To qualify as compensable under the heart-lung statute, the claimant must show “disability.”

The claimant, a law-enforcement officer, was hired in 2004 after undergoing a pre-employment physical. In 2008, he sought care with his primary care physician and was diagnosed with hypertension. He did not pursue a workers’ compensation claim at the time and no paperwork was completed.

In early 2019, he again sought treatment with a personal doctor and then alerted the employer. The employer/carrier agreed to pay and investigate under the 120-day rule. The claimant was authorized to treat with a cardiologist for evaluation and was diagnosed with uncontrolled hypertension and obesity. His medication was adjusted and an EKG was recommended. The authorized treating physician did not take the claimant out of work or assign any work restrictions. He presented for the EKG appointment at 11 AM, and he continued his regular working day immediately after the one-hour appointment concluded. Again, his medication was adjusted, but no work restrictions were assigned. During this time, he continued to report family issues, concerns over his blood pressure and stress related to work. He took a few vacation days, followed by two regular days off before returning to work at full-time and full duty.

The employer/carrier issued a notice of denial, asserting that his hypertension was not accompanied by disability and, therefore, not compensable. The claimant filed a petition for benefits and asserted “disabling arterial and cardiovascular, hypertension, and/or heart disease.”

At a final hearing, the claimant relied on his IME physician, a cardiologist, who essentially testified that the claimant should have been given restrictions.

The judge found that the claimant was not disabled as a result of the hour-long evaluation at the doctor’s office, pointing out that he had not been taken off work, was not sent to the hospital, and was not given any restrictions by the physician who actually saw him at the time in question. Therefore, the judge denied compensability.

On appeal, the court paid special attention to the claimant’s argument that having to wait in the authorized doctor’s office for medication to take affect and lower his blood pressure rendered him “disabled" for the purposes of section 440.151 (3). The appellate court disagreed with the claimant, and did a deep dive into the meaning of “disablement” and analyzed the case law before and after the 2003 changes. They agreed the case law was “murky” and that the issue deserved clarification.

Section 440.151(3) now instructs that “disablement" means disability as described in section 440.02(13), which states: “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.” The First District Court of Appeal held that no evidence was introduced showing the claimant suffered actual wage loss and at no time was he incapacitated from earning his wages because of the hypertension. Further, they refused to rely on the claimant’s expert because his opinion regarding work status was speculative and holding that such a recommendation does not mean the claimant was incapable of performing his duties.

_{What’s Hot in Workers’ Comp, Vol. 27, No. 8, August 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}