Scherer v. Volusia County Department of Corrections

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

BRIAN SCHERER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D14-2205

VOLUSIA COUNTY
DEPARTMENT OF
CORRECTIONS AND
VOLUSIA COUNTY RISK
MANAGEMENT,

Appellees.

_____________________________/

Opinion filed July 8, 2015.

An appeal from an order of the Judge of Compensation Claims.
Wilbur W. Anderson, Judge.

Date of Accident: October 29, 2009; January 27, 2012.

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.

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).

2
 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)

3
(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.

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 canon5 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.
5
“Material 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).

5
 6
“When 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.
6
 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
7
 to the sentence. One is to read it as saying the amended
statute applies to all cases where the filing of a
claim occurs on or after July 1, 2010. The other is to read
it as saying, “For any workers’ compensation claim filed
under this section and chapter 440 for accidents occurring
on or after July 1, 2010….” Because the latter
interpretation would require me to insert words into the
statute that the Legislature did not use, I reject the latter
interpretation and accept the former.

While the compound phrase “For any workers’ compensation claim filed under this

section and chapter 440 occurring on or after July 1, 2010….” is not unambiguous,

the learned judge’s construction has the effect of rendering the word “occurring” in

subparagraph (1)(b)1. meaningless surplus.

No part of a statute, not even a single word, should be ignored, read out of the

text, or rendered meaningless, in construing the provision. “‘[T]he Legislature does

not intend to enact useless provisions, and courts should avoid readings that would

render a part of a statute meaningless.’” G.G., 97 So. 3d at 273 (quoting State v.

Goode, 830 So. 2d 817, 824 (Fla. 2002)). “Basic to our examination of statutes, and

an important aspect of our analysis here, is the ‘elementary principle of statutory

construction that significance and effect must be given to every word, phrase,

sentence, and part of the statute if possible, and words in a statute should not be

construed as mere surplusage.’ Gulfstream Park Racing Ass'n v. Tampa Bay Downs,

Inc., 948 So. 2d 599, 606 (Fla. 2006) (quoting Hechtman v. Nations Title Ins. of

8
N.Y., 840 So. 2d 993, 996 (Fla. 2003)).” Sch. Bd. of Palm Beach Cnty. v. Survivors

Charter Schools, Inc., 3 So. 3d 1220, 1233 (Fla. 2009).

In construing the statute, we must be at pains to avoid rendering the word

“occurring” “totally redundant and without meaning because [it] would simply refer

to the same [thing, i.e., filing] . . . already clearly described in other language in the

same statutory provision.” Gulfstream Park, 948 So. 2d at 605. To interpret

“occurring” as totally redundant or as meaningless would be “contrary to accepted

rules of statutory construction.” Id. at 606. The dissent’s contention that the only

date stated anywhere in the paragraph at issue (notably, in the introductory portion

thereof) does not pertain is even more problematic.

In deciding what meaning “occurring” was intended to convey, we naturally

ask why the word “occurring” appears in the statute at all: If the Legislature had

intended, as the Judge of Compensation Claims concluded it did, that the date of

filing be determinative, it could simply have omitted the word “occurring.” In that

way, the subparagraph which now begins “For any workers’ compensation claim

filed under this section and chapter 440 occurring on or after July 1, 2010 . . . .”

would have begun “For any workers’ compensation claim filed under this section

and chapter 440 on or after July 1, 2010 . . . .” It would have been a simple matter

to excise “occurring”; and legislative intent to make the date of filing determinative

9
would have been clear. That the Legislature did not omit “occurring” suggests,

therefore, that it did not intend to make the date of filing determinative.

