Opinion
No. 1D21-1353
06-21-2023
Robert FRIESEN, Appellant, v. State of Florida HIGHWAY PATROL/DIVISION OF RISK MANAGEMENT, Appellees.
Jason Fox and Carisa Briana Carmack of Oliver & Fox, P.A., Tampa, for Appellant. Denise P. Murray and Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa; Lissette M. Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellees.
Jason Fox and Carisa Briana Carmack of Oliver & Fox, P.A., Tampa, for Appellant.
Denise P. Murray and Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa; Lissette M. Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellees.
M.K. Thomas, J.
Robert Friesen, a law enforcement officer, appeals a final order of the Judge of Compensation Claims (JCC) denying his claim for compensability of hypertension and heart disease brought under section 112.18, Florida Statutes (2019), commonly known as the "heart-lung statute." The JCC determined that Friesen failed to satisfy "disability," a prerequisite for compensability of occupational disease under section 440.151(1), Florida Statutes (2019). Finding no reversible error, we affirm.
I. Facts
The relevant facts here are undisputed. The Florida Highway Patrol hired Friesen as a law enforcement officer in 2001 after he underwent a pre-employment physical. In 2008, Friesen sought evaluation with his primary care physician after feeling unwell, experiencing headaches and redness in the face. Friesen was diagnosed with hypertension. He was restricted from working for a few days and prescribed medication. No workers’ compensation paperwork was completed, and Friesen did not pursue a workers’ compensation claim.
In early 2019, while at the emergency room investigating a vehicular crash, Friesen asked a nurse to check his blood pressure. The nurse confirmed his blood pressure was high and recommended he consult a physician. The following day, Friesen sought treatment with his personal doctor and alerted the Employer. The Employer/Carrier (E/C) scheduled an appointment for Friesen with Dr. Sunil Gupta, a cardiologist, for evaluation. The E/C authorized the evaluation under the "120-day rule." At Friesen's first appointment on February 5, 2019, his blood pressure was 160/96, and Dr. Gupta described it as uncontrolled. Friesen was diagnosed with hypertension and obesity, his medication was changed, and an echocardiogram (EKG) was recommended. Dr. Gupta did not take Friesen out of work, assign work restrictions, or refer Friesen to the hospital.
Under the "120-day rule," a carrier may initiate benefits without prejudice to deny within 120 days. See § 440.20(4), Florida Statutes ; Teco Energy, Inc. v. Williams , 234 So. 3d 816, 822 (Fla. 1st DCA 2017). If a carrier fails to deny compensability within the 120-day window, it waives the right to do so, "unless material relevant facts could not have been discovered during the 120 day period." Id.
Friesen returned to Dr. Gupta on February 12, 2019, for an 11:00 a.m. appointment and EKG. It was a regular workday for Friesen. His customary work shift was 11:00 a.m. to 7:00 p.m. He planned to report to work immediately after his appointment. At the appointment, Friesen admitted he was under a lot of stress, including family and work issues. Dr. Gupta adjusted Friesen's medication, counseled him on obesity and lifestyle changes, and recommended a stress test. He also asked that Friesen remain in the waiting room for ten to fifteen minutes for the medication to take effect and lower his blood pressure. Friesen did just that. The medication lowered his blood pressure, and he left the office. He was at Dr. Gupta's office that day for about one hour total. No work restrictions were assigned.
After leaving his appointment with Dr. Gupta, Friesen returned to work, immediately performing his customary duties. But he left early at 5:00 p.m. due to a headache and being "stressed out" over family issues and concerns over his blood pressure. He then took a few vacation days, primarily to deal with "family stuff," followed by two regular days off. Since that time, Friesen has continued to work full time, full duty.
On February 18, 2019, the E/C issued a Notice of Denial asserting that hypertension or heart disease must be accompanied by disability to be compensable, and that Friesen had suffered no disability. In response, Friesen filed a Petition for Benefits (PFB) requesting workers’ compensation benefits based on "disabling arterial and cardiovascular hypertension and/or heart disease." He asserted a February 12, 2019, date of accident—the date of Dr. Gupta's second visit.
