Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

You might have seen this recent report about the McDonald's employee in Arkansas who came to the rescue of a customer as she was being assaulted in the dining area of the restaurant.  The assailant shot this Good Samaritan for his efforts, resulting in medical treatment costing over $300,000.  Despite his injuries, he managed to thwart the attack, and the police later arrested the assailant.  He's been hailed as a hero by his employer and by local police.

 

But the workers' compensation insurance carrier - unnamed in the report - is refusing to accept the compensability of the accident under Arkansas law.  They say that because McDonald's did not require him to come to the aid of the customer, his accident was not one "arising out of" or occurring "in the course of" his employment.  If it hasn't already, this one is sure to end up in court.

 

Would this accident be compensable if it occurred in Florida?  Probably.  In D.L. Cullifer & Son, Inc. v. Martinez, 572 So.2d 1360 (Fla. 1990), the Florida Supreme Court held compensable the injuries to two fruit pickers who were injured while coming to the aid of a motorist whose vehicle had become disabled on a nearby highway.  And to underscore its intent, the 1990 Florida Legislature enacted §440.092(3), which says:

(3) DEVIATION FROM EMPLOYMENT.--An employee who is injured while deviating from the course of employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property (emphasis added).

 

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Firefighters in the city of Boca Raton are alleging that their fire-resistant uniform pants are making them sick.  According to this story from the 1/10/2009 edition of the Palm Beach Post, over 50 of the firefighters are showing symptoms consistent with heavy metal poisoning allegedly linked to the flame-retardant chemical in the pants.

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One of the many changes wrought to the Florida Workers' Compensation Law in 2003 was the enactment of §440.093(3), Fla. Stat., which provides:

 

(3) Subject to the payment of permanent benefits under s.440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries. . . .

 

This subsection was at issue in W.G. Roe & Sons v. Razo-Guevara, decided by the First District Court of Appeal on 12/31/2008.  Although there are precious few facts set forth in the court's short opinion, it would appear that the claimant had both physical and psychological injuries resulting from his compensable accident, but the JCC had limited his entitlement to temporary compensation resulting from the psychological injuries to a period of only six months.

 

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Participants in the Florida Retirement System (most state, county, and municipal employees) are entitled to a disability retirement benefit known as "in-line-of-duty" disability benefits if, because of a disability suffered in the line of duty, they are "prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee."  See §121.091(4)(b), Fla. Stat.  "Disability in line of duty" is defined as "an injury or illness arising out of and in the actual performance of duty required by a member's employment. . . ."  See §121.021(13), Fla. Stat.  Although the criteria for an award of these benefits are similar to those for an award of permanent total disability benefits under the Florida Workers' Compensation Law, there are important differences.  Jernigan v. State, Dept. of Management Services, decided by the First DCA on 10/23/2008, illustrates this point.

 

Mr. Jernigan was employed by the Escambia County Sheriff's Department first as a corrections officer and later as a deputy sheriff.  Two years before his retirement, the department accused him of misconduct in connection with his duties and terminated his employment.  Although he was later rehired, he was assigned to court security instead of returning to his old job, a position which he found humiliating.  Thereafter, his mental condition deteriorated to the point that it forced him to leave his employment.

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My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment.  Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

 

• HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL 

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing."  Id. at 587.  Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one.  "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment."  Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978). 

 

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury.  Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

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I hypothesized here about whether last year’s supreme court decision in Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007), might have the effect of increasing employer liability for “mental or nervous” injuries sustained as a result of certain workplace incidents. Of course, recovery for such injuries under the Florida Workers’ Compensation Law is barred unless they are accompanied by physical trauma sufficient to require medical treatment. See §440.093(1), Fla. Stat. But under Willis, recovery for mental injuries in tort is not barred by the “impact rule” where the plaintiff was at least touched, even if the touching results in no physical injury.

 

Now comes the First DCA’s decision in Futch v. Wal-Mart Stores, Inc., decided on 7/31/2008, which arguably bears out that hypothesis. There, Mrs. Futch, a Wal-Mart employee, was abducted at gunpoint from Wal-Mart’s parking lot by two assailants after she finished her shift one evening. After a four-hour drive, her assailants released her at a Waffle House located several hours from her home. Fortunately, she was not physically harmed in the incident.

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In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law.  Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance. . . is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee" (emphasis added).

 

In Matrix Employee Leasing v. Pierce, decided on 6/18/2008, the First DCA reversed the order of the JCC which had found that the claimant had sustained a compensable exposure.  An IME physician, upon whose testimony the JCC relied, said that the claimant's respiratory problems were caused by her exposure to one of two chemicals.  He did not know, however, to which specific chemical the claimant was actually exposed, nor did he know the levels of any such exposure.  Therefore, the court concluded that there was "no competent substantial evidence" to support the JCC's finding that compensability of the respiratory problems had been established by "clear and convincing evidence."

