Opinion
1D21-17
08-09-2023
North Collier Fire Control and Rescue District and PGCS, Appellants, v. John David Harlem, Appellee.
George A. Helm III and George W. Boring III of George A. Helm III, P.A., Lake Mary, for Appellants. Bill McCabe of William J. McCabe, P.A., Longwood; and Tonya A. Oliver and Aimee Gartland of Oliver &Fox, P.A., Tampa, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
Date of Accident: June 14, 2018.
On appeal from an order of the Office of the Judges of Compensation Claims. Jack Adam Weiss, Judge.
George A. Helm III and George W. Boring III of George A. Helm III, P.A., Lake Mary, for Appellants.
Bill McCabe of William J. McCabe, P.A., Longwood; and Tonya A. Oliver and Aimee Gartland of Oliver &Fox, P.A., Tampa, for Appellee.
TANENBAUM, J.
Before us for review is a final compensation order determining that the appellee's thoracic aortic aneurysm is compensable under the Workers' Compensation Law. The determination was based on a conclusion that the aneurysm constituted "heart disease," which led to an application of the statutory presumption available to firefighters under section 112.18, Florida Statutes. Our reasoning for why the order must be vacated follows from here.
Preface
John Harlem is a firefighter with North Collier Fire Control and Rescue District. In April 2018, medical tests revealed that Harlem had a thoracic aortic aneurysm, a life-threatening condition if left untreated. He underwent surgery on June 14, 2018, to resolve the aneurysm. The parties seem to agree that the surgery inhibited Harlem's ability to work from the date of his surgery through a relatively short period of post-operative recovery and that the aneurysm precipitated the surgery. Harlem indisputably suffered lost wages and medical bills as a result of the aneurysm and the surgery needed to correct it. He sought workers' compensation benefits to cover those losses. See §§ 440.09(1), 440.13(2)(a), 440.15, Fla. Stat.
As he must, Harlem asserted that his work was the root cause of all this. To support this contention, Harlem leaned exclusively on the occupational-causation presumption found in section 112.18, Florida Statutes. Under that provision, a firefighter's "condition or impairment of health," resulting in a disability, is "presumed to [be] accidental and to have been suffered in the line of duty," if the condition or impairment is "caused by tuberculosis, heart disease, or hypertension." Id. (emphasis supplied). Harlem's position before the judge of compensation claims ("JCC") during the final evidentiary hearing was, in turn, a narrow one: The aneurysm was "heart disease," as that term is used in section 112.18, so his work as a firefighter was presumed to be the cause of his need for medical treatment and the temporary disablement that followed. Harlem did not present any evidence as to occupational causation of the aneurysm; in fact, there was no evidence at all regarding the cause of it. The JCC concluded that Harlem's thoracic aortic aneurysm fit within the meaning of "heart disease," applied the presumption as to causation, rejected the employer's effort to rebut the presumption, and found the aortic aneurysm compensable. The employer's main contention on appeal is that under the circumstances of this case (viz., where the surgery did not involve replacement of the aortic valve, which controls blood flow exiting from the ventricle into the aorta), the aneurysm did not constitute heart disease, so the presumption did not apply. We agree and vacate the final compensation order.
Harlem's claim was based on an occupational disease, not a workplace accident that caused injury. See Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986) (concluding that a "claim for heart disease is a claim for an occupational disease rather than an accident by injury"); see also § 440.151(2), Fla. Stat. (defining "occupational disease as "a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment"). The parties stipulated that the June 14, 2018, surgery to resolve the aneurysm caused Harlem's disablement, so that day became the date of accident for the purpose of his claim. See § 440.151(1)(a), Fla. Stat. (providing that "the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident"); cf. Am. Beryllium Co. v. Stringer, 392 So.2d 1294, 1296 (Fla. 1980); Sledge, 497 So.2d at 1233.
Once an employee presents evidence that demonstrates entitlement to the presumption, the burden of proof shifts to the employer to negate occupation causation. Cf. Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 58 (Fla. 2012) (explaining that a presumption "affect[s] the burden of proof" where the statute establishing the presumption is a "clear expression[] of social policy, such as protecting police and firefighters"). To rebut the presumption in section 112.18, the employer must prove "that the disease causing disability or death was caused by a specific, nonwork related event or exposure." Caldwell v. Div. of Ret., Fla. Dep't of Admin., 372 So.2d 438, 441 (Fla. 1979).
The employer also takes issue with the JCC's conclusion that it failed to meet its burden of proof to rebut the presumption. Given our disposition here on the employer's "heart disease" argument, we do not need to reach the proof issue.