Friesen originally filed a Petition for Benefits (PFB) asserting a date of accident of November 28, 2018, that requested the identical benefits. However, he later voluntarily dismissed the claim in July of 2019 and filed the amended PFB at issue.
At the merits hearing on the petition, the E/C introduced the medical records of Dr. Gupta. Friesen relied on the deposition testimony of his Independent Medical Examiner, Dr. David Perloff, a cardiologist. Dr. Perloff testified that, based on "basically the only guideline that exists in an academic fashion to decide whether [a law enforcement officer] should be restricted from full duty or not ... someone who has a systolic pressure of 180 or above or diastolic blood pressure of 110 or above should be given appropriate work restrictions." He stated that he would have given Friesen work restrictions of no combat on February 12, 2019. Dr. Perloff further opined that Friesen suffered a disability that day as he was unable to perform his job duties and functions as a law enforcement officer because of his elevated blood pressure.
In his final order, the JCC found, and the E/C did not dispute, that (1) as a law enforcement officer, Friesen is a member of a protected class; (2) Friesen has a protected condition ( hypertension and/or heart disease ); and (3) Friesen successfully passed a pre-employment physical examination which failed to reveal any evidence of such condition. Ultimately, the JCC denied Friesen's petition because he failed to satisfy the required element of "disability," preventing him from enjoying the occupational causation presumption of section 112.18(1)(a), Florida Statutes (2019). The JCC explained, "[t]here is no evidence that [Friesen] was incapacitated, either totally or partially, from performing his employment. He was not taken off work, he was not sent to the hospital, and he was not given any work restrictions by the physician who actually saw him at the time in question."
The JCC found that Friesen was not disabled as a result of the hour-long evaluation at Dr. Gupta's office. Citing Jacksonville Sheriff's Office v. Shacklett , 15 So. 3d 859 (Fla. 1st DCA 2009), the JCC reasoned that "[d]etection and treatment of a condition always requires testing, medical evaluations, or some type of treatment, but these measures by themselves do not demonstrate disability." He further relied on Bivens v. City of Lakeland , 993 So. 2d 1100 (Fla. 1st DCA 2008) stating, "[i]f testing or treatment, standing alone, equaled disability, everyone would be disabled upon their first visit to a doctor's office." Friesen moved for rehearing and to vacate the final compensation order. He argued the JCC misinterpreted Shacklett , that he met the disability element because he was unable to work while being "held" in Dr. Gupta's office waiting room for the medication to take effect, and that being sent to the hospital or taken completely off work were not requirements for a finding of disability. Furthermore, Dr. Perloff's application of the nationally accepted work status standard (based on objective criteria) constituted evidence of work restriction.
The JCC rejected Friesen's arguments and denied the motion in a detailed order. In doing so, he agreed with Friesen that admission to the hospital or being taken off work were not required for a finding of disability but added, "at the very least a claimant must be restricted from work and incapable of performing his normal duties," which was not the case here. The JCC detailed:
This is no [different] than a claimant who presents to a hospital with chest pain or other symptoms and is "held" at the hospital for observation and testing, or even treatment. The claimant is not considered "disabled" while he is being "held" in the hospital, especially if he is not taken off work or given any work restrictions upon his release from the hospital. This is so even though, again, the claimant obviously "could not have worked" while he was in the hospital being tested or treated. No one can be in two places at one time, but that is not determinative.
The JCC dismissed Friesen's argument concerning Dr. Perloff's testimony, finding that his opinion that Friesen should have been restricted does not change the fact that he was not. His opinion was insufficient to establish the disability element, especially where Friesen continued working and performing his normal job duties. This appeal followed.
II. Analysis
To the extent our review involves questions of statutory interpretation, a de novo standard of review applies. See Lombardi v. S. Wine & Spirits , 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004). Otherwise, a competent, substantial evidence (CSE) standard of review applies. See Mylock v. Champion Int'l , 906 So. 2d 363, 365 (Fla. 1st DCA 2005).
