Opinion
Case No. 1D09-0986.
Dates of Accidents: July 7, 2006; January 17, 2007; March 27, 2007.
Opinion filed November 24, 2009.
An appeal from an order of the Judge of Compensation Claims. Thomas W. Sculco, Judge.
Michael Clelland, Winter Park, and Bill McCabe, Longwood, for Appellant.
James R. Spears and John D.W. Beamer of Broussard, Cullen DeGailler, P.A., Orlando, for Appellees.
The Claimant challenges the Judge of Compensation Claims' (JCC's) ruling that he was not entitled to a presumption of compensation for the heart disease related disability he suffered while employed as a firefighter. We affirm. We write to clarify the difference between the section 633.35, Florida Statutes, "pre-certification" physical examination and the section 112.18, Florida Statutes, "pre-employment" physical examination.
Anyone who wishes to work as a firefighter in Florida must pass the section 633 "pre-certification" physical. By Contrast, the section 112 "pre-employment" physical is optional. If an employer chooses to exercise the section 112 option and the examination does not reveal any evidence of heart disease, a presumption of compensation is available to the claimant for the covered conditions.
Relevant Facts
In 1991, the Claimant received a certificate of compliance qualifying him for employment as a firefighter. This certification did not make him a firefighter, nor did it require him to become a firefighter. It simply qualified him to obtain employment as a firefighter. The physical examination he underwent as part of the firefighter certification process did not reveal any evidence of heart disease.
Claimant utilized his certification and became a firefighter. Over the course of his firefighting career, the Claimant held three separate firefighting jobs. He was employed by Seminole County, by the City of Oviedo, and again by Seminole County. Upon each job change, his prospective employer exercised their option and required him to submit to a physical examination. The results of the latest pre-employment examination revealed evidence of heart disease.
Between 2006 and early 2007, the Claimant suffered three heart related incidents, eventually resulting in disablement. At hearing, the Claimant argued that because the 1991 pre-certification physical examination revealed no signs of heart disease, he was entitled to the presumption that his disability was caused by his employment. The JCC rejected this argument, ruling that because the Claimant's latest pre-employment physical examination revealed evidence of heart disease pre-existing to employment, the section 112.18 presumption was not available to him.
The Section 633 Pre-Certification Physical Examination
Pursuant to section 633, Florida Statutes (2006), an individual will not be certified to seek employment as a firefighter until he proves he is in "good physical condition" and passes a pre-certification physical examination. See Fla. Stat. § 633.34 (2006) (providing any person "applying for employment as a firefighter" must "[b]e in good physical condition as determined by a medical examination"); see also Fla. Stat. § 633.35 (2006) (further providing an individual must pass a physical examination as a prerequisite to obtaining the certificate of compliance necessary to be eligible for employment as a firefighter). Section 633 lists the firefighter training and certification requirements as follows:
633.35. Firefighter training and certification
(1) The division shall establish a firefighter training program of not less than 360 hours, administered by such agencies and institutions as it approves for the purpose of providing basic employment training for firefighters. Nothing herein shall require a public employer to pay the cost of such training.
(2) The division shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an examination as prescribed by the division , and who possesses the qualifications for employment in s. 633.34, except s. 633.34(5).
(emphasis added).
The Section 112 Pre-Employment Physical Examination
According to section 112, an employer may require an applicant for a firefighter position to submit to a physical examination, even though already certified as a firefighter, "upon entering any such service as a firefighter." See Fla. Stat. § 112.18(1) (2006). If the firefighter passes the physical examination, showing no evidence of heart disease, he is entitled to the presumption that any heart disease related disability he suffers during that term of employment is compensable. Conversely, if the physical examination reveals evidence of a preexisting heart condition, he is not entitled to the presumption of compensation for any subsequent heart disease related disability. Id. Specifically, section 112.18(1) provides:
112.18. Firefighters and law enforcement or correctional officers; special provisions relative to disability
(1) Any condition or impairment of health of any Florida state . . . firefighter . . . caused by . . . heart disease . . . 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 firefighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. . . .
Statutory Interpretation
Proof that a claimant underwent a section 633 pre-certification examination that did not reveal signs of heart disease, in and of itself, has no bearing on whether he is entitled to the presumption of compensation in a subsequent compensation action. The section 633 examination is one of several hurdles all prospective firefighters must clear to qualify for a firefighter's certificate of compliance. Passing the examination and receiving the certificate does not guarantee that an individual will work as a firefighter, nor does it entitle the individual to the presumption that any heart disease related disability he may suffer is the result of being a certified firefighter. Put simply, whether an individual passes the section 633 examination means little more than he is one step closer to legally working as a firefighter.