If the date of filing the claim is not determinative, the date of disablement or

the occurrence of an industrial injury must be determinative. See Bautista v. State,

863 So. 2d 1180, 1185 (Fla. 2003) (applying a “common-sense approach” to

statutory interpretation in order to give effect to legislative intent). We glean this

from use of the elliptical “occurring” itself. In legal parlance, claims arise, may

remain viable or be extinguished, can be stated, pleaded or alleged, and may be filed,

settled, compromised, abandoned, dismissed, prosecuted, defended, litigated, and

adjudicated. Rarely, if ever, however, do claims “occur.” Industrial accidents and

occupational diseases, on the other hand, do “occur” from time to time. As

discussed ante, occupational diseases become “an injury by accident” (and thus

“occur”) upon the date of disablement, partial or total, a date which falls on one side

of July 1, 2010 or the other. Once an industrial injury occurs, moreover, the term

“claim” refers, not only to a petition for benefits or other assertion of rights, but also

to the vesting of rights arising under chapter 440 on account of the injury. ∗

∗
A “claim” that must be adjusted in accordance with law arises by virtue of
an industrial injury, whether or not a petition for benefits has been filed. For
example, Florida Administrative Code Rules 69L-3.002 through 3.025 (under the
Chapter Title “Workers’ Compensation Claims”) describe duties and obligations of
“Claims-handling Entit[ies]” when industrial injuries occur, which include: filing a
first report of injury upon notice (from any source), providing informational material
to the injured employee, filing multiple forms, and providing benefits—all
10
 Here, appellant alleged two different dates of accident, one before and one

after July 1, 2010. As we construe the statute, he is entitled to the “heart lung”

presumption as regards the first date of accident but not as regards the second.

Because the presumption is rebuttable, see Caldwell v. Div. of Ret., Fla. Dep’t of

Admin., 372 So. 2d 438 (Fla. 1979), the case should be remanded so the parties can

put on evidence as to occupational causation.

Reversed and remanded.

WOLF, J., CONCURS; RAY, J., DISSENTS WITH OPINION.

regardless of whether the injured employee ever files a formal petition for benefits.
Similarly, sub-subsection 440.105(2)(b), Florida Statutes (2014), makes it unlawful
for an insurance company to revoke an insurance policy “because an employer has
returned an employee to work or hired an employee who has filed a workers’
compensation claim.” (Emphasis supplied.) Under this statutory provision an
insurance company could not revoke a policy on grounds an employer had returned
an employee to work, or hired an employee entitled to benefits under chapter 440,
even if the injured employee had not filed a formal petition for benefits.
Furthermore, sub-subsections 440.20(11)(a) and (c) permit a “claimant” to settle a
workers’ compensation case or claim, whether or not a petition for benefits has ever
been filed. The dissent unjustifiably assumes that the terms “petition for benefits”
and “claim” can be used interchangeably in the context of the present case.

11
RAY, J., dissenting.

Because I conclude that subparagraph 112.18(1)(b)4 renders Appellant

ineligible for the presumption of occupational causation for both dates of accident, I

respectfully dissent.

To be entitled to the rebuttable presumption of occupational causation in

paragraph 112.18(1)(a), Florida Statutes (2013), which provides that a heart

condition like Appellant’s is presumed to be the result of an accident in the line of

duty, a claimant * is required under subparagraph 112.18(1)(b)4 to “make” a claim

for benefits prior to or within 180 days after leaving the employment of the

employing agency. The Judge of Compensation Claims correctly ruled that

Appellant did not meet this deadline. It is undisputed that Appellant did not file a

petition for benefits within this time period. And to the extent that this subparagraph

can be construed to include activities other than filing a petition for benefits, the

Judge of Compensation Claims found that Appellant failed to take any action that

constituted a claim for benefits within the applicable time frame.

To challenge this ruling, Appellant argues, and the majority agrees, that the

date reference in subparagraph 112.18(1)(b)1 qualifies subparagraph (b)4, such that

the 180-day limitation period applies only to cases with dates of accident on or after

*
The 180-day limitation period applies to law enforcement officers, correctional
officers, and correctional probation officers. § 112.18(1)(b)4.

12
July 1, 2010. I disagree. In my view, the date reference in subparagraph (b)1 is a red

herring. Just because subparagraphs (b)1 and (b)4 were enacted together and became

effective on the same date, does not mean that a qualifier within subparagraph (b)1

governs or controls the applicability of subparagraph (b)4. The two provisions are

independent of each other, as evidenced by both their structure and content.