On appeal, Friesen argues the JCC erred by: 1) concluding that there was no evidence that he was incapacitated, either totally or partially, from performing his employment; 2) misconstruing the law of disability as applicable to the heart-lung statute; 3) misinterpreting the testimony of Dr. Perloff and concluding that his opinion was a retroactive, speculative opinion which was contrary to the facts and, therefore, did not constitute CSE of an actual disability; and 4) ignoring the uncontroverted objective medical guidelines and facts establishing disability. We affirm the fourth issue without comment.
The first and second arguments on appeal present the consolidated question of whether Dr. Gupta's instruction for Friesen to wait in his office for the medication to take effect and lower his blood pressure rendered him "disabled" for the purposes of section 440.151(3). We answer in the negative.
The Meaning of "Disablement"
Given the stipulations of the parties, the applicability of the presumption under heart-lung statute is not in question. The issue before us is whether Friesen satisfied the requirements of section 440.151, namely and of relevance here, that he suffered "disablement." See § 440.151(3), Fla. Stat. (2019). The stipulated date of accident for the claim is February 12, 2019. Thus, the definition of "disablement" is dictated by the 2019 version of section 440.151(3). See City of Port Orange v. Sedacca , 953 So. 2d 727, 730 (Fla. 1st DCA 2007) ("Under workers’ compensation law, the statute in effect on the date of an employee's accident determines the employee's substantive rights."). Section 440.151(3) now instructs that "disablement" means "disability as described in s. 440.02(13)." Section 440.02(13) provides, " ‘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."
Caselaw in occupational disease claims is uniquely tethered to the specific facts of the case. That said, a deep dive into satisfaction of "disablement" under section 440.151(3) reveals nothing less than murky and unsettled precedent. Clarification, long overdue, is needed for context and uniform statutory application.
A. Pre-2003 Definition of "Disablement"
Until October 1, 2003, "disablement" was defined as follows:
Enacted in 1945, the occupational disease statute was originally numbered section 440.15-1, Florida Statutes. It was renumbered in 1947 as 440.151, Florida Statutes. From 1945 through its amendment in 2003, section 440.151(3) provided the same definition of "disablement."
Except as hereinafter otherwise provided in this section, "disablement" means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease; and "disability" means the state of being so incapacitated.
One of the first decisions to consider the term "disablement" arose in the context of a statute of limitations (SOL) analysis. In Sanders v. Florida State Board of Conservation , Sanders's duties as a conservation agent required exposure to the sun most of his workday. 5 F.C.R. 193, 193 (1963), cert. denied , Fla. State Bd. of Conservation v. Sanders , 155 So. 2d 551 (Fla. 1963). As a result, he developed skin cancer. Id. at 194. The issue on appeal was whether Sanders had given timely notice of injury to avoid the SOL from barring his claim. Id. at 194–95. As an occupational disease claim, the SOL was triggered when Sanders became disabled. Id. at 195. Although Sanders's duties were modified to accommodate his assigned restrictions of staying out of the sun, the Industrial Relations Commission (IRC) agreed with the deputy commissioner that Sanders was not "actually incapacitated" from performing his employment until he was sent home on sick leave. Id. at 194–95. The IRC declared that "[t]he condition or disease itself does not constitute disability. It is only when the condition results in a stoppage or loss of earnings that ‘disability’ begins; thus, the claim is not barred by the limitation period for filing claims." Id. at 195.
Then, in American Beryllium Company v. Stringer , 392 So. 2d 1294, 1296 (Fla. 1980), our supreme court announced, "[t]he disablement or death of an employee resulting from an occupational disease ... shall be treated as the happening of an injury by accident ...." (quoting § 440.151(1), Fla. Stat. (1969) ). And "it is the disability and not the disease which determines the compensability of a claim." Id. at 1296. The court affirmed the IRC's finding that the SOL began to run not at last injurious exposure but seven years later when Stringer was no longer able to work when a part of his left lung was removed. Id. Regarding when the SOL period was triggered, our supreme court reasoned;
We agree with the dissenting opinion of Commissioner Carroll that "(i)t cannot be assumed, in absence of a specific stipulation or evidence supporting such a fact finding, that the date of disablement from the dust disease coincided with the last injurious exposure or with the subsequent detection of the disease as opposed to occurring at some point in time later than the former but earlier than the latter."