I
The JCC treated the question before him as a purely legal one: "The issue is whether the legal definition of heart disease in section 112.18 includes a thoracic or ascending aortic aneurysm." He then relied almost entirely on this court's decision in City of Venice v. Van Dyke, 46 So.3d 115 (Fla. 1st DCA 2010), in which the panel surmised that "the ascending aorta is one of the structures of the heart," based on a diagram labeled "Structures of the Heart" from the 29th edition of DORLAND'S ILLUSTRATED MEDICAL DICTIONARY. Based on that assessment, the JCC determined that Harlem's aortic aneurysm must be heart disease under the statute.
We understand how the JCC may have read Van Dyke the way he did. When we look to the original meaning of "heart disease" at the time the term was included in the statute, however, we conclude that Van Dyke necessarily is limited to its facts. Let us, though, first address that decision a little more, before we get to the original meaning analysis.
Although the panel in Van Dyke did not give us much factual detail, we know that the claimant had open-heart-surgery to treat his "thoracic aortic disease," and he sought benefits based on the theory that his aortic disease was "heart disease" for the purpose of invoking the presumption of work causation found at section 112.18. See Van Dyke, 46 So.3d at 115. Among other things, the surgery involved "re-implantation of the aortic valve" and "reattachment of the coronary arteries." Id. The panel, in trying to assess the meaning of "heart disease" in the statute, first looked at the medical dictionary definition (mentioned above): "any organic, mechanical, or functional abnormality of the heart, its structures, or the coronary arteries." Id. at 116 (emphasis supplied) (quoting DORLAND'S). According to the panel, the aorta appeared in the diagram labeled as showing heart structures, so it assumed- without further analysis-that that meant the aorta is a "structure of the heart" for the purpose of fitting it into the definition of "heart disease."
We do not read Van Dyke as being firm on this approach to defining "heart disease." Indeed, the panel's venture there into visual interpretation was not at all necessary to its ultimate disposition. Cf. Pell v. State, 122 So. 110, 112 (Fla. 1929) (noting that a "suggestion" in an opinion may be "more or less apposite to the point being discussed" and still not be "essential to the decision in that case, and hence mere obiter dictum and without force as a precedent"); State ex rel. Biscayne Kennel Club v. Dep't of Bus. Regul., 276 So.2d 823, 826 (Fla. 1973) (noting that a statement of the district court of appeal in an opinion that is "not essential to the decision of that court . . . is without force as precedent"). On this point, we note that the use of a dictionary illustration to define a statutory term is not an effective interpretative approach for appellate purposes, which leads us to believe that the panel made the reference to the illustration in DORLAND'S as an aside or as context for the analysis that follows. Indeed, a dictionary's usefulness in gleaning what a word or term means stems from the definitions (rather than any illustrations) that it provides. Cf. ANTONIN SCALIA &BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 70-71 (2012) (discussing the role that "dictionary definitions" play in ascertaining the ordinary meaning of words); id. 415-24 (discussing the importance of "definitions," as the core "work of professional lexicographers," to determining the meaning of a word "at a given time").
Contrast a dictionary definition with an illustration or diagram. As with art, a visual depiction of a definition on its own will be more imprecise by nature, because a reader's interpretation of what he or she sees will be quite subjective. Take the illustrations that the panel in Van Dyke was looking at:
(Image Omitted)
When we look at what has been labeled "Plate 20-Structures of the Heart," we see the aortic arch, but it appears to be there for relative orientation. The "structures" seem to be those parts intrinsic to the heart muscle itself, as shown in the two "views" and the cutaway. In fact, the nature of these illustrations strongly suggests that those aspects that are shown in detail are what are referred to as "structures," not just everything that has a label.
For instance, the top two illustrations show the anterior and posterior exterior view of the heart; only the coronary arteries are shown with illustrative detail. There are various other vessels labeled-the aorta and the pulmonary arteries and veins, for instance-but it is clear to us that these are there to show orientation of the heart and its relationship to these non-coronary vessels. The same is true with the third illustration. It is cutaway to show the interior of the heart: the four chambers, related muscles, the septum, nodes, and valves. There is no cutaway of the aorta and pulmonary vessels. That the aorta and pulmonary vessels appear in these illustrations does not make them "structures of the heart"-any more than the appearance of the ribs and other bone structures in illustrations labeled "Arteries of the Thorax and Axilla" makes them so in the following:
(Image Omitted)
Finally, we cannot overlook what the aorta is. It is the largest artery in the body and runs from the heart up and down through the body. See Aorta, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 109 (29th ed. 2000) (defining it as "the main trunk from which the systemic arterial system proceeds"). Here is the illustration for that term:
(Image Omitted)
Aorta, arising from the left ventricle, ascending, arching, then descending through the thorax to the abdomen, where it divides into the common iliac arteries.