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In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment.  Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work.  But there are exceptions to the "going and coming" rule, one of which is the "special hazard" exception, that is, an accident will be compensable even if it is sustained while "going to" or "coming from" work if it is caused by a "special hazard" on a "normal and customary route" used by the employee as a means of entry to and exit from the workplace.

 

In Kramer v. Palm Beach County, decided on 3/31/2008, the claimant was a bridge tender who habitually parked his car in the morning at a nearby shopping center and walked the remainder of the way to work.  He was injured when he tripped over a pile of debris while walking from his car to the jobsite.  The JCC concluded that the accident was not compensable because of the "going and coming" rule, but the First DCA disagreed.  The Court held that the "special hazard" rule applies if the injury occurs as the result of a "special hazard" encountered on a route that is either the "usual" or "expected"  route.  While the JCC's order demonstrated that Kramer did not use the "expected" route (the employer had provided alternative parking facilities instead of the shopping center parking lot), the order was silent on whether the route he took was the "usual" route.  There was evidence that many of Kramer's fellow employees had continued to park in the shopping center parking lot even after the employer provided the alternative parking facilities.  The Court remanded that case to the JCC for specific findings on whether the route Kramer took was the "usual" route to the jobsite.

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Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment.  The Third DCA held that since the employee was not in the course of his employment at the time of his accident, the employer was not entitled to immunity from tort liability. 

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Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease.  He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112.18(1), Fla. Stat., the "Heart-Lung" bill, to establish the compensability of his condition.  But §112.18(1) only affords a presumption of compensability for such conditions; the presumption may be rebutted by evidence that the condition is not job-related.  Here, the JCC found that the presumption of compensability had been rebutted by evidence of: (1) a genetic predisposition to hypertension; (2) onset of hypertension prior to his employment with the employer; (3) a failure properly treat his hypertension; and (4) development of hypertensive heart disease resulting from untreated hypertension.  You can read the JCC's order here.

 

Saldana appealed the JCC's order to the First DCA, but also filed this petition for writ of prohibition in the Florida Supreme Court in which he challenged the First DCA's jurisdiction to hear his appeal.  The supreme court rejected his challenge in this order.

 

Now the First DCA has rejected his appeal, concluding that the employer presented evidence sufficient to rebut the presumption.  Saldana v. Miami-Dade County.

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As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics.  See SB 2314.

 

Specifically, as §112.18(1) currently does for coronary problems and §112.181 does for hepatitis, SB 2314 would create a rebuttable presumption that "any condition or impairment of the health of a firefighter or paramedic". . . which is caused by cancer and results in total or partial disability or death is presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence."  In order to take advantage of the presumption, the firefighter or paramedic must have passed a physical examination before commencing employment which failed to reveal any evidence of such condition. 

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In Wait v. Travelers Ind. Co. of Illinois, decided on 11/16/2007, the Tennessee Supreme Court held that a telecommuter who was assaulted in her home kitchen by her neighbor while preparing lunch for herself was "in the course of" her employment at the time.  The Court likened the claimant's accident to one occurring in a kitchen or break room on the employer's premises. 

 

Nevertheless, the Court held that this particular accident was not compensable under the Tennessee Workers' Compensation Act because it did not "arise out of" the claimant's employment.  "There is nothing to indicate [the claimant] was targeted [for the assault] because of her association with her employer or that she was charged with safeguarding her employer's property," said the Court.

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In Willis v. Gami Golden Glades, LLC. and Florida Department of Corrections v. Abril, both decided by  4-3 majorities on 10/18/2007, the Florida Supreme Court limited the circumstances under which a plaintiff's recovery for psychological injuries in a personal injury case can be barred by the "impact rule."  Although neither of these decisions is a workers' compensation case, I think they could have an "impact" on an employee's ability to recover from his employer for workplace injuries due to "fright or excitement only" in some cases.

 

So what is the "impact rule?"  It's the court-made rule which says that a personal injury plaintiff may recover against a negligent tortfeasor for psychological injuries only if those injuries are accompanied by some physical "impact." [The impact rule doesn't apply to intentional tort cases like defamation, intentional infliction of emotional distress, breach of fiduciary duty, etc.].  Just how much of an "impact" is required in order to permit the award of damages for mental injuries in these cases?   That's what was at issue in Willis.

 

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When the medical testimony in a Florida workers' compensation case conflicts, either party (or the JCC on his own motion) may request the appointment of an "expert medical advisor" ("EMA") pursuant to §440.13(9)(c), Fla. Stat., in order to resolve the conflict.  Once appointed, in the absence of "clear and convincing evidence" to the contrary, the EMA's opinions are presumed to be correct and must be accepted by the JCC.

