Kevin Quinley’s poignant inquiry in the Linked-In group discussion raised the issue of whether or not an “exotic” dancer’s injury, while engaged her occupation of choice, was compensable. For various unrelated reasons, the commentary that followed became quite controversial and it was difficult to keep the analysis “on point”, despite Kevin’s artful attempts to do to. It seems to me that this experience serves as a constant reminder of how such important compensability questions are routinely influenced by, and might be decided, based upon personal bias or sense of morality, whether one is an exotic dancer or a firefighter.
Compare the two occupations: Both occupations are constantly plagued by the issues of “employment status” and “earnings” in controversies over compensability and/or earnings; yet one occupation is routinely ostracized, while the other has, in many cases, been vested with near “worship” status.
Kevin raised the question of compensability about an exotic dancer who was legitimately injured while energetically gyrating during a dance. I would take this one step further. What about a firefighter who is injured or dies in a fire, and the question over benefits hinges upon both employment status and earnings? Should not the issues and elements of what determines each be the same, the magnitude of “fairness” notwithstanding? The blind lady of justice would suggest that they would; yet does that really happen? My point can be illustrated by comparing two matters that are currently dealing with the adjudication of such issues at both extremes.
One is a South Carolina case currently pending before the SC Supreme Court entitled, “LeAndra Lewis, Appellant, v. L.B. Dynasty, Inc., d/b/a Boom Boom Room Studio 54 and the South Carolina Uninsured Employers’ Fund” (*Google it for the cite) where the appellate court ruled in a 2-1 decision that she was an independent contractor, despite facts that showed all elements of traditional legal theory were met. Was the ruling influenced by inner issues of “morality” or a practical and objective ruling based on law?
Now consider a current controversy over dead firefighters as presented by the following article recently appearing in the Tampa Bay Times:
Families of dead firefighters fight over compensation (link opens in new window)
When considering the issues of employee vs. independent contractor, will the decisions be similarly influenced issues of morality and a near-worship status of the dangerous jobs that firefighters voluntarily expose themselves to? While a pure, objective application of accepted legal doctrine over relevant facts of “employment” and “earnings” may result in hardship for the survivors, should not the adjudication of any of thees issues be the same, whether for exotic dancers or firefighters?
Moreover, should not claims adjusters and professionals consider these issues based on the facts, the criterion, and the law…and not let personal feelings influence the decision…or even a discussion thereof?
I respectfully suggest, even in today’s “advanced” society, there are still many who can’t get past this and whose judgment shall remain clouded by personal feelings…no matter how high up (e.g. adjuster or appellate court justice) they may be. Perhaps one day we will be as good as we all think we are, but for now, we are still climbing that hill.
I am reminded of a quote by a well-known and respected Florida attorney in a verbal argument before the Florida Supreme Court:
“The law was designed to be fair to ALL, not to just the one. The consistent application of such a law will, by necessity, often result in decisions that appear unfair to the one.”