If we were truly going to do statutory interpretation of "heart disease" or "structures of the heart" via art critique, we would have to account for the artist's approach to this definition. We see in this illustration that the aorta begins at the top of the left ventricle of the heart and runs all the way down through the chest and branches out in the lower abdomen. All along the way, it supplies blood to many major organs and chest structures. The "aorta" that appears in the "Plate 20" illustration, as referenced by the panel in Van Dyke, is really just the ascending aorta and the aortic arch-but one small part of the larger vessel. If the aorta truly were considered a "structure of the heart," the entire, body-length vessel would be represented. Perhaps, then, the artist's intent in including a portion of the aorta in Plate 20 was to provide orientation and context? We presume that the panel in Van Dyke suspected this as well and mentioned the illustration in passing, not as the sine qua non for its application of the statute to the facts before it.
There would be no sense in the panel in Van Dyke using this illustration as the core for its holding. Under such illogic, an individual who suffers from an abdominal aortic aneurysm also would have heart disease, regardless of the effect the aneurysm had on the heart itself. It is clear to us, and undoubtedly clear to the Van Dyke panel, that the aorta is the main artery in the body, responsible for carrying blood away from the heart and distributing it to various parts of the body. Cf. Artery, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 140 (29th ed. 2000). It is not reasonable to say that this artery at the same time is a structure of the heart just because it is connected to the heart and functions integrally with it. Given that the aorta is the largest arterial vessel in the body, does nothing to nourish the heart muscle, and is nowhere defined in the dictionary as being part of the heart, it is highly likely that the artist of Plate 20 did not mean to redefine the aorta as a heart structure by including it in Plate 20. Any misstatement by the panel in Van Dyke in this respect nevertheless has no effect on the logic behind its ultimate holding.
The Van Dyke panel, in fact, quickly moved on from its mention of the illustration to highlight the re-implantation of the aortic valve as part of the surgery. The aortic valve, which is an embedded part of the heart muscle, does happen to be one of the structures of the heart. The panel then acknowledges that valvular heart disease is one species of the disease. Accord Alan R. Moritz, Trauma and Heart Disease, 5 W. RSRV. L. REV. 133, 139 (1954) (discussing valvular heart disease and how it reduces the heart's ability to function at full capacity). To get to its holding in Van Dyke, as it turns out, the panel did not focus so much on the question of whether the aorta is a structure of the heart, but more on the effect that the aortic disease had on the heart valve, which indisputably is part of the heart. We read Van Dyke as relying on any debilitating effect the aneurysm had on the heart rather than the location of the aneurysm. Again, not many details were recited in the opinion about the claimant's condition, so we are left to assume from the valve replacement that took place that the aneurysm had weakened the heart's valves.
At all events, though, the panel in Van Dyke, on its own, essentially declared how narrow and limited its holding there was intended to be. It hedged by stating that "under a different set of facts this court might be called upon to provide a more exacting definition of 'heart disease,' to exclude conditions which are not properly designated as such." Id. at 116 (emphasis supplied). We endeavor to do that now.
II
"Words must be given the meaning they had when the text was adopted." SCALIA &GARNER, READING LAW 78; see South Carolina v. United States, 199 U.S. 437, 448-49 (1905) ("That which it meant when adopted, it means now."); Gibbons v. Ogden, 22 U.S. 1, 188 (1824) (noting that people "employ the words which most directly and aptly express the ideas they intend to convey"); 1 BLACKSTONE'S COMMENTARIES *59 ("Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use."); cf. SCALIA &GARNER, READING LAW 82-83 ("When government-adopted texts are given a new meaning, the law is changed .... Allowing laws to be rewritten by judges is a radical departure from our democratic system.").
We derive original meaning "from words and structure . . . from the ring the words would have had to a skilled user of words at the time, thinking about the same problem." Frank Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J. L. &PUB. POL'Y 59, 61 (1988). "We should look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." Id. at 65; see Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 417-418 (1899) ("Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used...").
