Michael Guglielmo v. State of Florida-DOC Zephyrhills C I/Division of Risk Management

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-3942

_____________________________

MICHAEL GUGLIELMO,

Appellant,

v.

STATE OF FLORIDA-DOC

ZEPHYRHILLS C I/ DIVISION OF

RISK MANAGEMENT,

Appellee.

_____________________________

On appeal from the Office of the Judges of Compensation Claims.

Robert A. Arthur, Judge.

Date of Accident: July 16, 2021.

July 30, 2025

M.K. THOMAS, J.

Michael Guglielmo, the claimant, timely appeals a final order

of the Judge of Compensation Claims (JCC) denying his claims for

temporary total disability (TTD) and permanent impairment

benefits (PIB) related to an accident accepted as compensable

under section 112.18, Florida Statutes (2021), also known as the

“heart-lung statute.” He asserts, among other arguments, that the

JCC erred as a matter of law in concluding that his average weekly

wage (AWW) was $0.00 because he was not an “employee” on the

date of accident and had no earnings in the preceding thirteen

weeks. We agree and reverse, in part, affirm, in part, and remand

for further proceedings.

I. Facts

The facts are not in dispute. Guglielmo worked as a police

officer for twenty-three years and then retired. Subsequently, he

returned to the workforce as a corrections officer at Zephyrhills

C.I., Department of Corrections (DOC). Almost two years later, in

March 2021, he voluntarily resigned because of health concerns—

the stress of the corrections job and exhaustion due to the long

hours because of alleged understaffing. At the time of resignation,

he was making $673.20 per week. On July 16, 2021, Guglielmo

experienced heart palpitations. He sought medical treatment at

the emergency room and was diagnosed with atrial fibrillation. He

reported his heart condition to DOC. 1 He listed the date of accident

for purposes of the workers’ compensation claim as July 16, 2021,

the day he experienced cardiac issues. DOC accepted

compensability of the atrial fibrillation under the “heart-lung

statute” and authorized medical care. Dr. Gerczuk, the authorized

treating physician, placed Guglielmo on medication but later

recommended a cardiac ablation. The ablation was performed on

December 16, 2021. Guglielmo was taken off work and later given

physical restrictions for a time certain.

Following the ablation, Guglielmo returned to the workforce

as a security officer for Valencia College in January 2022. 2

However, he later experienced chest pressure causing him to miss

four days of work from February 17 through February 20, 2022.

He was hospitalized for complications related to the cardiac

ablation. A pericardiocentesis was performed, and his symptoms

improved. DOC covered the ablation procedure, related treatment,

1 Pursuant to section 112.18(1)(b)4., Florida Statutes (2021),

the claim for the presumption must be filed prior to or within 180

days after leaving the employment. Here, Guglielmo filed his claim

approximately 119 days after leaving the employment of DOC.

2 As a security officer at the college, Guglielmo worked 40

hours per week and was paid between $10.00 and $15.00 per hour.

2

and hospitalizations as compensable under the July 16, 2021,

accident. Guglielmo returned to work at Valencia College on

March 1, 2022.

In April and June of 2022, Guglielmo filed petitions for

benefits (PFBs) requesting medical and indemnity benefits,

including TTD, temporary partial disability (TPD) benefits, PIBs,

and penalties, interest, costs, and attorney’s fee. He listed July 16,

2021, as the date of accident. DOC filed a Response to PFB which

denied the claims for temporary indemnity benefits on the basis

that no authorized provider had placed Guglielmo on no-work

status. It agreed to provide the requested medical benefits. No

response was filed to the second PFB requesting impairment

benefits. On the Pre-Trial Stipulation, DOC accepted the listed

accident date of July 16, 2021. However, it failed to answer the pre-

trial questions as to whether there existed an “Employer/Employee

relationship on the date of accident” and whether “Accident or

occupational disease accepted as compensable.” It stipulated that

the atrial fibrillation condition was related to the accident. As a

listed specific defense to the claims, DOC asserted “The

Employer/Carrier/Servicing Agent denies compensability of

arterial and cardiovascular hypertension and/or heart disease.” It

listed the AWW as $0.00. DOC filed a motion for Pretrial Hearing

for Ruling requesting clarification of the specific conditions that

Guglielmo claimed under the “heart-lung statute.” At a motion

hearing, the parties agreed that Guglielmo asserted only an atrial

fibrillation condition, and that DOC had accepted the condition as

compensable.

