Opinion
Case No. 1D10-3888.
Opinion filed March 16, 2011.
An appeal from an order of the Judge of Compensation Claims. Stephen L. Rosen, Judge.
Date of Accident: June 25, 2008.
Richard M. Stoudemire of Saalfield, Shad, Jay, Stokes, and Inclan, P.A., Jacksonville, for Appellants.
Kelli Biferie Hastings of Bichler Kelley, P.A., Maitland, and John J. Schickel, Jacksonville, for Appellee.
The Employer/Carrier raises two issues in this workers' compensation appeal, contending the Judge of Compensation Claims erred in concluding the presumption found in section 112.18(1), Florida Statutes (2007), applies to Claimant's hypertension, and in ordering the Employer/Carrier to reimburse Claimant for out-of-pocket medical expenses. We affirm as to the first issue without further comment.
We reverse as to the second issue because Claimant did not file a petition for benefits seeking reimbursement for out-of-pocket medical expenses, and the Judge of Compensation Claims' finding that the E/C stipulated to determination of the issue is not supported by competent substantial evidence. Due process bars a ruling on matters not at issue because the parties are entitled to notice in order to fairly present their case. See Specialty Risk Servs. v. Fleming, 875 So. 2d 742 (Fla. 1st DCA 2004); Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912, 915 (Fla. 1st DCA 1999); Lakeside Baptist Church v. Jones, 714 So. 2d 1188, 1190 (Fla. 1st DCA 1998).
AFFIRMED in part; REVERSED in part.
BENTON, C.J., and PADOVANO, J., CONCUR. WETHERELL, J., CONCURS SPECIALLY WITH OPINION.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
I agree with the majority's disposition of this case. In my view, the first issue raised by the E/C 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 compensability 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, notwithstanding this omission, the E/C will be responsible for the treatment of Claimant's hypertension under the 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 framed by the E/C, does not present a basis for reversal, I agree that the issue should be affirmed.
The initial brief framed the issue as whether the JCC erred in determining that Claimant's heart condition and hypertension were compensable. 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."