         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2224
                 _____________________________

RUBEN RODRIGUEZ,

    Appellant,

    v.

TALLAHASSEE FIRE
DEPARTMENT/CITY OF
TALLAHASSEE,

    Appellees.
                 _____________________________


An appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.

Date of accident: June 20, 2014.

                        March 15, 2018


OSTERHAUS, J.

     In this workers’ compensation case, Ruben Rodriguez appeals
the Judge of Compensation Claims’ (JCC’s) order denying his
claim seeking payment of impairment benefits for work-related
cardiac arrhythmias. In determining that Mr. Rodriguez is not
entitled to impairment benefits, the JCC rejected the expert
medical advisor’s (EMA’s) opinion that Mr. Rodriguez has a
permanent impairment rating (PIR) of at least 15%, as provided in
the Class 2 classification of arrhythmias under the 1996 Florida
Uniform Permanent Impairment Rating Schedule (Guide). We
reverse because the JCC did not articulate clear and convincing
evidence sufficient to reject the EMA’s opinion that Mr. Rodriguez
requires drugs to prevent arrhythmia-related symptoms.

                                 I.

     Mr. Rodriguez was a firefighter who developed cardiac
arrhythmias, which were accepted as compensable by his
Employer/Carrier (E/C) under section 112.18, Florida Statutes
(2013) (providing rebuttable presumption of occupational
causation for certain conditions, including heart disease, for
certain professions such as firefighting). The accepted date of
accident for this claim is June 20, 2014, which is when Mr.
Rodriguez underwent an authorized cardiac ablation procedure for
his arrhythmias. In the ablation procedure, freezing energy was
used to scar Mr. Rodriguez’s heart in order to electrically block the
abnormal rhythm.

     Dr.    Cox,     the   authorized     treating    cardiologist/
electrophysiologist, placed Mr. Rodriguez at maximum medical
improvement (MMI) on October 28, 2014, with a 0% PIR under
Class 1 of the Guide. She prescribed a daily dose of 81 milligrams
of over-the-counter aspirin for Mr. Rodriguez’s condition. During
her deposition, Dr. Cox indicated that Mr. Rodriguez has not had
a recurrence of symptoms since MMI. Dr. Borzak, Mr. Rodriguez’s
independent medical examiner (IME), disagreed with Dr. Cox and
opined that Mr. Rodriguez was entitled to a 16% PIR under the
Class 2 category because an ablation procedure is analogous to
having a pacemaker.

     To resolve the doctors’ disagreement about the impairment
rating, the JCC appointed Dr. Castello as EMA. See § 440.13(9)(c),
Fla. Stat. (2013). After Dr. Castello’s evaluation, he rated Mr.
Rodriguez within Class 2, with a PIR of 15% or 16%. The JCC
rejected Dr. Castello’s opinion, accepted the 0% PIR assigned by
Dr. Cox, and denied payment of permanent impairment benefits.

                                 II.

    When there is a disagreement in the medical opinions in a
workers’ compensation case, § 440.13(9)(c) mandates the
appointment of an EMA whose opinion “is presumed to be correct

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unless there is clear and convincing evidence to the contrary as
determined by the [JCC].” See also Taylor v. TGI Friday’s, Inc., 108
So. 3d 698, 698 (Fla 1st DCA 2013) (“An EMA’s opinion . . . is
presumed to be correct unless the JCC finds and articulates clear
and convincing evidence to the contrary.”); Arnau v. Winn-Dixie
Stores, Inc., 76 So. 3d 1117, 1118 (Fla. 1st DCA 2011) (remanding
for JCC to identify and “articulate” clear and convincing evidence
to support his rejection of EMA’s opinion). Here, we review
whether there is competent substantial evidence (CSE) supporting
the JCC’s conclusion that clear and convincing evidence
contravened the EMA’s opinion. See McKesson Drug Co. v.
Williams, 706 So. 2d 352, 353 (Fla. 1st DCA 1998) (holding that
appellate review of JCC’s rejection of EMA opinion is limited to
whether CSE supports JCC’s finding of clear and convincing
evidence).

                                 A.

     This case involves a dispute about the PIR assigned to Mr.
Rodriguez after an ablation procedure improved his cardiac
arrhythmia condition. By law, the amount payable in impairment
benefits is determined by the PIR assigned to an injury or
condition using the Guide. See § 440.15(3)(b)-(c), Fla. Stat. (2013);
Fla. Admin. Code R. 69L-7.604. Under the Guide’s impairment
classification category for cardiac arrhythmias, either Class 1 or
Class 2 applies in cases like this one, where a patient with
documented cardiac arrhythmia is asymptomatic during ordinary
daily activities. The least impaired patients fall into Class 1, and
may be assigned a PIR from 0% to 14%. Class 2 covers the next
PIR range (from 15% to 29% impairment) and applies to patients
requiring “[m]oderate dietary adjustment, or the use of drugs, or
an artificial pacemaker . . . to prevent symptoms related to the
cardiac arrhythmia.” Guide at 82. Or, if a patient requires none of
these things, then the arrhythmia must persist and there must be
organic heart disease to satisfy a Class 2 rating. Id.

                                 B.

     In this case, after a disagreement between health care
providers regarding Mr. Rodriguez’s PIR—whether it was Class 1
or Class 2—an EMA appointed by the JCC concluded it to be Class
2, with a PIR of 15% or 16%. But the JCC rejected the EMA’s
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opinion of a Class 2 PIR, because it disagreed that an ablation and
artificial pacemaker are the same thing, and it disagreed that
aspirin is a drug. Mr. Rodriguez finds fault with both of these
conclusions by the JCC and asks us to reverse and remand for an
impairment rating determination based on the EMA’s opinion.

