Opinion
No. 91-03964.
April 13, 1994. Rehearing Denied June 24, 1994.
Appeal from the State Retirement Commission.
Steven M. Dunn of Dunn Johnson, P.A., Miami, for appellant.
Larry D. Scott, Asst. Div. Atty., Div. of Retirement, Tallahassee, for appellee.
This cause is before us on appeal from a final order of the State Retirement Commission (the Commission). The issue is whether the Commission erred in denying appellant's claim for in-line-of-duty disability retirement benefits under chapter 121, Florida Statutes.
The uncontroverted medical evidence was that appellant had myriad symptoms, including debilitating headaches, which prevented him from working in any of his preinjury occupations. In rendering its decision, the Commission found as follows:
This denial must be based on the simple fact that out of the myriad of physicians who treated or examined Nickols, not one said he was — by any definition — totally and permanently disabled, unable to render useful and efficient service as an employee.
Thus, the Commission has read section 121.23(2)(a), Florida Statutes, as requiring appellant to present an expert medical opinion expressly stating that he meets the statutory standard for total and permanent disability benefits. This view impermissibly limits the evidence which may be presented to and considered by the Commission. It has imposed upon appellant an incorrect standard of proof. We therefore reverse.
An employee is entitled to total and permanent disability retirement benefits under section 121.091(4)(b), Florida Statutes, if
he is prevented by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee.
An employee seeking such benefits must first make application to the administrator of the State Retirement System. The administrator's discretion to award benefits is strictly limited by section 121.091(4)(c), which provides:
The administrator, before approving payment of any disability retirement benefit, shall require proof that the member is totally and permanently disabled as provided herein, which proof shall include the certification of the member's total and permanent disability by two licensed physicians of the state and such other evidence of disability as the administrator may require, including reports from vocational rehabilitation, evaluation, or testing specialists who have evaluated the applicant for employment.
An employee who is unsuccessful before the administrator, however, has the right to de novo determination before the Commission of eligibility for total and permanent disability benefits under section 121.23, Florida Statutes.
The Commission's determination of eligibility for such benefits is controlled by section 121.23(2)(a), Florida Statutes, which provides in pertinent part:
The commission may order any action that it deems appropriate. In cases involving disability retirement, the State Retirement Commission shall require the member to present competent medical evidence and may require vocational evidence before awarding disability retirement benefits.
Thus, an employee seeking total and permanent disability benefits before the Commission is required to present competent medical evidence of a "medically determinable physical or mental impairment" and, if required by the Commission, vocational evidence, from which the Commission may conclude that he is unable to render useful and efficient service as an officer or employee. There is no requirement, however, that an employee present to the Commission a physician's certificate of his total and permanent disability.
Section 121.23(2)(a), Florida Statutes, formerly provided in pertinent part that "[t]he commission may order any action that it deems appropriate." In Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1st DCA 1979), this court held that an employee was not required to present medical evidence to the Commission in order to meet his burden of proof when seeking total and permanent disability benefits. The statute was amended by chapter 90-274, section 17, Laws of Florida, to impose the present requirement that an employee present competent medical evidence. The amendment was intended to overrule this court's decision in Kennedy to the extent that decision may be read as not requiring the employee to present medical evidence to the Commission. The amendment cannot be read, however, as imposing a requirement that an employee seeking total and permanent disability benefits before the Commission present a medical opinion expressed in terms of the statutory standard for such benefits. Stated another way, "competent medical evidence" of a medically-determinable physical or mental impairment and "certification of . . . total and permanent disability by two licensed physicians" are not synonymous. The Legislature could have imposed identical standards of proof, but it did not do so. The current version of section 121.23(2)(a), Florida Statutes, is clear on its face that the Commission continues to enjoy broader discretion than the administrator.
Chapter 121 creates a two-tiered process for obtaining total and permanent disability retirement benefits. At the first level, the administrator is authorized to make an award of disability retirement benefits based on the written material submitted with the application for retirement without going to an evidentiary hearing, provided the proof requirements in section 121.091(4)(c) are met. Those requirements include "certification of the member's total and permanent disability by two licensed physicians of the state." To comply with this provision, these physicians must state that the employee "is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee." In many situations, such as paraplegia, confinement to bed or home by reason of a permanent injury, etc., a physician can easily so certify because the individual cannot even care for himself, much less render "useful and efficient service." In such situations, the extent of disability is obvious and undisputed, so the matter can be concluded by the administrator without ever having to go to the Commission.
