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

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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