Heart disease can be traced back to ancient Egypt. The earliest case of documented atherosclerosis-a buildup of plaque in the arteries that can cause a heart attack-was in an Egyptian princess who lived between 1580 and 1550 B.C. Here in the United States, however, a national understanding of and concern about heart disease remained low until well into the twentieth century, when the number of deaths from heart disease began to spike. Scientists, researchers, and physicians struggled for decades to find a cause and a cure. By the 1950s, heart disease was found to be the leading cause of death in Americans, though the underlying cause of heart disease, itself, was still a source of fervent contention. See Medicine: The Fat of the Land, TIME, Jan. 13, 1961, (referencing "coronary artery disease, which accounts for more than half of all heart fatalities and kills 500,000 Americans a year"); see also Robert K. Plumb, "Stress of Work in U.S. Culture Cited as Cause of Heart Disease," N.Y. TIMES (Jan. 28, 1959); "U.S. Fight Urged on 2 Top Diseases," N.Y. TIMES (April 22, 1961); Robert K. Plumb, "Study of Coronary Disease Here to Cover 120,000," N.Y. TIMES (Feb. 7, 1962); John A. Osmundsen, "Gains Reported in Heart Disease," N.Y. TIMES (Oct. 15, 1965); "Progress on Heart Disease," N.Y. TIMES (Oct. 18, 1965).
The sharp rise in deaths due to heart disease prompted the Legislature to take action during this period-by enacting the core of section 112.18. See ch. 65-480, § 1, at 1655, Laws of Fla. The "heart disease" referenced by the articles listed above was undoubtedly the same as the "heart disease" the Legislature chose to address when it used that term contemporaneously in its enactment of the law. When we look closely at these articles and others from journals and periodicals of the time, we see clearly that the mention of "heart disease" almost universally referred to the weakening of the heart muscle itself-such that the imposition of increased stress from some activity could lead to a heart attack.
As one of those contemporaneous articles explained, "cardiac disease is, for the most part, a slow degenerative process which develops over a period of years." John V. Thornton, Compensable Heart Disease, 5 JOURNAL OF OCCUPATIONAL MEDICINE 476, 477 (1963); see also Am. Heart Ass'n, Report of the Committee on the Effect of Strain and Trauma on the Heart and Great Vessels, Council on Community Service and Education, 26 CIRCULATION 612, 612 (1962) (explaining how heart disease equates to the progressive degradation of muscle that increases the likelihood of heart failure when exposed to stress or trauma or exertion); John V. Thornton, Compensable Heart Disease, 5 JOURNAL OF OCCUPATIONAL MEDICINE 476, 477-78 (1963) (describing how stress and strain can combine with a diseased heart to bring about a heart attack); Arthur Larson, The "Heart Cases" in Workmen's Compensation: An Analysis and Suggested Solution, 65 MicH. L. REV. 441 (1967) (discussing how heart disease is the progressive affliction of the heart muscle, that over time can cause failure, or heart attack); John V. Thornton, Heart Attacks and Workmen's, 1968 A.B.A. SEC. INS. NEGL. &COMP. L. PROC. 276, 276-77 (1968) (describing the typical workers' compensation case involving "heart disease" as one where a manual worker suffers a heart attack because of a clogged coronary artery; and mentioning how the disease develops slowly over period of time-degrading the functioning of the heart muscle and leading to a heart attack).
Put more simply, mention "heart disease" in the 1960s, and something specific would have come to "the mind of a skilled, objectively reasonable user of words": the progressive degradation of the heart muscle-through the blockage of coronary arteries and from other stressors (liked blocked vessels elsewhere)-which tends to lead to a heart attack. Cf. Alan R. Moritz, Trauma and Heart Disease, 5 W. RSRV. L. REV. 133, 137-139 (1954) (categorizing "heart disease" by three specific types: arteriosclerotic (or coronary) heart disease, hypertensive heart disease, and valvular heart disease); see Robert K. Plumb, Smoking Indicted in Heart Disease, N.Y. TIMES, July 14, 1957 (noting that "high cholesterol levels in the blood have been associated with heart diseases."); Paul Dudley White, The Relation of Heart Disease to Injury, Stress, and Occupation, 1960 A.B.A. SEC. INS. NEGL. &COMP. L. PROC. 146 (1960) (explaining types of heart disease, all of which weaken the heart muscle and increase the likelihood of a heart attack); Robert K. Plumb, Study of Coronary Disease Here to Cover 120,000, N.Y. TIMES, Feb. 7, 1962 ("coronary heart disease-which may or may not involve a heart attack-is usually caused by a narrowing and hardening (called atherosclerosis) of the coronary arteries."); Progress on Heart Disease, N.Y. TIMES, oct. 18, 1965 (referring to "[c]ardiovascular diseases" as "ailments of the heart and its associated blood vessels"); chester M. Denwicz, Stress-Caused Heart Attacks, 14 CLEV.-MARSHALL L. REV. 322, 326 (1965) (describing heart disease as the deterioration of the heart muscle to a point where it cannot bear the load imposed on it, leading to a heart attack); see also Report Hits Fatty Diet: Tobacco and Alcohol Also Linked to Heart Disease, N.Y. TIMES, July 14, 1957; Robert K. Plumb, Stress of Work in U.S. Culture Cited as Cause of Heart Disease, N.Y. TIMES, Jan. 28, 1959; Stress Is Blamed For Heart Disease In Younger Adults, N.Y. TIMES, oct. 3, 1959; Medicine: The Fat of the Land, TIME, Jan. 13, 1961; Heavy Smoking Linked To Heart Disease Rate, N.Y. TIMES, Sept. 9, 1961; Robert K. Plumb, Smoking Indicted in Heart Disease, N.Y. TIMES, Oct. 21, 1961.