 

But does an employer have a right to the appointment of an EMA in cases arising under Florida's "Heart-Lung Bill" (§112.18, Fla. Stat.), which states that for firefighters and other law enforcement personnel, medical conditions such as heart disease and tuberculosis are presumed to have been caused by the claimant's employment?  The JCC in this order said no, reasoning that the appointment of an EMA in such cases would be "contrary to the statutory presumption."   In other words, the JCC concluded that placing questions such as the cause of a first responder's heart disease into the hands of an EMA, whose opinions almost always must be accepted, essentially defeats the purpose of the presumption afforded by §112.18 in the first place.  (The JCC later concluded in this order on the merits that the employer had not presented sufficient evidence to rebut the §112.18 presumption that the claimant's heart disease was caused by his employment as a law enforcement officer).

 

But in Palm Beach County Sheriff's Office v. Bair, decided on 9/21/2007, the First District Court of Appeal brushed aside any such concerns and held that the employer is indeed entitled to the appointment of an EMA in these cases.  Presumably, this holding would also apply in cases arising under the other "presumption" statute, i.e., §112.181(2), Fla. Stat., which states that "hepatitis" and "meningococcal meningitis" contracted by an "emergency rescue or public safety worker" are presumed to have been contracted in the line of duty.  

 

By the way, fans of appellate litigation might be interested to note that the employer here attempted to obtain review of the JCC's initial order concerning the EMA question by way of a petition for writ of certiorari with the First District Court of Appeal, but the petition was denied. 

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In this non-workers' compensation case, the Fourth District Court of Appeal in West Palm Beach has held that a police officer on his way to work while driving a police vehicle was not in the course of his employment at the time of his automobile accident.  Therefore, the City of Hollywood, the municipality for which he worked, was not liable for the injuries sustained by the pedestrian whom he struck and injured in the accident.

 

In Garcia v. City of Hollywood, Sergeant Redding was on his way to work at 6:00 a.m. in his police vehicle when he struck and injured Rocio Garcia as she was crossing the road to catch her school bus.  The City permitted Redding to take the police vehicle home every evening after his shift and to drive it in to work the next day.  Rocio's parents brought suit against the City, claiming that Sergeant Redding negligently operated his vehicle and that he was in the course of his employment at the time of the accident - thereby rendering the City liable for Rocio's injuries under the doctrine of "respondeat superior." 

 

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The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla.  It will be codified as s.112.1815, Fla. Stat.

• EFFECTIVE DATE  

The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law."  Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date.  See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).

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Speaking of first responders, they were the subject of one of the few legislative changes regarding workers' compensation made by the Florida Legislature in its 2007 regular session.  Specifically, the legislature enacted CS/SB 746, which creates a new statutory provision, §112.1815, Fla. Stat.  This bill:

 

• Lowers the standard of proof from “clear and convincing evidence” to “a preponderance of the evidence” for first responders in establishing the compensability of occupational diseases or from injuries or diseases resulting from exposure to toxic substances;  
• Eliminates for first responders the requirement of proving a physical injury in order to establish the compensability of a mental or nervous injury, although only medical benefits, not compensation benefits, are payable where there is no physical injury;  
• Eliminates for first responders the 6-month limit on temporary total disability benefits for mental or nervous injuries payable after maximum medical improvement from the responder’s physical injuries imposed by §440.093(3), Fla. Stat.; 
• Eliminates for first responders the 1% limitation on psychiatric impairments imposed by §440.15(3)(c), Fla. Stat.;  
• Provides for the continuation of permanent total supplemental disability benefits after age 62 if the first responder’s employer does not participate in the Social Security program;  
• Provides for the compensability of any adverse result or complication caused by a smallpox vaccination.

 

The bill is now before Governor Crist awaiting his signature.

 

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For over 40 years, heart attacks and other "internal failures of the cardiovascular system" occurring on the job have generally not been compensable under the Florida Workers' Compensation Act.  Known as the "Victor Wine" rule (taken from the name of the case which decided the issue), it required the employee to demonstrate that his heart attack resulted from an "unusual strain or overexertion" not routine to the type of employment he was accustomed to performing - the purpose being to separate those heart attacks that were truly work-related from those that weren't.

 

In a footnote to this rececent decision, however, one panel of the First District Court of Appeal called into question whether the "Victor Wine" test remains good law.  The Court noted that under this 2003 amendment to the law, an employee must now prove that his on-the-job accident caused more than 50% of his injury and resulting need for treatment.  Requiring him to comply with the "Victor Wine" test as well, said the Court, "seems unduly burdensome and inappropriate."

 

Resolution of the issue will have to await another day, however.  Because the claimant's accident in that case occurred before 10/1/2003, the effective date of the statutory amendments, the Court concluded that it need not address the question.

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