Friesen v. State of Fla. Highway Patrol
| Docket Number | 1D21-1353 |
| Decision Date | 21 June 2023 |
| Parties | Robert Friesen, Appellant, v. State of Florida Highway Patrol/Division of Risk Management, Appellees. |
| Court | Florida District Court of Appeals |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
Date of Accident: February 12, 2019.
On appeal from an order of the Office of the Judges of Compensation Claims. Mark A. Massey, Judge.
Jason Fox and Carisa Briana Carmack of Oliver &Fox, P.A. Tampa, for Appellant.
Denise P. Murray and Mark D. Tinker of Cole, Scott &Kissane P.A., Tampa; Lissette M. Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellees.
Robert Friesen, a law enforcement officer, appeals a final order of the Judge of Compensation Claims (JCC) denying his claim for compensability of hypertension and heart disease brought under section 112.18, Florida Statutes (2019), commonly known as the "heart-lung statute." The JCC determined that Friesen failed to satisfy "disability," a prerequisite for compensability of occupational disease under section 440.151(1), Florida Statutes (2019). Finding no reversible error, we affirm.
The relevant facts here are undisputed. The Florida Highway Patrol hired Friesen as a law enforcement officer in 2001 after he underwent a pre-employment physical. In 2008, Friesen sought evaluation with his primary care physician after feeling unwell, experiencing headaches and redness in the face. Friesen was diagnosed with hypertension. He was restricted from working for a few days and prescribed medication. No workers' compensation paperwork was completed, and Friesen did not pursue a workers' compensation claim.
In early 2019, while at the emergency room investigating a vehicular crash, Friesen asked a nurse to check his blood pressure. The nurse confirmed his blood pressure was high and recommended he consult a physician. The following day, Friesen sought treatment with his personal doctor and alerted the Employer. The Employer/Carrier (E/C) scheduled an appointment for Friesen with Dr. Sunil Gupta, a cardiologist, for evaluation. The E/C authorized the evaluation under the "120-day rule."[1] At Friesen's first appointment on February 5, 2019, his blood pressure was 160/96, and Dr. Gupta described it as uncontrolled. Friesen was diagnosed with hypertension and obesity, his medication was changed, and an echocardiogram (EKG) was recommended. Dr. Gupta did not take Friesen out of work, assign work restrictions, or refer Friesen to the hospital.
Friesen returned to Dr. Gupta on February 12, 2019, for an 11:00 a.m. appointment and EKG. It was a regular workday for Friesen. His customary work shift was 11:00 a.m. to 7:00 p.m. He planned to report to work immediately after his appointment. At the appointment, Friesen admitted he was under a lot of stress, including family and work issues. Dr. Gupta adjusted Friesen's medication, counseled him on obesity and lifestyle changes, and recommended a stress test. He also asked that Friesen remain in the waiting room for ten to fifteen minutes for the medication to take effect and lower his blood pressure. Friesen did just that. The medication lowered his blood pressure, and he left the office. He was at Dr. Gupta's office that day for about one hour total. No work restrictions were assigned.
After leaving his appointment with Dr. Gupta, Friesen returned to work, immediately performing his customary duties. But he left early at 5:00 p.m. due to a headache and being "stressed out" over family issues and concerns over his blood pressure. He then took a few vacation days, primarily to deal with "family stuff," followed by two regular days off. Since that time, Friesen has continued to work full time, full duty.
On February 18, 2019, the E/C issued a Notice of Denial asserting that hypertension or heart disease must be accompanied by disability to be compensable, and that Friesen had suffered no disability. In response, Friesen filed a Petition for Benefits (PFB) requesting workers' compensation benefits based on "disabling arterial and cardiovascular hypertension and/or heart disease." He asserted a February 12, 2019, date of accident-the date of Dr. Gupta's second visit.[2]
At the merits hearing on the petition, the E/C introduced the medical records of Dr. Gupta. Friesen relied on the deposition testimony of his Independent Medical Examiner, Dr. David Perloff, a cardiologist. Dr. Perloff testified that, based on "basically the only guideline that exists in an academic fashion to decide whether [a law enforcement officer] should be restricted from full duty or not . . . someone who has a systolic pressure of 180 or above or diastolic blood pressure of 110 or above should be given appropriate work restrictions." He stated that he would have given Friesen work restrictions of no combat on February 12, 2019. Dr. Perloff further opined that Friesen suffered a disability that day as he was unable to perform his job duties and functions as a law enforcement officer because of his elevated blood pressure.