Id. This quote becomes relevant in the discussion of the next case.
Sledge v. City of Fort Lauderdale , 497 So. 2d 1231 (Fla. 1st DCA 1986), was this Court's first occasion to address the disablement definition, albeit limited to a SOL context. The case presented a heart-lung claim fact pattern in which the claimant remained employed but began missing work. Sledge, a firefighter, suffered numerous episodes of heart palpitations. Id. at 1231. After each episode, the City paid for medical care and, on one occasion, paid indemnity benefits. Id. at 1231–32. Specific to the analysis of whether the SOL had run, this Court determined that Sledge was not disabled as he was still employed as a firefighter, and no evidence established that he was incapacitated in any manner from performing his duties due to his heart disease. Id. at 1233. Specifically, we held, "[d]isablement means the event upon which the employee becomes actually incapacitated, partially or totally, from performing his employment." Id. In reversing, we concluded that the SOL had not commenced to run. Id. Quoting Sanders , this Court found that the date of disability commences when the disease condition "results in a stoppage or loss of earning ...." Id. The case was remanded to allow the City to raise other defenses to entitlement to benefits. Id.
Because first responders under most employment agreements continue to receive full pay while out of work, satisfaction of disability under a pure loss of wages standard would rarely be satisfied. It is a common element of employment agreements with first responders to allow employees to use leave time to remain on full pay status and continue to accrue additional annual leave, sick leave, and seniority status. The agency/employer continues to fund the health insurance, and the workers’ compensation carrier reimburses the agency for amounts which would otherwise be paid to the employee. The goal is to maintain full pay status, if possible, for the employee.
We note the following excerpt from Sledge :
Disablement and the commencement of the running of the limitations period occurs when the disease condition ".... results in a stoppage or loss of earnings ...." See Sanders v. Florida State Board of Conservation, 5 F.C.R. 193, cert. denied, 155 So.2d 551 (Fla.1963), cited by Commissioner Carroll in his dissenting opinion in Stringer v. American Beryllium Co., IRC Order 2-3830 (June 1, 1979), which dissent was adopted by the Florida Supreme Court in its Stringer opinion. American Beryllium Co. v. Stringer, 392 So.2d at 1296.
Sledge , 497 So. 2d at 1233.
We acknowledge that our supreme court did not address loss of earnings in Stringer , 392 So. 2d at 1296. Instead, Stringer solely adopted a quote from Commissioner Carroll's dissent that the date of disablement coincides with the date of last injurious exposure or with detection of disease. Id.
In City of Mary Esther v. McArtor , 902 So. 2d 942 (Fla. 1st DCA 2005), this Court addressed satisfaction of disability in a non-SOL context. McArtor, a firefighter, suffered a series of heart attacks which occurred before and after a change in workers’ compensation carriers for the Employer. Id. at 943. Based on the dates of accident, the 2002 definition of "disability" applied. Id. The JCC was tasked with determining liability between carriers. Id. Relying on Sledge , the JCC determined that the second carrier was not liable during its coverage period because McArtor had received his full salary during his hospitalization and recovery and was, thus, not disabled. Id.
On appeal, we determined that the definition of "disability" relied upon by the JCC "created no problems under the facts involved in Sledge ," because Sledge "had not ‘become actually incapacitated in any manner, due to his heart disease, from performing his duties as a fireman.’ " Id. at 944 (quoting Sledge , 497 So. 2d at 1233 ). However, the definition was problematic in McArtor because it "leads to a result which is inconsistent with the statutory definition of disability and the purpose of the workers’ compensation system." Id. In reversing, this Court explained:
The JCC should have looked to the alternate definition of "disability" set out in Sledge : "Disablement means the event upon which the employee becomes actually incapacitated, partially or totally, from performing his employment." That definition more closely reflects the statutory concept of "disability." See § 440.02(13), Fla. Stat. (2003) (" ‘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.").