During discovery, a DOC representative testified that

Guglielmo did not work in the thirteen weeks leading up to July

16, 2021, the claimed date of accident. However, he was paid a

lump sum of $3,176.66 during the thirteen weeks (week of May 14-

20, 2021) for payout of his annual leave and his “special comp

holidays.”

Dr. Chernobelsky, Guglielmo’s independent medical examiner

(IME), testified that Guglielmo could not work from the date of his

ablation, December 16, 2021, until the date he returned to work

after pericarditis on March 9, 2022. He assigned that date as

maximum medical improvement with a 25% permanent

3

impairment rating (PIR). He clarified that his no-work restriction

was limited to no work as a first responder.

The testimony of Dr. Gerczuk, the authorized treating

physician, was unclear on work restrictions. He testified that

following the ablation, Guglielmo was hospitalized for two days,

December 16 and 17, 2021. Upon discharge, Dr. Gerczuk was

unsure whether he communicated restrictions, but that Guglielmo

should have been advised to avoid heavy lifting, exercise, and

strenuous activity for a week or two. Guglielmo was hospitalized

for the pericarditis from February 17–20, 2022. He assigned

restrictions of no driving until cleared by a surgeon. Guglielmo was

released by the surgeon for return to work on March 1, 2022.

Because of the disagreement in medical testimony as to the PIR,

an expert medical advisor, Dr. Perloff, was appointed. He

ultimately assigned an 11% PIR.

At the final hearing, Guglielmo narrowed his indemnity

claims to TTD benefits from July 16–18, 2021 (initial

hospitalization) and December 16, 2021–March 9, 2022 (covering

his ablation, complications and resulting hospitalization and time

off from work), and PIBs based on an 11% PIR. DOC argued that

no indemnity benefits were due and owing because Guglielmo’s

AWW at the “date of accident,” was $0.00. Specifically, DOC

reasoned that Guglielmo “was not an employee” on that day

because he was not working for DOC and had no earnings in the

thirteen weeks immediately preceding the accident date.

Alternatively, regarding TTD benefits, it asserted that Dr.

Chernobelsky, Guglielmo’s IME, had limited the off-work status to

only restrict work as a first responder, and Guglielmo was no

longer a first responder during the off-work period. In response,

Guglielmo argued that because DOC accepted the July 16, 2021,

date of accident and atrial fibrillation as compensable under the

“heart-lung statute,” it conceded that he met all the statutory

prerequisites, including that he was an “employee” of DOC with an

AWW corresponding to that employment—the employment where

he was exposed to the hazards.

In the final order, the JCC found Guglielmo was eligible for

five days of TTD (December 16, 2021, and February 17–20, 2022)

and PIBs based on an 11% PIR. However, he ultimately denied

4

entitlement to those indemnity benefits because he found that

Guglielmo’s AWW was $0.00. The JCC reasoned that, because

there was no “contract of hiring in force at the time of the accident,”

there were no “wages,” and therefore, no need to resort to section

440.14, Florida Statutes, for calculation. However, even if required

to do so, he determined Guglielmo had no earnings in the thirteen

weeks before the accident date and there were no “similar

employees” at the DOC. The JCC explained as follows: “As the

claimant’s accident date occurred 119 days (17 weeks) after leaving

his employment, he was not an employee in the 13 weeks preceding

his accident.”

Guglielmo timely moved for rehearing on multiple grounds,

including, in the very least, that section 440.14(1)(d), Florida

Statutes, should act as a fallback provision to arrive at a

reasonable AWW. DOC did not raise an alternative argument that

because only five days of temporary benefits were awarded, section

440.12(1), Florida Statutes, barred entitlement. 3 The JCC denied

rehearing.

Guglielmo appeals, arguing the JCC reversibly erred, as a

matter of law, by concluding that: 1) he was not an “employee” on

the date of accident because he was not receiving wages; and 2) he

was not entitled to TTD or PIR benefits because his AWW was

$0.00. He also disputes that competent, substantial evidence exists

to support the JCC’s determination that he was only eligible for

five days of TTD benefits.

3 Section 440.12(1) Florida Statutes, bars payment of

indemnity benefits, regardless of the AWW dispute, in certain

circumstances. Section 440.12(1), instructs, “Compensation is not

allowed for the first 7 days of the disability, except for benefits

provided under s. 440.13. However, if the injury results in more

than 21 days of disability, compensation is allowed from the

commencement of the disability.” Accordingly, we do not address

the issue on appeal.

5

II. Analysis

Where a JCC's ruling is based on the interpretation of a

statute and a stipulation, the issue must be reviewed de novo.