In his final order, the JCC found, and the E/C did not dispute, that (1) as a law enforcement officer, Friesen is a member of a protected class; (2) Friesen has a protected condition (hypertension and/or heart disease); and (3) Friesen successfully passed a preemployment physical examination which failed to reveal any evidence of such condition. Ultimately, the JCC denied Friesen's petition because he failed to satisfy the required element of "disability," preventing him from enjoying the occupational causation presumption of section 112.18(1)(a), Florida Statutes (2019). The JCC explained,
The JCC found that Friesen was not disabled as a result of the hour-long evaluation at Dr. Gupta's office. Citing Jacksonville Sheriff's Office v. Shacklett, 15 So.3d 859 (Fla. 1st DCA 2009), the JCC reasoned that "[d]etection and treatment of a condition always requires testing, medical evaluations, or some type of treatment, but these measures by themselves do not demonstrate disability." He further relied on Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008) stating, "[i]f testing or treatment, standing alone, equaled disability, everyone would be disabled upon their first visit to a doctor's office."
Friesen moved for rehearing and to vacate the final compensation order. He argued the JCC misinterpreted Shacklett, that he met the disability element because he was unable to work while being "held" in Dr. Gupta's office waiting room for the medication to take effect, and that being sent to the hospital or taken completely off work were not requirements for a finding of disability. Furthermore, Dr. Perloff's application of the nationally accepted work status standard (based on objective criteria) constituted evidence of work restriction.
The JCC rejected Friesen's arguments and denied the motion in a detailed order. In doing so, he agreed with Friesen that admission to the hospital or being taken off work were not required for a finding of disability but added, "at the very least a claimant must be restricted from work and incapable of performing his normal duties," which was not the case here. The JCC detailed:
This is no [different] than a claimant who presents to a hospital with chest pain or other symptoms and is "held" at the hospital for observation and testing, or even treatment. The claimant is not considered "disabled" while he is being "held" in the hospital, especially if he is not taken off work or given any work restrictions upon his release from the hospital. This is so even though, again, the claimant obviously "could not have worked" while he was in the hospital being tested or treated. No one can be in two places at one time, but that is not determinative.
The JCC dismissed Friesen's argument concerning Dr. Perloff's testimony, finding that his opinion that Friesen should have been restricted does not change the fact that he was not. His opinion was insufficient to establish the disability element, especially where Friesen continued working and performing his normal job duties. This appeal followed.
To the extent our review involves questions of statutory interpretation, a de novo standard of review applies. See Lombardi v. S. Wine &Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Otherwise, a competent, substantial evidence (CSE) standard of review applies. See Mylock v. Champion Int'l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).
On appeal, Friesen argues the JCC erred by: 1) concluding that there was no evidence that he was incapacitated, either totally or partially, from performing his employment; 2) misconstruing the law of disability as applicable to the heart-lung statute; 3) misinterpreting the testimony of Dr. Perloff and concluding that his opinion was a retroactive, speculative opinion which was contrary to the facts and, therefore, did not constitute CSE of an actual disability; and 4) ignoring the uncontroverted objective medical guidelines and facts establishing disability. We affirm the fourth issue without comment.
The first and second arguments on appeal present the consolidated question of whether Dr. Gupta's instruction for Friesen to wait in his office for the medication to take effect and lower his blood pressure rendered him "disabled" for the purposes of section 440.151(3). We answer in the negative.
The Meaning of "Disablement"
Given the stipulations of the parties, the...
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