DISTRICT COURT OF APPEALS, FIRST DISTRICT

STATE OF FLORIDA

Aaron Larsen,

Appellant,

v. Case No. 1D19-2573

OJCC Case No: 15-025841IF

City of Ft. Lauderdale Fire Department/

Gallagher Bassett Services-Miramar,

Appellees.

APPELLANT’S INITIAL BRIEF

Kelli Biferie Hastings, Esquire

Florida Bar No. 588512

Law Office of Kelli Biferie Hastings, PLLC

4005 N. Orange Blossom Trail, 2nd Floor

Orlando, FL 32804

And

James Spears, Esquire

Florida Bar No. 506036

Law Office of James R. Spears, PLLC

4005 N. Orange Blossom Trail, 2nd Floor

Orlando, FL 32804

Attorneys for Appellant

This is an appeal from a Final Order from the State of Florida, Division of

Administrative Hearings, Office of the Judge of Compensation Claims, Fort

Lauderdale District, dated June 20, 2019.

Filing # 98759403 E-Filed 11/12/2019 04:12:30 PM

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TABLE OF CONTENTS

Page

Table of Authorities………………………………………………………………...ii

Preliminary Statement……………………………………………………………..iv

Statement of the Case and Facts……………….…………………………………...1

Standard of Review………………………………………………………………..11

Summary of Argument……………………………………………………….…....13

ARGUMENT……………………………………………………………………...13

I. THE JCC ERRED AS A MATTER OF LAW ERRED IN LIMITING

A DETERMINATION OF “DISABILITY” UNDER THE

HEART/LUNG STATUTE TO ONLY THOSE SITUATIONS

WHERE THERE ARE COINCIDING WORK RESTRICTIONS

FROM A PHYSICIAN AT THE TIME OF THE DISABILITY…….13

Conclusion………………………………………………………………………...21

Certificate of Service……………………………………………………………...22

Certificate of Typeface Compliance………………………………………………22

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Bivens v. City of Lakeland,

993 So.2d 1100 (Fla. 1st DCA 2008)……………………………………..…8, 17-19

Caldwell v. Div. of Retirement,

372 So. 2d 438 (Fla. 1979)……………………………………...............................4

Carney v. Sarasota,

26 So.3d 683 (Fla. 1st DCA 2010)………………………………………..……14, 15

City of Clearwater v. Carpentieri,

659 So.2d 357 (Fla. 1st DCA 1995)……………………………………..………8, 15

City of Jacksonville v. Ratliff,

217 So.3d 183 (Fla. 1st DCA 2017)…………………………………………4, 5(n.1)

City of Mary Esther v. McArtor,

902 So.2 942 (Fla. 1st DCA 2005)…………………………………………………27

City of Miami v. Thomas,

657 So.2d 927 (Fla. 1st DCA 1995)………………………………………………26

City of Port Orange v. Sedacca,

953 So.2d 727 (Fla. 1st DCA 2007)…………………………………………..…8, 15

Feacher v. Total Employee Leasing/Guarantee Ins. Co.,

61 So.3d 1236 (Fla. 1st DCA 2011)……………………………………..…12, 18-20

Fidelity and Guaranty Ins. Co. v. Polk County,

20 So.3d 383 (Fla. 1st DCA 2009)…………………………………………..…15, 16

Jacksonville Sheriff’s Office v. Shacklett,

15 So.3d 859 (Fla. 1st DCA 2009)……………………………………………….….8

Kenney v. Juno Fire Control Dist.,

506 So.2d 449 (Fla. 1st DCA 1987)……………………………………………12, 18

iii

Lanham v. Dept. of Envtl. Prot.,

868 So. 2d 561 (Fla. 1st DCA 2004). …………………………………………...…11

Martz v. Volusia Cnty Fire Servs.,

30 So.2d 635 (Fla. 1st DCA 2010)…………………………………………..8, 14, 15

Orange County Fire Rescue v. Jones,

959 So.2d 785 (Fla. 1st DCA 2007)………………………………………………..16

Sledge v. City of Fort Lauderdale,

407 So.2d 1231 (Fla. 1st DCA 1986)…………………………………………..11, 14

St. Lucie FCRD and PGSC v. FMIT,

259 So.3d 992 (Fla. 1st DCA 2018)…………………………………………..…8, 15

STATUTES AND RULES

§112.18, Fla. Stat………………………………………..............................…passim

§440.13(5)(e), Fla. Stat…………………………………………………………....20

§440.151, Fla. Stat……………………………………………..………………...…4

iv

PRELIMINARY STATEMENT

The Appellant, Aaron Larsen, may be referred to as “Claimant.”

