Sunday, November 4, 2018

Grievous Bodily Harm

The Florida Division of Workers' Compensation is working on a new regulation. If requested, a hearing on this will be held in November 2018. In the 2018 Legislative session, Section 112.1815 was amended to provide some psychiatric benefits for post traumatic stress disorder (PTSD) to firefighters, paramedics and police officers who witness various events. The law became effective October 1, 2018. Two sub-paragraphs, Section 112.1815(5)(a)2(f) and (g), are dependent on witnessing death that "involved grievous bodily harm of a nature that shocks the conscience." So, what does "grievous bodily harm" mean? The Legislature did not define it, and the Division now proposes to do so.

Words convey meaning. That seems axiomatic, but it bears noting. Periodically, there are disputes and litigation as to the meaning of words. Tribunals, are confronted with varying perceptions and purported word definitions or understandings when deciding cases. The meaning of words in statutory or regulatory construct can be critical to determination of both rights and responsibilities under the law, and so rules of statutory construction have evolved to assist the judge. 

The Florida Supreme Court has noted that 
One of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the Legislature. When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary. Reform Party of Fla. v. Black, 885 So.2d 303, 312 (Fla.2004). 
The Florida First District Court has followed that guidance, see City of Venice v. Van Dyke, 46 So.3d 115 (Fla. 1st DCA 2010). Coincidentally, that decision interpreted Section 112, Florida Statutes. Note that the "definition" in this context is "in the statute" or "clear intent of the legislature." In Florida, administrative agencies are "afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer." However, nothing requires the judge to "defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency.” Sullivan v. Florida Dept. of Environmental Protection, 890 So.2d 417, 420 (Fla. 1st DC 2004). And the day may come when administrative agency interpretations and rules are afforded even less deference, but that is a subject for another day. 

Another tenet of construction that may be implicated when listing things is referred to in latin, inclusio unius est exclusio alterius. When there is a particular item included in a list, this tenet holds that not listing other items excludes them from consideration. for example 
In 2003, the Florida Legislature amended section 57.105 to include, specifically, an award of reasonable attorney's fees for baseless claims and defenses raised in administrative proceedings under chapter 120. See § 57.105(5), Fla. Stat. (2003). No similar amendment was made which would expressly include workers' compensation cases. Under the doctrine inclusio unius est exclusio alterius, an inference must be drawn that the Legislature did not intend to include workers' compensation trial proceedings within section 57.105. Lane v. Workforce Business Services, Inc., 151 So.3d 537, 540 (Fla. 1st DCA 2014). 
The Florida Division of Workers's Compensation has published notice that it will consider Rule 69L-3.009 to define what is, and perhaps therefore by exclusion what is not, "grievous" and "shock(ing to) the conscience." The provision of the statute renders these conditions pertinent in the event of death. The witnessing of these "grievous" injuries to someone who thereafter survives is perhaps disturbing, but perhaps not the basis for benefits under the newly enacted law because death did not result. 

To define "grievous," the proposed rule lists eight (8) specific injuries or appearances, the fifth on the list including six sub-parts providing more specificity as to particular organs that are "grievous," perhaps by implication concluding other organs are less disturbing. The specific instances deemed by the regulators to be "grievous" are: 
(1) Decapitation (full or partial),(2) Degloving,(3) Enucleation,(4) Evisceration.(5) Exposure of one or more internal organs,(a) Brain,(b) Heart,(c) Intestines,(d) Kidneys,(e) Liver, or(f) Lungs.(6) Impalement,(7) Severance (full or partial), and(8) Third degree burn on 9% or more of the body.
It is possible that some may not even know what all of these words mean. There is also curiosity as to why "(full or partial)" is used to modify "Decapitation" and "Severance," but not added to "Degloving," "Enucleation," "Evisceration," or "Impalement," inclusio unius? And some have raised interesting questions about the rational for the specific six particular organs (5). 

So, as to those that are not "exposure," that is (5), perhaps it helps to know what they mean. Dictionary definitions from Mirriam Webster provide some assistance with "decapitation," evisceration, and "third degree burn." But the absence of a Webster's definition, or the lack of illumination provided by a definition there may needs drive the student elsewhere. I have selected on medical dictionary, but there are many. For the sake of one regular reader, I have deferred referencing the epitome of knowledge, Wikipedia, sometimes preferred by the more educated and erudite. 

(1) Decapitation (full or partial), "to cut off the head of," Merriam Webster's. The term "partial decapitation" returned no results from Webster's. The act of cutting off a head would seemingly begin with an incision or cut. If that cut were throughout the neck, then there would logically be a "full" decapitation. Perhaps most would agree that some other extent of cut is undoubtedly "partial," perhaps at 75% of the neck severed? But where is the line drawn between 1% and 100%? Is a neck laceration of any description sufficient to be "partial decapitation?" And, does the compensability under the statute and proposed regulation depend upon the medical definition, a medical opinion, or the claimant's own perception of what was perceived ("looked to me as if she/he was 'partially' decapitated")? 

As an aside, there is an injury called "internal decapitation," perhaps that is what is meant by "partial?" That injury may not be visible though, which may suggest it is not intended for inclusion. Some may remember An Indomitable Spirit that suffered an internal decapitation, and more, and returned to dancing. 

(2) Degloving, No definition in Webster's, Merriam Webster's. According to the Free Medical Dictionary, this may refer to "intra-oral surgical exposure of the bony mandibular chin;" or to "an injury to an extremity-finger, hand, arm, leg, or foot-in which the soft tissue down to the bone, including neurovascular bundles and sometimes tendons, is traumatically peeled off." Though surgery is a part of the dictionary definition, that potential will be ignored here. Notably, comparing to "decapitation," there is no "full or partial" qualifier proposed for this word. Thus, it seems that any injury that "peels off" tissue to the bone qualifies. Thus, some might argue that (2) might be similar to the ability to see other anatomy as is expressed in (5)? Others might suggest that (2) is a particular method or exposing bone, and thus aptly distinct from (5)? 

