Joshua Holcombe v. City of Naples/Johns Eastern Company, Inc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D20-565
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JOSHUA HOLCOMBE,
Appellant,
v.
CITY OF NAPLES/JOHNS EASTERN
COMPANY, INC.,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Jack A. Weiss, Judge.
Date of Accident: August 6, 2018.
September 15, 2021
M.K. THOMAS, J.
In this workers’ compensation case, Joshua Holcombe
(Claimant) appeals an order denying compensability of his
hypertension. He argues that the Judge of Compensation Claims
(JCC) erred by finding evidence of hypertension in the pre-
employment physical examination that he underwent upon
entering service as a law enforcement officer, so as to preclude his
reliance on the presumption of occupational causation provided by
section 112.18, Florida Statutes (2018). For the foregoing reasons
and under the specific facts presented, we affirm.
I. Facts
As a teenager, Claimant underwent a liver transplant,
requiring him to take anti-rejection medications for fifteen years
or until 2003. A side effect of the medications, which the parties
agree he experienced, was secondary hypertension. 1 The parties
further stipulated that the secondary hypertension resolved when
Claimant stopped taking the anti-rejection drugs. Several years
after a cessation of the medications, the City of Naples (Employer)
hired Claimant as a law enforcement officer. He underwent a pre-
employment physical examination (PEP) 2 upon entering service in
2007. As part of the PEP, Claimant was required to complete a
self-report medical history questionnaire. He responded “yes” to a
question regarding any history of high blood pressure. As part of
the physical, the examiner reviewed a note from Claimant’s
primary care physician advising that his hypertension had
returned to normal upon cessation of the medications.
Several years into his service, Claimant was diagnosed with
essential hypertension, also known as primary hypertension. 3 To
1 Secondary hypertension is “arterial hypertension produced
by a known cause, e.g., hyperthyroidism, a kidney disease, etc., in
contrast to primary hypertension that is of unknown cause.”
Stedman’s Medical Dictionary, STEDMANS 426460 (2014).
2 The term “pre-employment physical” is useful shorthand
even though this physical exam need not strictly be “pre-
employment”; “the characterization of the examination as ‘pre-
employment’ is mere dicta.” City of Tarpon Springs v. Vaporis, 953
So. 2d 597, 598–99 (Fla. 1st DCA 2007) (holding that examination
begun ten days before claimant began working and completed
fifteen days after he began working satisfied section 112.18); see
also City of Homestead v. Foust, 242 So. 3d 1169, 1171–72 (Fla. 1st
DCA 2018) (holding that twenty-one months before hiring date
was not “upon entering into” service); Cumbie v. City of Milton, 496
So. 2d 923, 924 (Fla. 1st DCA 1986) (holding that “nearly two
years” after hiring date was not “upon entering into” service).
3 Essential hypertension is “hypertension without known
cause”; its synonyms are “idiopathic hypertension” and “primary
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obtain workers’ compensation benefits, he asserted entitlement to
the presumption in section 112.18 that hypertension is
occupationally caused. The Employer/Carrier (E/C) denied
compensability of the claim arguing that the presumption did not
apply as the PEP contained evidence of hypertension. Claimant
filed a Petition for Benefits requesting compensability of “arterial
and cardiovascular hypertension.” 4 Ultimately, the JCC denied
compensability after concluding that the examination contained
evidence of hypertension, precluding Claimant’s reliance on the
presumption.
Medical Evidence
Both parties obtained experts via independent medical
examinations (IME), pursuant to section 440.13(5), Florida
Statutes. Claimant’s IME, Dr. Pianko, opined that Claimant did
not develop his current hypertensive condition, “essential
hypertension,” until 2015 and that the PEP did not reveal evidence
of the essential hypertension condition. In summary, Dr. Pianko
opined that the hypertension for which Claimant seeks
compensability is “a different type of disease than the secondary
hypertension that he had back in 1988.” On cross-examination, Dr.
Pianko agreed that essential and secondary hypertension are both
“forms of hypertension.”
The E/C’s IME, Dr. Perloff, testified that the PEP (inclusive of
the pre-employment medical questionnaire) did not document
evidence of essential hypertension but did reveal secondary
hypertension. Although he believed the two to be “different”
conditions, he also agreed that both are forms of hypertension.
hypertension.” Stedman’s Medical Dictionary, STEDMANS
426280 (2014).
4 Appellant claimed his hypertension was “arterial or
cardiovascular” as required. See Williams v. City of Orlando, 89
So. 3d 302, 303 (Fla. 1st DCA 2012) (confirming this Court’s ruling
that to be compensable, hypertension must be “arterial or
cardiovascular). Essential hypertension may be compensable so
long as it “arterial or cardiovascular.” See id.3
Stipulations and Argument
Prior to the merits hearing, the parties entered multiple
stipulations. These included:
2. The only condition currently at issue is essential
hypertension.
....
7. The [PEP] contains evidence of secondary hypertension
in the form of references to a resolved secondary
hypertension condition resulting from autoimmune
medications the claimant took for approximately one year
following his liver transplant when he was 16 years of
age, but not essential hypertension.
....
