Arnold v. Florida's Blood Centers, Inc.

• Decision Date: 24 January 2007
• Docket Number: No. 1D05-4749.,1D05-4749.
• Citation: 949 So.2d 242
• Parties: Dawn ARNOLD, Appellant, v. FLORIDA'S BLOOD CENTERS, INC. and AIG Claim Services, Inc., Appellees.
• Court: Florida District Court of Appeals

949 So.2d 242

Dawn ARNOLD, Appellant, v. FLORIDA'S BLOOD CENTERS, INC. and AIG Claim Services, Inc., Appellees.

No. 1D05-4749.

District Court of Appeal of Florida, First District.

January 24, 2007.

Samuel S. Henderson of Henderson and Futchko, P.A., Melbourne, for Appellant.

Margaret E. Sojourner and Philip R. Augustine of Langston, Hess, Bolton, Shepard & Augustine, P.A., Maitland, for Appellees.

BENTON, J.

Dawn Arnold appeals an order of a judge of compensation claims denying her temporary partial disability benefits on grounds she left her employment voluntarily. Viewed in light of the record as a whole, however, the judge's finding that she left voluntarily lacks any substantial support. Accordingly, we reverse and remand.

That Ms. Arnold's employment at Florida's Blood Centers, Inc. (FBC) was the major contributing cause of her bilateral carpal tunnel syndrome and tenosynovitis is not in dispute here. At issue is whether this concededly work-related condition caused a disability that actually resulted in a loss of wages. The order under review attributes Ms. Arnold's wage loss to her putative decision to forgo work available to her. But competent, substantial evidence does not support this view.

Ms. Arnold left FBC because her employer, concerned her new work restrictions would complicate scheduling, refused to allow her to continue working.¹ The evidence provides no support for the view that she left her employment "without just cause." § 440.15(7), Fla. Stat. (2004) ("If the employee leaves her . . . employment while receiving temporary partial benefits without just cause . . . ."). She left her employment because she was told she no longer had a job. This is both "just cause," and a reason directly attributable to her employer.

Despite overwhelming evidence to the contrary, the order under review states that she voluntarily left her employment. On this basis, the order concludes that FBC is entitled, pursuant to section 440.15(7), Florida Statutes (2004), to impute to her the income she would have earned,² if she had not (according to the order) quit her job at FBC. On the same, unsupported factual premise, the order states that Ms. Arnold is not entitled to temporary partial disability benefits under the (inapposite) rationale of Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998) (denying disability benefits on grounds that "the reduction in the claimant's income below the minimum statutory level was caused by her termination for misconduct, not her disability").

Ms. Arnold worked as a "lab specialist" for FBC from May 13, 2002, until November 28, 2004, operating a centrifuge and packaging blood and blood products. Toward the end of this period, her normal work schedule was five days per week, eight hours per day, but she typically worked weekends, as well, by herself. Earlier in her time with FBC, she had worked four weekdays per week, ten hours per day, also working weekends.

Her duties included preparing whole blood and plasma to be sent to area hospitals, and platelets for shipping either to area hospitals or overseas. After FBC began using a different type of bag for packaging blood (products), Ms. Arnold began to suffer from what proved to be bilateral carpal tunnel syndrome and tenosynovitis. She reported pain she had experienced on the job to her supervisor, Jon Nickey, on November 10, 2004, telling him that she had been experiencing symptoms including "shooting pains" for six months, and that they had intensified greatly recently.

Mr. Nickey said that he would let FBC's Orlando office know. He later told her that the Orlando office had been notified and would get in touch with her. Ms. Arnold continued to work her regular hours, including the weekend shift by herself, performing all her regular duties without accommodation.³ She testified that her hands were "in severe pain" as a result and that she was experiencing numbness.

When she called the office of Dr. Homi Cooper, attempting to obtain medical care, she was told that FBC or its insurance carrier had to schedule the appointment, and had not done so yet. She placed other calls to FBC personnel, FBC's insurance carrier, and the doctor's office in an effort to obtain medical care until, on November 17, 2004, FBC's Orlando office informed her that an appointment had been scheduled for her with Dr. Cooper on November 18, 2004.