Holcombe v. City of Naples/Johns E. Co., Inc., 328 So. 3d 311, 314

(Fla. 1st DCA 2021). The standard of review on appeal of workers’

compensation orders is “whether there is competent substantial

evidence in accordance with logic and reason to sustain the

findings of the [JCC].” Punsky v. Clay Cnty. Sheriff’s Off., 18 So.

3d 577, 583 (Fla. 1st DCA 2009) (quoting Chavarria v. Selugal

Clothing Inc., 840 So. 2d 1071, 1076 (Fla. 1st DCA 2003)), review

denied, 22 So. 3d 539 (Fla. 2009).

Initially, Guglielmo argues that the JCC erred as a matter of

law in finding that his AWW was $0.00 because he was not an

“employee” of DOC on the date of accident. Specifically, the JCC

failed to recognize that DOC’s acceptance of compensability under

the “heart-lung statute” equated to a concession that each element

required for the statutory presumption was satisfied, including

that Guglielmo was a covered “employee.” Thus, DOC’s decision to

accept compensability under section 112.18, which requires

employee status and proof of disability, is not independent from

“employee” status for purposes of AWW calculation. We agree and

reverse on this point.

Injured workers who satisfy the requirements of the “heart-

lung statute” are afforded the presumption of occupational

causation. See § 112.18(1), Fla. Stat. (2021); Seminole Cnty. v.

Braden, 378 So. 3d 637, 642–43 (Fla. 1st DCA 2023). Upon

accepting the claim as compensable under section 112.18, DOC

conceded that the requirements were satisfied—Guglielmo was a

covered correctional officer, the pre-employment physical

components were considered, he contracted heart disease, and he

suffered disablement. At no time since DOC accepted the claim as

compensable has its position changed. It has continued to provide

medical benefits. However, it disputes any liability for indemnity

benefits to Guglielmo, not based on eligibility but because of

entitlement (as his AWW is $0.00, the mathematical formula for

6

the compensation rate provides zero benefit payment). 4 Thus, DOC

contention that Guglielmo’s AWW was $0.00 is the antipode of

DOC’s acceptance of compensability of the injury/condition and

ignores the core principles of occupational disease under section

440.151, Florida Statutes.

We begin with a distinguishing factor of occupational disease

claims—“disability.” Guglielmo carried the burden to satisfy

“disability” as required by sections 112.18 and 440.151(1)(a),

Florida Statutes (2021). By accepting compensability of

Guglielmo’s claim under the “heart-lung statute,” DOC conceded

that he suffered a “disability.” See Friesen v. State of Fla. Highway

Patrol/Div. of Risk Mgmt., 364 So. 3d 1051, 1055 (Fla. 1st DCA

2023). We look to section 440.151(3), Florida Statutes (2021), for

the definition of “disablement.” It refers the reader to “disability

as described in s. 440.02(13).” § 440.151(3), Fla. Stat. (2021).

According to that statute, “‘Disability’ means incapacity because of

the injury to earn in the same or any other employment the wages

which the employee was receiving at the time of the injury.”

§ 440.02(13), Fla. Stat. (2021) (emphasis added). 5 The plain

language of the definition unambiguously focuses on the wages the

employee was receiving at the time of the injury. It also

contemplates scenarios in which an employee may leave the

subject employment and seek other work. And the Florida

Supreme Court has clarified that “it is the disability and not the

disease which determines compensability of a claim.” Am.

Beryllium Co. v. Stringer, 392 So. 2d 1294, 1296 (Fla. 1980).

“Disablement” also determines the “date of accident.” See

§ 440.151(1)(a), Fla. Stat. The disablement of an employee

resulting from an occupational disease shall be treated as the

happening of an injury by accident so long as the disease “resulted

from the nature of the employment.” Id. (emphasis added). The time

4 A claimant may be eligible for benefits, but not necessarily

automatically entitled to them. See ESIS/ACE Am. Ins. Co. v.

Kuhn, 104 So. 3d 1111, 1113 (Fla. 1st DCA 2012).

5 As of 2023, “Disability” is now defined in section 440.02(15),

Florida Statutes.

7

of injury means the period or periods of exposure. Friesen, 364 So.

3d at 1056.

The full text of section 440.02(28)’s definition of “wages” also

informs this analysis. 6 “Wages” is defined as the rate at which the

employee was paid for his or her services at the “time of injury”

and includes only those wages reported for federal tax purposes

“on the job where the employee was injured.” § 440.02(28), Fla. Stat.