Upon receiving the 633 certificate of compliance, prospective firefighters are eligible to seek employment provided they do not allow their certification to lapse. To retain this certification, an individual need only be listed as "active as a firefighter" or included on a fire department's roster as "a volunteer firefighter" once every three years. See Fla. Stat. § 633.352 (2006) (regarding retention of firefighter certification).
On the contrary, the section 112 physical examination sets forth a specific procedure by which employers and claimants alike can determine whether or not an employee will be entitled to a presumption of compensation should he suffer a heart related disability while employed. Section 112 states that if an individual takes a physical examination " upon entering any such service," and the examination reveals signs of heart disease, the individual is not entitled to the presumption that any subsequent heart disease related disability was caused by his employment.
The unambiguous, plain language of these two sections clearly indicates that an individual is only entitled to the presumption of compensation if, upon entry into a specific term of employment, he underwent a physical examination that revealed no evidence of heart disease.
This opinion does not address the parameters of what an employer may include in, or use as, a section 112 pre-employment physical. Nor does it prohibit an employer from affirmatively allowing a section 633 pre-certification examination to act as a pre-employment physical in those narrow circumstances where a firefighter starts his service shortly after becoming certified. To do so might be a cost effective option for the employer. However, a section 633 pre-certification examination, just by virtue of having occurred sometime before an individual started his career as a firefighter, does not per se qualify as a section 112 pre-employment physical.
Claimant's Argument
The Claimant argues that because he passed his section 633 pre-certification physical, he is entitled to the presumption that any heart disease related disability he suffers while his firefighter certification remains valid is a result of his employment as a firefighter. Of course, under this argument, all certified firefighters would virtually always be entitled to the presumption, and much of the language of section 112.18 is rendered meaningless.
Claimant's reasoning would also render meaningless the decisions in which this Court extended or denied the presumption of compensation based on whether or not an employee submitted to a section 112 physical "upon entering into service as a firefighter." In Cumbie v. City of Milton, we declined to extend the presumption where the claimant failed to undergo a pre-employment physical. 496 So. 2d 923, 924 (Fla. 1st DCA 1986). Specifically, we held that "a physical examination prior to receiving the benefit of employment is a reasonable requirement in order to determine if any of the conditions covered by the statute existed prior to employment." Id. Because the claimant in Cumbie did not undergo a section 112 examination "upon entering" employment with the employer he filed his petition for benefits against, we denied the claimant the presumption.Id.
In finding the Claimant's argument to be correct we would effectively overrule our decision in Cumbie. If the claimant in Cumbie had not passed his section 633 physical and had not received a certificate of compliance, he could not have legally been employed as a firefighter. Obviously, Cumbie would never have reached this Court had the claimant not passed a pre-certification physical and become licensed to legally work as a firefighter. Accordingly, our opinion about him not having had a pre-employment physical would be a nullity unless we were referring to a different, section 112, physical upon entering employment.
In City of Tarpon Springs v. Vaporis, this Court elaborated on the Cumbie analysis and held that claimants must take a section 112 examination "upon entering" employment to be eligible to receive the presumption; and, that the term "upon entering" could mean up to fifteen days after the term of employment begins. LikeCumbie, this case reinforces the JCC's position that a claimant must pass a physical examination prior to his employment to be eligible for the presumption.
Again, if our analysis in Vaporis was referring to the section 633 examination, it would have been futile to address how the phrase "upon entering" related to the timing of the examination. The claimant would have been unemployable had he not already passed the 633 examination and received a certificate of compliance before he applied for a firefighter position. Accordingly, the examination "upon entering" employment that this case analyzes could not have been anything other than a separate, section 112 "pre-employment" examination.
The common thread in Cumbie and Vaporis, as well as other cases from this court including Sledge v. City of Fort Lauderdale, 497 So. 2d 1231 (Fla. 1st DCA 1986) and City of Port Orange v. Sedacca, 953 So. 2d 727, 28-29 (Fla. 1st DCA 2007) is that our analysis of whether a claimant is entitled to the presumption focuses on the timing and results of the section 112 physical examination the claimant took "upon entering" employment with the employer against whom he filed a petition for benefits. None of the above cases refer to the section 633 pre-certification physical.