The Appellees, City of Fort Lauderdale Fire Department and Corvel

Corporation, may be referred to as “Employer/Carrier” or “E/C.”

The Judge of Compensation Claims, Honorable Iliana Forte, may be referred

to as “JCC.”

References to the Record on Appeal will be abbreviated by the letter “R”

followed by the applicable page number(s) (e.g. R. 21).

References to the Record Transcript on Appeal will be abbreviated by the

letter “T” followed by the applicable page number(s) (e.g. T. 4).

1

STATEMENT OF CASE AND FACTS

The Claimant began working as a firefighter/paramedic for the City of Fort

Lauderdale on August 2, 1999. (R. 20). The Claimant underwent and passed a pre-

employment physical upon entering service with the City of Fort Lauderdale. (R.

24, 189). The Claimant did not suffer from hypertension before his work-related

accident of March 13, 2013. (R. 20); (T. 21).

On March 13, 2013, the Claimant was treating a patient in the back of the

fire/rescue truck while the patient was being transported to the hospital. (R. 20).

The rescue truck was T-boned and flipped over. (R. 20)(T. 22). As a result, the

Claimant sustained serious injuries to his neck, ribs, right shoulder, and right knee,

along with cardiac and pulmonary contusions. (R. 20); (T. 22-3). He was off work

due to the accident for fifteen (15) months, then returned to light duty work for one

(1) year. (R. 20). Ultimately, he was found to be permanently disabled from service

as a firefighter due to his injuries, and was granted a line-of-duty disability pension

effective September 6, 2015. (R. 20); (T. 23-4).

He first became aware that he suffers from hypertension on November 13,

2013, when surgery for his work-related right rotator cuff injury was cancelled due

to his uncontrolled blood pressure. (R. 20). The Claimant had never taken

medications for hypertension prior to November 13, 2013. (R. 20). As of the date

2

of the final hearing, the Claimant’s blood pressure was under control with

medications. (R. 20).

According to the National Fire Protection Association (“NFPA”) standards:

Stage 2 hypertension (i.e., systolic pressure greater than or equal to

160 mm Hg or diastolic pressure greater than or equal to 100 mm HG)

compromises the member’s ability to safely perform essential job

tasks...

(R. 46, 142-3, 457) (emphasis added). Thus, any blood pressure readings of

160/100 or higher would render the Claimant unfit per duty under the NFPA

firefighter standards and testimony of the expert physicians. (R. 46, 93-4, 142-3)

On the day the Claimant was scheduled for surgery, November 13, 2013, he

had blood pressure readings of 233/114, 160/96, and 159/106, rendering him

unable to perform his job duties or risk “endanger[ing] himself or any of the

citizens he may come in contact with or be helping.” (R. 45-6). In fact, his reading

of 233/114 implicated “severe peripheral resistance and strain on the heart and the

brain and, and a high risk for stroke or heart attack.” (R. 46).

Per the Expert Medical Advisor (“EMA”), Dr. Leonard J. Pianko, the

Claimant’s elevated reading of 233/114 and other high readings would certainly

“preclude him from working as a firefighter” and could “lead to cerebral edema,

that can lead to an aneurism, a breakage of aneurism into a cerebral bleed. So those

are, you know, pretty significantly elevated blood pressures which we call

3

hypertensive…emergencies or urgencies as opposed to just elevated blood

pressure. (R. 93-4).

The Employer/Carrier accepted compensability of the Claimant’s orthopedic

injuries, but did not accept compensability of any injuries related to hypertension

or heart disease. (R. 22).

The Claimant filed a petition for benefits using the November 13, 2013, date

of accident and seeking benefits for “disabling arterial and cardiovascular

hypertension and/or heart disease.” (R. 71).

