The world of Florida workers' compensation seemed a bit unsteady this week. An opinion was published Wednesday, August 9, 2023, in North Collier Fire Control and Rescue District v. John Harlem, Case No. 1D21-17. This appeal was filed January 4, 2021 (947 days ago). It is a dispute about the causation of, the compensability of, an aneurysm. Such cardiovascular claims are particularly difficult to prove in Florida. They are referred to as "internal failure" claims. But in this instance and some others like it, the point is more about disproving the injury and its causation.
The Harlem opinion is about the "statutory presumption available to firefighters under section 112.18." This is colloquially referred to as the "heart/lung bill," and entitles some classes of Florida workers to a presumption of causation. They are referred to collectively as "first responders," including firefighters, police, and others. Because of the presumption, it is up to the employer in such claims to either acquiesce in the claim or to disprove (overcome) the presumption.
This opinion from the court is interesting on several levels and is recommended reading. There is education here on that specific presumption, statutory interpretation, stare decisis, appellate process, and the role of appellate courts in Florida. There is a significant volume to unpack in both the majority opinion and the lengthy dissent.
The majority opinion is focused on the plain meaning of words. The diagnosis was of "a thoracic aortic aneurysm" for which surgery and some work absence were required. The majority noted that there was no medical evidence to support that this was work-related. The worker "leaned exclusively on the occupational-causation presumption."
That is how presumptions work. They are a method for assigning responsibility or "burden." In a criminal case, the defendant is "presumed innocent." If the state overcomes that, then it proves guilt. In workers' compensation, it is generally the worker that must prove entitlement to benefits. The presumption merely reverses that, and the worker prevails unless the employer disproves causation and compensability.
The trial judge concluded that this was a "heart disease" and on that foundation concluded the worker was entitled to that presumption. That was a legal conclusion, an interpretation of the statute. On that basis, the judge concluded the injury compensable in the absence of sufficient rebuttal evidence from the employer.
The majority focused on the word heart and differentiated it from the rest of the vascular system (peripheral). The "issue is whether the legal definition of heart disease in section 112.18 includes a thoracic or ascending aortic aneurysm.” In that, the judge "relied almost entirely on (the) court’s decision in City of Venice v. Van Dyke, 46 So. 3d 115 (Fla. 1st DCA 2010)." In that, the court noted, it had concluded the aorta to be part of the heart based on a diagram in a medical dictionary.
That is an interesting point. The evidence in a previous case had been perceived as sufficient to establish a diagnosis was in fact "heart disease." The evidence in this case was not seemingly centered on such proof, but on the legal interpretation of those words. The dissent is critical of "heart disease" being a judicial determination rather than medical, but seemingly contends that the judge's interpretation in Harlem should be affirmed despite the absence of medical evidence in this case on characterizing the aorta and definition.
The majority laments the degree of "factual detail" in that precedent. But, the court there did find “thoracic aortic disease” entitled to the presumption. This was based on a medical dictionary. The majority in Harlem, however, was not persuaded. The majority was critical of the Van Dyke court's foray into the illustrations included in the dictionary, which it labeled as "not an effective interpretative approach." The majority explained that "a dictionary’s usefulness in gleaning what a word or term means stems from the definitions (rather than any illustrations) that it provides."
The court explained illustrations are "imprecise by nature," and it suggested that interpreting diagrams or pictures "will be quite subjective." Significant explanation is provided regarding the diagrams in this instance. One might suggest that the diagrams are essentially dissected in a legal post-mortem.
The majority explained the precedent of Van Dyke, and noted that its holding was intended to be "narrow and limited." It quoted the opinion and that court's careful limitation to particular facts. whether a decision is limited to its facts or is a broad interpretation can be of critical importance to the community as regards predictability and stare decisis. The majority in Harlem concluded that the aorta is not "a structure of the heart," and thus a disease of the aorta is not definitively "heart disease."
