to, provisions of the National Fire Protection Association Standard 1582. A medical examination evidencing good physical condition shall be submitted to the division, on a form as provided by rule, before an individual is eligible for admis- sion into a firefighter training program as defined in s. 633.35. Fla.App. 1 Dist.,2009. Hunter v. Seminole County Fire /Rescue So.3d - - - -, 2009 WL 4030825 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2420 END OF DOCUMENT C 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw .com /print/printstream.aspx ?sv= Split &prft = HTMLE &ifm= NotSet &mt... 1/12/2010 Alestlavi'!_ So.3d - - - -, 2009 WL 403078? (Fla_App. 1 Dist.), 34 Fla. L. Weekly D2418 (Cite as: 2009 WL 4030782 (Fla.App. 1 Dist.)) NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PER - MANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITLIDRAW- AL. District Court of Appeal of Florida, First District. MIAMI -DADE COUNTY, Appellant, v. William A. DAVIS, Appellee. No. 1 D07 -1073. Nov. 24, 2009. Background: County appealed from a decision of the Judge of Compensation Claims (JCC), Charles Hill, finding that workers' compensation claimant's heart disease was compensable. Holding: The District Court of Appeal, Benton, J., held that preemployment physical examination pre- cluded presumption that heart disease was com- pensable. Reversed. West Headnotes Workers' Compensation 413 X1365 413 Workers' Compensation 413XVI Proceedings to Secure Compensation 413XV1(L) Presumptions and Burden of Proof 413XV1(L)2 Particular Matters 413k1356 Injuries or Death for Which Compensation May Be Had 413k1365 k. Particular Diseases. Most Cited Cases Preemployment physical examination that workers' compensation claimant had when applying to be county firefighter, rather than physical examination Pagc 2 of 7 Page 1 that claimant had more than 20 years prior When becoming certified as a firelhter, was relevant ex- amination for determining whether statutory pre- sumption that heart disease was a compensable oc- cupational disease arose, and thus finding of heart disease during preemployment examination pre- cluded such presumption. West's F.S.A. § 112.18 (1). R.A. Cuevas, Jr., County Attorney', Douglas W. Rice, Monica Rizo, and Diamela del Castillo, As- sistant County Attorneys, for Appellant. Richard A. Sicking, Coral Gables, for Appellee. BENTON, J. Miami -Dade County appeals an order of the judge of compensation claims finding the County re- sponsible for workers' compensation benefits on ac- count of William A. Davis's heart disease, on the purported authority of section 112.18(1), Florida Statutes (2001). On the facts of the present case, which include the undisputed diagnosis of heart dis- ease at the time of a preemployment physical, the judge of compensation claims erred in ruling Mr. Davis's preexisting heart disease compensable. The statute gave rise to no presumption of compensabil- ity and, without the presumption, the facts rule out industrial causation. Accordingly, we reverse the summary final order. When a firefighter suffers a "condition or impair- ment of health ... caused by ... heart disease ... res- ulting in total or partial disability," the firefighter's heart disease is deemed a compensable occupation- al disease, unless the employer is able to rebut the statutory presumption of compensability. But the presumption only arises if the firefighter has "successfully passed a physical examination upon entering into any such service as a firefighter ... which examination failed to reveal any evidence of any such condition." § 112.18(1), Fla. Stat. (2001). See City of Mary Esther v. McArtor, 902 So.2d 942, © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. httn• / /wPh7 wectlaw rnm /mint /nrintctream acnx9cv= Snlit&rnrft= 1-ITM1 F&ifm= NntSet&rmt 1 /1 ?I7(110 So. 3d - - - -, 2009 \l'l, 4030782 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2418 (Cite as: 2009 WL 4030782 (FIa.App. 1 Dist.)) 943 (Fla. 1st DCA 2005) ( "Coronary artery disease is an occupational illness when suffered by a fire - fighter meeting, the requirements of section 112.18 (1)."); Sic cJ c v. Cirr of Foil LauJcrJritr, 497 So 2d 1231, 1233 (Fla. 1st DCA 1986) ( "Although heart disease is not ordinarily compensable as an occupa- tional disease, the Florida Legislature has enacted section 112.18(1) ..., which establishes a statutory presumption that heart disease suffered by a fire- man is connected with the exertions of his work so long as the fireman passes a preemployment phys- ical examination without evidence of such disease. " (emphasis supplied, citation omitted)). The pre- sumption did not arise here. Facts Not In Dispute Mr. Davis first worked as a firefighter with the City of Gainesville on November 6, 1972. Although the factual record concerning the scope of a certifica- tion examination earlier the same year is unclear to non - existent, the judge of compensation claims found that Mr. Davis passed such a physical, which failed to reveal any evidence of heart disease, be- fore