(3) Enucleation, "to remove without cutting into," Merriam Webster's. According to the Free Medical Dictionary, this may refer to "removal of an entire structure (such as an eyeball or tumor), without rupture, as one shells the kernel of a nut," or "removal or destruction of the nucleus of a cell." It can also mean "surgical removal of the eyeball" specifically. The inclusion of "Enucleation" may be intended to refer specifically to the traumatic removal of an eyeball. But, the medical definition suggests that this refers in some context specifically to "surgical removal." The dictionary definition seems broader, referring to the "removal of an(y) entire structure," which some might argue could refer to any organ or even anatomy being removed, traumatically or otherwise. 

(4) Evisceration. "to take out the entrails of" Merriam Webster's. The Free Medical Dictionary says this can mean "extrusion of viscera outside the body, especially through a surgical incision" (suggesting that the mere appearance of either "the soft internal organs of the body, especially those contained within the abdominal and thoracic cavities" or "the intestines" as opposed to the removal or to "take out" may suffice). These definitions may create questions. The regulation's "Evisceration" mention, unlike "decapitation," is likewise not modified with "full or partial." Some may therefore argue that any injury in which a scintilla of "viscera" or "internal organs" is "outside the body" qualifies. Others might argue that the absence of the "partial" qualifier might mean that the totality of either "viscera" or some "organ" is required to qualify. Still others may question the need of "Evisceration" in light of the presence of (5), particularly (c). Does "Evisceration" merely repeat the section (5), or does it broaden them to more than intestines? 

(6) Impalement, "to pierce with or as if with something pointed." Merriam Webster's. The Free Medical Dictionary essentially echoes this definition: "To pierce with a sharp stake or point." Thus, an injury once suffered with a pesky office stapler might be argued to qualify (not apparently limited as to what is pierced). By both the Webster's and Medical Dictionary definitions the intrusion (pierce) into the body to any degree or extent might well be arguably an "impalement." This might be argued to include any part or portion of an automobile, a knife, a shard of glass, or otherwise entering any portion of the body, finger, hand, or earlobe. I knew a kid once that ran with a pencil; his fall resulted in an "Impalement" of his hand per this definition. 

(7) Severance (full or partial), "the act or process of severing" Merriam Webster's. The Free Medical Dictionary is also similar on this point: "the act or process of severing or separating." The first question to come to mind in this regard is "severance of what?" If an event results in the removal of a victim's ear lobe, has a "Severance" occurred? If the "distal phalanx" of the little finger or toe is traumatically removed, has "severance" occurred? Is losing the earlobe "grievous?" As with other questions herein, does it matter whether the "severance" is medically determined or is this dependent upon the perception of the observer ("It looked like the ear lobe had been removed" fully or partially"). Notably, with the addition of the "full or partial" qualifier, one might argue that the ear lobe need not even completely removed in order for that condition to be "grievous." 

(8) Third degree burn on 9% or more of the body "a severe burn characterized by destruction of the skin through its deeper layers and possibly into underlying tissues, loss of fluid, and sometimes shock." Of the conditions listed, this is perhaps among the clearest. But, what if the observer is not qualified to determine third degree versus second degree? What if the observer is not capable of determining "9% . . . of the body?" Does the observer qualify for benefits because she/he believed the coverage was 9% or more, though some later medical testimony establishes it was actually only 8.5%? Does the observer qualify because she/he believed that the burns were "third degree" although a later medical opinion determines they were "more likely very serious second degree." Does the observer suffer less because it turns out not to be as extensive as the observer thought? 

Returning then to (5), and the exposure of particular organs. The reader may question what is necessarily "grievous" about these six: (a) Brain, (b) Heart, (c) Intestines, (d) Kidneys, (e) Liver, or (f) Lungs?" Some may ask whether seeing the pancreas, diaphragm, gall bladder, stomach, spleen, or bladder is somehow less shocking or traumatic? Others may, as mentioned above, wonder if this exposure can is distinct from "Evisceration?" Perhaps in that the (5) listing requires merely "exposure" but not necessarily "extrusion?" 

Others may ask more specifically what is the distinction between stomach (the center of the digestive tract) and the intestines (the next step in the same digestive process)? Is there some basis to conclude that visualizing the stomach is tough, but the intestines is "grievous?" What if the observer thinks she/he saw the "Kidney," but admits on cross-examination it might well have been the pancreas? What if the observer thinks she/he saw a kidney, but admits on cross-examination it might have been only one kidney? Is it necessary, as the proposed rule states, to see both "Kidneys," or would seeing one Kidney be as "grievous?" Does the same "one or both" analysis logically apply to "Lung" and "Lungs?" 

In a broad sense, there are those who question why a First Responder who perceives these things would be entitled to compensation for psychiatric injury, or PTSD, when a school teacher, construction worker, or waiter/waitress (or others) who see the identical event or injury would not. But, that decision has been made by the Legislature. 

There are also those who perceive the potential for significant litigation over how this list of "grievous" is applied to the experiences and perceptions of First Responders. The extent of exposure, the words compatible with differing interpretations, the singular and plurals, and the lack of clarity are seen by some as leaving much discretion and interpretation to the trial judge. And it leads me to one of my tenets, gained from a few years in this business: "where there is room for debate, people will litigate."(Langham, copyright 2018). That is a proven maxim.

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