Cumbie v. City of Milton

• Decision Date: 28 October 1986
• Docket Number: No. BJ-321,BJ-321
• Citation: 496 So.2d 923,11 Fla. L. Weekly 2264
• Parties: 11 Fla. L. Weekly 2264 J.D. CUMBIE, Appellant, v. CITY OF MILTON and Adjusto, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 923

496 So.2d 923

11 Fla. L. Weekly 2264

J.D. CUMBIE, Appellant, v. CITY OF MILTON and Adjusto, Inc., Appellees.

No. BJ-321.

District Court of Appeal of Florida,

First District.

Oct. 28, 1986.

Rehearing Denied Nov. 21, 1986.

Paula G. Drummond, Pensacola, for appellant.

James N. McConnaughhay and David A. McCranie of Karl, McConnaughhay, Roland, Maida & Beal, Tallahassee, for appellees.

THOMPSON, Judge.

Claimant appeals an order denying his claim for workers' compensation benefits. We affirm.

Claimant contends the deputy commissioner erred in finding that because he did not undergo a physical examination upon entering his employment as a fireman, he was not entitled to the statutory presumption of § 112.18, Fla.Stat. Section 112.18 provides that any condition or impairment of health of any fireman caused by tuberculosis, heart disease or hypertension and resulting in total or partial disability or death shall be presumed to have been accidental and suffered in the line of duty unless the contrary be shown by competent evidence. As an apparent quid pro quo for granting this presumption to firemen the legislature further provided, "However, any such fireman shall have successfully passed a physical examination upon entering into any such service as a fireman, which examination failed to reveal any evidence of any such condition." § 112.18(1), Fla.Stat.

The claimant did not undergo a physical examination upon entering employment as a fireman for the City of Milton. The statute creating the presumption is very clear and unambiguous and requires a physical examination upon entering into any service as a fireman as a prerequisite to entitlement to the presumption. A physical examination prior to receiving the benefit of the presumption is a reasonable requirement in order to determine if any of the conditions covered by the statute existed prior to employment. It is not the function of an appellate court to amend, repeal or disregard the clear and unambiguous language of a statute, even if the result may appear inequitable and the wisdom of its enactment questionable. Citizens v. Public Service Commission, 435 So.2d 784 (Fla.1983); Good Housekeeping Gas Company v. Kitler, 492 So.2d 700 (Fla. 1st DCA 1986). The enactment, repeal or modification of a legislative act is the sole prerogative of the legislature.

AFFIRMED.

SHIVERS, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge, dissenting.

In November 1984, following the recommendation of claimant's treating physician that claimant's hypertension and arteriosclerotic heart disease prevented him from carrying out his duties as fire chief of the City of Milton, claimant retired, and brought his claim for compensation benefits pursuant to section 112.18(1). The parties agree that without the presumption contained in the statute, claimant would not be entitled to benefits.

Section 112.18 ¹ states in part:

(1) Any condition or impairment of health of any Florida municipal, county, port authority, special tax district, or fire control district firemen caused by tuberculosis, heart disease or hypertension 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 unless the contrary be shown by competent evidence. However, any such fireman shall have successfully passed a physical examination upon entering into any such service as a fireman, which examination failed to reveal any evidence of any such condition.

(e.s.) The deputy, relying upon the literal language of the proviso or exception to the preceding statutory presumption of section 112.18(1), held that because claimant had failed to take a physical examination immediately upon entering into service as a fireman with the city in 1964, he was thereby barred from the presumptive effect of the statute. The deputy so held regardless of the fact that the city, at the time of claimant's employment, had no policy requiring pre-employment physical examinations, and the first city-sponsored examination, taken nearly two years after claimant's entry into service, then revealed no evidence of hypertension. In fact, the first diagnosis of his having a hypertensive condition occurred in April 1982, when he was hospitalized with complaints of chest pains, nausea, and fatigue. The deputy, citing City of Melbourne v. Anderson, IRC Order 2-3553 (1978), held, "The fact that he had passed later physician examinations does not act to revive the presumptive effect of the statute."

Earlier decisions of the Florida Industrial Commission certainly have no binding, precedential effect on this court's deliberations, and this conclusion is particularly true in those situations where the decision of the agency involves an interpretation of law. It has long been recognized that because the adjudication of questions of law is a judicial prerogative, the administrative exercise of such power is reviewable by a court of competent jurisdiction. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.1933); State ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136 (1933). With little analysis, the Commission determined in Anderson that because the fireman there--as here--had failed to take a physical examination upon entering service, despite his having successfully taken one or more following entry, the plain language of the statutory exception necessarily barred any claim for benefits. The Commission's simplistic approach to the issue failed to take into account the rule that exceptions to the...