Recall that, as a firefighter, the Claimant’s hypertension and/or heart disease

conditions are presumed work-related a matter of law under the “Heart/Lung

Statute.” See §112.18, Fla. Stat.

Specifically, the Heart/Lung Statute sets forth a presumption that certain

conditions, when suffered by firefighters or law enforcement officers, are

presumed work-related as a matter of law when the following four (4) prerequisites

or “prongs” are met, which is often a very difficult and fiercely litigated task:

1. The claimant must be a firefighter, police officer, or corrections officer

(protected class prong);

2. The claimant must suffer from a condition caused by hypertension,

heart disease, or tuberculosis (covered condition prong);

3. The claimed condition must result in total or partial disability or death

4

(disability prong); and,

4. The claimant must have undergone and passed a pre-employment

physical which failed to reveal evidence of the condition claimed (pre-

employment physical prong).

Id.

When a claimant meets all four (4) of the above prerequisites, the claimant’s

condition is presumed work-related as a matter of law regardless of the actual cause

of the condition. Id. The burden then shifts to the employer/carrier to rebut that

presumption of compensability. Id. Given the public policy favoring the application

of the presumption, any conflict in the evidence regarding causation is resolved in

favor of the claimant. Caldwell v. Division of Retirement, 372 So. 2d 438 (Fla. 1979).

Once a claimant has established entitlement the presumption, his or her

condition is considered an occupational disease de facto without the necessity of

proving occupational causation under §440.151. City of Jacksonville v. Ratliff, 217

So.3d 183, 186 (n.3) (Fla. 1st DCA 2017)(“Section 112.18 claims are considered de

facto occupational disease claims and are, thus, governed by legal standards of

section 440.151, Florida Statutes.”)

In the instant case, there was no dispute that the Claimant met two (2) of the

four (4) prongs of §112.18, in that the Claimant was a firefighter (prong 1,

protected class), suffering from hypertension or heart disease (prong 2, covered

5

condition). However, there was a dispute as to whether the Claimant passed a pre-

employment physical without evidence of the condition claimed (prong 4, pre-

employment physical) and whether or not the Claimant suffered a disability (prong

3) as a result of his cardiac conditions.

A final hearing was held on June 5, 2019 before Judge of Compensation

Claims Iliana Forte. (R. 18). The Claimant proceeded under two dates of accident:

November 13, 2013, and March 13, 2013. (R.18); (T.4).

The Employer/Carrier alleged that “the work place accident is not the MCC

[major contributing cause] of the alleged condition.” (R. 19).1

The JCC found that the Claimant passed his pre-employment physical

without evidence of hypertension based on the opinion of the EMA, Dr. Leonard

Pianko. (R. 22-3). The JCC noted the following with regard to the EMA’s opinion

about the pre-employment physical:

[The EMA] opined that while the Claimant’s blood pressure was

borderline elevated at 140/90 at rest, 150/90 after exercise and 140/82

two minutes after exercise as documented in the pre-employment

physical, there were no other blood pressure readings available to

establish hypertension. Dr. Pianko also noted that the fact that the

Claimant went from 1999 to 2013 without being told he was

hypertensive or under anti-hypertensive therapy supports the fact that

there was no evidence of hypertension in the pre-employment

physical.

1 Note that MCC or “major contributing cause” is not the correct standard in

presumption cases. City of Jacksonville v. Ratliff, 217 So.3d 183 (Fla. 1st DCA

2017).

6

(R. 23).

The JCC also noted that both Drs. Perloff (the Employer/Carrier’s IME) and

Parikh (the Claimant’s IME) expressed similar opinions to Dr. Pianko regarding

the pre-employment physical. (R. 23). The JCC further expressed the following

regarding the pre-employment physical element:

In addition, the physician who conducted the pre-employment

physical on June 7, 1999 found that the Claimant was qualified to

work. He did not require the Claimant to return for a re-examination

either by an occupational health nurse or by an examining physician,

which were other options available. Nowhere in said report is there

any indication noted that the examination revealed evidence of

hypertension. I find the facts of this case to be similar to those of City

of Tavares v. Harper, 230 So.3d 918 (Fla. 1st DCA 2017) where the

Court affirmed the opinion of the JCC that one isolated blood pressure

measurement was not evidence of hypertension based on the medical

opinions and the factually specific nature of the presumption.