he began work with the City of Gainesville. For purposes of decision, we accept this finding of fact. We also assume for purposes of decision that, during the course of his service with the City of Gainesville, he developed heart disease. Eventually, he required bypass surgery. He left firefighting, and did not work again as a firefighter until he began working for the Village of Tequesta on August 2, 1993. He did not have a preemployment physical before he started working for the Village of Tequesta. But, before he began working as a firefighter for Miami -Dade County in 1995, he did undergo a medical examination. The examiner, one Dr. Harold Rosen, testified that Mr. Davis "[d]efinitely had heart disease " at the time of the preemployment physical and that " open heart surgery [of the kind Mr. Davis had undergone some years earlier at the City of Gainesville's expense] does not give a person a new heart and it's still less than what we would term a normal heart." PIge3of7 Page 2 Dr. Rosen stated unequivocally that there wa: "no question" that Nir. Davis had heart disease at the time of the preemployment examination; but ex- plained that he found him qualified for employment with Nliami -Dade County, using as his only cri- terion whether heart disease "would prohibit [NIr. Davis] from doing his job properly." Dr. Rosen testified that he was not aware of the National Fire Protection Association's medical standards at the time he examined the claimant but that, if those standards applied to Mr. Davis at the time of the examination, he should have been disqualified from performing work as a firefighter for Miami -Dade County, based on his history of coronary artery by- pass surgery. On February 26, 2002, the claimant was off -duty, although still on Miami-Dade County's payroll as a firefighter, when his heart disease manifested itself in a cardiac incident while he was surfing. Dr. Htwe Sein, a board certified cardiologist who treated claimant in the wake of the surfing incident, testi- fied that claimant visited her with a preexisting dia- gnosis of coronary artery disease and a history of myocardial infarction. She testified that Mr. Davis experienced " acute coronary syndrome with a min- imum cardiac enzymes leak" on February 26, 2002, sometimes referred to as a "non -T wave myocardial infarction." She also testified she had no doubt that the claimant had chronic underlying coronary artery disease when Miami -Dade County hired him in 1995. Proceedings Below Following the surfing incident, Mr. Davis filed pe- titions for benefits against Miami -Dade County FN seeking a determination that the cardiac incid- ent while he was surfing on February 26, 2002, was compensable by virtue of the presumption that arises under section 112.18(1), Florida Statutes, whenever a "firefighter or state law enforcement of- ficer shall have successfully passed a physical ex- amination upon entering into any such service as a firefighter ... which examination failed to reveal © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. n__— CI__1'aO__Sa_TTTIdTT7O - :C — AT. -. D .. 1 /1^lJ')A1A So.3d - - - -, 2009 VT 4030782 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2418 (Cite as: 2009 = 1030752 (Fla.App. 1 Dist)) any evidence of any such condition." The County argued that mere certification as a fire- fighter (including passing the physical then re- quired) did not entitle Mr. Davis to the benefit of the presumption set forth in section 112.18(1), be- cause his subsequent, preemployment physical ex- amination for Miami -Dade County revealed that he suffered from heart disease. Both Dr. Leonard Pi- anko, the County's independent medical examiner, and Dr. Jairny Bensimon, claimant's independent medical examiner, agreed that claimant had preex- isting heart disease when Miami -Dade County hired him. The County denied compensability on the ground that the claimant's heart disease ante- dated his employment with Miami -Dade County. Claimant argued that sections 112.18, 633.34 FN2, and 633.35 FN3 , Florida Statutes, should be read in pari materia so that the only physical examina- tion a firefighter needs to take and pass, for pur- poses of determining whether the presumption set forth in section 112.18 applies, is the initial medical examination described in section 633.34 that a fire- fighter once had to undergo in order to become cer- tified pursuant to section 633.35. The judge of compensation claims accepted this ar- gument. In ruling that the 1972 certification exam- ination was the only relevant examination for pur- poses of section 112.18(1), the judge of compensa- tion claims stated: the claimant ... successfully passed a physical ex- amination upon entering into any such service as a firefighter which examination failed to reveal any evidence of heart disease. The claimant did this when he was first employed as a firefighter by the City of Gainesville. That is when he entered into service as a firefighter. The judge of compensation claims acknowledged that the claimant had