Conclusion
If, as the Claimant asserts, the 633 pre-certification physical examination is all that is necessary to entitle an employee to the presumption of compensation, there would be no reason to examine the timing of a pre-employment physical examination, as the results of the examination would be irrelevant to whether the employee was entitled to the presumption. Reading section 633 and section 112 in pari materia does not support an inference that the only medical examination required by law for firefighters is the pre-certification medical examination. Accordingly, we agree with the JCC's reading of section 112.18, and hold that a claimant seeking to rely on the statutory presumption therein must prove (1) he or she underwent a physical examination upon entering the period of employment during which the condition arises; and (2) the examination did not show any evidence of heart disease.
AFFIRMED. BENTON, J., CONCURS; WETHERELL, J., CONCURS WITH OPINION.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
I agree with the JCC and the majority that Claimant is not entitled to rely on the presumption in section 112.18(1) to establish that his heart disease related disability is compensable. I also agree that the pertinent physical for the statutory presumption is not the "pre-certification" physical required under chapter 633, but as I read the record and the briefs, that was not the issue framed by Claimant or decided by the JCC. Rather, the issue presented is whether the pertinent physical was the February 1993 physical that preceded Claimant's first employment as a firefighter or whether it was the April 1999 physical that preceded Claimant's current period of employment with Appellee Seminole County Fire/Rescue.
Claimant likely focused on his first "pre-employment" physical in February 1993 rather than his pre-certification physical in October 1990 because the pre-certification physical showed evidence of hypertension, whereas the February 1993 physical did not show any evidence of hypertension or heart disease. In light of the results of the October 1990 physical, even if we had determined that the pre-certification physical was the pertinent physical, the outcome of this case would have been the same.
I use this term merely as a short-hand reference and I recognize that it is somewhat of a misnomer in light of our opinion in City of Tarpon Springs v. Vaporis, 953 So. 2d 597 (Fla. 1st DCA 2007). However, unlike that case, there is no dispute here that the February 1993 and April 1999 physicals were completed by Claimant prior to him entering into the respective periods of service following the physicals.
Turning to the specific issue framed by Claimant, I agree with the JCC that interpreting section 112.18(1) to mean that the pertinent physical is the firefighter's first pre-employment physical would lead to absurd results. As pointed out by the JCC:
claimant's construction would require that the presumption apply for a firefighter that enters into service as a municipal firefighter with a clean physical in 1990, retires 6 months later, takes another job in the private sector, suffers 3 heart attacks and is diagnosed with massive heart damage, then applies for work again as a municipal firefighter, undergoes a physical that reveals heart disease, and then suffers another heart attack shortly after starting work. It is difficult to conceive that the legislature could have intended the presumption in Section 112.18 to apply in such circumstances. Moreover, such an interpretation could lead employing agencies to avoid hiring former firefighters that later developed heart disease, a result the legislature would not likely have intended. (Emphasis added).
Additionally, although I agree that section 112.18(1) should be construed in pari materia with section 633.34(5), that statute provides no support for Claimant's argument that "the only medical examination required by law for a firefighter is the precertification medical examination . . . which is taken upon entering into service as a firefighter." To the contrary, section 633.34(5) refers to both the pre-certification physical that is required "before an individual is eligible for admission into a firefighter training program,"see § 633.34(5), Fla. Stat. (last sentence), and the pre-employment physical that is required to determine whether a person "applying for employment as a firefighter" is "in good physical condition." Id. (first sentence).
Section 633.34(5), Florida Statutes (2006), provides:
Any person applying for employment as a firefighter must:
Thus, although a firefighter will likely have only one pre-certification physical, he may have multiple pre-employment physicals over the course of his career if he changes employers. Moreover, as recognized by the majority in footnote 2, an employer might choose to rely on the pre-certification physical (or a prior pre-employment physical) as proof of the firefighter-applicant's "good physical condition," but if the employer requires the firefighter-applicant to undergo a new pre-employment physical prior to entering into service with that employer, I agree that the new physical is the pertinent one for purposes of the presumption in section 112.18(1).
In this case, the pertinent physical is the April 1999 physical, and because that physical documented Claimant's prior history of heart problems and hypertension, the JCC correctly determined that Claimant was not entitled to rely on the presumption in section 112.18(1) to establish that his heart disease related disability was compensable. Therefore, I agree that the order on appeal should be affirmed.
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(5) Be in good physical condition as determined by a medical examination given by a physician, surgeon, or physician assistant licensed to practice in the state pursuant to chapter 458; an osteopathic physician, surgeon, or physician assistant licensed to practice in the state pursuant to chapter 459; or an advanced registered nurse practitioner licensed to practice in the state pursuant to chapter 464. Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Standard 1582. A medical examination evidencing good physical condition shall be submitted to the division, on a form as provided by rule, before an individual is eligible for admission into a firefighter training program as defined in s. 633.35.