(R. 24).

Having found that the Claimant met prong 4 of the presumption by passing

his pre-employment physical without evidence of the condition claimed, the JCC

turned to the disability element. (R. 24).

However, with regard to disability, the JCC found that the Claimant was not

disabled as a result of his hypertension condition. (R. 24-5). The JCC noted that

both the Claimant’s IME and the E/C’s IME opined that the Claimant’s blood

pressure was elevated on numerous occasions, including the date of the accident, to

7

the point that the Claimant would not be allowed to work under the National

Firefighter Protection Standards blood pressure threshold of 160/100. (R. 25).

The JCC further pointed out that the EMA physician also agreed that the

Claimant’s blood pressure readings would have precluded him from working. (R.

25). The JCC noted that the EMA “could tell for sure…that on November 13, 2013

[the Claimant] had definite malignant hypertension when he was supposed to be

having surgery.” (R. 21).

However, because there was no evidence in the medical records that the

Claimant was actually taken out of work for his hypertension at the time of the

alleged accident, the “claimant technically did not experience a disability related to

his hypertension on November 13, 2013.” (R. 25). The JCC found, “Dr. Pianko

opined that while in retrospect, [the Claimant] certainly could have been taken out

of work, from a hypertension perspective this was not documented in his chart.”

(R. 25).

The JCC went on to explain:

The claimant did not present any evidence that he was taken off of

work or placed on any work restrictions as a result of his elevated

blood pressure on November 13, 2013, at any time before, or at any

time thereafter. While I did review records from Dr. Robert Lins, an

orthopedic doctor, who recommended the claimant follow-up with his

primary care physician for his elevated blood pressure before

November 13, 2013; there is no indication that Dr. Lins treated the

claimant for blood pressure or took him off of work due to the elevated

blood pressure.

8

(R. 26)(emphasis added). The JCC then elaborated on her reasoning:

While I am mindful of the Claimant’s arguments that case law have

[sic] regarded hospitalization as disability from performing duties if

done not just for diagnostic reasons. Martz v. Volusia County Fire

Services, 30 So.3d 635 (Fla. 1st DCA 2010); City of Mary Esther v.

McArtor, 902 So.2d 942, 944 (Fla. 1st DCA 2005). Including multiple

cases that provide that a firefighter is disabled due to heart condition

preventing the firefighter from working even when the firefighter was

not working due to using leave and the disabling condition is found

while off duty. St. Lucie FCRD v. FMIT, 259 So.3d 992 (Fla. 1st DCA

2018); City of Clearwater v. Carpentieri, 659 So.2d 356 (Fla. 1st

DCA 1995). In all of the cases cited the claimant’s [sic] meet the

statutory definition of disability and there was evidence that the

claimant was instructed not to work or was placed on restrictions.

Cancellation of a surgical procedure without more does not meet the

statutory definition of disability or demonstrates disability.

Jacksonville Sheriff’s Office v. Shacklett, 15 So.3d 859 (Fla. 1st DCA

2009); Bivens v. City of Lakeland, supra.

(R. 26)(emphasis added).

Thus, the JCC focused on the fact that the Claimant did not present

sufficient evidence that he was actually taken off work due to his hypertension at

the time of the November 13, 2013, date of accident. (R. 27). The JCC explained,

Lastly, while I agree with claimant’s argument that all of the

cardiologists in this case agree that his high blood pressure reading on

November 13, 2013 was clinically high enough to have prevented him

from performing his job duties – all of these experts rendered their

opinions after the fact. The medical providers that actually saw the

Claimant on November 13, 2013 did not independently taken him off

of work or restricted [sic] his ability to work as a firefighter due to

hypertension. Retrospective, second-guessing the decisions of the

physicians who were actually treating the claimant, is not competent

substantial evidence of disability. See Bivens v. City of Lakeland,

supra. (“Although the EMA testified it would have been reasonable,

as a precaution, to remove Claimant from active firefighting duty

9

when he initially exhibited MVA symptoms, such a recommendation,

given in hindsight, does not mean Claimant was incapable of

performing his duties because of his condition.”)