a history of heart disease at the time of his preemployment physical examina- tion for Miami -Dade County, but ruled this was ir- relevant, on grounds that the preemployment phys- Paggc4of Page 3 ical is "not the on,:: referred to in § 1 12.1 8(1)," stat- ing: The only medical examination required by law for firefighters is the pre - certification medical exam- ination. Section 633.34, Fla. Stat., and Section 633.35, Fla. Stat., should be read in pari materia with Section 112.18, Fla. Stat., because the med- ical examination required by law referred to in Chapter 633 is the one required for certification, which is upon entering into service as a firefight- er. On this basis, the judge of compensation claims found claimant's heart disease compensable and Miami -Dade County responsible for medical bene- fits. Preemployment Physical Precluded Presumption We cannot agree with the judge of compensation claims that " Section 633.34, Fla. Stat., and Section 633.35, Fla. Stat., should be read in pari materia with Section 112.18, Fla. Stat., because the medical examination required by law referred to in Chapter 633 is the one required for certification, which is upon entering into service as a firefighter." The judge of compensation claims erred in relying on sections 633.34 and 633.35 for the proposition that the physical examination referred to in section 1 12.18(1) was the 1972 certification exam. Unlike the statute applicable when claimant began working as a firefighter for the City of Gainesville in 1972, which required "any person initially em- ployed as a fire fighter" to "[b]e in good physical condition as determined by a medical examination as prescribed by the council," § 163.490(6), Fla. Stat. (1971) (emphasis supplied), the statute applic- able when claimant began employment with Miami -Dade County in 1995 required "[a]ny person applying for employment as a firefighter " to "[b]e in good physical condition as determined by a med- ical examination...." § 633.34(5), Fla. Stat. (1995) (emphasis supplied). © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. • ,..-. I,.A. A So.3d - - - -, 2009 WL 4030782 (Fla.App. 1 Dist.), 34 Fla. L. Weekly D2-118 (Cite as: 2009 MT 4030782 (Fla.App. 1 Dist.)) Althoup,h in 1972 certification as a firefighter de- pended, in part, upon the results of the medical ex- amination, see § 163.495(2), Fla. Stat. (1971) (providing that "[t]he council shall issue a certific- ate of compliance to any person" who, among other things, satisfies the "qualifications for employment in § 163.490 "), subsequently enacted amendments to section 633.35, Florida Statutes, explicitly ex- cepted the results of a medical examination per- formed pursuant to section 633.34(5) from consid- eration in the certification process. See § 633.35(2), Fla. Stat. (1995) ( "The division shall issue a certi- ficate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an ex- amination as prescribed by the division, and who possesses the qualifications for employment in s. 633.34, excepts. 633.34(5)." (emphasis supplied)). In conformity with section 633.34, Florida Statutes (1995), Miami -Dade County required Mr. Davis to submit to a preemployment physical examination, even though he was already a certified firefighter when he applied for employment with the County. The preemployment examination revealed that he had heart disease before he began work for Miami - Dade County. Section 112.18(1) did not, therefore, give rise to a presumption of occupational causation when, after he took the job, heart disease manifes- ted itself while he was surfing. Section 633.34, Florida Statutes (1995), unlike sec- tion 163.490, Florida Statutes (1971), provides that any person "applying for employment as a firefight- er," § 633.34, Fla. Stat. (1995) -not just a person "initially employed as a fire fighter," § 163.490, Fla. Stat. (1971) -must "[bje in good physical condi- tion as determined by a medical examination." Reading sections 633.34 and 633.35 in pari materia with section 112.18 lends no support to, and, in- deed, rules out, the inference the judge of compens- ation claims erroneously drew, namely, that "the only medical examination required by law for fire- fighters is the pre - certification medical examina- tion." Hunter v. Seminole County Fire/Rescue & Page 5 or / Page 4 Johns E. Co., - -- So.3d - - -- (Fla. 1st DCA 2009). Section 112.18(1) draws no distinction between firefighters and law enforcement officers with re- gard to the presumption the statute authorizes. Sec- tion 112.18(1), the statute that controls here, speaks equally of a "firefighter or state law enforcement officer" and confers precisely the same rights and obligations on firefighters as it confers on state law enforcement officers, no more and no less. § 112.18(1), Fla. Stat. (2001). The 2007 amendment to section 943.13(6) lends no support to appellee's position. That section 943.13(6)- enacted as part of the Department of Law Enforcement Act - limits its reach to "a law enforce- ment officer, correctional