Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1615 _____________________________ PALM BEACH COUNTY FIRE RESCUE and PREFERRED GOVERNMENTAL CLAIMS SOLUTIONS, Appellants, v. ANDREW WILKES, Appellee. _____________________________ On appeal from an order of the Judge of Compensation Claims. Carol J. Stephenson, Judge. Date of Accident: May 30, 2019. December 14, 2020 PER CURIAM. In this workers’ compensation case, the Employer/Servicing Agent (E/SA) appeal the Judge of Compensation Claims’ (JCC’s) order awarding Mr. Wilkes (Claimant) payment of indemnity benefits under section 112.1815(5), Florida Statutes (2018). This statute provides that post-traumatic stress disorder (PTSD) suffered by a first responder as a result of a qualifying event is a compensable occupational disease. On appeal, the E/SA argue, and we agree, that the JCC misconstrued the statute to find that Claimant filed timely notice of claim under this provision. For this reason, we reverse the order below and find it unnecessary to address the E/SA’s alternate argument that the JCC also erred by applying the statute retroactively. I In section 112.1815 (effective October 1, 2018), the Florida Legislature enacted special provisions for accidents and injuries suffered by first responders, including paramedics and emergency medical technicians. Among other things, this statute states that PTSD for first responders is a compensable occupational disease within the meaning of section 440.151, Florida Statutes. See § 112.1815(5)(a), Fla. Stat. (2018). In contrast to other provisions in workers’ compensation law, this section establishes entitlement to indemnity benefits for this psychological or mental disorder without evidence of an accompanying physical injury. See, e.g., § 112.1815(2)(a)3., Fla. Stat. (2018) (providing medical benefits only to first responders suffering from mental or nervous injury in absence of physical injury); § 440.093, Fla. Stat. (2018) (providing, generally, that mental or nervous injuries in absence of physical injury are not compensable). But the PTSD must result from one of the eleven qualifying events listed in section 112.1815(5)(a)2.a.- k. In accordance with the statute, the time for filing notice of injury or death for compensable PTSD suffered by a first responder under this section “is the same as in s. 440.151(6) and is measured from one of the qualifying events listed in subparagraph (a)2. or the manifestation of the disorder, whichever is later.” § 112.1815(5)(d), Fla. Stat. (2018). In addition, “[a] claim under this subsection must be properly noticed within 52 weeks after the qualifying event.” Id. II The relevant facts here are not in dispute. In 2015, Claimant was working as a first responder for the Employer when he witnessed the rescue of a young boy who drowned. He continued to work over the next few years, but experienced problems with distractedness, anxiety, and depression. In April or May of 2019, 2 he went underwater diving with friends. Sometime afterward, he had a dream that the drowned boy was his own son. At the end of May 2019, he was diagnosed with PTSD for which, according to medical opinion, the 2015 incident was the precipitating cause. Effective May 30, 2019, Claimant was placed on sick leave. On August 5, 2019, he filed a petition for benefits (PFB) claiming entitlement to indemnity benefits under section 112.1815(5). The E/SA raised various defenses including late reporting and notice of claim. In the appealed order, the JCC found that (1) the 2015 drowning incident meets the criteria of a qualifying event; 1 (2) as a result of this qualifying event, Claimant suffers from PTSD; (3) the symptoms of PTSD manifested as of May 30, 2019; and (4) Claimant’s date of disablement from the PTSD is also May 30, 2019. Using this May 30, 2019, date of manifestation and the date of disablement as the applicable benchmark, the JCC found that Claimant timely filed notice of the injury under section 112.1815(5)(d). Using this same date, the JCC also found that the claim was timely “as it was filed within 52 weeks of the manifestation.” III On appeal, the E/SA do not challenge the JCC’s findings of fact or her determination that the notice of injury was timely. Instead, the E/SA argue that the JCC misinterpreted the statute when she found that the claim was timely noticed under section 112.1815(5)(d) based on the date of the PTSD manifestation. Our review of the application of the law to undisputed facts is de novo. See, e.g., Goding v. City of Boca Raton, 121 So. 3d 1117, 118 (Fla. 1st DCA 2013) (citing Braun v. Brevard Cty., 44 So. 3d 1216, 1217 (Fla. 1st DCA 2010)). To the extent that statutory construction is necessary, our review is also de novo. See Lombardi 1 The list of qualifying events includes attendance at injuries resulting in the death of a minor. See § 112.1815(5)(a)2.a.- e., Fla. Stat. (2018). 