When the Legislature enacted section 112.18 in 1965, then, we can say with a high degree of confidence that the legislators associated the mention of "heart disease" with those oft-discussed (as indicated above) processes that put pressure on the heart muscle and reduce its functioning, increasing the risk of heart failure-which is to say, clogged coronary arteries; high blood pressure; and valves. See Alan R. Moritz, Trauma and Heart Disease, 5 W. RSRV. L. REV. 133 (1954); id. (explaining differences of opinion at the time in respect to the part played by trauma or stress in the causation of heart disease or in the causation of the failure of the diseased heart); id. at 135 (discussing how a sudden increase in work could precipitate failure of an already "diseased heart"); id. at 137-39 (discussing three forms of heart disease in terms of the additional burden or weakening of the muscle, such that a heart attack is made more likely).
Coming back to this case, we apply the term "heart disease" based on its original meaning. Basically, it is the type of disease affecting and weakening the heart muscle through a degradation of the vessels or the valves, and which was prevalent as major cause of death in the United States in the 1950s and 1960s. The JCC's determination that Harlem's aortic aneurysm was "heart disease," such that the presumption contained in section 112.18 could apply, conflicts with what that term assuredly meant at the time the statute originally was enacted.
Envoi
We are sensitive to the fact that the JCC felt constrained by Van Dyke. Still, we must remain true to the text as enacted by the Legislature. Harlem relied on the statutory presumption provided in section 112.18 as a substitute for presenting evidence of work causation of the aneurysm, and there was no evidence at all presented regarding its etiology. Without the presumption, and in the absence of evidence of occupational causation underlying Harlem's aneurysm, the JCC's order finding compensability cannot stand.
VACATED.
WINOKUR, J., concurs; KELSEY, J., dissents.
KELSEY, J., dissenting.
I am unable to join the majority opinion. It improperly departs from our own on-point precedent (not to mention Florida Supreme Court precedent employing the same analysis), without considering the matter en banc as we are duty-bound to do. Further, it improperly departs from the statutory process for resolving these issues, which raises new questions and creates new problems.
I. Van Dyke Controls.
Our on-point precedent in City of Venice v. Van Dyke, 46 So.3d 115 (Fla. 1st DCA 2010), controls this case (absent en banc proceedings as discussed below). In Van Dyke, the claimant had thoracic aortic disease, for which he had open heart surgery. Id. at 115. He had a heart catheterization, plus replacement and reattachment of part of his ascending aortic artery. Id. It appears that the part of the aortic artery replaced was attached at its bottom to the aortic valve within the heart's left ventricle, and at its top to coronary arteries. Id. at 116. In addition, the aortic valve itself had to be re-implanted. Id. at 115. The employer/carrier argued that the claimant was not entitled to benefits because this condition did not involve the "actual heart" and the ascending aorta was not "in the heart," and thus was not "heart disease" under section 112.18(1) of the Florida Statutes. Id. at 115-16. This section is part of the "heart-lung" statute, which creates a presumption of compensability for "tuberculosis, heart disease, or hypertension resulting in total or partial disability or death" of firefighters, law enforcement officers, and correctional officers. § 112.18(1)(a), Fla. Stat.