It is critical that two distinct processes are illustrated. In Van Dyke, a factual conclusion of "heart disease" founded on medical evidence, including opinion. In Harlem, a legal conclusion of "heart disease" essentially on the foundation that the court so concluded on the medical evidence in Van Dyke. Thus, Harlem could be viewed as requiring a first responder to prove "heart disease," a burden beyond labeling a diagnosis, in order to be afforded the presumption.
The opinion is detailed and interesting. It includes citations to Mr. Justice Scalia and Oliver Wendell Holmes and references an Egyptian princess that lived centuries before Christ. There is a variety of citations to both legal and medical works. There is something here to interest nearly anyone.
The opinion was not unanimous. The dissent took issue with the majority's departure from Van Dyke. It noted that the Florida Supreme Court had engaged a similar analysis. It harkens back to the days of my youth, and the court's disagreement with my analysis in City of Mary Esther v. McArtor, 902 So. 2d 942 (Fla. 1st DCA 2005). And it dives similarly into definitions and words with some reliance on a different dictionary.
The dissent stresses that Van Dyke was a unanimous panel of three judges. The dissent notes that the court has "expressly rejected the attempt to limit 'heart disease' to what the E/C there described as the 'actual heart.'” On this point, the dissent stresses, there should be medical evidence and not legal analysis. Whether a structure or a malady is of the "heart" or ""heart disease" is an issue for the experts in medicine according to the dissent. That is interesting and worthy of contemplation.
If there is to be a detour from, or around, the precedent in Van Dyke, the dissent argues that such a detour must be better explained. It alleges that the majority disregards that precedent here "without acknowledgment or justification."
The dissent notes that Van Dyke has been followed. And there are citations to appellate opinions in support of that contention. Tiburcio v. Hillsborough County. Sheriff's Office/Comm. Risk Mgt., 347 So. 3d 59 (Fla. 1st DCA 2022); McDonald v. City of Jacksonville, 286 So. 3d 792 (Fla. 1st DCA 2019); and Talpesh v. Village of Royal Palm Beach, 994 So. 2d 353 (Fla. 1st DCA 2008). That a court has followed precedent in other instances may be of import.
The dissent notes that various trial judges have followed Van Dyke (which the court has reminded is the trial judge's role). Those decisions, the dissent notes, were based upon medical opinions, which are less prevalent in Harlem. The case is made that each time the trial judge followed Van Dyke that decision was appropriate and correct as "these cases were not appealed."
That trial judges followed a court interpretation is not very revealing. That is what trial judges are told to do. The Florida Supreme Court has been clear that an appellate decision without written opinion, a "per curium" affirmation is of no precedential value. Dep't of Legal Affs. v. Dist. Ct. of Appeal, 5th Dist., 434 So. 2d 310 (Fla. 1983). It is difficult to find precedential value conversely in cases that were not even per curiam affirmed, that were not even reviewed by the appellate court.
The dissent also delves into the Rules of Appellate Procedure, and the internal operating procedures of the court. There is discussion of the need for consistency, the value of predictability, and importance of precedent (stare decisis). There is discussion of the exclusive jurisdiction of the First District regarding workers' compensation, the purpose and procedure for en banc review, and the standard of "exceptional importance."
The dissent suggests that en banc can be a "time-consuming and possibly contentious group decision-making process." Though not cited by the majority or dissent, there is more edification on the en banc process in Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006). That one is also quite an intriguing read with multiple concurring and dissenting opinions.
There are different perspectives displayed in these two opinions (majority and dissent). There is much to be learned from review, analysis, and discussion of the court's two opinions. As the community of workers' compensation ventures back to Orlando for WCI 2023 on August 20, there is a probability Harlem will be on tongues. Not perhaps because of the limited topic of "heart disease," which impacts primarily municipalities and other government employers, but because of the detail it provides as regards appellate process, en banc proceedings, and legal analysis writ large.