(2021) (emphasis added). In occupational disease claims, the injury

or exposure must occur during the employment. That is not to say

that such injury necessarily manifests itself during the period of

active-duty status. Having set forth the distinctive and deliberate

terms and phrases used by the Legislature in the occupational

disease statutes, we turn to section 440.14 and AWW calculation.

Applying the provisions of section 440.14 in a vacuum—

treating the “date of accident” as literal and unconditional—fails

to appreciate the unique interplay in occupational disease cases

between the terms “injury” and “disability” and ignores public

policy. The definition of “disability” deliberately uses the term

“injury” and “time of injury” as the critical time focus. It does not

use the term “accident.” See § 440.02(13), Fla. Stat. (2021).

Furthermore, the definition of “wages” pinpoints those earnings at

the “time of injury” which in occupational disease cases relates to

the period of exposure. See § 440.02(28), Fla. Stat. (2021). This

Court emphasized the special nature of occupational disease

claims in City of Port Orange v. Sedacca, 953 So. 2d 727, 729 (Fla.

1st DCA 2007):

Workers' Compensation Act, Chapter 440, Florida

Statutes, provides coverage only “if the employee suffers

an accidental injury.” § 440.09(1), Fla. Stat. (2002). This

coverage prerequisite is commonly referred to as an

“injury by accident.” Without an injury by accident, the

Act provides no coverage and is inapplicable. An

exception to the actual “injury by accident” requirement

allows an employee's disease or medical condition to be

6 Effective July 4, 2023, the definition of “wages” is found in

section 440.02(40), Florida Statutes.

8

“treated as the happening of an injury by accident” if he

is able to establish, he has an occupational disease.

Section 440.14(1) 7 instructs as follows,

(1) Except as otherwise provided in this chapter, the

average weekly wages of the injured employee on the date

of the accident shall be taken as the basis upon which to

compute compensation and shall be determined, subject

to the limitations of s. 440.12(2) . . . .

The subsection begins with an important clarifying phrase,

“except as otherwise provided in this chapter.” As previously

established, “disablement” in occupational disease cases sets the

“date of accident.” And the disablement must result from the

nature of the employment where the employee was last injuriously

exposed. We do not look beyond section 440.151 to define its

relevant terms. See Watkins Eng'rs & Constructors v. Wise, 698

So. 2d 294, 295 (Fla. 1st DCA 1997) (holding occupational disease

provision language of section 440.151 is “plain,” and “so long as an

occupational disease fits within the criteria

enumerated therein, such disease constitutes a compensable

injury”) (emphasis added). This Court has declined to incorporate

other subsections of the Act to supplement the clearly delineated

requirements set forth in section 440.151. See id. at 295. In

Caldwell v. Division of Retirement, Florida Department of

7 To determine a particular claimant’s AWW, section 440.14

sets forth several methods: (a) average of wages over the 13 weeks

preceding injury; (b) average of similar employee’s wages 13 weeks

preceding injury; (c) average of 52 weeks preceding injury for

seasonal workers; (d) if any of the foregoing methods cannot

reasonably and fairly be applied, the full-time weekly wages of the

injured employee; (e) if it is established that the injured employee

was under 22 years of age when injured and that under normal

conditions her or his wages should be expected to increase during

the period of disability, the fact may be considered in arriving at

her or his average weekly wages; (f) consideration of part-time

employment; and (g) instructions for computing compensation

owed for fraction of week. § 440.14(1), Fla. Stat. (2021).

9

Administration, 372 So. 2d 438, 440–41 (Fla. 1979), the Florida

Supreme Court announced that the presumption statute should be

interpreted in a manner consistent with social policy and the

beneficial purposes intended. Accordingly, and pursuant to the

phrase in section 440.14, “as otherwise provided in this chapter,”

sections 440.151, 440.02, and 112.18 inform the application of

section 440.14 in occupational disease cases.

Having set forth the key definitions and principles of

occupational disease claims, we begin with section 440.14(1)(a).

The relevant “wages” for purposes of calculation are those paid to

Guglielmo for his services at the “time of injury” and on the job

where the injury occurred. And as the parties stipulated, there

existed 13-weeks of wages preceding the last injurious exposure

(Guglielmo’s last day of work) which provided an AWW of $673.20.