The Judge of Compensation Claims rejected the E/C's argument, ruling that the claimant's condition constituted "heart disease" as used in the statute and thus was compensable. Van Dyke, 46 So.3d at 115-16. The JCC's Final Compensation Order in Van Dyke is instructive both for its reasoning and its clear reliance on medical expert testimony, as follows:
In the case of City of Mary Esther v. McArtor, 902 So.2d 942 (Fla. 1st DCA 2005), the court noted that coronary artery disease is an occupational illness when suffered by a firefighter meeting the requirements of section 112.81. As testified to by the doctors herein, the aorta is the main artery leading from the left ventricle of the heart, and it is responsible for the initial delivery of blood to the entire body. Claimant's aortic aneurysm was in the ascending aorta, which is connected to the left and right coronary arteries. It makes no sense that coronary artery disease would be included in the definition of heart disease, and the aorta, which is connected to the arteries and responsible for delivery of the blood, would not be included. Further, "heart disease" is defined by Webster's Medical Desk Dictionary, (1986) as an abnormal organic condition of the heart or of the heart and circulation, and "cardiovascular" is defined as of, relating to, or involving the heart and blood vessels. The American Heritage Dictionary of the English Language, 3rd Edition, (1992), defines ""cardiovascular" the same as Webster's, and "heart disease" is defined as a structural or functional abnormality of the heart, or of the blood vessels supplying the heart, that impairs its normal functioning. As the aorta is a vessel that carries blood from the heart and is part of the circulation system, problems with the aorta meet the definition of heart disease. Common sense dictates this result, and in the alternative, I accept Dr. Sullebarger's opinion that it is heart disease, as this accords with logic, reason, and the remaining evidence in this case, including that a cardiologist and or cardiothoracic surgeon treats an aortic aneurysm, and
that hypertension is one of the causes of an aortic aneurysm, and the most likely cause of claimant's condition, per Dr. Sullebarger.Van Dyke v. City of Venice, No. 09-015225DBB, at 17 (Fla. DOAH, OJCC Feb. 19, 2010) (Final Compensation Order), https://www.jcc.state.fl.us/jccdocs20/SPT/Sarasota/2009/015225/0 9015225_229_02192010_05321347_i.pdf.
A unanimous panel of this Court in Van Dyke affirmed the JCC's decision and rationale. Paralleling the expert witness's medical testimony, the Court reasoned in part that the phrase "heart disease" was used in a leading medical dictionary- Dorland's Illustrated Medical Dictionary (29th ed. 2003)-to encompass "the heart, its structures, [and] the coronary arteries." Van Dyke, 46 So.3d at 116. We noted that the Florida Supreme Court likewise had relied on a then-recent edition of the same medical dictionary "in defining 'prosthetic device' for purposes of the Workers' Compensation Law," in Cash v. Universal Rivet, Inc., 616 So.2d 446 (Fla. 1993). Id. at 116 n.1.
The Van Dyke panel erroneously cited the Dorland's version used in the supreme court's Universal Rivet opinion as "(27th ed. 2003)." Van Dyke, 46 So.3d at 116 n.1. The supreme court's majority opinion in Universal Rivet cited to the 27th edition of Dorland's, without including its date. Universal Rivet, 616 So.2d at 448. However, then Chief-Justice Barkett in dissenting from the supreme court opinion correctly cited the pertinent edition of Dorland's as "(27th ed. 1988)," noting that this Court had referenced it in the decision under review. Universal Rivet, 616 So.2d at 449 (Barkett, C.J., dissenting) (quoting from Judge Ervin's concurring and dissenting opinion in our disposition of Universal Rivet).
This Court in Van Dyke also supported its compensability decision by noting that the re-implantation of that claimant's aortic valve independently brought the condition within the scope of "heart disease" under the heart-lung statute because the 1996 Florida Uniform Permanent Impairment Rating Schedule included ratings for "Valvular Heart Disease" (a fact that remains true today). 46 So.3d at 116. The Court expressly rejected the argument that this aortic disease is not "heart disease" because of where the pertinent structures are positioned relative to one another. Id. That is, we expressly rejected the attempt to limit "heart disease" to what the E/C there described as the "actual heart," apparently meaning the chambers and what is inside them. That means we rejected the analysis that the majority here adopts.
Our decision in Van Dyke was consistent with earlier analogous precedent-and inconsistent with the present majority's reasoning that the inquiry is legal (for judges to make by reading dictionaries-and old ones, at that) rather than medical and that the Claimant here is not entitled to the statutory presumption because his condition was arterial rather than involving the chambers of the heart itself. In the case on which the Van Dyke JCC relied, City of Mary Esther v. McArtor, 902 So.2d 942, 943 (Fla. 1st DCA 2005), we held that "[c]oronary artery disease is an occupational illness when suffered by a firefighter meeting the requirements of section 112.18(1)." The majority opinion departs from this precedent and this definition of "heart disease," without acknowledgment or justification.
