By Anthony V. Cortese
In the recent decision of the First District Court of Appeals in Southeast Milk v. Fisher, Case No. 1D13-4411 (1st DCA, April 14, 2014), the court ruled that an employee’s misconduct may be the basis of denial of temporary partial benefits. The facts of the case are particularly interesting and raise other legal questions for workers’ compensation and labor law practitioners, particularly considering the recent Second District ruling in Hornfischer v. Manatee County, Case No. 2D13-374 (2nd DCA, February 12, 2014).
In Southeast Milk, the claimant was a truck driver injured on November 9, 2012. He was restricted to light-duty work, and the employer offered him regular hours and regular pay to come into the office to watch safety videos. He came to work on two days and then did not, and he was fired by the employer for unauthorized absences, which the employer asserted constituted employee misconduct. The JCC awarded temporary partial and stated in the order that the award would be the same whether or not there had been employee misconduct. The First District reversed, stating that if misconduct was found, the statute precludes an award of temporary partial benefits under Fla. Stat. § 440.15(4)(e)(2012).
Misconduct is defined in Section 440.02(18) of the act as willful and wanton or intentional and substantial disregard of an employer’s interests or of the employee’s duties. The employer argued that an unexcused absence is in disregard of the employer’s interest and employee’s duties. The employer in Southeast Milk didn’t bother to find productive, light-duty work for the injured worker to do, the employer told him to sit in a room and watch safety videos, which the employee will likely say was a humiliating waste of time. The employer advanced no productive need for this artificial job, and it is clear that this was an effort very soon after the injury to terminate indemnity to an unrepresented injured worker. Does the employer have a valid interest in having an injured employee sit around and watch safety videos day after day? If not, an artificial job cannot be used to terminate indemnity benefits.
In the background is the law against coercing and firing an employee for making a valid workers’ compensation claim under Fla. Stat. § 440.205. Employers who offer these types of artificial, sheltered jobs typically only offer these jobs to employees injured on the job. The artificial job offer, and the termination that follows, occur because the claimant made a valid workers’ compensation claim, which can be the basis of a wrongful termination claim. Hornfischer v. Manatee County, Case No. 2D13-374 (2nd DCA, February 12, 2014). A claim for wrongful termination can be made for compensatory and punitive damages in circuit court, which may in some cases be the best method and forum for an injured worker to be fairly compensated for the loss of earnings that follows a job injury.
Workers’ compensation and labor lawyers will have to consider both methods of recovery for their clients in these situations.
