CITY OF TAVARES and GALLAGHER BASSETT SERVICE, INC., Appellants,
BILLY HARPER, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: January 5, 2016, and April 20, 2016.
appeal from an order of the Judge of Compensation Claims. W.
James Condry, Judge.
Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami,
and James B. Birmingham of Fulmer, Leroy & Albee, PLLC,
Orlando, for Appellants.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale;
and Kristine Callagy of Bichler, Oliver, Longo & Fox,
PLLC, Maitland, for Appellee.
workers' compensation appeal, the Employer/Servicing
Agent (E/SA) seek review of the Judge of Compensation
Claims' (JCC's) order finding that Claimant, a law
enforcement officer, established the compensability of his
hypertension under the statutory presumption in the
Heart-Lung Statute, section 112.18(1), Florida Statutes
(2015). According to the E/SA, Claimant's pre-employment
physical examination report indicated evidence of
hypertension which, in accordance with the plain language of
the statute, precludes Claimant's reliance on the
presumption. But, because we conclude that competent
substantial evidence (CSE) supports the JCC's finding
that the single reported elevated blood pressure reading at
the pre-employment physical examination did not constitute
evidence of the condition of hypertension, we affirm.
2016, Claimant experienced two incidences of severely
elevated blood pressure and was temporarily taken off of
work. He was subsequently diagnosed with hypertension which
eventually came under good control with medication. Claimant
then sought a determination of compensability of his
hypertensive condition as a workplace injury in accordance
with the section 112.18(1) statutory presumption. This
statute provides, in pertinent part, that any health
condition or impairment of a law enforcement officer caused
by hypertension and resulting in disability "shall be
presumed to have been accidental and to have been suffered in
the line of duty unless the contrary be shown by competent
evidence." § 112.18(1)(a), Fla. Stat. (2015). But
to qualify for the presumption, Claimant was required to
show, among other things, that he successfully passed a
pre-employment physical examination which "failed to
reveal any evidence of such condition." Id.;
see also Volusia Cty. Fire Servs. v. Taaffe, 27
So.3d 81, 82 (Fla. 1st DCA 2009) (holding that pre-employment
physical examination finding claimant fit for duty but noting
a diagnosis of hypertension precluded presumption of
compensability of hypertension under section 112.18(1));
Miami-Dade Cty. v. Davis, 26 So.3d 13, 17-18 (Fla.
1st DCA 2009) (holding that section 112.18(1) presumption was
precluded where relevant pre-employment physical revealed
claimant suffered from heart disease).
Claimant's 2007 pre-employment physical examination
report listed a single blood pressure reading of 140/60,
which, according to the unrefuted medical opinions in this
record, is considered high. The condition of hypertension,
however, was not noted in the report; in fact, the findings
were described as normal. Furthermore, medical records
documenting Claimant's medical history from 2001 through
the end of 2015 did not reveal any reference to hypertension
or to any other elevated blood pressure readings. The medical
opinions indicated that an isolated elevated blood pressure
reading could be caused by hypertension, but also by a number
of other conditions unrelated to hypertension, including what
is commonly referred to as "white coat"
syndrome. For that reason, they opined, two or three
abnormal readings within a period of time are necessary to
confirm the condition of hypertension.
the JCC found that the pre-employment physical examination
did not show evidence of the condition of hypertension in
this case and concluded that Claimant was entitled to rely on
the statutory presumption. In reaching this conclusion, the
JCC relied on the opinion of Dr. Perloff, Claimant's
independent medical examiner (IME), who testified that there
is a distinction between a single isolated measurement in the
hypertensive range and the actual disease process of
hypertension. In his opinion, one high blood pressure reading
could be evidence of hypertension; however, he also
testified that he found it "hard to believe" that
the 2007 reading "really represent[ed]
hypertension" given that it is "extremely rare that
patients become hypertensive and then are not" and, as
noted here, Claimant did not have any documented elevated
readings for approximately fourteen years after his
pre-employment physical. Significantly, both Dr. Perloff and
Dr. Nocero, the E/SA's IME, agreed that Claimant's
responses to stress suggested "white coat" syndrome
as a possible explanation for the single elevated reading
during the pre-employment physical examination.
appeal, the E/SA argue that the JCC erred as a matter of law
because the statute refers to any evidence of a
condition and does not require evidence sufficient to support
an actual diagnosis. To the extent this issue turns on the
JCC's interpretation and application of the statute, our
review is de novo; but, to the extent it turns on
the resolution of facts, review is for CSE. See
Benniefield v. City of Lakeland, 109 So.3d 1288, 1290
(Fla. 1st DCA 2013).
begin our analysis with the language of the statute. It is
well-established that "[w]hen the language of the
statute is clear and unambiguous and conveys a clear and
definite meaning, there is no occasion for resorting to the
rules of statutory interpretation and construction; the
statute must be given its plain and obvious meaning."
Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984).
Furthermore, courts are "without power to construe an
unambiguous statute in a way which would extend, modify, or
limit, its express terms or its reasonable and obvious
implications. To do so would be an abrogation of legislative
power." McLaughlin v. State, 721 So.2d 1170,
1172 (Fla. 1998) (quoting Holly, 450 So.2d at 219);
see also Fast Tract Framing, Inc. v. Caraballo, 994
So.2d 355, 357 (Fla. 1st DCA 2008) (citing State v.
Rife, 789 So.2d 288, 292 (Fla. 2001)).
the wording of the statute provides that the law enforcement
officer "must have successfully passed a physical
examination" which "failed to reveal any evidence
of any such condition." The E/SA argue that the plain
meaning of "any evidence" would include the one
reading because "evidence" is broadly defined as
simply "[s]omething (including testimony, documents, and
tangible objects) that tends to prove or disprove the
existence of an alleged fact; anything presented to the
senses and offered to prove the existence or nonexistence of
a fact." Black's Law Dictionary 673 (10th
ed. 2014). Presumably, under the interpretation advocated by
the E/SA reasoning, a false positive would also qualify as
"any evidence." This interpretation would
eviscerate the statutory presumption and it ignores the
second part of the relevant portion of the statute which
requires that the evidence relate to the listed condition: in
this case, Claimant's hypertension first identified as
such in 2016. This additional language means that the
factually specific nature of the presumption requires
evidence specific to the facts of the claim and in the
context of the unique medical history of the claimant - not
simply "any evidence" as it may apply to the
population at large.
reading of the plain language here is consistent with this
court's opinion in Talpesh v. Village of Royal Palm
Beach, 994 So.2d 353, 354-55 (Fla. 1st DCA 2008). In
Talpesh, the JCC ruled that the presumption under
section 112.18(1) did not apply to that claimant's
coronary artery disease because the pre-employment
examination revealed high blood pressure. This court found
that the JCC erred because the examination did not reveal the
specific listed condition of heart disease. The