Scherer v. Volusia Cnty. Dep't of Corr.

• Decision Date: 08 July 2015
• Docket Number: No. 1D14–2205.,1D14–2205.
• Citation: 171 So.3d 135
• Parties: Brian SCHERER, Appellant, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS and Volusia County Risk Management, Appellees.
• Court: Florida District Court of Appeals

171 So.3d 135

Brian SCHERER, Appellant

v.VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS and Volusia County Risk Management, Appellees.

No. 1D14–2205.

District Court of Appeal of Florida, First District.

July 8, 2015.

Rehearing Denied Aug. 13, 2015.

Bill McCabe, Longwood, and Keith C. Warnock, Daytona Beach, for Appellant.

Patrick John McGinley of the Law Office of Patrick John McGinley, P.A., Winter Park, and Arthur U. Graham, DeLand, for Appellees.

Opinion

BENTON, J.

In this workers' compensation case, a correctional officer appeals an order of a judge of compensation claims ruling him ineligible under section 112.18(1)(b) 4., Florida Statutes (2013), for the presumption of occupational causation set out in section 112.18(1)(a), Florida Statutes (2013), and denying the compensability of his heart condition for that reason. Persuaded section 112.18(1)(b) 4. did not strip him of the presumption available to correctional officers regarding disabilities caused by heart disease

resulting in “disablement” before July 1, 2010, we reverse and remand for further proceedings.

“Although heart disease

is not ordinarily compensable as an occupational disease, the Florida Legislature ... enacted section 112.18(1)..., which establishe[d] a statutory presumption that heart disease suffered by a fireman [or certain others including correctional officers] is connected with the exertions of his work....” Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986) (citation omitted). “Section 112.18, Florida Statutes (2009)—variously known as the ‘Firefighter's Presumption,’ the ‘Heart and Lung Bill’ or the ‘Heart–Lung Statute,’ see 9 Patrick John McGinley, Fla. Prac. Workers' Comp. with Forms § 11:6 (2012 ed.) —creates a rebuttable presumption of occupational causation for disabling heart disease (among other health conditions) suffered by correctional officers (among others) who meet certain prerequisites. The presumption is dispositive unless rebutted by medical evidence. See Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).” Walters v. State, DOC/Div. of Risk Mgmt., 100 So.3d 1173, 1174 (Fla. 1st DCA 2012) (footnote omitted).

In the present case, after being diagnosed with cardiomyopathy

, Brian Scherer stopped working as a correctional officer for Volusia County on October 27, 2009, because of his heart condition. The Mayo Clinic in Jacksonville recommended that he be placed on a heart transplant list. In December of 2009, however, he had a defibrillator

implanted, and he returned to work on April 27, 2010. But his condition deteriorated thereafter until he retired on January 27, 2012. In March of 2013, he had a heart transplant.

In June and September of 2013, he filed a total of five petitions for workers' compensation benefits alleging a compensable heart condition under two dates of accident (disablement): October 29, 2009, and January 27, 2012. All petitions—each of which relied on section 112.18 —were consolidated. Volusia County defended, in part, on grounds that the section 112.18 presumption was not available because appellant did not file any petition within 180 days of leaving employment. Without the presumption, appellant concedes, his claims fail.

This is not a statute of limitations case—no statute of limitations question has been raised on appeal—but the date on which heart disease

caused appellant's disability figures importantly in our analysis. By statute, “ ‘the disablement or death of an employee resulting from an occupational disease ... shall be treated as the happening of an injury by accident....’ Section 440.151(1), Florida Statutes (1969).” Hoppe v. City of Lakeland, 691 So.2d 585, 586–87 (Fla. 1st DCA 1997) (quoting Am. Beryllium Co. v. Stringer, 392 So.2d 1294, 1295–96 (Fla.1980) ). “In occupational disease cases, ... it is the disability and not the disease which determines the compensability of a claim.” Id. at 587.

Section 112.18(1)(b), which became effective on January 1, 2011, see Chapter 2010–175, section 2, at 2184–85, 2216, Laws of Florida, reads as follows:

(b)1. For any workers' compensation claim filed under this section and chapter 440 occurring on or after July 1, 2010, a ... correctional officer ... is presumed not to have incurred such disease in the line of duty ... if the ... officer:

a. Departed in a material fashion from the prescribed course of treatment ...; or

b. Was previously compensated pursuant to this section....