1. We disagree with the first of Mr. Rodriguez’s two arguments,
which challenges the JCC’s rejection of the EMA’s interpretation
of “artificial pacemaker” as used in the Guide. The EMA’s opinion
considered an ablation procedure and artificial pacemaker
equivalent for purposes of assigning a Class 2 impairment rating
of 15-16%. See Guide at 82. The JCC rejected this finding because
the evidence showed that Mr. Rodriguez has no artificial
pacemaker and because a pacemaker and ablation are different.
The JCC found that “a pacemaker is an implantable device that
controls the heart rate, while an ablation is an invasive procedure
performed to abate cardiac arrhythmia.”

     The JCC’s decision is supported by the record. Both the EMA
and Mr. Rodriguez’s cardiologist acknowledged that cardiac
ablations and artificial pacemakers are different things. An
artificial pacemaker is a medical device implanted into an
individual’s chest to regulate the heart’s rhythm. Conversely, an
ablation uses freezing to scar the heart into blocking abnormal
rhythms. The former treatment method relies on an artificial
device going forward to correct cardiac rhythm issues; the latter is
a single-event medical procedure. The EMA’s testimony
acknowledged that his views in assigning the PIR incorporated a
“spirit of the guidelines” view versus adhering to the Guide’s
“letter of the word.” It is true that the Guide grants some leeway
to physicians to rate impairment based on analogies, where “a
category applicable to the impairing condition cannot be found in
the Guide.” Guide at 2. But in this case, the Guide addresses Mr.
Rodriguez’s impairing condition. Cardiac arrhythmia is expressly
included in the Guide. Guide at 82. What is more, the Guide
provides an impairment classification that addresses patients
who, at the point of MMI, have a documented arrhythmia, are
asymptomatic, and have no evidence of heart disease (as well as
don’t require moderate dietary adjustment, the use of drugs, or an
artificial pacemaker prevent symptoms); it provides for the
assignment of a Class 1, 0-14% PIR. As Class 1 fit the facts of Mr.

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Rodriguez’s situation—having had an ablation, but no artificial
pacemaker (and putting the aspirin-drug issue aside for the
moment (see below))—we find no fault with the JCC’s conclusion
to reject the EMA’s decision to give a Class 2 PIR based on his
“having” an artificial pacemaker. *

2. However, we agree with Mr. Rodriguez’s second argument and
reverse because the JCC disregarded the Guide’s Class 2
parameter regarding “the use of drugs.” One way that the Guide
explicitly separates a Class 1 rating from a Class 2 rating is that
Class 2 patients require “the use of drugs” to prevent symptoms
related to cardiac arrhythmia. The JCC here assigned a Class 1
rating after deciding, contrary to the EMA’s testimony, that the
aspirin prescribed by Mr. Rodriguez’s cardiologist was not a
“drug.” To support this conclusion, the JCC misplaced reliance on
the definition of “medicine” under paragraph 440.13(1)(l) (“[A]
drug prescribed by an authorized health care provider [which]
includes only generic drugs or single-source patented drugs . . . .”).
This definition indicates that “medicine” is a subset of “drug” in
that statute, but it doesn’t address the definition of “drugs” used
in the Guide. The Guide refers to the “use of drugs,” not “medicine.”

     In fact, nothing indicates that the definition of “drugs” in the
Guide departs from its usual definition, or that aspirin isn’t a drug.
See,    e.g.,   Drug,    Merriam–Webster       Online     Dictionary,
www.merriam-webster. com/dictionary/drug (last visited Feb. 1,
2018) (defining a “drug” as “a substance used as a medication or in
the preparation of medication” and “a substance intended for use
in the diagnosis, cure, mitigation, treatment, or prevention of
disease”); cf. Kirkland v. State, 666 So. 2d 974, 976 (Fla. 1st DCA


    * We note that the Guide provides for a Class 1 rating in other
instances where the patient is doing well at MMI after a cardiac
surgery. See e.g., Valvular Heart Disease, Guide at 76 (including
within Class 1, some patients who have recovered from valvular
heart surgery); Congenital Heart Disease, Guide at 78 (including
within Class 1, some patients who have recovered from corrective
heart surgery); Pericardial Heart Disease, Guide at 81 (including
within Class 1, some patients who have had the pericardium
surgically removed).

                                  5
1996) (striking a condition of probation prohibiting the possession
of “any drugs” because it could be interpreted to prohibit aspirin);
In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales
Practices Litig., 701 F. Supp. 2d 356, 362 (E.D.N.Y. 2010)
(recognizing that “[a]spirin is an analgesic, one of a class of drugs
that . . . may be sold over-the-counter subject to an FDA
monograph, which specifies what claims a manufacturer can make
about the drug”). The records of Mr. Rodriguez’s doctor visits
specified that his treatment plan included taking aspirin. And the
EMA recognized aspirin to be commonly prescribed to control
atrial fibrillation symptoms. The EMA testified that the
arrhythmia of atrial fibrillation often returns and that because
there is a significant risk for stroke with this arrhythmia,
anticoagulants, such as aspirin, are typically prescribed after an
ablation. With this evidence, and with nothing concrete supporting
the JCC’s decision to discount Mr. Rodriguez’s use of a drug to
prevent arrhythmia-related symptoms, the EMA’s PIR should
have prevailed.

                                III.

    Accordingly, we reverse the final order and remand for further
proceedings in accordance with this opinion.

    REVERSED and REMANDED.

LEWIS and BILBREY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for
Appellant.

Christopher J. DuBois and Mary E. Cruickshank of DuBois &
Cruickshank, P.A., Tallahassee, for Appellees.

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