In rejecting Appellant’s argument that language from subparagraph (b)1

constrains application of subparagraph (b)4, the Judge of Compensation Claims

appropriately relied on the scope-of-subparts canon, a rule of interpretation

grounded in textualist principles. The scope-of-subparts canon provides that

“[m]aterial 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 156-60 (2012). The

logic of this canon can be observed in the specific structure of the statute at issue:

the July 1, 2010, date restriction is not contained in an overarching or general

“paragraph (b)” that would have equal applicability to the provisions of its subparts.

Instead, the date restriction is contained only in subpart (b)1, which contains an

independent clause ending in a period, suggesting that at least structurally, “what

happens in [subpart (b)1] stays in [subpart (b)1].” Id. at 157.

The content of the two subparts supports the inference derived from their

structure that one does not limit the other. Subparagraph (b)1 creates a reverse

13
presumption (“a[n] . . . officer . . . is presumed not to have incurred such disease in

the line of duty if”), whereas subparagraph (b)4 establishes a deadline for a claimant

to invoke the presumption (“[an] officer . . . is not entitled to the presumption

provided in this section unless a claim for benefits is made prior to or within 180

days”). In addition, the key terminology is different. Subparagraph (b)1’s words

“claim” and “occurring” are not the same as subparagraph (b)4’s “claim for benefits”

and “made.” The Legislature’s use of the phrase “claim for benefits” evinces an

intention more narrow than the word “claim” might convey – specifically, an intent

to refer to the claimant-initiated process of obtaining workers’ compensation

benefits. See Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1, 11-12 (Fla. 3d DCA

2012) (Shepherd, J., dissenting). The subparts at issue announce distinct principles

of law, and there is no reason apparent from the text why they should be tied together

by a date reference that appears in only one of them.

Once subparagraph (b)1 is decoupled from subparagraph (b)4, the issue

becomes whether the 180-day time frame in (b)4 is a procedural enactment, and thus

retroactive under Menendez v. Progressive Express Insurance Co., 35 So. 3d 873

(Fla. 2010). Menendez sets out a two-pronged test for determining retroactivity:

First, the Court must ascertain whether the Legislature intended for the
statute to apply retroactively. Second, if such an intent is clearly
expressed, the Court must determine whether retroactive application
would violate any constitutional principles.

14
Id. at 877. Here, the legislative intent of retroactivity is evident from the phrase

“claim for benefits” and the absence of any mention of dates of accident. Given that

existence of a claim for benefits presumes a prior date of accident, subparagraph (b)4

clearly contemplates claims for benefits that relate to dates of disablement preceding

its enactment.

The second prong of Menendez is also met as this court’s precedent has

upheld the constitutionality of retroactive application of substantially similar

provisions. In Seminole County Sheriff’s Office v. Johnson, 901 So. 2d 342 (Fla. 1st

DCA 2005), we held that a 2002 amendment to subsection 112.18(1), which

expanded the class of workers entitled to the presumption, was a procedural

enactment that applies retroactively without regard to the date of accident and

injury. Id. at 343. We reasoned that the amendment “changed only the procedure of

establishing entitlement to workers’ compensation benefits. Appellant’s substantive

right to those benefits, or lack thereof, has remained unchanged since the date of his

first stroke.” Id. at 344 (citation omitted).

In Brown v. L.P. Sanitation, 689 So. 2d 332 (Fla. 1st DCA 1997), on which

we relied in Johnson, we likewise found that an enactment, which eliminated a

rebuttable presumption that an overpayment of benefits was an irrevocable gift from

the carrier to the injured worker, was procedural and therefore applied retroactively.

We observed that elimination of the presumption “does not rule out proof that a

15
payment was a gift . . . . [It] changed only the procedural means and methods of

establishing entitlement to benefits or offsets which flow from substantive rights that

have remained unchanged since the date of [the accident].” Id. at 333. Similarly

here, nothing in subparagraph 112.18(1)(b)4 prohibits Appellant from pursuing

workers’ compensation benefits for his heart condition. It does, however, remove an

evidentiary presumption and change the mode of procedure “unless a claim for

benefits is made prior to or within 180 days after leaving the employment of the

employing agency.”

For these reasons, I would affirm the order of the Judge of Compensation

Claims and conclude that subparagraph 112.18(1)(b)4 bars reliance on the

presumption for both of Appellant’s dates of accident.

16