On the other hand, there are many instances when the employee has sustained "a medically determinable physical or mental impairment" that may affect the employee's ability to render "useful and efficient service" but the extent to which the employee's ability is affected is disputed. Physicians, in these circumstances, while medically qualified to determine "physical or mental impairment," rarely if ever are professionally qualified to determine whether such "impairment" prevents "useful and efficient service" to the state. Thus, while the administrator may be required under the statutory scheme to deny disability retirement because that determination is beyond the administrator's statutory authority in the absence of two certificates from physicians having been filed, the statutory scheme provides for an evidentiary hearing at the Commission level to review and determine the disputed issues of fact concerning the extent to which the medically-determined impairments affect the ability to work.
It is for this reason that section 121.23(2)(a) does not contain the same language as that found in section 121.091(4)(c) about certificates of total and permanent disability from two physicians. Instead, the Commission is statutorily charged with deciding disputed issues of fact based on evidence adduced at a hearing that should include medical testimony of physical or mental impairment and vocational testimony on the extent that such impairment affects the employee's ability to render "useful and efficient service" to the state. To be able to express such opinions, the vocational expert must be fully qualified as an expert in assessing disability to function in the relevant positions available with the state, matters on which few if any physicians are qualified to give opinions. Hence, the statutory scheme provides much more latitude to the Commission in making this determination than it does to the administrator.
The Legislature, by providing in the amended version of section 121.23(2)(a), Florida Statutes, that the Commission may require vocational evidence, and the Commission, by its enactment of Florida Administrative Code Rule 60R-1.003(4), has recognized that in the absence of medical evidence that an employee is completely unable to work, vocational evidence may be necessary to determine whether the employee is eligible for total and permanent disability benefits under chapter 121. Rule 60R-1.003(4) provides in pertinent part:
The Commission, upon review of the evidence, may require the Petitioner to submit vocational evidence when necessary to determine whether the member is able to render useful and efficient service as an officer or employee, before awarding or denying disability benefits.
Because the issue is of great public importance, we certify the following issue to the Supreme Court as one of great public importance:
WHERE A CLAIMANT SEEKS TOTAL AND PERMANENT DISABILITY BENEFITS IN A PROCEEDING UNDER SECTION 121.23, FLORIDA STATUTES, WHAT MEDICAL EVIDENCE IS THE CLAIMANT REQUIRED TO PRESENT BEFORE THE STATE RETIREMENT COMMISSION?
Finally, although we reverse the final order, we do so only on the ground that the final order appears based in part on an erroneous holding that appellant was required to present a medical opinion that he was unable to render useful and efficient service within the State Retirement System. We do not mean to suggest, however, that on remand the Commission is not entitled to reject the appellant's evidence, as long as the reasons for rejecting such evidence are supported by the record and consistent with logic and reason. Also, the Commission may, in its discretion, take or require additional evidence. The order appealed from is reversed, and this cause is remanded for proceedings consistent herewith.
ERVIN, J., concurs.
WEBSTER, J., dissents with written opinion.
I am unable to agree with the majority's decision. Initially, I note that the issue resolution of which the majority concludes mandates reversing the decision of the State Retirement Commission (Commission) was not raised by appellant. The only issue raised is whether the record contains competent, substantial evidence to support the Commission's conclusion that appellant failed to carry his burden of establishing that he is "totally and permanently disabled." My review of the record satisfies me that it does contain competent, substantial evidence to support the Commission's conclusion. Appellant's treating neurologist, the only physician to testify, said that, while appellant did have limitations regarding lifting, pushing, pulling, bending and twisting, appellant should be able to do a sedentary or "a desk kind of a job." Despite efforts by appellant's counsel, the doctor never wavered from his opinion.
