39 Fla. L. Weekly D1483a
disease — Law enforcement officer — New period of disability arising out of
treatment of non-compensable cardiac condition — Res judicata — Collateral
estoppel — Both law and competent substantial evidence support judge of
compensation claims’ conclusion that claimant’s cardiac condition on new date of
disability related directly back to 2007 date of injury, which was previously
adjudicated as non-compensable — Because underlying condition was adjudicated
to be non-compensable, it follows that subsequent disability arising out of
treatment for that condition was likewise non-compensable
BEACH RISK MANAGEMENT, Appellees. 1st District. Case No. 1D13-4409. Opinion
filed July 16, 2014. An appeal from an order of the Judge of Compensation
Claims. Neal P. Pitts, Judge. Date of Accident: August 10, 2012. Counsel: Kelli
Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Orlando, and
James Spears of the Law Office of James R. Spears, PLLC, Orlando, for Appellant.
Gregory J. McDole, Daytona Beach, for Appellees.
enforcement officer, argues that the Judge of Compensation Claims (JCC) erred by
applying the doctrines of res judicata and collateral estoppel to bar his claim
for benefits based on a new period of disability arising out of treatment of a
non-compensable cardiac condition. We find no error in the JCC’s application of
either, or both, of these preclusion doctrines. We write, however, to explain
why we reject Claimant’s primary legal argument, which posits that he was not
required to show a new injury, or a worsening of a compensable injury, in order
to establish a new date of accident separate and apart from the injury
previously denied with finality.
(Employer) in 2001. During the summer of 2007, he was diagnosed with dilated
cardiomyopathy (a disease of the heart muscle affecting its main pumping
chamber), and received a heart transplant. Before Claimant could return to work
following this surgery, during a period of no exposure to law enforcement
activity, he developed bradycardia (a low heart rate), and had a cardiac
pacemaker surgically implanted to control this condition. After a recuperation
period, Claimant went back to work for the Employer.
until late in 2010. Following a hearing on the merits of that petition, the JCC
denied the petition on grounds that the statute of limitations had expired, and
alternatively, that the Employer/Carrier (E/C) had successfully rebutted the
statutory presumption of compensability afforded law enforcement officers under
section 112.18(1), Florida Statutes. Claimant appealed the JCC’s order, but
later dismissed the appeal by agreement of the parties. As part of this
agreement, the parties stipulated to the finality of the JCC’s order denying
benefits for Claimant’s heart disease.
disease when he was hospitalized for the replacement of a lead on the cardiac
pacemaker originally implanted in 2007. The lead was found defective based on
abnormalities noted on an EKG performed during a routine follow-up visit.
Claimant filed a petition for benefits — alleging a new date of accident —
again requesting compensation for his heart disease, but this time as a result
of the new period of disability suffered for this condition. After an
evidentiary hearing, the JCC denied benefits based on the doctrines of res
judicata and collateral estoppel. This order is the subject of the current
was barred by doctrines of claim and issue preclusion because each new date of
disability for heart disease is a new “date of accident,” and hence a new claim
as a matter of law. He asserts that it is irrelevant that the claimed condition
has been previously deemed non-compensable. Citing cases involving repetitive
trauma, Claimant submits that he was not required to prove the worsening of a
compensable condition or that he suffered a new cardiac condition; instead, all
that mattered was that he suffered a new period of disability. We disagree.
disease theory of recovery. See Sledge v. City of Fort Lauderdale,
497 So. 2d 1231, 1233 (Fla. 1st DCA 1986) (finding heart disease compensable
as occupational disease in cases where section 112.18(1), Florida Statutes,
applies). An essential element of a claim based on an occupational disease is
that the disease results in disability. See § 440.151(1)(a), Fla. Stat.
(2012) (“[T]he disablement or death of an employee resulting from an
occupational disease . . . shall be treated as the happening of an injury by
accident . . . .”); § 112.18(1), Fla. Stat. (2012) (requiring employees seeking
to avail themselves of occupational presumption of compensability prove covered
condition “result[ed] in total or partial disability”). See also Am.
Beryllium Co. v. Stringer, 392 So. 2d 1294, 1296 (Fla. 1980) (“In
occupational disease cases, therefore, it is the disability and not the disease
which determines the compensability of a claim.”).
whether a new accident occurred, that determination alone does not control the
result. A new date of accident is found only when the underlying occupational
disease is compensable and the disease progression results in a
subsequent period of disability. See Orange Cnty. Fire Rescue v. Jones,
959 So. 2d 785, 786 (Fla. 1st DCA 2007) (explaining subsequent increase in
viral load from already compensable condition, coupled with subsequent period of
disability, resulted in new date of accident for occupational disease); see
also Michels v. Orange Cnty. Fire/Rescue, 819 So. 2d 158, 160 (Fla. 1st DCA
2002) (permitting second date of accident for calculation of average weekly
wage, where compensable occupational disease “deteriorated” to cause permanent
the Court, Claimant’s underlying condition, specifically the heart disease that
resulted in the heart transplant and implantation of a pacemaker, was previously
adjudicated as non-compensable. Claimant admitted there had been no change in
his condition when he was hospitalized for the repair of his pacemaker lead;
rather, he experienced a new period of disability. Because the underlying
condition was adjudicated to be non-compensable, it follows that the subsequent
disability arising out of treatment for that condition is likewise
non-compensable. Claimant presents no legal authority supporting his argument
that in the instance of occupational diseases,* a new date of accident can be
proven in the absence of a new or different injury.
that Claimant’s cardiac condition on the new date of disability relates directly
back to the 2007 date of injury, thus compelling application of res judicata and
collateral estoppel to bar the new claim. Because the 2007 date of injury, with
all of its sequelae, was determined to be non-compensable based on grounds of
statute of limitations and a lack of occupational causation, the argument that
the 2012 hospitalization represents a new, compensable date of accident is
AFFIRMED. (WOLF and PADOVANO, JJ., CONCUR.)
*On appeal, Claimant likens the analysis for proving compensability of
occupational diseases to that of repetitive trauma cases. Claimant argues that
in the instance of repetitive trauma cases, a change in condition is not
necessary to establish a new date of accident, and a claimant seeking to
establish a new date of accident under a repetitive trauma theory of recovery
need only prove continued exposure and legal causation. See Rose v. GEICO,
90 So. 3d 886, 888 (Fla. 1st DCA 2012) (“No change in condition need be
shown, given claimant’s allegation of subsequent repetitive traumas, because
every new exposure to the trauma was a new ‘accident’ for purposes of workers’
compensation.”). We emphasize that the instant case is not a repetitive trauma
case, and this Court has explained that the elements of proof for a repetitive
trauma case are not identical to those required by occupational disease cases.
See City of Orlando v. Lemay, 652 So. 2d 850 (Fla. 1 st DCA 1995).
* * *