Case Law Update June 2023
Updated 6-27-23
| Friesen v. State of Florida Highway Patrol/Div. of Risk Mgmt., ___ So.3d___ (Fla. 1st DCA 6/21/23) Heart/Lung Statute/Disability/Occupational Disease The DCA affirmed the JCC’s ruling that the claimant failed to satisfy the disability element required to prove compensability under F.S. s. 440.151(1). After completing a pre-employment physical in 2001, the claimant was evaluated by his PCP in 2008, diagnosed with hypertension, taken out of work for a few days and prescribed medicine. No WC claim was filed nor were benefits provided. In 2019, the claimant received a high blood pressure reading and notified the E/C, who scheduled an evaluation under the 120-day rule. Although that eval resulted in a diagnosis of uncontrolled hypertension, medication and an order for an EKG, no restrictions were assigned nor were referrals provided. A follow-up visit resulted in a stay at that doctor’s office with an order to remain there for 10-15 minutes for medications to take effect, but no restrictions were assigned. Thereafter the claimant took a few vacation days off but otherwise has continued to work full time, full duty. The E/C subsequently timely denied compensability. The claimant argued the evidence showed he experienced disability. The JCC agreed with the E/C that if testing or treatment alone equaled disability everyone would be disabled at their first doctor visit. The DCA engaged in a lengthy analysis of prior case law interpreting the concept of disability (both pre- and post-2003), including the concept of wage loss and the fact that first responders “earn” during missed work. They held incapacity must result from treatment, and not merely testing for diagnostic purposes. Here, there was no evidence of actual wage loss, nor was the claimant incapacitated due to hypertension. The DCA affirmed the JCC’s rejection of the claimant IME’s retroactive assignment of disability, finding JCCs may reject expert medical evidence that is speculative and given in hindsight. Click here to view Opinion Hossman v. Broward County School Board, ___So.3d___(Fla. 1st DCA 6/21/23) Appellate Practice/Motions to Disqualify Trial Judge PCA opinion holding that appellant’s challenge to an order denying a motion to disqualify a trial judge, made after a notice to appeal the final order, should have been made in the plenary appeal. Click here to view Opinion |