# Clay County Board of County Commissioners/Scibal Associates v. Bramlitt

> District Court of Appeal of Florida · May 23, 2011 · 61 So. 3d 1239

URL: https://www.frixlaw.com/law-library/cases/9780560

## Case

- **Full name:** CLAY COUNTY BOARD OF COUNTY COMMISSIONERS/SCIBAL ASSOCIATES, Appellants, v. Richard A. BRAMLITT, Appellee
- **Court:** District Court of Appeal of Florida
- **Decided:** May 23, 2011
- **Citations:** 61 So. 3d 1239; 2011 Fla. App. LEXIS 8416; 2011 WL 1938235
- **Precedential status:** Published
- **Opinion:** Concurrence by Wetherell
- **Judges:** Benton, Padovano, Wetherell
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WETHERELL, J.,
specially concurring.
I agree with the disposition of this case. I write separately because, in my view, the first issue is premised on the erroneous assumption that the JCC found Claimant’s hypertension compensable.
The final order finds Claimant’s “heart condition” compensable, but it includes no findings regarding Claimant’s hypertension. It is clear from the record that the parties separately litigated the compensa-bility of Claimant’s heart condition (coronary artery disease, unstable angina, and heart lesion) and his hypertension. It is also clear from the record that the JCC understood that Claimant’s heart condition and his hypertension were different, both medically and for purposes of compensability. Nevertheless, the compensability of Claimant’s hypertension is not addressed in the final order.
Arguably, Claimant’s failure to secure a ruling from the JCC on the compensability of his hypertension constitutes a denial of that benefit because it was ripe, due, and owing' at the time of the final hearing. However, this argument was not made by the E/C and, in any event, it appears that the E/C may be responsible for the treatment of Claimant’s hypertension under the *1240 hindrance-to-recovery theory because the record contains medical testimony that the failure to treat the hypertension will hinder the treatment and recovery of Claimant’s heart condition, which the E/C now concedes is compensable. * Thus, as a practical matter, it likely makes little difference whether we affirm or reverse the first issue. However, because this issue, as re-framed by the E/C in its reply brief, does not present a basis for reversal, I agree that the issue should be affirmed.
The initial brief framed the first issue as whether "[t]he JCC erred in determining that Claimant's heart condition and hypertension were compensable under § 112.18, Fla. Stat.” (emphasis added). On this issue, the E/C argued that the JCC erred in determining that the presumption applied to Claimant’s hypertension; that the E/C rebutted the presumption that Claimant’s hypertension was work-related; and that the JCC applied the wrong standard of proof and misconstrued this court’s decision in Punsky v. Clay County Sheriff’s Office, 18 So.3d 577 (Fla. 1st DCA 2009), in determining that the E/C failed to rebut the presumption as to both the hypertension and heart condition. The reply brief clarified that "it is only the application of the [section 112.18] presumption to Claimant's hypertension that is at issue in the present appeal.” The E/C argues in its motion for rehearing that the panel misconstrued this "inarticulately phrased” statement because ”[i]n making the statement that the presumption issue only applied to the claimant’s hypertension, the [E/C] did not state that they were abandoning the issue of whether they had successfully rebutted the presumption as to the hypertension and the heart condition.” However, this argument overlooks the fact that, in addition to this statement, the reply brief also specifically re-framed the first issue as whether ”[t]he JCC erred in determining that Claimant’s hypertension was compensable under § 112.18, Fla. Stat.” (emphasis added). Accordingly, notwithstanding the explanation of the statement offered by the E/C in its motion for rehearing, I do not see how the reply brief can be interpreted as anything other than a concession that Claimant’s heart condition is compensable. (I note that the E/C’s briefs were not filed by counsel listed in this opinion.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9780560. Public record. Not legal advice.