It is my understanding that, as a general rule, appellate courts do not consider issues unless they have been raised and addressed in the briefs. E.g., State v. Williams, 198 So.2d 21 (Fla. 1967); City of Miami v. Steckloff, 111 So.2d 446 (Fla. 1959); Armstrong v. Data Processing Institute, Inc., 509 So.2d 1298 (Fla. 1st DCA 1987); Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla. 1985); Polyglycoat Corp. v. Hirsch Distributors, Inc., 442 So.2d 958 (Fla. 4th DCA 1983), review dismissed, 451 So.2d 848 (Fla. 1984). Therefore, I would affirm, and not reach the issue addressed by the majority.
Although appellant has not argued that the Commission misinterpreted the applicable law, the rationale announced by the majority for its decision to reverse is the following:
[T]he Commission has read section 121.23(2)(a), Florida Statutes, as requiring appellant to present an expert medical opinion expressly stating that he meets the statutory standard for total and permanent disability benefits. This view impermissibly limits the evidence which may be presented to and considered by the Commission. It has imposed upon appellant an incorrect standard of proof.Ante, at 262. In addition to resolving the appeal by addressing an issue not raised by the parties, the majority has mischaracterized the basis for the Commission's decision.
In its Final Order, the Commission stated that, to carry his burden of proof, appellant was "required to produce competent medical evidence" that he is "totally and permanently disabled" as that term is defined in the applicable statute — i.e., that "he is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee." § 121.091(4)(b), Fla. Stat. (1991). It did not base its decision upon a conclusion that the medical evidence offered by appellant failed to meet some formalistic linguistic test, as the majority suggests. Instead, it concluded that "denial must be based on the simple fact that out of the myriad of physicians who treated or examined [appellant], not one said he was — by any definition — totally and permanently disabled, [i.e.,] unable to render useful and efficient service as an employee." (Emphasis added.) I believe that the Commission's interpretation of the applicable statute as requiring that appellant offer "competent medical evidence" that he is "totally and permanently disabled" is eminently correct.
The majority concludes that the Commission has incorrectly construed the applicable statute. However, in reaching that conclusion, the majority's opinion reflects no traditional statutory construction analysis. My belief that the majority's decision is incorrect is based upon several basic principles of statutory construction.
Section 121.23(2)(a), Florida Statutes (1991), reads:
The [C]ommission shall have the authority to issue orders as a result of a hearing that shall be binding on all parties to the dispute. The [C]ommission may order any action that it deems appropriate. In cases involving disability retirement, the State Retirement Commission shall require the member to present competent medical evidence and may require vocational evidence before awarding disability retirement benefits.
(Emphasis added.) The first two sentences were included in the act which created the Commission. Ch. 75-248, § 1, at 707, Laws of Fla. However, the last sentence was added in 1990. Ch. 90-274, § 17, at 2073, Laws of Fla.
When the language of a statute is clear, there is no reason to resort to rules of construction. The statute must be given its plain and ordinary meaning. E.g., Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987); A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157 (1931). I see nothing unclear or ambiguous about the language of the last sentence of section 121.23(2)(a), added in 1990. It seems to me clear from the language used that, when "disability retirement" is the issue in a matter before the Commission, the claimant is required, as a part of his or her burden of proof, "to present competent medical evidence" establishing that he or she is, in fact, "totally and permanently disabled." Courts are "without power to construe an unambiguous statute in a way which would . . . limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." American Bankers Life Assurance Co. of Florida v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968). Accord Holly v. Auld, 450 So.2d 217 (Fla. 1984).
It seems to me equally clear that the last portion of the last sentence was not intended, as the majority concludes ( ante, at 263 n. 2), to permit "vocational evidence" instead of "competent medical evidence." Rather, that language was intended to permit the Commission to "require vocational evidence" in addition to "competent medical evidence" in cases where it believed that such additional evidence might be of assistance.
