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February 2, 2018 by admin

Workers’ compensation — Compensable accidents — Law enforcement officers — Heart disease and hypertension — Presumption of compensability — Claimant who had not undergone a physical examination upon entering into service as full-time law enforcement officer was not eligible for statutory presumption that his heart disease and hypertension were compensable — 2002 amendments to section 112.18, which extended statutory presumption to local LEOs, were procedural and, accordingly, prerequisites to presumption were retroactive and applied to claimant who was employed as local LEO prior to amendments

43
Fla. L. Weekly D243c

Workers’
compensation — Compensable accidents — Law enforcement officers — Heart
disease and hypertension — Presumption of compensability — Claimant who had
not undergone a physical examination upon entering into service as full-time
law enforcement officer was not eligible for statutory presumption that his
heart disease and hypertension were compensable — 2002 amendments to section
112.18, which extended statutory presumption to local LEOs, were procedural
and, accordingly, prerequisites to presumption were retroactive and applied to
claimant who was employed as local LEO prior to amendments — Record does not
support judge of compensation claims’ finding that employer waived or
acquiesced to use of 1983 physical related to claimant’s service as auxiliary
LEO for claimant’s 1984 hire as full-time LEO — Physical examination conducted
21 months before hire date was too remote to satisfy requirement that claimant
pass physical examination “upon entering into service” as full-time LEO

CITY OF HOMESTEAD/PREFERRED
GOVERNMENT CLAIMS SOLUTIONS, Appellants, v. HARLEY FOUST, Appellee. 1st
District. Case No. 1D16-5589. January 26, 2018. On appeal from an order of
Judge of Compensation Claims. Margret G. Kerr, Judge. Date of Accident: May 12,
2015. Counsel: Eric L. Stettin, Laura K. Wendell, and Adam A. Schwartzbaum, of
Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for Appellants.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
(WINOKUR, J.) The City of Homestead
and Preferred Government Claims Solutions (E/C) appeal an order of the Judge of
Compensation Claims (JCC) finding compensability of, and awarding benefits for,
Claimant Harley Foust’s heart disease and hypertension by operation of section
112.18, Florida Statutes. For the following reasons, we reverse.
The underlying facts are not
disputed. Claimant is a law enforcement officer (LEO) who has both heart
disease and hypertension. In May 2015, he had a disabling event due to both
conditions, and sought compensability of both, as well as medical and indemnity
benefits, claiming that he was entitled to the presumption of occupational
causation of heart disease and hypertension for LEOs available under section
112.18(1), Florida Statutes.1 The E/C responded that Claimant was
not eligible for the statutory presumption because he had not met all of the
statutory prerequisites — specifically, he had not undergone a physical
examination upon entering into service as a full-time LEO.
Claimant argued that he met that
prerequisite because he had undergone a physical on January 28, 1983, before
becoming an auxiliary LEO with the City on October 2, 1983, that this
examination did not reveal any evidence of heart disease or hypertension, and
that this examination counts as a “pre-employment physical” for his hire as a
full-time LEO on October 4, 1984. Claimant argued that nothing in the law
requires a second physical examination, both because he had the same employer
and never left employment, and because section 943.13, Florida Statutes, which
establishes the qualifications for LEOs, requires a physical examination for
hire as an LEO without distinguishing between auxiliary and full-time.
The E/C, in contrast, argued that
Claimant’s January 1983 physical does not fulfill the statutory prerequisite
because it did not occur “upon entering into any such service” as a full-time
LEO. Instead, noting that the form for the 1983 physical indicates that it is
for “PROPOSED JOB TITLE: Aux. Police Officer,” the E/C argues that the physical
related to his service as an auxiliary LEO, and section 112.18 does not include
auxiliary LEOs. Specifically, section 112.18 refers to subsection 943.10(1),
Florida Statutes, which includes only full-time LEOs (auxiliary LEOs are
defined in subsection 943.10(8)). The E/C also noted that the section 112.18
presumption did not apply to local LEOs until 2002.2