(R. 27) (emphasis added).

Thus, the JCC opined that because there no coinciding work restrictions at

the time of the disability, the Claimant could not be disabled. (R. 27). The JCC

further held, “[d]isability only occurs when the employee becomes actually

incapacitated, partially or totally, from performing his employment – not when he

should have, could have or would have – based on speculation or hindsight.” (R.

27).

Hence, the JCC denied compensability of the Claimant’s hypertension

condition, based on the Claimant’s purported failure to satisfy the disability prong.

(R. 28).

The Claimant moved for rehearing and argued that “the JCC has

misapprehended the legal standard Claimant must meet as it relates to the disability

requirement of Sec. 112.18(1), Florida Statutes under the specific facts of this

case.” The Claimant pointed out that the correct standard was whether or not the

Claimant was actually incapacitated due to his hypertension; not, as found by the

JCC, whether the Claimant was actually placed on work restrictions due to his

hypertension at the time of the disability. (R. 466).

10

The JCC denied the rehearing and held, “[t]he evidence established that

surgery related to an orthopedic injury was cancelled due to hypertension. The

undersigned finds no basis or legal authority to broaden the definition of disability

as interpreted by case law.” (R. 468).

This timely appeal followed. (R. 16-7).

11

STANDARD OF REVIEW

This case presents a pure question of law: whether the JCC erred in limiting a

determination of “disability” under the Heart/Lung Statute to only those situations

where there are coinciding work restrictions from a physician at the time the

disability occurred. Thus, it is subject to de novo review. Lanham v. Dept. of Envtl.

Prot., 868 So. 2d 561, 562 (Fla. 1st DCA 2004).

SUMMARY OF ARGUMENT

I.

The JCC erred as a matter of law in erred in limiting a determination of

“disability” under the Heart/Lung Statute to only those situations where there are

coinciding work restrictions from a physician given at the time the disability

occurred.

The JCC’s error resulted in a denial of compensability under §112.18 due to

a perceived lack of “disability” even though the unanimous IME medical opinion

testimony establishes the Claimant was disabled as a result of his hypertension and

heart disease conditions at the time of the November 13, 2013, date of accident.

Under the well-established case law, “[d]isablement means the event upon

which the employee becomes actually incapacitated, partially or totally, from

performing his employment.” Sledge v. City of Fort Lauderdale, 407 So.2d 1231 ,

1233 (Fla. 1st DCA 1986).

12

Here, the uncontroverted medical testimony from the EMA physician, the

Claimant’s IME, and the Employer/Carrier’s IME was that the Claimant was not

capable of performing his duties as a firefighter on or about the time of his claimed

date of accident, November 13, 2013.

The JCC’s denial of compensability turned on the JCC’s factual finding that

there was no evidence to support that the Claimant was actually assigned work

restrictions at the time of the alleged accident on November 13, 2013. However,

there is no case law or statutory authority that stands for the proposition that

disability only occurs if work restrictions were actually placed upon a claimant

concurrent in time with the alleged accident date.

To the contrary, retroactive medical testimony can confirm disability in a

workers’ compensation case. Feacher v. Total Employee Leasing/Guarantee Ins.

Co., 61 So.3d 1236, 1237 (Fla. 1st DCA 2011); See also, Kenney v. Juno Fire

Control Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (reversing denial of disability

benefits where medical evidence retroactively confirmed claimant's testimony as to

her disability).

In the instant case, the JCC mistakenly concluded that retroactive work

restrictions cannot establish disability. This was clear error under the prevailing

caselaw. Id.

13

Therefore, the Claimant having satisfied the disability prong of the

Heart/Lung Statute, as well as the other three prongs, the JCC clearly erred in

denying compensability of the Claimant’s hypertension and heart disease

conditions.