10. Essential hypertension is not the same as secondary
hypertension.
11. The sole issue for determination by the JCC is
whether evidence of secondary hypertension as explained
in paragraph number [7] above on the [PEP] prevents
application of Section 112.18, F.S. to essential
hypertension.
Claimant argued: 1) the evidence of secondary hypertension
on the PEP does not preclude reliance on the presumption of
section 112.18 because the statute’s prerequisite that the PEP not
contain evidence of “any such condition” clearly means the
condition for which Claimant seeks compensability; 2) the medical
testimony establishes that essential and secondary hypertension
are different conditions; and 3) his PEP contained no evidence of
hypertension, because the self-reported medical history was not a
diagnosis and not part of the physical examination. In essence, he
argued a claimant must be suffering from and be diagnosed with
the subject condition at the time of the physical examination for
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the presumption to be extinguished. Thus, a prior medical history
does not constitute “evidence” and is not a meaningful component.
The E/C defended the claims arguing that the sole issue for
determination was whether evidence of secondary hypertension on
the PEP precludes reliance on the presumption of section 112.18
for an essential hypertension claim. It asserted that the plain
language of section 112.18 and the testimony of both medical
experts that “secondary” and “essential” hypertension are both
“hypertension,” foreclosed Claimant’s enjoyment of the
presumption.
The JCC denied compensability of Claimant’s essential
hypertension, accepting the opinions of both IMEs that
“hypertension is hypertension.” The JCC concluded that, because
the PEP contained evidence of hypertension, Claimant’s reliance
on section 112.18 was precluded. Of importance, the JCC relied
upon the parties’ stipulation that “the PEP contains evidence of
secondary hypertension in the form of references to a resolved
secondary hypertension condition resulting from autoimmune
medications Claimant took . . . following his liver transplant when
he was 16 years of age, but not essential hypertension.”
Claimant moved for rehearing arguing that he had not
stipulated, and the doctors did not testify, that the PEP contains
evidence of essential hypertension—only that it documents
evidence of secondary hypertension. He argued that the doctors’
opinions were medical but not legal opinions and that, because his
secondary hypertension could not be compensable under section
112.18, its past existence could not preclude the presumption of
section 112.18 regarding essential hypertension.
The JCC denied rehearing and detailed that the denial of
compensability was based on his acceptance of the parties’
stipulation that the PEP contained evidence of secondary
hypertension combined with the doctors’ opinions that secondary
and essential hypertension are both “hypertension.” He explained
as follows:
What I was asked to decide was whether evidence of
secondary hypertension on the PEP precludes the
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presumption of essential hypertension. To answer that
question, I accepted the testimony of both IMEs that
secondary and essential hypertension is hypertension. As
such, I concluded that Claimant’s agreement the PEP
contained evidence of secondary hypertension meant,
when construed with the facts before me, that he agreed
the PEP contained evidence of hypertension. This was not
rewriting the stipulation; I simply provided the plain
meaning of the stipulation in light of the facts before me.
And to the extent the Court believes I have not accepted
the parties’ stipulation, this was done consistent with the
principle that a JCC is not required to accept the parties’
stipulation where the same is not supported by competent
evidence.
II. Analysis
Because the JCC’s ruling is based on the interpretation of a
statute and a stipulation, we review the issue de novo. See, e.g.,
City of Tavares v. Harper, 230 So. 3d 918, 920 (Fla. 1st DCA 2017)
(interpreting de novo section 112.18’s phrase “any evidence”); Klatt
v. Wal-Mart Stores, Inc., 913 So. 2d 79, 80 (Fla. 1st DCA 2005)
(reviewing JCC’s interpretation of joint stipulation de novo).
On appeal, Claimant argues that evidence of secondary
hypertension on the PEP, a different type of hypertension than
essential, does not preclude the presumption’s application here. To
answer this question, we first look to the plain language of the
statute establishing the presumption at issue. “[W]hen the
language of the statute is clear and unambiguous and conveys a
clear and definitive meaning, there is no occasion for resorting to
the rules of statutory construction; the statute must be given its
plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219
(Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157,
159 (Fla. 1931)). 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).
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Section 112.18(1)(a), Florida Statutes (2018), which
establishes the presumption at issue, provides:
Any condition or impairment of health of any Florida . . .
law enforcement officer . . . 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 . . . law enforcement officer must have
successfully passed a physical examination upon entering
into any such service . . . which examination failed to
reveal any evidence of any such condition.
The companion statute to section 112.18 is section 943.13,
Florida Statutes (2018). It establishes law enforcement officers’
minimum qualifications for employment, and states:
In order to be eligible for the presumption set forth in s.
112.18 while employed with an employing agency, a law
enforcement officer . . . must have successfully passed the
physical examination required by this subsection upon
entering into service as a law enforcement officer . . . with
the employing agency, which examination must have
failed to reveal any evidence of tuberculosis, heart
disease, or hypertension.
§ 943.13(6), Fla. Stat. (2018).