The JCC found that Claimant
satisfied the physical- examination requirement of section 112.18 on three
alternative grounds: 1) the statutory presumption of section 112.18 did not
apply to local LEOs at the time of Claimant’s hire, so the pre-employment
requirements of section 112.18 are not retroactive; 2) the employer waived or
acquiesced to use of the 1983 physical for the 1984 hire as a full-time LEO;
and 3) the 1983 physical was conducted at or near the time of entering
full-duty status. We disagree with each of these rationales.
Regarding the first ground, both
parties agree that the 2002 amendments to section 112.18, which extended the
statutory presumption to local LEOs, were procedural and, therefore, the
prerequisites to the presumption are retroactive and apply to Claimant.
However, regardless of whether section 112.18 (or the 2002 amendment) is
substantive or procedural, the earliest version of the statute that could apply
to Claimant is the 2014 version — which already included LEOs — because
Claimant’s date of accident was his date of disability, May 12, 2015. See
Gomar v. Ridenhour Concrete & Supply, 42 So. 3d 855, 858 (Fla. 1st
DCA 2010) (“[T]he date of accident dictates which version of a substantive
statute applies.”); Scherer v. Volusia Cty. Dep’t of Corr., 171 So. 3d
135, 137 (Fla. 1st DCA 2015) (reiterating that for occupational diseases such
as heart disease “ ‘the disablement . . . shall be treated as the happening of
an injury by accident’ ” (quoting Hoppe v. City of Lakeland, 691 So. 2d
585, 586-87 (Fla. 1st DCA 1997))). To the extent the JCC’s ruling suggests that
Claimant could rely on the presumption without meeting all of its
prerequisites, we reject that interpretation of section 112.18 because section
112.18 has included all of its prerequisites since its enactment in 1965.
The second ground cited by the JCC
fails because the record does not contain evidence of either a waiver or
acquiescence. A waiver is defined as a “voluntary and intentional
relinquishment of a known right, or conduct which implies the voluntary and
intentional relinquishment of a known right.” Major League Baseball v.
Morsani
, 790 So. 2d 1071, 1077 n.12 (Fla. 2001) (citing Kissimmee Util.
Auth. v. Better Plastics, Inc.
, 526 So. 2d 46, 48 (Fla. 1988)). To the
extent that an E/C has a “right” to object to the validity of a pre-employment
physical for purposes of the section 112.18 presumption (a question we do not
answer here), certainly in this case the E/C could not have voluntarily and
intentionally relinquished that right at the time of the hire (in the early
1980s) because neither the physical-examination requirement, nor the presumption
itself, applied to LEOs at that time. As such, the E/C could not have waived
that right. And to the extent that an Employer can “acquiesce” to the use of a
particular physical examination for purposes of the statutory presumption, we
find that no evidence beyond speculation supports the conclusion that the City
“acquiesced” in the use of the January 1983 physical as a pre-employment
physical upon Claimant’s hire as a full-time LEO.
Finally, the JCC found that Claimant
met the statutory physical-examination requirement because his physical was
given “ ‘at or near’ the time of entering full duty status.” The statute
requires the physical examination “upon entering into any such service as a . .
. law enforcement officer.” § 112.18(1)(a), Fla. Stat. Although the JCC did not
err in looking to the date of hire as a full-time LEO (because auxiliary LEOs
are not eligible for the presumption),3 we find that the twenty-one months
between the physical examination and the hire date is too lengthy a period of
time to qualify as “upon entering into” service. Only two cases deal with the
“upon entering into” requirement; one holds that a difference of ten to fifteen
days qualified as “upon entering into,” and the other holds that an examination
given two years after the hiring date did not qualify as “upon
entering into.” See City of Tarpon Springs v. Vaporis, 953 So. 2d
597 (Fla. 1st DCA 2007) (holding that a physical examination occurred “upon
entering into service” where it was partially administered ten days before
employee’s first day of employment and completed fifteen days after first day
of employment); Cumbie v. City of Milton, 496 So. 2d 923, 924 (Fla. 1st
DCA 1986) (holding that the statutory presumption did not apply because no
physical was done, and noting in dissent that the first city-sponsored physical
of claimant was done “nearly two years after claimant’s entry into service”). Because
Claimant did not pass a physical examination upon entering into service as a
full-time LEO, he is not entitled to the presumption of occupational causation
of his heart disease and hypertension under section 112.18(1).
REVERSED and REMANDED for further
proceedings in accordance with this opinion. (B.L. THOMAS, C.J., and MAKAR, J.,
concur.)
__________________
1Section 112.18(1)(a) reads in
pertinent part as follows:
Any condition or impairment of health of . . . any law
enforcement officer . . . as defined in s. 943.10(1) . . . 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
as a . . . law enforcement officer, which examination failed to reveal any
evidence of any such condition.
2Section 112.18 was enacted in 1965,
but applied only to firemen. Ch. 65-480, § 1, at 1655, Laws of Fla. The
statutory presumption was extended to state LEOs in 1999, and to all LEOs in
2002. Ch. 99-392, § 21, at 4000, Laws of Fla.; Ch. 2002-236, § 3, at 1720, Laws
of Fla.
3We reject Claimant’s argument that a
physical examination prior to hire or appointment to any category of LEO,
including auxiliary LEO, qualifies for the section 112.18 presumption. By
requiring the examination to be “upon entering into any such service” as
a “law enforcement officer,” it is clear that the statute refers to an
examination before hire as a LEO defined by section 943.10(1), meaning a
full-time officer. We also reject Claimant’s contention that section 943.13(6),
Florida Statutes, supports his argument.
* * *
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