Orange County Fire Rescue v. Jones, 1D06-4280.

Citation959 So.2d 785
Decision Date21 June 2007
Docket NumberNo. 1D06-4280.,1D06-4280.
PartiesORANGE COUNTY FIRE RESCUE and Unisource Administrators, Inc., Appellants, v. Robert JONES, Appellee.
CourtCourt of Appeal of Florida (US)

Lamar D. Oxford and Frank C. Wesighan of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.

Todd J. Sanders, Kelli Biferie Hastings, and Paul A. Kelley of Bichler & Kelley, R.A., Winter Park, for Appellee.

PER CURIAM.

Orange County Fire Rescue and Unisource Administrators, Inc., the employer and carrier, appeal an order of the Judge of Compensation Claims (JCC) awarding Robert Jones (the claimant) permanent impairment benefits. We affirm the award of permanent impairment benefits.

The claimant was a firefighter with Orange County Fire Rescue who was first diagnosed with hepatitis C on February 23, 1992. The employer/carrier accepted the claimant's hepatitis C as a compensable occupational disease and authorized treatment. The employer and carrier paid temporary total disability benefits from December 22, 1992, until January 4, 1993, and from April 1, 1993, until April 11, 1993. Thereafter, the claimant returned to work full-time as a firefighter and continued to seek conservative treatment for his occupational disease.

On November 3, 1997, the claimant began treatment with interferon and ribavirin for his hepatitis C. The treatment left the claimant weak and dizzy and with flulike symptoms, and his doctor removed him from work for approximately four months during the course of this treatment. The employer and carrier paid indemnity benefits during this time. When the claimant finished the treatment in December of 1998, his doctor opined that the claimant was at maximum medical improvement (MMI), and the claimant was assigned a twenty percent impairment rating. Shortly thereafter, the claimant returned to work for the employer in his full capacity as a firefighter and has continued full-time since.

The claimant asserted a new date of accident on November 3, 1997, when he was required to leave work because of the effects of treating his disease.1 This court has consistently held that when a claim involves an occupational disease, the date of accident for the purpose of benefits is the date of disability — not the date of the diagnosis, exposure to, or contraction of the disease. See, e.g., Michels v. Orange County Fire/Rescue, 819 So.2d 158, 160 (Fla. 1st DCA 2002).

It is well-settled in occupational disease cases that the date of accident is determined by the date of disability, and disability is defined as the date the claimant became incapable of performing work in the last occupation in which he was exposed to the hazards of the disease. Accordingly, detection of an occupational disease does not necessarily coincide with the date of disablement from the disease.

Id. (citing § 440.151(1)(a), Fla. Stat. (1991) and (1997)) (other citations omitted). See also Fla. Power Corp. v. Brown, 863 So.2d 364, 365 (Fla. 1st DCA 2003) (reversing an order awarding medical monitoring in a case where the claimant was exposed to asbestosis, but not diagnosed with the disease, because the claimant had not (yet) suffered any injury, explaining that "an occupational disease becomes compensable only upon the employee's disablement [—] in occupational disease cases, it is the disability, not the diagnosis of the disease, which determines compensability of a claim") (citation omitted); Hoppe v. City of Lakeland, 691 So.2d 585, 586-87 (Fla. 1st DCA 1997) ("`In occupational disease cases, . . . it is the disability and not the disease which determines the compensability of a claim.'") (quoting Am. Beryllium Co. v. Stringer, 392 So.2d 1294, 1295-96 (Fla.1980)); Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986) ("Disablement and the commencement of the running of the limitations period occurs when the disease condition results in a stoppage or loss of earnings. Disablement means the event upon which the employee becomes actually incapacitated, partially or totally, from performing his employment.") (quotation marks, alterations, and citations omitted).2

In the present case, the claimant was diagnosed with the disease in 1992 and missed a short period of work before continuing in his full-time employment. In 1997, the claimant's viral load increased to the extent that the doctor recommended interferon treatment. These treatments caused the claimant to miss three to four months of work because the doctor felt he was unable to perform his duties at work as a result of the effects of the treatment.

