Rocha v. City of Tampa

• Decision Date: 19 November 2012
• Docket Number: No. 1D11–6261.,1D11–6261.
• Citation: 100 So.3d 138
• Parties: Steve ROCHA, Appellant, v. CITY OF TAMPA/Commercial Risk Management, Appellees.
• Court: Florida District Court of Appeals

100 So.3d 138

Steve ROCHA, Appellant,
v.
CITY OF TAMPA/Commercial Risk Management, Appellees.

No. 1D11–6261.

District Court of Appeal of Florida,
First District.

Oct. 10, 2012.
Rehearing Denied Nov. 19, 2012.

[100 So.3d 139]

Kelli Biferie Hastings of the Law Office of Kelli B. Hastings, PLLC, Orlando, Paul Hawkes, Tallahassee, and Tonya Oliver of Bichler, Kelley, Oliver, Port Richey, for Appellant.

James H. Shimberg, Jr., City Attorney, and Toyin K. Aina–Hargrett and L. Gray Sanders, Assistant City Attorneys, Tampa, for Appellees.

PER CURIAM.

In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) finding his hypertension not compensable and denying benefits. We hold the JCC erred as a

[100 So.3d 140]

matter of law, reverse the ruling, and remand the case, for the following reasons.

FACTUAL BACKGROUND

Claimant, in seeking workers' compensation benefits for his hypertension, relies on the presumption of occupational causation in section 112.18, Florida Statutes (2009). The JCC found, and the Employer/Carrier (E/C) agrees, that Claimant meets most of the statutory prerequisites for the presumption: he is a firefighter, he has the sort of hypertension addressed by the statute, and he underwent a “pre-employment” physical examination that failed to reveal any evidence of his hypertension (permitting an inference that his hypertension arose during the course of his employment). The E/C argues that Claimant did not prove the final statutory prerequisite for the presumption: he did not show that the hypertension “result[ed] in total or partial disability or death.”

Claimant argues that he was “disabled,” for purposes of section 112.18, while he was medically restricted from working as a firefighter. Specifically, on November 3, 2009, during his annual physical, Claimant underwent a cardiac stress test, the results of which were abnormal; the doctor who performed that physical immediately restricted Claimant to light-duty work and expressly prohibited him from firefighting. On November 11, 2009, Claimant underwent a cardiac assessment with a different doctor, who adjusted Claimant's medication and kept him off work until November 21, 2009. Although below Claimant asserted the period of disability lasted from November 3 to 21, on appeal he limits the alleged period of disability to November 3 through 11.

To resolve a conflict in medical opinions, the JCC appointed an expert medical advisor (EMA) to provide his opinion as to what disability Claimant may have experienced. After receiving the EMA's deposition, the JCC ruled that the EMA “did state that it was reasonable to restrict Claimant's activities pending assessment by a cardiologist; however, this does not equate to a finding that Claimant was incapable of performing his duties due to his hypertension.” The JCC found that the work restriction “was precautionary, only,” and concluded Claimant had not established a period of disability so as to entitle him to rely on the section 112.18 presumption of occupational causation. This ruling was error as a matter of law.

LEGAL BACKGROUND

Section 112.18, Florida Statutes (2009), provides as follows:

Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) caused by tuberculosis, heart disease, or...