We followed Van Dyke consistently, in cases that remain good law, but which the majority neither acknowledges nor distinguishes. In Tiburcio v. Hillsborough County. Sheriff's Office/Commercial Risk Management, Inc., 347 So.3d 59, 61-62 (Fla. 1st DCA 2022), we treated coronary artery disease, resulting in a heart attack and arterial stent placement, as compensable "heart disease" under the heart-lung statute. In fact, we accepted it without discussion and simply addressed the statute's reverse presumption: the fact that coronary artery disease was "heart disease" was a non-issue for all concerned. Id. at 62.
We likewise accepted a heart attack caused by coronary artery disease as "heart disease" under the statute in McDonald v. City of Jacksonville, 286 So.3d 792, 794-96 (Fla. 1st DCA 2019). Again, the fact that coronary artery disease qualified as "heart disease" was a non-issue, and the Employer/Carrier even conceded it. With another concession, coronary artery disease satisfied the statutory definition of "heart disease" in City of Jacksonville Fire &Rescue Department v. Battle, 148 So.3d 795, 796-97 (Fla. 1st DCA 2014).
We also equated coronary artery disease with "heart disease" for purposes of the heart-lung statute in Talpesh v. Village of Royal Palm Beach, 994 So.2d 353, 355 (Fla. 1st DCA 2008). We found that peripheral vascular disease caused by atherosclerosis constituted "heart disease" under the statute in Butler v. City of Jacksonville, 980 So.2d 1250, 1251-52 (Fla. 1st DCA 2008).
In addition to these reported appellate decisions following Van Dyke and interpreting "heart disease" as broader than the majority's proposed definition, numerous Final Compensation Orders have done the same (in addition to the FCO under review here). They have done so on the basis of expert medical opinions informing the decision-maker. See, e.g., Burroughs v. Fla. Highway Patrol, No. 20-655, 2020 WL 4698014, at *6 (Fla. DOAH, OJCC Aug. 6, 2020) (finding that aortic aneurysm surgery caused claimant's coronary artery disease and cardiomyopathy, which fell within the statutory definition of "heart disease"); Suarez v. Miami Dade Fire Dep't, No. 16-009345EDS, 2017 WL 1036187, at *3 (Fla. DOAH, OJCC Mar. 7, 2017) (finding premature atrial contractions qualified as heart disease); Ferrante v. Brevard Cnty. Sheriff's Office, No. 15-003297RLD, 2015 WL 7423952, at *3-4 (Fla. DOAH, OJCC Oct. 30, 2015) (finding leaky valve and mitral valve repair constituted heart disease under the heart-lung statute); Hudepohl v. Orange Cnty. Sheriff's Office, Inc., No. 13-013300WJC, 2014 WL 2599655, at *7 (Fla. DOAH, OJCC June 6, 2014) (finding tachycardia and premature atrial and ventricular contractions were heart disease under the statute); Bretches v. City of Orlando Police, No. 10-002094-TWS, 2014 WL 1266019, at *4-6 (Fla. DOAH, OJCC Mar. 25, 2014) (finding neurocardiogenic syncope (NCS) is heart disease under the heart-lung statute). It appears that these cases were not appealed. Yet the majority addresses none of this precedent, unless you count the majority's misguided and thinly-veiled attempt to get aroundVan Dyke by way of faux sympathy for the apparently well-intentioned but misguided panel that decided it.
Particularly troubling for many reasons is the majority's resort to 1960s dictionaries to derive "plain meaning" for medical terms used in current workers compensation statutes. First, this novel framework shifts core medical analysis from doctors to lawyers (and then judges), contrary to the clear statutory framework for resolving these issues with medical experts. Cf. Bishop v. Baldwin Acoustical &Drywall, 696 So.2d 507, 511 (Fla. 1st DCA 1997) (rejecting lawyer's attempt to determine disability rating, because such issues are medical and not legal). Second, the majority fails to address whether the 1960s Legislature (as opposed to the 1960s general public) did or would have embraced the majority's choice of dictionary definitions over the opinions of medical experts. Third, by tying present-day compensation decisions to decades-old definitions, the majority fails to account for changes in medical knowledge over time. To the contrary, the fact and nature of such changes again illustrates the Legislature's wisdom in leaving these questions to medical professionals and an adversarial system. As a practical matter, the majority apparently would require the Legislature to update statutory terminology with every new edition of the dictionaries. That can't be right. Fourth, one must wonder if the majority is now requiring litigants addressing these issues to establish the bona fides of their chosen ancient sources under Daubert-and if so, how would that even be possible? How do we decide if your diagrams and dictionaries are better than mine? It may-or may not-be more efficient to reclassify the definition of "heart disease" as a question of law isolated from current medical knowledge and expertise, but the first obstacle to doing so is that it contradicts precedent.