Id. (internal citations omitted) (quoting Sledge , 497 So. 2d at 1233 ) (emphasis added). Thus, the standard for disablement satisfaction was modified from a pure actual wage loss measurement as follows:
Determining whether a person is disabled for purposes of workers’ compensation turns upon the person's capacity to earn income, not upon the employer's decision [to] pay the injured person's salary while he or she is incapacitated. No dispute exists here that, during the periods in question, the claimant was incapable of performing his duties as fireman and, therefore, did not have the actual capacity to earn his wages as a fireman.
Id. (emphasis in original).
Yet, two years later, this Court, sitting en banc in Sedacca , 953 So. 2d 727, implicitly overturned McArtor , in part. Applying the pre-October 2003 version of section 440.151, the limited question on appeal in Sedacca was whether a firefighter's permanent impairment for hypertension, standing alone, constituted disability. Id. at 728–30. We answered the question in the negative and admonished the McArtor opinion's reliance on the definition of disability in section 440.02(13). We explained that "[w]e do not look beyond section 440.151 to define its relevant terms," explaining that "[t]his court has previously refused to incorporate other subsections of the Act to add to or supplement the clearly delineated requirements set forth in section 440.151." Id. at 729 (citing 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)).
In Sedacca , this Court declared, "[o]ur case law has consistently defined disablement as actual wage-loss. Since Claimant's hypertension has not resulted in wage-loss, he has not suffered disablement, thus, his hypertension is not covered under the Workers’ Compensation Act." Id. at 728. This Court held that section 440.151(3) ’s requirement that the claimant be " ‘actually incapacitated ... from performing his or her work,’ can logically only support a wage-loss requirement for disability." Id. at 730–31. Clearly, we found the disablement necessary to establish occupational disease was an incapacity to work that resulted in actual wage loss. Id. at 733.
Implicitly overruling McArtor's reliance on section 440.02(13), Sedacca recognized the portions of McArtor focusing on incapacity from "performing" his or her work. But, in final application Sedacca interpreted incapacity to perform as synonymous with actual wage loss—"To establish disablement, the claimant must suffer actual wage-loss because of an incapacity to perform his work as a consequence of his disease or medical condition." Id. at 734. Because Sedacca had not suffered any wage loss due to hypertension, we reversed the JCC's finding of compensability. Id. at 735.
We acknowledge the following footnote in Sedacca : "Effective October 1, 2003, the Legislature amended the statute to define ‘disablement’ to mean ‘disability’ as set forth in section 440.02(13). See § 440.151(3), Fla. Stat. (2003). The definition in section 440.02(13), expressly requires wage loss for disability." 953 So. 2d at 730, n.4. As the post-2003 definition of "disablement" was not at issue in Sedacca , this as dicta. This Court later interpreted the definition differently in Bivens v. City of Lakeland , 993 So. 2d 1100, 1103 (Fla. 1st DCA 2008) and Carney v. Sarasota County Sheriff's Office , 26 So. 3d 683 (Fla. 1st DCA 2009).
B. Post-2003 Definition of "Disablement"
As noted previously, effective October 1, 2003, the Legislature deleted the internal definition of "disablement" in section 440.151(3) and replaced it with the definition under section 440.02(13), Florida Statutes. Section 440.02(13) provides, " ‘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." Thus, the alternate definition of disability relied upon in McArtor , later implicitly overturned in Sedacca , became the applicable definition for disablement. See § 440.02(13).