For an employee to be entitled to benefits for a compensable occupational disease, the person must be disabled. See Michels, 819 So.2d at 160. `[D]isablement' "means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease . . . ." § 440.151(3), Fla. Stat. (1997).3 See also Sledge, 497 So.2d at 1233. In the present case, the claimant became incapacitated from performing his work, according to the doctor's testimony, when he began the interferon treatment in November of 1997. The treatment was necessary due to the progression of his occupational disease. Thus, he was statutorily disabled at this time. The date of accident is the time such disability resulted in the inability to work — not the date of the diagnosis. Claimant suffered a new date of accident on November 3, 1997.

We reject the employer and carrier's argument that there cannot be more than one date of accident. In fact, in City of Mary Esther v. McArtor, 902 So.2d 942 (Fla. 1st DCA 2005), this court acknowledged the possibility of multiple dates of accident in occupational disease cases. In Mary Esther, the claimant was a firefighter who suffered his first heart attack in 1991, which was found to be compensable because of the statutory presumption in section 112.18(1), Florida Statutes, presuming that coronary artery disease was an occupational illness when suffered by a firefighter meeting certain requirements. He later suffered cardiac complications in 2001 and 2003. See id. at 943. Between 1991 and 2001, the City had changed insurance carriers. The court explained that only the carrier on the risk at the time of the last injurious exposure was liable for the later episodes. Thus, the benefits paid for cardiac complications in 2001 and 2003 were paid by the new carrier, despite the prior incapacity in 1991. See id. at 943-44.

In addition, in Michels, the claimant missed work and received benefits in 1992 and in 1996 before becoming permanently impaired in 1998. Despite the claimant's prior periods of incapacitation, the court found that the date of accident was the latest date of incapacitation. See 819 So.2d at 160.

We also reject the employer and carrier's argument that there can be no new date of accident because hepatitis C is no longer recognized as an occupational disease for firefighters. The employer and carrier rely upon Seminole County Gov't v. Bartlett, 933 So.2d 550 (Fla. 1st DCA 2006), and Flamily v. City of Orlando, 924 So.2d 78 (Fla. 1st DCA 2006), for the proposition that hepatitis C can no longer be an occupational disease in any firefighter's case.

Both Bartlett and Flamily, however, rested upon the facts and testimony presented by the parties in those cases, where compensability was fully litigated. See Bartlett, 933 So.2d at 552 (finding that the claimant "failed to present sufficient evidence" that his hepatitis C was an occupational disease); Flamily, 924 So.2d at 79 (finding that the claimant did not present sufficient proof that his hepatitis C was an occupational disease). In the present case, the employer and carrier accepted the claimant's hepatitis C as a compensable occupational disease in 1992, and continued to pay benefits for seven years after the 1997 disablement, arguing only on the day of the hearing against entitlement to permanent impairment benefits and then only on the basis that Flamily and Bartlett precluded compensability of hepatitis C in all firemen's cases.

Because the date of accident in an occupational disease case is the date of disability next after a period of injurious exposure, and multiple periods of exposure took place here, the claimant suffered a new date of accident when, after a lengthy period of full-time employment, he missed work beginning on November 3, 1997. Therefore, the order awarding benefits based on a November 3, 1997, date of accident is AFFIRMED.

ALLEN and BENTON, JJ., concur; WEBSTER, J., dissents with opinion.

1. Section 440.15(3)(a), Florida Statutes (1997), provides that once a claimant has reached MMI, impairment benefits are due within twenty days after the carrier has knowledge of the impairment. This provision requiring the payment of permanent impairment benefits for all permanent impairments was not introduced into the statute until 1994. (The prior version of the statute required permanent impairment benefits for permanent impairments due only to amputation, the loss of eighty percent or more of vision, or a serious facial or head disfigurement. See § 440.15(3)(a), Fla. Stat. (1993).) See Ch. 93-415, § 20 at 121, Laws of Fla. (amending section 440.15(3)(a) to provide permanent impairment benefits for all permanent impairments). Thus, employees with injuries occurring prior to 1994 are not entitled to permanent impairment benefits. Therefore, if the claimant's only date of injury/accident is in 1992, when he was first diagnosed with hepatitis C, he is not entitled to permanent impairment benefits. However, if the claimant is able to establish a new date of injury/accident in 1997, he is entitled to permanent impairment benefits.

2. Most recently, in City of Port Orange v. Sedacca, 953 So.2d 727 (Fla. 1st DCA 2007) (en banc), the court explained that...

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