Catch 22 Prevents Florida Officer From Utilizing Presumption of Compensability
A Florida appellate court affirmed a decision by a judge of compensation claims that found a law enforcement officer was not entitled to the special presumption of compensability related to his diagnosis of primary hypertension [see § 112.18, Fla. Stat.], in spite of the fact that during his pre-employment physical examination, no hypertension was found [Holcombe v. City of Naples, 2021 Fla. App. LEXIS 13037 (1st DCA, Sept. 15, 2021). During the officer’s teen years, he had undergone a liver transplant, requiring him to take anti-rejection medications for 15 years (until 2003). The medications had a side effect—secondary hypertension. The secondary hypertension ceased years before his employment, but the officer disclosed it in a pre-employment medical questionnaire. The court stressed that under the unambiguous terms of the statute, the officer could not utilize the presumption.
8Background
As revealed above, several years after a cessation of the anti-rejection medications, the City of Naples hired Claimant as a law enforcement officer. He underwent a pre-employment physical (PEP) examination upon entering service in 2007. As part of the PEP, Claimant was required to complete a self-report medical history questionnaire. He responded “yes” to a question regarding any history of high blood pressure. As part of the physical, the examiner reviewed a note from Claimant’s primary care physician advising that his hypertension had returned to normal upon cessation of the medications.
Several years into his service, Claimant sought workers’ compensation benefits for primary hypertension. He asserted entitlement to the presumption in § 112.18, Fla. Stat., that his hypertension was occupationally caused. The E/C denied compensability of the claim, arguing that the presumption did not apply as Claimant’s PEP contained evidence of hypertension. Ultimately, the JCC denied compensability after concluding that the examination contained evidence of hypertension, precluding Claimant’s reliance on the presumption.
Conflicting Medical Evidence
Both parties obtained experts via independent medical examinations (IME), pursuant to § 440.13(5), Fla. Stat. Claimant’s IME opined that Claimant did not develop his current hypertensive condition, “essential hypertension,” until 2015 and that the PEP did not reveal evidence of the essential hypertension condition. In summary, Dr. Pianko opined that the hypertension for which Claimant sought compensability was “a different type of disease than the secondary hypertension that he had back in 1988.” On cross-examination, the physician agreed, however, that essential and secondary hypertension were both forms of hypertension.
The E/C’s IME testified that the PEP (inclusive of the pre-employment medical questionnaire) did not document evidence of essential hypertension but did reveal secondary hypertension. Although he believed the two to be “different” conditions, he also agreed that both were forms of hypertension.
Claimant’s Primary Contentions
Claimant argued that:
- The evidence of secondary hypertension on the PEP did not preclude reliance on the presumption of § 112.18, Fla. Stat., because the statute’s prerequisite that the PEP not contain evidence of “any such condition” clearly meant the condition for which Claimant had sought compensability;
- The medical testimony established that essential and secondary hypertension were different conditions; and
- His PEP contained no evidence of hypertension, because the self-reported medical history was not a diagnosis and not part of the physical examination.
In essence, Claimant argued a claimant must be suffering from and be diagnosed with the subject condition at the time of the physical examination for the presumption to be extinguished. Thus, a prior medical history did not constitute “evidence” and was not a meaningful component.
The appellate court observed that the JCC denied compensability of Claimant’s essential hypertension, accepting the opinions of both IMEs that “hypertension is hypertension.” The JCC concluded that, because the PEP contained evidence of hypertension, Claimant’s reliance on § 112.18 was precluded.
Plain and Unambiguous Language of Statute
The court stressed that the question of whether evidence of secondary hypertension on a PEP precluded a claimant’s use of the presumption of § 112.18 for essential hypertension was answered by a straightforward application of the plain and unambiguous language of the relevant statutes. Neither § 112.18(1) nor § 943.13(6), Fla. Stat., incorporated any qualifying or restricting language for the terms “tuberculosis, heart disease, or hypertension”; instead, the statutes required any evidence of the conditions of “tuberculosis, heart disease, or hypertension” without qualification [§§ 112.18(1)(a), 943.13(6), Fla. Stat. (2018)]. The court stressed that the Legislature chose to use broad terms and the court would not second guess their selection. Thus, the court found that under the plain language of the statute, evidence of secondary hypertension on a PEP may preclude a claimant’s use of the presumption of § 112.18 for essential hypertension.
The court added that prior precedent pointed as well toward affirmance of the JCC’s decision. In Miami-Dade Cnty. v. Davis, 26 So. 3d 13, 15 (Fla. 1st DCA 2009), before going to work for the employer, the claimant had a history of undergoing open heart surgery. The PEP noted his history of heart disease but found him fit for duty. He subsequently experienced an acute coronary episode while off duty and surfing. The Court determined that because the claimant’s PEP indicated he had a history of heart disease before entering employment with the employer, the presumption did not apply. In reaching this conclusion, the Court did not identify as an issue the fact that manifestation of the claimant’s heart disease while surfing (acute coronary episode) was not an identical condition that led to his need for open heart surgery before employment with that employer. In ruling the presumption did not apply, the Court necessarily concluded that both constituted “heart disease.”
The court noted that it was undisputed that Claimant was diagnosed with hypertension prior to entering service with the Employer, and his PEP revealed evidence of that hypertension. Both medical experts agreed that there was evidence of secondary hypertension on the PEP and that essential and secondary hypertension are both forms of hypertension. Furthermore, Claimant stipulated that the PEP contained evidence of secondary hypertension. Finding that evidence of secondary hypertension on Claimant’s PEP precludes his use of the presumption of § 112.18 for essential hypertension, the court affirmed the final order on appeal.