The first appellate opinion to confront the amended version of section 440.151(3) was Bivens v. City of Lakeland , 993 So. 2d at 1100. Bivens raised a claim for compensability of his hypertension and microvascular angina (MVA). Id. at 1101. The issues on appeal were whether " essential hypertension" was covered by the presumption of section 112.18 and, if so, whether Bivens satisfied the requirement of "disablement." While on duty as a fire safety inspector, Bivens experienced chest pain, shortness of breath, and headaches. Id. at 1101. Medical tests, including a heart catheterization, showed he suffered from elevated blood pressure, an abnormal stress level, and, possibly, MVA. Id. Because the parties’ independent medical examiners disagreed, an expert medical advisor (EMA) was appointed. Id. at 1101–102. The EMA diagnosed Bivens with essential hypertension and MVA. Id. at 1102. The JCC denied compensability of the essential hypertension, finding it was not covered under the heart-lung statute, and this Court agreed. Id. at 1102. Regarding the MVA, the JCC found Bivens was entitled to the presumption in the heart-lung statute and that he had satisfied the disability requirement. Id.
The City cross-appealed the JCC's finding of compensability for the MVA, seeking review of whether Bivens satisfied disability under the amended definition. Id. at 1102. Reaching back to the reasoning in McArtor , the Bivens panel declared:
We have interpreted section 440.02(13) to mean that disability occurs only when "the employee becomes actually incapacitated, partially or totally, from performing his employment." City of Mary Esther v. McArtor , 902 So. 2d 942, 944 (Fla. 1st DCA 2005), quoting
Sledge v. City of Fort Lauderdale , 497 So. 2d 1231, 1233 (Fla. 1st DCA 1986). Thus, a finding of disability hinges solely on the employee's ability to earn income, not upon other factors such as whether the employee has experienced wage-loss. Id. at 944.; see also Sedacca , 953 So. 2d at 731 (addressing a prior version of chapter 440 and concluding "the statute requires a claimant actually be incapable of performing his work").
Id. at 1103. Thus, this Court declared that, under the amended definition, actual wage loss was not the sole consideration for satisfaction of "disability."
In reversing the JCC's award of compensability, this Court focused on the amended definition's mandate that the disability must be " because of the injury." In support of reversal, we found no evidence that Bivens's MVA affected his ability to work given that no work restrictions were ever assigned, and he was always able to perform his regular duties. Id. The EMA's testimony that it would have been reasonable in retrospect to restrict Bivens from work was disregarded, finding that "such a recommendation, given in hindsight, does not mean [Bivens] was incapable of performing his duties because of his condition. In fact, he was not." Id.
This Court determined that Bivens missing several days from work due to medical appointments also did not demonstrate disability, considering that Bivens's absences were so his condition could be diagnosed, not because it was a debilitating physical ailment. Id. This Court in Bivens declared that "[d]etection always requires testing, medical evaluations, or some type of treatment. These measures, by themselves, do not demonstrate disability." Id. We further opined that "[i]f testing or treatment, standing alone, equaled ‘disability,’ everyone would be disabled upon their first visit to a doctor's office." Id. "Claimant's MVA did not cause incapacity resulting in wage loss. Without such incapacity, Claimant cannot demonstrate disablement." Id.
A year after Bivens , we reiterated its holding in Jacksonville Sheriff's Office v. Shacklett , 15 So. 3d 859 (Fla. 1st DCA 2009). Shacklett, a law enforcement officer, was taken out of work pending a cardiac evaluation following a high blood pressure reading at an urgent care facility. Id. at 859. The cardiologist evaluation, occurring several weeks later, resulted in no findings of significant cardiac disease, with the cardiologist noting the claimant's prior diagnosis of mild hypertension. Id. at 860. Citing Bivens , this Court reversed the JCC's determination of compensability, finding no evidence that the hypertension itself incapacitated the claimant from work. Id. at 861.
The question of what evidence is required to satisfy section 440.02(13) ’s definition of disability was more directly answered in Carney v. Sarasota County Sheriff's Office , 26 So. 3d 683 (Fla. 1st DCA 2009). This Court addressed whether an overnight stay in the hospital for treatment of heart disease satisfied the disability requirement. Id. at 683. Due to complaints of fatigue and shortness of breath, Carney, a law enforcement officer, underwent testing with a Holter monitor. Id. After two days, the cardiologist's office contacted him and told him to come in as soon as possible due to an irregular heart rate. Id. Carney was admitted to the hospital and medications were successfully administered. Id. He was released the next day and returned to work without restriction on his next regularly scheduled shift, losing no wages for the portion of the day he missed when he was admitted to the hospital. Id.