We find that the question of whether evidence of secondary
hypertension on a PEP precludes a claimant’s use of the
presumption of section 112.18 for essential hypertension, is
answered by a straightforward application of the plain and
unambiguous language of the relevant statutes. Neither section
112.18(1) nor section 943.13(6) incorporate any qualifying or
restricting language for the terms “tuberculosis, heart disease, or
hypertension”; instead, the statutes require “any evidence of the
conditions of “tuberculosis, heart disease, or hypertension” without
qualification. §§ 112.18(1)(a), 943.13(6), Fla. Stat. (2018). The
Legislature chose to use broad terms and we will not second guess
their selection. Thus, we find that under the plain language of the
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statute, evidence of secondary hypertension on a PEP may
preclude a claimant’s use of the presumption of section 112.18 for
essential hypertension.
Claimant argues that Harper compels a finding of
compensability. However, Claimant misconstrues our decision.
The narrow holding of Harper announced that, “the single reported
elevated blood pressure reading at the [PEP] did not constitute
evidence of the condition of hypertension.” Harper, 230 So. 3d at
919. There, medical experts opined “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.” Id. at 920.
For a definitive diagnosis of hypertension, the medical experts in
that case opined that two or three abnormal readings within a
certain period of time are required. Id. The majority declined to
accept the Employer/Carrier’s proposed interpretation of section
112.18 that “any evidence” of a condition precludes the
presumption—as such an application would permit any possible
symptoms of a condition, without a diagnosis of the condition, to
preclude the presumption provided by section 112.18. Id. at 921.
We held as follows:
This additional language means that the factually
specific nature of the presumption requires evidence
specific to the facts of the claims 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.
Id.Here, the parties stipulated that the PEP documented
evidence of secondary hypertension.
This Court’s precedent indicates affirmance is required. In
Miami-Dade Cnty. v. Davis, 26 So. 3d 13, 15 (Fla. 1st DCA 2009),
before going to work for the employer, the claimant had a history
of undergoing open heart surgery. The PEP noted his history of
heart disease but found him fit for duty. Id. He subsequently
experienced an acute coronary episode while off duty and surfing.
Id. This Court determined that because the claimant’s PEP
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indicated he had a history of heart disease before entering
employment with the employer, the presumption did not apply. Id.
at 17. In reaching this conclusion, this Court did not identify as an
issue the fact that manifestation of the claimant’s heart disease
while surfing (acute coronary episode) was not an identical
condition that led to his need for open heart surgery before
employment with that employer. Id. In ruling the presumption did
not apply, this Court necessarily concluded that both constituted
“heart disease.” Id.Likewise, in Talpesh v. Village of Royal Palm Beach, 994 So.
2d 353, 354–55 (Fla. 1st DCA 2008), this Court applied the plain
and unambiguous terms of the statute in awarding the
presumption to the claimant, finding “the pre-employment
physical did not reveal evidence of heart disease.” In reversing the
JCC’s denial of the presumption, this Court found that the
claimant’s PEP documented a history of high blood pressure but
not coronary artery disease. Id.Here, unlike Talpesh, it is undisputed that Claimant was
diagnosed with hypertension prior to entering service with the
Employer, and his PEP revealed evidence of that hypertension.
Both medical experts agreed that there was evidence of secondary
hypertension on the PEP and that essential and secondary
hypertension are both forms of hypertension. Furthermore,
Claimant stipulated that the PEP contained evidence of secondary
hypertension.
Claimant also asserts that the stipulation that the PEP
contained evidence of secondary hypertension referred to evidence
of a mere self-reported reference to a condition and was not an
agreement as to the weight that reference should be provided or
an agreement as to whether the condition actually existed.
However, this argument lacks merit as Claimant joined the E/C
here in stipulating that the sole issue for the JCC was whether
evidence of secondary hypertension on the PEP prevents
application of the presumption to essential hypertension.
Regarding Claimant’s arguments that: 1) the evidence of
hypertension was insufficient because it was hearsay answers to a
questionnaire rather than evidence revealed by a physical
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examination; and 2) that the Employer failed to present competent
substantial evidence of existing hypertension discovered during
the PEP. Again, these arguments are contrary to the very
stipulations Claimant entered into prior to the merits hearing.
Specifically, Claimant stipulated that “the pre-employment
physical contains evidence of secondary hypertension in the form
of references to a resolved secondary hypertension condition
resulting from autoimmune medications that claimant took . . .
following his liver transplant.” “As a general rule, ‘[a] stipulation
properly entered into and relating to a matter upon which it is
appropriate to stipulate is binding upon the parties and upon the
Court.’” Turner v. Miami-Dade Cnty. Sch. Bd., 941 So. 2d 508, 509
(Fla. 1st DCA 2006) (quoting Gunn Plumbing, Inc. v. Dania Bank,
252 So. 2d 1, 4 (Fla. 1971)).
III. Conclusion
Finding that evidence of secondary hypertension on
Claimant’s PEP precludes his use of the presumption of section
112.18 for essential hypertension, we affirm the final order on
appeal.
AFFIRMED.
ROWE, CJ., and B.L. THOMAS, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jason L. Fox, Oliver & Fox, P.A., Tampa, for Appellant.
George A. Helm, III and George W. Boring, III, Public Entity Legal
Solutions, Lake Mary, for Appellees.
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