Catching Up

In one of my first Blogs I commented on Willis v. Gami Golden Glades Hotel. The Supreme Court had been considering this case after a Feb. 2005 oral argument. The issue was whether or not the Impact Rule should be abolished or changed in Florida. Willis was accosted, patted down and robbed on the defendant’s unsecured premises. He was not injured, but was affected emotionally. Her suit was thrown out by the Third DCA. Finally, after 2 1/2 years of study, the court ruled in a 4-3 decision that injury wasn't necessary and that even the slightest of impacts -- the pat down -- was enough to support an emotional distress claim.

Now compare that to the courts take on the same situation in a workers' compensation situation. In City of Holmes Beach v. Grace, the court not only required a physical injury for the injured police officer's psychiatric problem to be compensable, but also said the injury must be the specific cause of the psychiatric diagnosis (not just having the accident). In the case, police officer Grace accidentally killed a suspect in an arrest. He then became emotionally injured. The cause of the emotional injury was not his minor knee injury, but instead his guilt for killing the suspect. He received no workers' compensation.

If you perceive there is a double standard, you are correct. Hotel owners will be liable to the tourists they serve; but employers need not protect the safety of their employees. Had a hotel employee been accosted like Ms. Willis, he/she would receive no benefits. None.

Next: An Update on Emma Murray v. Mariner Health.

The Supreme Court voted 4-3 (the same justices voting the same way as in the Willis case above), to accept jurisdiction over this attorney fee case that will test, if it remains jurisdictional, the constitutionality of the 2003 attorney fee mandatory fee schedule. After all briefs are filed, the court can change its mind and find that jurisdiction was improvidently granted and dismiss the appeal. A number of entities including the FJA, the Workers' Compensation Section of the Florida Bar and of course employer and carrier associations have all asked the court to allow them to be Friends of the Court (Amicus Curiae). In a nutshell, the real issue is power. Will the Supreme Court give up its current control over attorneys to the legislature? After all, if the legislature can pass a law that establishes an irrebuttable presumption of what a reasonable attorney fee is for WC lawyers, they can do it for all lawyers. Hey PIP lawyer, would you like to be relegated to 10% of the doctor bill you recover for your insurance beneficiary client no matter how much time you put in fighting the carrier? Maybe you are next. And remember, the insurance carrier can spend whatever it takes to beat you. Welcome to the wonderful world of comp.