DOC accepted compensability of the heart disease claim under

a July 16, 2021, date of accident—the date determined by

“disability.” But with respect to indemnity benefits only, DOC

declared that Guglielmo was not an “employee” at the time of the

“accident”—ignoring the substantive meaning of “injury” and that

the relevant “wages” in an occupational disease context are those

received for services performed during the exposure period. DOC

conceded in the initial acceptance of compensability of the atrial

fibrillation condition that Guglielmo was an employee and suffered

exposure to the hazards of the correctional officer job. As such, it

is axiomatic that the AWW is also tethered to that very

employment. Applying that rationale here—sections 440.151,

440.02, and 112.18 inform section 440.14 so that in an occupational

disease context, the time of injury (when last injurious exposure

occurred) is the period of relevant wages. DOC cannot have it both

ways—accepting compensability of the injury as resulting from the

hazardous exposure of its work environment but then asserting

that on the date of disability (the date section 440.151 assigns as

the “date of accident”) the claimant was not an employee. See Jones

v. ETS of New Orleans, Inc., 793 So. 2d 912, 914–15 (Fla. 2001)

(noting that a “statute should be interpreted to give effect to every

clause in it, and to accord meaning and harmony to all of its

parts”).

10

The notion that a claimant’s technical administrative status

regarding employment on the date of “accident” in occupational

disease claims (meaning the date the injury or condition manifests

itself and disability occurs) determines an employer’s liability has

been addressed by this Court, albeit under an earlier version of the

statute. In Smith v. City of Miami, 552 So. 2d 245, 245 (Fla. 1st

DCA 1989), a firefighter, who became disabled with heart disease

after retirement, filed a claim under section 112.18. The deputy

commissioner concluded that the Legislature did not intend to

create a presumption applicable to anyone other than a presently

employed fireman and dismissed the claim. Id. This Court

affirmed the dismissal using a 1987 statutory definition of

fireman. Id. at 245–46. It defined “fireman” as “any duly employed

uniformed fireman.” Id. at 245. The language was interpreted to

require that for a “heart-lung statute” claim, the fireman must be

on active-duty status when the injury manifests itself. Id. at 245–

46.

In City of Clearwater v. Carpentieri, 659 So. 2d 357 (Fla. 1st

DCA 1995), this Court again addressed employment status as a

pre-requisite for filing a viable “heart-lung statute” claim. The

firefighter claimant put in for retirement but suffered a heart

attack one day before his retirement was officially accepted by the

employer and his pension awarded. Id. at 358. The effective, formal

date of his retirement was almost nine months later, an extended

date because he elected payment for his accumulated vacation and

sick time and floating holidays. Id. During this extended period,

he was not working but still on active payroll status until the

benefits were paid out. Id. The employer denied compensability of

the “heart-lung statute” claim because the claimant was not on

active-duty status. Id. at 359–60. The JCC found that the claimant

was entitled to the presumption of compensability. Id. at 359. This

Court affirmed, finding the claimant was on active status because

he was still on the books and getting paid. Id. at 360.

Then, in 1993, the Legislature amended the definition of “law

enforcement officer, correctional officer or probation officer” by

removing the requirement of being “duly employed.” See § 112.19,

Fla. Stat. In 2010, the Legislature amended section 112.18, adding

subsection (1)(c)4., which provides as follows: “a law enforcement

officer, correctional officer, or correctional probation officer is not

11

entitled to the presumption provided in this section unless a claim

for benefits is made prior to or within 180 days after leaving the

employment of the employing agency.” § 112.18(1)(c)4., Fla. Stat.

(2010) (emphasis added); see also St. Lucie FCRD & PGCS v.

FMIT, 259 So. 3d 992, 993 (Fla. 1st DCA 2018) (declining to

recognize Carpentieri as “muddy[ing] the bright line” drawn in

Smith that held that “the presumption does not apply to people

who retire from firefighting before their date of accident;”

statutory changes were not addressed in the opinion). These

amendments document the Legislature’s clear intent that, for a

viable claim under the “heart-lung statute,” a claimant does not

have to be in active-duty status on the “date of the accident.” The

Legislature is presumed to know the judicial construction of

existing law when it enacts a new law and to have adopted prior

judicial constructions of a law unless a contrary intention is

expressed in the statute. ContractPoint Fla. Parks, LLC v. State,

958 So. 2d 1035, 1037 (Fla. 1st DCA 2007) (citing Jones v. ETS of

New Orleans, Inc., 793 So. 2d 912 (Fla. 2001)).

