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

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D20-565

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JOSHUA HOLCOMBE,

Appellant,

v.

CITY OF NAPLES/JOHNS EASTERN

COMPANY, INC.,

Appellees.

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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.

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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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