ARGUMENT

I. THE JCC ERRED AS A MATTER OF LAW ERRED IN LIMITING A

DETERMINATION OF “DISABILITY” UNDER THE HEART/LUNG

STATUTE TO ONLY THOSE SITUATIONS WHERE THERE ARE

COINCIDING WORK RESTRICTIONS FROM A PHYSICIAN AT THE

TIME OF THE DISABILITY

The JCC erred as a matter of law in erred in limiting a determination of

“disability” under the Heart/Lung Statute to only those situations where there are

coinciding work restrictions from a physician given at the time the disability

occurred.2

The JCC’s error resulted in a denial of compensability under §112.18 due to

a perceived lack of “disability” even though the unanimous medical opinion

2 This case presents a similar issue of law to another workers’ compensation case

currently pending before this Court: McClurg v. City of Cape Coral/Commercial

Risk Management, Inc., 1D19-2127. A notice of related case is concurrently filed

with this brief.

14

testimony establishes the Claimant was disabled as a result of his hypertension at

the time of the November 13, 2013, date of accident.

Recall that the JCC held that because there was not clear evidence that any

physician assigned work restrictions to the then already-on-light-duty Claimant on

the November 13, 2013, date of accident, the Claimant was not disabled. (R. 24-7).

In so doing, the JCC misconstrued the definition of “disability” as it is applied

under §112.18, the Heart/Lung Statute.

Under the well-established case law, “[d]isablement means the event upon

which the employee becomes actually incapacitated, partially or totally, from

performing his employment.” Sledge v. City of Fort Lauderdale, 407 So.2d 1231 ,

1233 (Fla. 1st DCA 1986). “Incapacitation” is “to deprive of capacity or natural

power.” City of Port Orange v. Sedacca, 953 So.2d 727 (Fla. 1st DCA 2007).

Furthermore, such disability can be temporary and need not be permanent.

City of Miami v. Thomas, 657 So.2 927 (Fla. 1st DCA 1995). Moreover, there is no

minimum established length of time for the disability period in order to establish

entitlement to the §112.18 presumption. Carney v. Sarasota, 26 So.3d 683, (Fla.

1st DCA 2010)(finding a claimant disabled under §112.18 even though he only

missed part of a shift during an overnight stay at the hospital and returned to work

his next regularly-scheduled work day); Martz v. Volusia Cnty Fire Servs., 30

15

So.2d 635 (Fla. 1st DCA 2010) (claimant satisfied disability requirement even

though he only missed one-and-a-half days of work).

Thus, disability under the Heart/Lung Statute is established when a claimant

is “incapable of performing his duties” as a firefighter or law enforcement officer.

City of Mary Esther v. McArtor, 902 So.2 942, 944 (Fla. 1st DCA 2005). It does

not turn on whether or not a claimant was actually earning wages at the time of the

injury. Id. Likewise it does not turn on the length of the disability. Martz; Carney.

Furthermore, a claimant can be disabled and have a compensable claim for

hypertension or heart disease even though the claimant is not on “active duty

status” at the time of the alleged accident date. St. Lucie FCRD and PGSC v.

FMIT, 259 So.3d 992 (Fla. 1st DCA 2018); City of Clearwater v. Carpentieri, 659

So.2d 357 (Fla. 1st DCA 1995)(finding a claimant was entitled to the presumption

who was still technically employed by the employer but who had already

submitted his retirement request and was not actively working).

Hence, even though the instant Claimant was already on light duty status for

other conditions related to the March 13, 2013 date of accident, same does not

preclude him from establishing disability related to his cardiac conditions under

§112.18. Id.

Moreover, the date (or dates) an occupational disease becomes disabling is

the date of accident, not the date the disease manifested itself. Fidelity and

16

Guaranty Ins. Co. v. Polk County, 20 So.3d 383 (Fla. 1st DCA 2009); See also

Orange County Fire Rescue v. Jones, 959 So.2d 785, 787 (Fla. 1st DCA 2007)

(“detection of an occupational disease does not necessarily coincide with the date

of disablement from the disease.”).

Thus, there can be multiple dates of disability – and hence multiple dates of

accident – for the same condition. Jones, 959 So.2d at 788 (holding, “we reject the

employer and carrier's argument that there cannot be more than one date of

accident” for an occupational disease.)