The JCC found Carney had not shown disability and denied compensability of the claim. Id. at 684. Citing Bivens , the JCC concluded that "the mere fact claimant required hospitalization to control his heartbeat does not automatically equate to an incapacity to earn in the same or any other employment the wages which the employee was receiving at the time of injury." Id. She further concluded that absent any work restriction, Carney had failed to establish that his hospitalization satisfied the disability requirement, entitling him to the statutory presumption. Id.
This Court reversed the JCC's denial of compensability, explaining that a "finding of disability ‘hinges solely on the employee's ability to earn income, not upon other factors such as whether the employee has experienced wage-loss.’ " Id. at 684 (quoting Bivens , 993 So. 2d at 1103 ). We found Carney had satisfied the disability requirement, "because claimant, while hospitalized for treatment of his heart disease, was actually incapacitated, at least partially and temporarily, from earning ‘in the same or any other employment the wages which [he] was receiving at the time of the injury ....’ ’’ Id. at 685. Accordingly, disability could be satisfied by proof of a claimant's incapacity, because of the injury, to "earn" the wages being received during off work status. In further distinguishing Bivens , this Court emphasized that Carney was hospitalized for treatment of his heart condition, not merely for diagnostic purposes. Id. at 684 (emphasis added).
This Court also included a compare signal citation to Sedacca , 953 So. 2d 727, recognizing conflict and that a prior version of the statute was at issue. Carney, 26 So. 3d at 684.
This Court in Carney found that the JCC's reliance on Michels v. Orange County Fire/Rescue , 819 So. 2d 158 (Fla. 1st DCA 2002), and Sledge , 497 So. 2d at 1231, was misplaced for various reasons, including that both cases concerned a prior version of the statute. 26 So. 3d at 685.
Rocha v. City of Tampa , 100 So. 3d 138, 141 (Fla. 1st DCA 2012), presented the question of "whether a claimant can rely solely on medical work restrictions to prove disability for purposes of section 112.18 ...." Rocha, a firefighter, underwent a stress test during his annual physical, the results of which were abnormal. Id. at 140. The doctor restricted him to light duty work until cardiac evaluation. Id. A week later, Rocha underwent a cardiac assessment, and his medications were adjusted, and he was kept out of work for ten more days. Id. An EMA testified that it was reasonable to restrict Rocha's activities pending assessment by a cardiologist, but the JCC found that this did not equate to a finding that he was incapable of performing his duties due to his hypertension. Id. The JCC denied compensability, holding that the work restrictions were precautionary only and that Rocha had, therefore, failed to prove a period of disability. Id.
On appeal, Rocha argued that the work restrictions imposed by his doctor due to his already-diagnosed hypertension created a period of disability. Id. at 141. This Court acknowledged the gap in case law that Rocha's argument unveiled, stating:
Claimant's argument deftly highlights a gap in the current landscape of case law. Somewhere between the Bivens / Shacklett facts—where there were no medical work restrictions due to the covered condition—and the McArtor / Carney facts—where it was physically impossible for claimants to work during hospital treatment for the covered condition—there is space for a claimant whose body might retain the physical strength and coordination to perform his job duties for a time, but who has been officially advised by his doctor—via medical work restrictions—to forebear from engaging in his work so as to avoid potential further injury or death due to his tuberculosis
, heart disease, or hypertension. Rocha is such a claimant.
Id.
This Court concluded that Rocha met the definition of disability because his work restrictions were imposed "because of the injury" and created actual incapacity by interfering with his ability "to earn in the same or any other employment the wages which the employee was receiving at the time of the injury." Id. at 141–42. We reasoned that "[t]o hold otherwise would encourage such a claimant to ignore the advice of his doctor in fear that a panel of judges years hence might deem the work restrictions unwarranted" and would encroach on the doctor-patient relationship, among other violations. Id. at 142. Thus, the question on appeal was answered in the affirmative but with qualification—work restrictions may prove disability under section 440.151(3) (2009), if imposed "because of the injury" and create actual incapacity to earn. Id.
