Jeffrey P. Gale, P.A. // Denial of Florida Workers’ Compensation Temporary Partial Disability Benefits Based on Voluntary Limitation of Income and Termination for Cause

We have a case in the office where our client, an injured worker, is being denied temporary partial disabililty (TPD/440.15(4)) benefits based on two defenses. The defenses, voluntary limitation of income and termination for cause, are at odds with one another.

Voluntary Limitation of Income Defense

Our client was fired from her job. She did not resign or refuse employment. In Carcamo v. Business Representation Internation & North River Ins. Co., 37 So. 3d 901 (Fla. 1st DCA 2010), the injured worker voluntarily resigned from suitable employment. The employer/carrier (E/C) denied her claim for TPD benefits. The judge of compensation claims (JCC) sided with E/C. The First DCA disagreed with the JCC and remanded the case for further factual findings.

The appellate court pointed out that a voluntary resignation does not alone support the denial of TPD benefits. Carcamo at 901. What must be taken into account is whether the claimant’s refusal was justifiable, section 440.15(6), Florida Statutes, and the continued availability of the job. See Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009) (although employer not required to continually reoffer job to avail itself of statutory defenses based on unjustified voluntary limitation of income, employer must establish continued availability of job for each applicable period to obtain continued benefit of defense).

Our client, a single mother with sole custody of a young child, sustained a significant injury that required extensive surgical repair. After a lengthy recovery period, she was offered light duty work by the same employer. At the time of the job offer, our client and her daughter were living at her mother’s home in Georgia. Due to logistical issues, our client, who otherwise had an exemplary work history, showed up for work one week late. She was fired a few days later. She has not been contacted since by the employer to return to work.

These facts would seem to defeat the voluntary limitation of income defense. In the most obvious sense, being fired was not a voluntary act by our client, the injured employee. The defense also flies in the face of E/C’s termination for cause defense.

Termination for Cause Defense

Section 440.15(4)(e) provides that postinjury TPD benefits can be denied if the employee is terminated for misconduct.

440.02(18) defines “misconduct” as:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

443.036(29), contained in the section of Florida law dealing with reemployment assistance, also addresses “misconduct,” describing it as follows:

(a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee. Such conduct may include, but is not limited to, willful damage to an employer’s property that results in damage of more than $50, or theft of employer property or property of a customer or invitee of the employer.

(b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

(c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.

(d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.

(e)1. A violation of an employer’s rule, unless the claimant can demonstrate that:

a. He or she did not know, and could not reasonably know, of the rule’s requirements;

b. The rule is not lawful or not reasonably related to the job environment and performance; or

c. The rule is not fairly or consistently enforced.

2. Such conduct may include, but is not limited to, committing criminal assault or battery on another employee, or on a customer or invitee of the employer or committing abuse or neglect of a patient, resident, disabled person, elderly person, or child in her or his professional care.

These standards account for the holding in Thorkelson v. NY Pizza & Pasta, Inc., 956 So. 2d 542 (Fla. 1st DCA 2007), which cited Blodgett v. Fla. Unemplmt. App. Comm’n, 880 So.2d 814, 815 (Fla. 1st DCA 2004) for the proposition that “An employee’s actions sufficient to justify discharge from employment do not necessarily constitute misconduct sufficient to bar recovery of unemployment benefits.”

While Blodgett is an unemployment compensation case, because the Florida’s Legislature’s use of a virtually identical definition of “misconduct” in the workers’ compensation statutes as is used in the unemployment compensation statutes [Chapter 443, Florida Statutes], it and other unemployment compensation cases have come to be accepted as authority with regard to the meaning of “misconduct” in workers’ compensation cases. Thorkelson, id. at 545.

Interestingly, as to both statutes, whether “an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria . . . are separate issues.” McCarty v. Fla. Unemplmt. App. Comm’n, 878 So.2d 432, 434 (Fla. 1st DCA 2004) (internal quotation marks and citation omitted); Lyster v. Fla. Unemplmt. App. Comm’n, 826 So.2d 482, 484-85 (Fla. 1st DCA 2002).

Here is an illustrative list of holdings in unemployment compensation cases addressing “misconduct” in the context of the entitlement to benefits:

• Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37 (Fla. 3rd DCA 1996): Although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits.
• Cullen v. Neighborly Senior Services, 775 So. 2d 392 (Fla. 2nd DCA 2000): Meeting between employee and operations supervisor occurred in a private office and there were only two other employees present. Isolated incident where employee raised voice to operations supervisor did not constitute misconduct connected with work.
• Benitez v. Girlfriday, Inc., 609 So. 2d 665 (Fla. 3rd DCA 1992): Appellant’s isolated use of offensive language during a private argument with her supervisor was not misconduct connected with work.
• Johnson v. Florida Unemployment Appeals Comm’n, 513 So. 2d 1098 (Fla. 3rd DCA 1987): Offensive language was not misconduct where it was an isolated incident, was in a private office, and was neither a personal attack on the supervisor or calculated to undermine authority.
• Jorge v. Florida Unemployment Appeals Comm’n, 765 So.2d 889 (Fla. 3rd DCA 2000); Pascarelli v. Unemployment Appeals Comm’n, 664 So.2d 1089 (Fla. 5th DCA 1995): If the claimant’s refusal to perform the assigned task was unreasonable, his conduct constitutes misconduct connected with work.
• Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995): Poor judgment does not constitute misconduct under 443.101.
• McKinney v. United States Sugar Corp., 492 So.2d 478 (Fla. 4th DCA 1986): Isolated good faith errors in judgment do not constitute misconduct.

Our client was a good worker. After sustaining a significant injury and undergoing surgery, she struggled to recuperate and care for her child. While in Georgia receiving assistance from her mother, she was given short notice to return to work. She was fired for showing up a week late.

We will argue that these facts do not rise to the level of “misconduct” as contemplated in the workers’ compensation and unemployment compensation statutes. Not that it is conclusive in the workers’ compensation case, but our client applied for and did receive unemployment compensation benefits.

********************