Further, whether or not a claimant may have known about his or her

conditions prior to the date of accident is irrelevant. Fidelity, 20 So.3d at 386 (it

was error to “make the trigger for coverage on this workers’ compensation claim…

the date when the disease manifested itself”).

Here, as noted by the JCC, the unanimous medical testimony from all three

expert physicians established that the Claimant was not capable of performing his

duties as a full duty firefighter on or about the time of his claimed date of accident,

November 13, 2013. (R. 27)(holding, “I agree with the claimant’s argument that all

of the cardiologists in this case agree that his high blood pressure reading on

November 13, 2013 was clinically high enough to have prevented him from

performing his job duties…”)

17

The JCC’s denial of compensability turned on the fact that the JCC found

that there was no evidence to support that the Claimant was actually assigned work

restrictions at the time of the date of accident on November 13, 2013. (R. 27).

However, there is no case law or statutory authority that stands for the proposition

that disability only occurs if work restrictions were actually placed upon a claimant

concurrent in time with the alleged accident date.

Recall that in the instant case, the JCC held that “[r]estrospective, second-

guessing the decisions of the physicians who were actually treating the claimant, is

not competent substantial evidence of disability” and cited Bivens v. City of

Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008).

However, Bivens is entirely distinguishable from the instant case. In Bivens,

this Court held that the claimant’s hypertension was not compensable because it

was not a covered condition (prong 2) and for reasons not related to disability

(prong 4). Id. at 1102.

However, with regard to the Claimant’s microvascular angina (“MVA”), the

court found that he did not establish disability because “there is no evidence that

Claimant’s MVA effected his ability to perform his duties as a fire inspector.

Claimant testified that he was always able to perform the physical requirements of

the job, including dragging hoses and laying supply lines.” Id. 1103. Given those

facts, the Court went on to state in dicta, “[a]lthough the EMA testified it would

18

have been reasonable, as a precaution, to remove Claimant from active firefighting

duty when he initially exhibited MVA symptoms, such a recommendation, given in

hindsight, does not mean Claimant was incapable of performing his duties because

of his condition. In fact, he was not.” Id. (emphasis added).

The JCC below focused on the above line from Bivens: “such a

recommendation, given in hindsight, does not mean the Claimant was incapable of

performing his duties because of his condition” in holding the instant Claimant did

not establish disability. (R. 27). However, the JCC failed to cite the next sentence,

“In fact, he was not [incapable of performing his duties]” which is the key to

distinguishing the instant case. (R. 27). In the instant case, the experts agreed the

Claimant was incapable of performing his job duties on November 13, 2013

because of his dangerously high blood pressure readings in excess of the NFPA

standards. These NFPA standards restricting from duty any firefighter with a blood

pressure reading over 160/100 is a prospective work limitation; not like Bivens.

Furthermore, this dicta line from Bivens does not stand for the proposition

that there can never be retrospective medical testimony regarding disability. To the

contrary, retroactive medical testimony can confirm disability in a workers’

compensation case. Feacher v. Total Employee Leasing/Guarantee Ins. Co., 61

So.3d 1236, 1237 (Fla. 1st DCA 2011); See also, Kenney v. Juno Fire Control

Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (reversing denial of disability benefits

19

where medical evidence retroactively confirmed claimant's testimony as to her

disability).

In Feacher, which was decided three (3) years after Bivens, the JCC

similarly found that the claimant did not establish disability because there was no

evidence that she was actually taken off work or given work restrictions by the

emergency room physician she saw on the date of accident. Id. at 1236.

However, the IME in Feacher testified that the Claimant was disabled from

working from the date of accident through the date he saw her for the IME and

continuing into the future. Id. This Court held that “the JCC apparently either

overlooked the IME’s above-quoted testimony, or erroneously concluded that, as a

matter of law, a doctor cannot impose work restrictions retroactively.” Id. at 1237.

The instant JCC likewise found that the instant Claimant was not disabled

because there was not sufficient evidence he was actually taken off work by his

physicians at the time of the accident at of November 13, 2013. (R. 27). The JCC

reasoning was based on her holding that “the medical providers that actually saw

the claimant on November 13, 2013 did not independently take him off work or

restricted [sic] his ability to work as a firefighter due to his hypertension.” (R. 27).

