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

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 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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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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