Lastly, in City of Jacksonville Fire and Rescue Department v. Battle , 148 So. 3d 795, 796–97 (Fla. 1st DCA 2014), this Court further distinguished Bivens in affirming a JCC's finding of compensability. Due to an abnormal stress test, Battle was "medically required to undergo catheterizationto treat and diagnose " his coronary artery disease (CAD). Id. at 796 (emphasis added). The catheterization confirmed that Battle indeed had CAD, but it did not result in any abnormal complications. Id. Battle was taken off work by a doctor for three days following the procedure so that he could recover. Id. Absent the catheterization, Battle ’s hypertension and CAD would not have prevented him from working. Id. The JCC granted compensability, analogizing the case to Rocha . Id. at 796–97.
On appeal, the City argued the case was controlled instead by Bivens . Id. at 797. This Court disagreed and explained:
We distinguish Bivens from the instant case, because in Bivens "no work restrictions were ever placed on Claimant when he was being evaluated or diagnosed with [ heart disease.]" In contrast, in the instant case there is medical evidence that Claimant was restricted from working because of catheterization, and that the catheterization was because of his hypertension and CAD, which is analogous to the facts in Rocha .
Id. (internal citations omitted). Battle clarified that if a diagnostic procedure is performed to treat a previously diagnosed, qualifying condition, even if partially for diagnostic purposes regarding a different condition, the resulting incapacity to earn may satisfy the required element of disablement.
Thus, for dates of accident post-2003, the requirement of "disablement" in section 440.151(1) and defined in 440.151(3), may be satisfied by proof of actual wage loss. However, it is not the sole determining factor. Recognizing that most first responders receive full wages during periods of missed work, disablement may also be proven by evidence that because of the injury, the claimant has experienced incapacity to earn "in the same or any other employment the wages which the claimant was receiving at the time of injury." See Bivens , 993 So. 2d at 1102 ; Shacklett , 15 So. 3d at 863; Carney , 26 So. 3d at 684. The period of incapacity must result from treatment for a qualifying condition and not testing for purely diagnostic purposes. See Carney , 26 So. 3d at 684. Work restrictions must be imposed because of the injury and such restriction(s) themselves must create the incapacity to earn. See Rocha , 100 So. 3d at 138. A period of off-work status or restricted duty resulting from a medical procedure may satisfy disability if such procedure constitutes, even in part, treatment for a previously diagnosed qualifying condition, even if portions of the procedure are diagnostic in nature. See Battle , 148 So. 3d at 795.
III. Conclusion
Applying section 440.151(3) (2019), we find no reversible error. No evidence was introduced that Friesen suffered actual wage loss. Alternatively, at no time was Friesen incapacitated because of the hypertension from earning his wages. During his evaluation with Dr. Gupta, he was asked to stay for ten to fifteen minutes to allow time for the adjusted medication to take effect and lower his blood pressure. Dr. Gupta did not assign medically necessary restrictions during or after the appointment, inclusive of the ten-to-fifteen-minute observation period. Following the appointment, Friesen immediately resumed his normal work duties.
Regarding Friesen's argument that Dr. Perloff's testimony of retroactive assignment of restrictions was uncontroverted and sufficient to support a finding of disability, we find no merit. Dr. Gupta's medical records confirm Friesen was not assigned work restrictions at his February 12, 2019, appointment, which is also the alleged date of accident. Furthermore, this Court has previously refused to rely on expert medical advisory testimony to establish disability where the recommendation was speculative and given in hindsight, finding that such a recommendation does not mean that a claimant was incapable of performing his duties. See Bivens , 993 So. 2d at 1103.
Accordingly, Friesen failed to prove disability as required by sections 440.151(1) and (3).
AFFIRMED .
Roberts and Nordby, JJ., concur.