The JCC relied on Fast Tract Framing, Inc. v. Caraballo, 994

So. 2d 355 (Fla. 1st DCA 2008), in arriving at an AWW of zero. But

the case is readily distinguishable. Caraballo did not address an

occupational disease claim. Furthermore, it addressed the issue of

whether wages not reported for federal tax purposes could be

utilized to calculate AWW. Id. at 356. Caraballo’s declaration that

“wages,” as defined by section 440.02, controls the AWW

calculation, serves only to support Guglielmo’s AWW calculation

of $673.20—based on wages earned in service at the time of the

injurious exposure.

The reasoning of the JCC is best summarized in the following

excerpt from the final order:

In the present case, there was no contract of hiring

in force at the time of the injury, as the claimant had

voluntarily terminated his employment 119 days (17

weeks) before his injury and did not work in any other

employment during this time period. As there was no

contract for hiring in force and the claimant did not work

in the 13 weeks prior to the injury, he had no wages.

12

He defined the “injury” as synonymous with the date of

accident or July 16, 2021. But this ignored that “injury” and

“accident” (set by date of disablement) have different meanings in

the context of occupational disease. Section 440.14(1)(a), which the

parties utilized in their calculations to stipulate to the $673.20

AWW for the DOC employment (for the 13 weeks preceding his last

day of work/exposure), is the appropriate section for calculation.

The injury period dictates the relevant wages. Guglielmo had 13

full weeks of wages immediately preceding his last day of work

(last date of “injury” due to exposure) to review. Thus, there was

no need to resort to alternative methods of calculation provided in

section 440.14.

Regarding Guglielmo’s argument that competent, substantial

evidence does not exist to support the JCC’s finding that but for a

zero AWW, he was eligible for only five days of TTD and PIBs

based on an 11% impairment rating, we find it lacks merit and

affirm. Guglielmo is entitled to payment of the indemnity benefits

using an AWW of $673.20. The case is remanded for the JCC to

award the five days of TTD benefits and determine PIB payments,

subject to the provisions of section 440.15(3)(c), Florida Statutes. 8

Concurring and Dissenting Opinion

The concurring in part opinion is a recapitulation of the

majority opinion. As for the dissenting in part opinion, it

misapplies section 440.12(1) and improperly interjects a defense

not raised by a party to the case.

Guglielmo is entitled to the payment of PIBs and five days of

TTD (despite the absence of more than 21 days of disability)

8 Section 440.15(3)(c), Florida Statutes, provides that

impairment benefits may be reduced by 50 percent for each week

in which the employee has earned income equal to or in excess of

the AWW. Aside from TTD benefits under section 440.15(2), which

are automatically payable at the compensation rate, vocational

factors such as what the claimant is able to earn may also be

considered in calculations for TPD benefits. DOC raised voluntary

limitation of income defenses in the Pre-Trial Stipulation.

13

because the defense that payment is not due and owing pursuant

to section 440.12(1), was not raised by DOC. “The party raising

affirmative defenses has the burden of pleading and proving

them.” Teco Energy, Inc. v. Williams, 234 So. 3d 816, 823 (citing

McKenzie Tank Lines, Inc. v. McCauley, 418 So. 2d 1177, 1180 (Fla.

1st DCA 1982)). “Affirmative defenses must also be timely raised

by the party seeking to avoid responsibility or consequence.”

Andrews v. McKim & Creed, 355 So. 3d 957, 961 (Fla. 1st DCA

2023) (citing Fla. Admin. Code R. 60Q-6.113(2)(a)); See also

Ballard v. Edd Helms Group, 79 So. 3d 88, 89 (Fla. 1st DCA 2011)

(overpayment defense based on claimant’s receipt of

unemployment benefits was untimely asserted when raised for

first time in closing argument after the hearing).

A waived defense cannot be raised, sua sponte, by an appellate

court judge. 9 Although the “tipsy-coachman” doctrine allows this

9 “In order to be preserved for further review by a higher

court, an issue must be presented to the lower court and the

specific legal argument or ground to be argued on appeal or review

must be part of that presentation if it is to be considered

preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). “An

appellate court is ‘not at liberty to address issues that were not

raised by the parties.’” Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st

DCA 2019) (citing Anheuser-Busch Co., Inc. v. Staples, 125 So. 3d

309, 312 (Fla. 1st DCA 2013)). “Nor may an appellate court ‘depart

from its dispassionate role and become an advocate by second

guessing counsel and advancing for him theories and defenses

which counsel either intentionally or unintentionally has chosen

not to mention.’” Id. (citing Polyglycoat Corp. v. Hirsch Distribs.,

Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)); see also D.H. v.

Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady,

C.J., dissenting) (“[I]t is not the role of the appellate court to act as

standby counsel for the parties.”)). “Instead, an appellate court

must confine its decision to the issues raised in the briefs.”