Assuming that one could conclude from a fair reading of the last sentence of section 121.23(2)(a) that its meaning is not clear, it would be our responsibility to determine what the legislature intended by the language chosen. E.g., Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass'n, 581 So.2d 1301 (Fla. 1991); Department of Agriculture and Consumer Services v. Quick Cash of Tallahassee, Inc., 609 So.2d 735 (Fla. 1st DCA 1992). When performing such an exercise, in the absence of any statutory definition, we must presume that the legislature knew the meaning of the words chosen, and intended that the ordinary meaning of those words apply. E.g., Baskerville-Donovan, 581 So.2d at 1302-03; S.R.G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla. 1978). Moreover, if the meaning is legitimately in doubt, resort may be had to extrinsic matters, including legislative history. Shelby Mut. Ins. Co. v. Smith, 556 So.2d 393 (Fla. 1990). In this regard, it is noteworthy that the preamble to chapter 90-274, Laws of Florida (by which the last sentence was added to section 121.23(2)(a)), lists among its intended purposes "amending s. 121.23, F.S.; limiting the review powers of the State Retirement Commission; [and] requiring submission of medical evidence in cases involving disability retirement." Ch. 90-274, pmbl., at 2041, Laws of Fla.
Also noteworthy, in my opinion, is the decision in Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1st DCA 1979). There, this court held that, notwithstanding section 121.091(4)(c), Florida Statutes (1977), because of the language of section 121.23(2)(a), Florida Statutes (1977), a claimant was not required to present medical evidence of "total and permanent disability" to the Commission to meet his or her burden of proof when seeking disability retirement benefits. At that time, the respective statutes read:
[Section 121.091(4)(c):] Proof of disability. — The administrator, before approving payment of any disability retirement benefit, shall require proof that the member is totally and permanently disabled as provided herein, which proof shall include the certification of the member's total and permanent disability by two licensed physicians of the state and such other evidence of disability as the administrator may require.
[Section 121.23(2)(a):] The Retirement Commission shall have the authority to issue orders as a result of an appeals hearing that shall be binding on all parties to the dispute. The Retirement Commission may order any action that it deems appropriate.
The court reasoned that section 121.091(4)(c) was intended only to restrain the administrator's discretion. Because section 121.23(2)(a) permitted the Commission to "order any action that it deems appropriate," without reference to the need for medical evidence, the court concluded that the legislature had not intended similarly to constrain the Commission.
It strikes me that one need not indulge in a great deal of speculation to reach the conclusion that the last sentence of section 121.23(2)(a), added in 1990, was intended to overrule the decision in Kennedy v. Wiggins. However, to the extent that more proof of the legislature's intent is required, one need only look to the Staff Analysis and Economic Impact Statement of the Senate Committee on Personnel, Retirement and Collective Bargaining for Senate Bill No. 3052, dated May 1, 1990. (The Staff Analysis is stored in the Florida State Archives.) In that Analysis, the staff noted that:
Under present law, the Division of Retirement is required to have two doctors' statements attesting to a member's total and permanent disability before granting a member disability retirement. The Commission, however, under s. 121.23(2)(a), F.S., ". . . may order any action that it deems appropriate" in hearing a disability case without statutorily required standards of proof. The Commission has interpreted this to authorize disability retirement for members who present no competent medical evidence of disability.
It then stated that the proposed change (now the last sentence of section 121.23(2)(a)) would "[r]equire the State Retirement Commission to use competent medical evidence for proof of disability." Staff analyses are generally accorded significant respect in determining legislative intent. E.g., Department of Environmental Regulation v. SCM Glidco Organics Corp., 606 So.2d 722 (Fla. 1st DCA 1992). Moreover, the Department of Administration analysis of the bill (also stored in the Florida State Archives) includes the following:
Under current law, s. 121.23(2)(a), F.S., the State Retirement Commission ". . . may order any action that it deems appropriate" in hearing disability cases. The Commission has interpreted this to authorize disability retirement for members who present no competent medical evidence of disability. The Division is required to have statements of total and permanent disability from two licensed Florida physicians. This bill will place the [Commission] under similar evidence requirements as the Division and will help prevent [Commission] decisions not based on sufficient medical evidence.
My review of the record satisfies me that there is competent, substantial evidence to support the Commission's denial of benefits. Moreover, I believe that the Commission correctly concluded that appellant was required, to satisfy his burden of proof, "to present competent medical evidence" that he was "totally and permanently disabled," which he failed to do. Therefore, I would affirm. Because the majority concludes that reversal is appropriate, respectfully, I dissent.