2. As used in this paragraph, “prescribed course of treatment” means....

3. If there is a dispute as to the appropriateness of the course of treatment prescribed....

4. A law enforcement officer, correctional officer, or correctional probation officer is not entitled to the presumption provided in this section unless a claim for benefits is made prior to or within 180 days after leaving the employment of the employing agency.

The Judge of Compensation Claims ruled that the July 1, 2010 cut-off date applies only to subparagraph (1)(b)1., and not to subparagraph (1)(b)4.

The Judge of Compensation Claims also ruled, as to both dates of accident, that appellant had not made a claim prior to or within 180 days after leaving his employment with the Volusia County Department of Corrections, and in the final compensation order deemed him ineligible for the section 112.18(1)(a) presumption on that basis:

8. Claimant argues the reference to claims “filed under this section and chapter 440 occurring on or after July 1, 2010” means the 2010 amendments only apply to workers' compensation claims involving dates of accident/disablement on or after July 1, 2010. Does the sentence mean any petition for benefits, regardless of the date of accident, filed on or after July 1, 2010, is subject to section 112.18(1)(b) ? Or does it mean, as Claimant argues, that the amendment does not apply to dates of accident/disablement before July 1, 2010, regardless of when the petition for benefits is filed?

9. The Legislature certainly used a curious grammatical construction when it chose to follow the verb “filed” with the verb “occurring.” I conclude it is unnecessary to construe the sentence containing the reference to July 1, 2010, to decide this case because it is in subparagraph 1. of paragraph (b). The language at issue in this case is in subparagraph 4. of paragraph (b). Applying the canons of statutory interpretation known as the scope-of-subparts canon ⁵ and the nearest-reasonable-referent canon,⁶ I conclude the reference to July 1, 2010, relates only to subparagraph 1., not to the 180–day time limitation in subparagraph 4.

‘ within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts.” Scalia and Garner, Reading Law: The Interpretation of Legal Texts 156 (2012).

‘ the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.” Scalia and Garner, Reading Law: The Interpretation of Legal Texts 152 (2012).

Claimant argued below, and argues on appeal, that the entirety of subsection (1)(b) applies only to workers' compensation cases involving dates of disablement on or after July 1, 2010.

We agree. All subparagraphs (also referred to as sub-subsections) of paragraph (1)(b) should be read in pari materia, not only because of the structure of the text, but also because the subparagraphs of paragraph (1)(b) were all enacted together, as part of the same amendment to section 112.18, and all took effect together on January 1, 2011. “ ‘[S]tatutes relating to the same subject matter should be read in pari materia, and such rule is particularly applicable where such statutes are enacted as part of the single act.’ ” G.G. v. Fla. Dep't of Law Enforcement, 97 So.3d 268, 272 (Fla. 1st DCA 2012) (quoting McGraw v. R and R Inv., Ltd., 877 So.2d 886, 890 (Fla. 1st DCA 2004) ). The scope-of-subparts canon notwithstanding, nothing in the text gives reason to believe that different effective dates were intended for different provisions—indented or otherwise—within paragraph (1)(b). No other or alternative date was stated for any other subparagraph of paragraph (1)(b), nor does any logical or textual basis for assigning different dates to different operative provisions of this unitary enactment suggest itself.

The Judge of Compensation Claims also purported to rely on the nearest-reasonable-referent canon in construing a paragraph comprised of several subparagraphs, even though that canon has only to do with the effect to be given to “modifiers” within a single sentence. The canon holds simply that, whether coming before or after what is modified, modifiers (adjectives, adverbs, prepositional phrases, restrictive clauses) should be read as modifying the nearest noun, verb, or other sentence element to which they can reasonably be said to pertain. The canon calls for a commonsense interpretation of the way in which words are put together to form phrases, clauses, or sentences, and has little or nothing to do with how different paragraphs and subparagraphs should be understood in relation to one another.

In the alternative, the Judge of Compensation Claims ruled that the crucial date for purposes of the statute was not the date of accident or disablement but the date on which a worker filed a claim for workers' compensation benefits. The final compensation order explains his reasoning:

Alternatively, if the date reference[d] in section 112.18(1)(b) 1. applies to section 112.18(1)(b) 4., it pertains to all claims filed on or after July 1, 2010, regardless of the date of accident

10. If the first sentence of section 112.18(1)(b) 1. does apply to section 112[.18](1)(b)4., I construe the sentence to mean the amended statute applies to all claims filed on or after July 1, 2010, regardless of the date of accident. As I see it, there are two ways to give meaning to the sentence. One is to read it as

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