Bottom line, the majority analysis is troubling for several reasons, not the least of which is that it purports to depart from so much precedent-even a Florida Supreme Court decision (Cash) involving materially indistinguishable facts and applying exactly the same analysis we applied in Van Dyke-without even addressing them or the principles of law at stake in them. To the contrary, our duty is to follow precedent-certainly to follow the Florida Supreme Court-and if we wish to recede from our own precedent, to do so as an en banc court only.
II. To En Banc or Not to En Banc, That is the Question.
If anyone outside the courthouse is reading this in the posture of a dissent to a two-judge-majority opinion, then obviously the Court has not decided this case en banc. We have Rules of Appellate Procedure and Internal Operating Procedures telling us when we must "go en banc," but reasonable judicial minds can differ on how to apply the rules and procedures to any given case (not to mention differing on motivation and willingness to undertake a time-consuming and possibly contentious group decision-making process). The statewide appellate rules prohibit en banc proceedings "unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court's decisions." Fla. R. App. P. 9.331(a). Our internal rules embody these two grounds: "En banc hearings and rehearings shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court's decisions." First DCA Internal Operating Procedure 6.4.
The Court's IOPs are available on our website at www.1dca.flcourts.gov, under Resources, then General Information, then Internal Operating Procedures.
Rule 9.331 itself does not define "uniformity," nor do our IOPs, and that term may be subject to some definitional debate. See, e.g., Mitchell v. Brogden, 249 So.3d 781, 785 (Fla. 1st DCA 2018) (Makar, J., dissenting from the denial of hearing en banc and addressing the meaning of uniformity). Its clear foundational limit, however, is that "a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law." In re Rule 9.331, Determination of Causes by a Dist. Ct. of Appeal En Banc, Fla. Rules of App. Pro., 416 So.2d 1127, 1128 (Fla. 1982). "Uniformity" under the en banc rule will always mean at the very least that one panel alone (let alone a two-judge majority of one panel) cannot overrule this Court's own legal precedent on identical or materially analogous facts. See Schreiber v. Chase Fed. Sav. &Loan Ass'n, 422 So.2d 911, 912 n.1 (Fla. 3d DCA 1982) (On Motion for Rehearing En Banc Granted) (Schwartz, J., proposing that "decisions lack uniformity whenever it appears that they are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court"), quashed, 479 So.2d 90, 91-94 (Fla. 1985) (adopting Judge Schwartz's viewpoint).
The Florida Supreme Court expanded on the reasons why this foundational principle is so important:
The en banc process now authorized for the district courts is designed to help the district courts avoid conflict, assure harmonious decisions within the courts' geographic boundaries, and develop predictability of the law within their jurisdiction. Consistency of decisions within each district is essential to the credibility of the district courts. There has been criticism of intermediate appellate courts for their failure to speak with "a single voice of the law." Meador, An Appellate Court Dilemma and A Solution Through Subject Matter Organization, 16 U. Mich. J. L. Ref. 471, 474 (1983). As judges are added to Florida's district courts to meet expanding caseloads, the resulting increased number of three-judge panels cannot help but increase the number of inconsistent and conflicting decisions.... The en banc process provides a means for Florida's district courts to avoid the perception that each court consists of independent panels speaking with multiple voices with no apparent responsibility to the court as a whole. The process provides an important forum for each court to work as a unified collegial body to achieve the objectives of both finality and uniformity of the law within each court's jurisdiction. We have previously said that
[u]nder our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole .... ....
We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing.... Consistency of law within a district is essential to avoid unnecessary and costly litigation.Schreiber, 479 So.2d at 93-94 (quoting In Re Rule 9.331, 416 So.2d at 1126). In contrast, if it takes only one primary judge and one concurring judge to change workers compensation law for the entire state, the Legislature might do well to repeal section 440.271 of the Florida Statutes, and let workers compensation appeals go to the District Courts of Appeal with territorial jurisdiction over the underlying cases. At least that way, litigants and lawyers throughout the state would have a fighting chance at influencing legal developments through multiple points of entry and perhaps differing mindsets. This has been suggested before. See Jack A. Weiss, A Primer On Workers' Compensation Appeals, 80 Fla. Bar J., Oct. 2006, at 63, 64-65 &nn. 41 &42. See also Fla. R. App. P. 9.180(e)(1) (allowing the Division of Workers Compensation to intervene in pending appeals on either side and "take positions on any relevant matters").
The majority opinion directly violates Florida Supreme Court precedent establishing the bare-minimum circumstance under which en banc decision-making is mandatory. For this foundational procedural reason as well as on the merits, I must dissent.