3 v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004) (holding statutory interpretation is subject to de novo review). In analyzing a statutory provision, courts must first look to the plain language of the statute. See, e.g., Sanders v. City of Orlando, 997 So. 2d 1089, 1094-95 (Fla. 2008) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” (quoting A.R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))). Here, subsection 112.1815(5)(d) plainly states that a claim under this section must be properly noticed within 52 weeks of the qualifying event. Based on this plain statutory language, the JCC erred when she found that the claim was timely because it was filed within 52 weeks of the date of the manifestation of Claimant’s PTSD symptoms. Claimant contends that the JCC’s interpretation is correct because the PTSD manifestation itself is a qualifying event. But section 112.1815(5)(a)2. lists only eleven very particular events that constitute qualifying events and the manifestation of PTSD symptoms is not among them. Furthermore, the notice of injury requirement set forth in the first sentence of section 112.1815(5)(d) expressly distinguishes between the occurrence of the qualifying event and that of the manifestation. It simply makes no sense to find that the Florida Legislature abandoned this unambiguous distinction in the very next sentence concerning the notice of claim requirement. Claimant also argues that the plain statutory language should not control because the notice of claim requirement is ambiguous when read in pari materia with the rest of section 112.1815 and the occupational disease provisions of section 440.151. He correctly points out that an occupational disease injury under section 440.151 is not compensable unless there is a period of disability and that this initial date of disability establishes the date of accident. This Court previously held that, in cases of occupational disease under section 440.151, the date of disablement or death establishes the date of injury by accident which commences the running of the statute of limitations (SOL) under section 440.19 4 (providing that PFB is barred unless filed within two years of injury and that the time may be tolled for one year by the provision of benefits). See Sledge v. City of Fort Lauderdale, 497 So. 2d 1231, 1232 (citing Am. Beryllium Co. v. Stringer, 392 So. 2d 1294, 1295- 96 (Fla. 1980)); see also Hoppe v. City of Lakeland, 691 So. 2d 585, 586-87 (Fla. 1st DCA 1997). Of course, the SOL under section 440.19 is not the issue here. Claimant asserts nevertheless that the date of disablement must be a function of the time limitations under section 112.1815(5)(d) for a notice of claim despite the absence of any mention of disability. 2 Assuming, without deciding, that proof of disability is a requirement for a compensable PTSD claim under section 112.1815(5), a first responder PTSD claim will not accrue until the PTSD manifests and results in disability. Although a SOL will not apply until a cause of action accrues, the same is not true for a statute of repose. As the Florida Supreme Court explained in Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 695 (Fla. 2015): [In contrast to statutes of limitation], statutes of repose “bar actions by setting a time limit within which an action must be filed as measured from a specified act, after which time the cause of action extinguished.” Merkle [v. Robinson], 737 So. 2d [540,] 542 n. 6 [(Fla. 1999)] (citing Kush [v. Lloyd], 616 So. 2d [415,] 418 [(Fla. 1992)]; see also Carr v. Broward Cnty., 505 So. 2d 568, 570 (Fla. 4th DCA 1987) (“The period of time established by a statute of repose commences to run from the date of an event specified in the statute. . . . At the end of the time period the cause of action ceases to exist.”), approved, 541 So. 2d 92 (Fla. 1989). “[T]he statute of repose may be constitutionally applied to bar claims even when the cause of action does not accrue until after the period of 2 The JCC here relied on the date of the PTSD manifestation to find the notice of claim was timely made, but her findings of fact included that date of manifestation and date of disablement were both May 30, 2019. Thus, the result here would be the same if the date of disablement controls. 5 repose has expired.” Damiano v. McDaniel, 689 So. 2d 1059, 1060 (Fla. 1997). Although its effect may be to eliminate a cause of action before it accrues, a statute of repose is not unconstitutional as a denial of equal protection, due process, or access to courts. See, e.g., Doe v. Shands Teaching Hosp. and Clinics, Inc., 614 So. 2d 1170, 1171 (Fla. 1st DCA 1993) (citing Pullum v. Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985)). Here, we find that the time requirement for a notice of claim under section 112.1815(5)(d) operates as a statute of repose. Furthermore, the Florida Legislature unambiguously chose the qualifying event date as the measuring point for filing a timely claim, and there is no evidence of any contrary legislative intent. The Legislature is presumed to know the law and obviously could have chosen the date of disablement—or some other date—as the starting point for noticing a claim under the first responder statute, but it did not. And because the language of the statutory filing requirement for a claim is plain and unambiguous, the rules of statutory construction simply do not come into play to suggest any other meaning other than the time for filing the claim here expired fifty-two weeks after the 2015 qualifying event. IV In sum, Claimant did not notice his claim within 52 weeks of the qualifying event, as required by the statute’s plain language. As a result, the JCC erred when she ruled that the claim was timely filed under section 112.1815(5)(d) and awarded indemnity benefits. In light of the untimely notice of claim, we do not reach the E/SA’s argument concerning any retroactive application of the statute. The order below is REVERSED accordingly. ROBERTS, OSTERHAUS, and JAY, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michele E. Ready, of Walton Lantaff Schroeder & Carson LLP, Miami, and Stephen G. Kaufer of Walton Lantaff Schroeder & Carson LLP, West Palm Beach, for Appellants. Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, for Appellee. 7