Id. (citing Bainter v. League of Women Voters of Fla., 150 So. 3d

1115, 1126 (Fla. 2014) (“‘Basic principles of due process’—to say

nothing of professionalism and a long appellate tradition—‘suggest

that courts should not consider issues raised for the first time at

oral argument’ and ‘ought not consider arguments outside the

14

Court to affirm a trial court judgment that is “right for the wrong

reason,” the record must support the theory or argument. See

Robertson v. State, 829 So. 2d 901, 906—07 (Fla. 2002) (“The key

to the application of this doctrine of appellate efficiency is

that there must have been support for the alternative theory or

principle of law in the record before the trial court.”). Section

440.12(1) was never raised before the trial court or in any briefing.

AFFIRMED in part, REVERSED in part, and REMANDED for

further proceedings consistent with this opinion.

LONG, J., concurs; TANENBAUM, J., concurs in part and dissents in

part with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

TANENBAUM, J., concurring in part and dissenting in part.

The claimant worked as a correctional officer for the

Department of Corrections from June 2019 until his voluntary

retirement on March 20, 2021. On July 16, 2021, nearly four

months following his retirement, the claimant suffered an atrial

fibrillation (“afib”) that sent him to the emergency room. The

department accepted this medical condition as compensable under

the Workers’ Compensation Law (chapter 440, Florida Statutes)

based on its understanding of section 112.18(1), Florida Statutes.

By accepting compensability in connection with section 112.18, the

department essentially acknowledged that the afib was a

“condition or impairment of health” that was “accidental” and

“suffered in the line of duty.” § 112.18(1)(a), Fla. Stat.; see also id.

scope of the briefing process.’”) (quoting Powell v. State, 120 So. 3d

577, 591 (Fla. 1st DCA 2013))).

15

(making this presumption applicable to, among others, a

“correctional officer”). Once the department acknowledged this

compensability, it was obligated to “pay compensation [and]

furnish benefits required by” chapter 440. § 440.09(1), Fla. Stat.;

see also id. (making compensability contingent upon an employee’s

“suffer[ing] an accidental compensable injury [] arising out of work

performed in the course and the scope of employment”); City of Port

Orange v. Sedacca, 953 So. 2d 727, 735 (Fla. 1st DCA 2007) (en

banc) (explaining that “in every case” involving a question of

compensability, there must initially be a determination of

“whether a claimant’s medical condition is covered under the Act”).

Workers’ compensation coverage having been conclusively

established regarding the claimant’s afib, the only remaining

question would be “what benefits are due.” Sedacca, 953 So. 2d at

735. Even though the department accepted the medical condition

as compensable—meaning the claimant was eligible for medical

benefits related to that condition under section 440.13, Florida

Statutes, as qualifying treatment became necessary—the claimant

would not have been entitled to indemnity for lost wages until he

suffered a “disablement.” § 440.151(1), Fla. Stat.; cf. Sedacca, 953

So. 2d at 732 (explaining that a claimant who suffers an

occupational disease does not become eligible for indemnity until

the disease adversely affects his ability to work); id. at 733 (“No

disability means no occupational disease [under section 440.151,

Florida Statutes].”). The judge of compensation claims (“JCC”)

found that the claimant suffered temporary total disability (“TTD”)

both when he went into the hospital for one day for a cardiac

ablation related to the afib—in December 2021—and for four days

to be treated for complications stemming from that ablation—in

February 2022. The evidence showed that on those five days, the

claimant could not work at all. Cf. § 440.15(2)(a), Fla. Stat.

(describing TTD as “disability total in character but temporary in

quality”); Xerographics & Claims Ctr. v. Bender, 558 So. 2d 514,

515 (Fla. 1st DCA 1990) (describing TTD “as the healing period

during which the workers’ compensation claimant is, by reason of

the injury, totally disabled and unable, in any anatomic sense, to

work”). Contrary to the claimant’s assertion, there is sufficient

evidence to support this finding.

16

The claimant, then, became eligible for indemnity benefits

once he suffered disablement stemming from his compensable

medical condition—the afib suffered in July 2021. In determining

the average weekly wage (“AWW”) under section 440.14(1), Florida

Statutes, the JCC erred when he used the date the claimant

suffered afib (July 16, 2021) as the date of accident and concluded

that he had not worked “substantially the whole of 13 weeks

immediately preceding the accident.” § 440.14(1)(a), Fla. Stat.; see

id. (setting out the primary method for calculating the AWW “on

the date of the accident” to be “taken as the basis upon which to

compute compensation”). This case being one that involves

occupational disease, the claimant’s “last injurious exposure giving

rise to eligibility for coverage is the date of accident, and

consequently, defines the compensation and benefits available.”