Nonetheless, in the instant case, there was similar opinion evidence to

Feacher from all three (3) expert doctors that the Claimant was disabled on the

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date of accident on November 13, 2013, where his blood pressure exceeded the

160/100 NFPA threshold.

In the instant case, the JCC appears to have mistakenly concluded, in the

same manner as the Feacher JCC, that retroactive work restrictions cannot

establish disability. This was clear error under the prevailing caselaw. Id.

Moreover, any physician that would have seen the Claimant on November

13, 2013 for his hypertension3 would not have been an authorized doctor, expert

medical advisor (EMA), or IME, so any opinions regarding disability would be

inadmissible under §440.13(5)(e), Florida Statutes. See §440.13(5)(e), Fla. Stat.

(“No medical opinion other than the opinion of a medical advisor appointed by the

judge of compensation claims or the department, an independent medical

examiner, or an authorized treating provider is admissible in proceedings before

the judges of compensation claims.”). Thus, while these unauthorized physicians’

factual testimony regarding whether or not work restrictions were actually imposed

on the date of accident might be admissible, any of their opinions regarding

whether or not the Claimant was actually disabled pursuant §112.18 during that

time would be inadmissible. Id.

3 As noted by the JCC, the only doctor ever authorized to treat the Claimant’s

hypertension was Dr. Jyoti Mohanty, who was briefly authorized before the E/C’s

denial and who did not treat the Claimant until January 26, 2015. (R. 27, 114).

Thus, his opinions would likewise be “retrospective.”

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Furthermore, in practice, it would be a rare situation where a claimant – who

is already out of work due to another injury – would be given additional, redundant

work restrictions for a subsequently-developed hypertension condition from a

physician who already has that claimant in a no-work status for the other injury.

The JCC’s holding creates an untenable situations for Heart/Lung claimants:

Unless a claimant is already treating with a provider authorized to treat

hypertension at the time of the disability – a circumstance that almost never occurs

given the nature of Heart/Lung claims – there would not ever be a situation where

a claimant could establish disability if a claimant was not able to use after-the-fact

opinion testimony from an IME or subsequently-authorized treater.

Most importantly, the uncontroverted medical opinion testimony from all

three medical experts in this case establishes that the Claimant was incapacitated

from working, and those opinions are supported by the medical records and

testimony showing numerous critical hypertensive readings on the November 13,

2013, date of accident.

Therefore, since the Claimant satisfied the disability prong of the

Heart/Lung Statute, as well as the other three (3) prongs, the JCC clearly erred in

denying compensability of the Claimant’s hypertension.

CONCLUSION

The JCC erred as a matter of law in determining that the Claimant failed to

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prove disability under the Heart/Lung Statute based solely on the fact that there were

no clearly-established work restrictions concurrent in time with the November 13,

2013 date of accident. Instead, because the Claimant was undoubtably disabled from

performing his duties as a firefighter due to his hypertension on that date, the JCC’s

denial of compensability should be reversed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

served on this 12th day of November, 2019 via electronic mail delivery upon Darrel

T. King, Esquire, and Albert P. Massey, III, Esquire, Massey, Coican & King,

king@masseylaw.com, sandra@masseylaw.com, massey@masseylaw.com,

Attorneys for Appellees.

/s/ Kelli Biferie Hastings_______________

Kelli Biferie Hastings, Esquire

Florida Bar No. 588512

Law Office of Kelli Biferie Hastings, PLLC

4005 North Orange Blossom Trail

Orlando, Florida 32804

T: (407) 539-3032

F: (407) 667-8900

khastings@kbhastingslaw.com

Co-counsel for Appellant

CERTIFICATE OF TYPE FACE COMPLIANCE

I HEREBY CERTIFY that this Initial Brief of Appellant was computer-

generated using Times New Roman fourteen point font on Microsoft Word, and

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thereby complies with the font standards as required by Fla. R. App. P. 9.210 for

computer-generated briefs.

/s/

Kelli Biferie Hastings, Esquire

Fla. Bar. No.: 588512