officer, or correctional probation officer" is perfectly natural, and does not reasonably suggest that firefighters, who are out- side the purview of the Department of Law En- forcement Act altogether, should be treated differ- ently. As amended, the Act provides, in pertinent part: In order to be eligible for the presumption set forth in s. 112.18 while employed with an employing agency, a law enforcement officer, correctional officer, or correctional probation officer must have successfully passed the physical examina- tion required by this subsection upon entering in- to service as a law enforcement officer, correc- tional officer, or correctional probation officer with the employing agency, which examination must have failed to reveal any evidence of tuber- culosis, heart disease, or hypertension. A law en- forcement officer, correctional officer, or correc- tional probation officer may not use a physical examination from a former employing agency for purposes of claiming the presumption set forth in s. 112.18 against the current employing agency. § 943.13(6), Fla. Stat. (2008). Section 943.13 makes unmistakably clear that the Legislature reads section 112.18, exactly the same way Miami -Dade County does, as forbidding the use of "a physical examination from a former employing agency for 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. r11AT 1/17/')111 n Pajc7of7 Page 6 So.3d - - - -, 2009 WL 4030782 ( Fla.App. 1 Dist.), 34 Fla. L. Weekly D2418 (Cite as: 2009 VvL 40307S2 ( Fla.App. 1 Dist.)) such person has satisfactorily complied ■vith all other requirements of this part. Fla.App. 1 Dist.,2009. Miami -Dade County v. Davis So.3d - - - -, 2009 WL 4030782 ( Fla.App. 1 Dist.), 34 Fla, L. Weekly D2418 END OF DOCUMENT © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. asnx ?sv= Solit&vrft= HTMLE &ifm= NotSet &mt... 1/12/2010 So.3d - - - -, 2009 \ L 4030782 (F1a.App. 1 Dist.), 34 Fla. L. Weekly D2418 (Cite as: 2009 WL - 1030782 (Fla.App. 1 Dist.)) purposes of claiming the presumption set forth in s. 112.13 against the current employing agency.,, 943.13(6), Fla. Stat. (2008). No examination in 1972 gave rise to the presump- tion set forth in section 112.13 so as to make Miami -Dade County responsible for workers' com- pensation benefits on account of the off -duty cardi- ac event Mr. Davis experienced in 2002 while em- ployed with Miami -Dade County, employment that only began in 1995, after a preemployment physical revealed that he suffered from heart disease before he ever began working for Miami -Dade County. Reversed. LEWIS and ROBERTS, JJ., concur. FNI. Claimant filed petitions against both Miami-Dade County and the City of Gainesville seeking, among other things, permanent total disability benefits. Pursu- ant to the parties' agreement, the JCC bi- furcated the issue of compensability from the claims against Miami -Dade County for permanent total disability and other bene- fits. The City of Gainesville and Miami - Dade County filed petitions seeking con- tribution from one another. The parties later stipulated to a stay of claimant's claims against the City pending the out- come of his claims against the County. FN2. Section 633.34 was initially numbered as section 163.490, Fla. Stat. (1971) and states: After July 5, 1969, any person initially employed as a fire fighter must: (1) Be a citizen of the United States or have applied for citizenship. (2) Be a high school graduate or the equivalent, as the term may be determ- Pd'`; 1. 6 of 7 Page 5 ined by the council. (3) Not have been conv icted of a felony or of a misdemeanor involving moral turpitude, as the term is defined by law. (4) Have his fingerprints on file with the council or an agency designated by the council. (5) Have a good moral character as de- termined by investigation under proced- ure established by the council. (6) Be in good physical condition as de- termined by a medical examination as prescribed by the council. FN3. Section 633.35 was renumbered from section 163.495, Fla. Stat. (1971): (1) The council shall establish a fire fighter training program administered by such agencies and institutions as it ap- proves and shall issue, or authorize the issuance of, a certificate of completion to any person satisfactorily completing the training program. (2) The council shall issue a certificate of compliance to any person satisfactor- ily complying with the training program established in subsection (1) of this sec- tion and the qualifications for employ- ment in § 163.490. No person shall be employed as a regular or permanent fire fighter as defined by the employing agency until he has obtained such certi- ficate of compliance. (3) The council may issue a certificate to any person who has received training in another state when the council has de- termined that such training was at least equivalent to that required by the council for approved fire fighter education and training programs in this state and when 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FRrifm= NntSef&mt._. 1/12/2010