Sedacca, 953 So. 2d at 730 (emphasis supplied).

The claimant’s last day of exposure in this presumption case

necessarily was his last day of work in March 2021, and there is

no dispute that he worked as a correctional officer for the

department for the preceding thirteen weeks. There also is no

dispute as to what his weekly pay-rate was for those final thirteen

weeks—$673.20. The claimant’s AWW—based on the uncontested

facts of this case—is $673.20. It is that amount, rather than zero,

that the JCC would have had to use to calculate the claimant’s

TTD indemnity (not to mention his impairment benefit). As to the

proper calculation of AWW under the unique circumstances of this

case, I concur with the majority’s conclusion.

That said, I still would affirm the order to the extent it denies

the claim for TTD compensation. A JCC is an administrative

hearing officer in the executive branch, and his statutory charge is

to “make such investigation or inquiry, or conduct such hearing, in

such manner as to best ascertain the rights of the parties” under

chapter 440 regarding a petition for benefits. § 440.29(1), Fla. Stat.

Here, the JCC concluded “there are no TTD benefits due for the

limited days the claimant was hospitalized” and denied the claim.

His legal basis was the “$0 AWW,” a basis that both the majority

and I have explained is incorrect. There, however, is an alternative

legal basis to support the JCC’s conclusion: section 440.12(1),

Florida Statutes, which categorically proscribes a compensation

award “for the first 7 days of the disability.” (emphasis supplied).

17

The JCC found that there was evidence to support “total disability”

during only the five days the claimant was hospitalized in

December 2021 and February 2022. The petition sought benefits

only for TTD and permanent impairment. But the TTD benefit will

not be “ripe, due, and owing” until he can prove at least eight days

of disability, which, according to the JCC, he could not yet do.

§ 440.192(1), Fla. Stat. (specifying when a claimant may file a

petition for benefits). Even with a proper calculation of the AWW,

the claimant had no right to TTD compensation based on the JCC’s

finding as to the TTD dates. Cf. Sinclair v. ManorCare Health

Servs.-Dunedin, 224 So. 3d 331, 332 (Fla. 1st DCA 2019) (setting

aside in part the JCC’s order because though the finding as to the

dates of TTD was sufficiently supported by evidence, “an

application of the law [section 440.12(1)] to these findings

indicate[d] that the JCC erred to the extent the TTD award

include[d] the first seven days of the disability period”).

The JCC’s conclusion (viz. that “there are no TTD benefits

due”) is correct, then, albeit for a different reason. We are required

to affirm that portion of the order. Cf. Cohen v. Mohawk, Inc., 137

So. 2d 222, 225 (Fla. 1962) (holding that if “the pleadings and

evidence before the [lower tribunal]” reveal “any theory or

principle of law which would support the” final order, “the district

court [is] obliged to affirm”); Applegate v. Barnett Bank of

Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (holding that the

lower tribunal’s final order “could well be wrong in its reasoning,

but [its] decision . . . is primarily what matters, not the reasoning

used”; so “[e]ven when based on erroneous reasoning, [the

tribunal’s] conclusion or decision . . . will generally be affirmed if

the evidence or an alternative theory supports it”); Dade Cnty. Sch.

Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)

(explaining that if the lower tribunal “reaches the right result, but

for the wrong reasons, it will be upheld if there is any basis which

would support [it] in the record”). It is of no moment that the

employer did not raise in its answer brief this alternate basis for

affirmance. See Freeman v. State, 373 So. 3d 1255, 1257 n.2 (Fla.

1st DCA 2023) (noting that the alternate ground for affirmance

need not have been argued before the lower tribunal nor raised by

the appellee in its answer brief).

18

As explained above, the AWW should not have been zero.

There otherwise being no basis for denying the impairment benefit

claim, I concur in the majority’s setting aside that portion of the

final compensation order. The claimant, though, failed to

demonstrate he, as of yet, had a right to a TTD benefit. Insofar as

the majority sets aside the order’s denial of that claim, I dissent.

_____________________________

Kristine Callagy and Megan E. Oliva of Bichler & Longo, PLLC,

Maitland, for Appellant.

Jane E. McGill of Vaughan Baio & Partners, Palm Beach Gardens,

for Appellee.

19