                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

LEON SMITH,                             NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-4409

CITY OF DAYTONA BEACH
POLICE DEPT./CITY OF
DAYTONA BEACH RISK
MANAGEMENT,

      Appellees.

_____________________________/

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.

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.


RAY, J.

      In this workers’ compensation matter, Claimant, a law 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.

                                         I.

      Claimant began working as a police officer for the City of Daytona Beach

(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.

      Claimant did not file a petition for benefits relating to his heart condition

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

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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.

      In 2012, Claimant suffered another period of disability related to his heart

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 appeal.

      Claimant argues that the JCC erred in holding that his petition for benefits

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




                                           3
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.

                                         II.

      Claimant’s heart disease is claimed to be compensable under the

occupational 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.”).

      Although it is correct to focus on the date of disability in determining

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

                                         4
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 disability).

      In contrast to Jones and Michels, in the case currently before 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.


∗
   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
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                                        III.

         Both the law and competent substantial evidence support the JCC’s

conclusion 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 without

merit.

         AFFIRMED.

WOLF and PADOVANO, JJ., CONCUR.




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.
1st DCA 1995).
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