Ms. Arnold testified that, by the time she was notified of the appointment, she was "just physically furious" because her hands had become so painful, and that she was "up to wit's end just because my hands hurt so bad, I had to work the whole weekend by myself and I really didn't see that changing" and that she had "decided it would be best if I just gave my resignation." She did "give her resignation" in a letter dated November 17, 2004, "to be effective 11/28/2004."

Dr. Cooper examined and evaluated Ms. Arnold, and placed restrictions on her working, including limiting performance of her regular duties at FBC to no more than forty-five minutes to an hour at a stretch, to be followed by modified duty devoid of forceful pushing, pulling, twisting or gripping of the hands for forty-five minutes to an hour. Dr. Cooper also prescribed medication and bilateral wrist splints, and ordered EMG and nerve conduction studies. Hopeful her medical problems were manageable, Ms. Arnold thought better of resigning.

On November 24, 2004, she gave her supervisor, Mr. Nickey, a letter disavowing her resignation and seeking to withdraw her letter of November 17, 2004. The later letter stated:

I would like to ask that you allow me to withdraw my [letter of] resignation. I did some research on our benefits, etc and I feel it is in my best interest to stay at least until the new year. I would however like to ask that after the Jan. 1, 05 I be allowed to go back to my schedule of 4 days a week (Thurs-Friday-Sat-Sun).

She explained at trial that "maybe I was going to start to be able to see some relief," and that she had become concerned about losing her job and benefits, including health insurance for her children.

When Ms. Arnold spoke to Mr. Nickey about continuing to work for FBC, he told her (perhaps disingenuously) that he would submit the matter to FBC's Orlando office, who would decide. Eventually, Mr. Nickey informed her that FBC would not permit her to work after November 28, 2004. FBC has offered her no employment since, and her efforts to find work elsewhere have been unsuccessful, although she has received a total of $6,764.00 in unemployment compensation benefits.⁴ Her efforts to find work included applying and interviewing with other "medical entities" in Brevard County, such as Wuesthoff Pharmacy, Melbourne Internal Medicine Associates and Wuesthoff Hospital, as well as at various retail stores, including Kohl's and Wal-Mart, the Brevard County Schools, and various agencies of the State of Florida. Neither FBC nor its insurance carrier has challenged the evidence on this point or questioned the adequacy of Ms. Arnold's job search.

But they contend she is not entitled to benefits because, they say, the only reason she was out of work was that, frustrated with how long it took to get a doctor's appointment, she rashly wrote the letter of November 17, 2004. But Mr. Nickey explained that his decision not to keep her on at FBC involved "looking at the [medically imposed, work] restrictions" she was under, which were "all kind of factored together" with the possibility she would leave on January 1, 2005, in deciding to let her go. He testified specifically that keeping her would reduce scheduling flexibility in that "the weekend position working alone . . . didn't fall within . . . the scope of her doctor's restrictions." Alternatively, FBC and its insurance carrier contend that, if Ms. Arnold's resignation letter does not bar payment of temporary partial disability benefits outright, they were entitled to impute "deemed earnings" based on amendments to section 440.15(7), Florida Statutes.⁵

The judge of compensation claims acknowledged Ms. Arnold's effort to withdraw her letter of November 17, 2004, but found "that the claimant did not express an unconditional willingness to return to work" because the letter of November 24, 2004, stated: "I feel it is in my best interest to stay at least until the new year. I would however like to ask that after the Jan. 1, 05 I be allowed to go back to my schedule of 4 days a week." Based on this language alone, the order under review found that Ms. Arnold's "express[ed] . . . willingness to return to work" should be disregarded because it was conditioned on a change in her work schedule FBC could not accommodate. These letters, although competent evidence, fall far short of proof that she left voluntarily. As purported evidence that Ms. Arnold left FBC of her own accord, the letter of November 17, 2004, is not "substantial." See Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ("The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.").

Mr. Nickey, who testified the decision "to have November 28th be her last day" "was made primarily on my part," had no doubt that her schedule would be "extended to the first of the new year" before any possible change, if he let her keep her job. The condition she supposedly laid down had, therefore, no conceivable relevance to her continued employment "at least until the new year," i.e., for the period before January 1, 2005. Only at that point could any question of a possible schedule change become a real factor. The plainly precatory language she used ("I would . . . like to ask that . . . I be allowed . . . .") bespeaks, moreover, not an ironclad condition for her agreeing to work beyond January 1, 2005, but a request by one who well understands that the request may be denied. The judge of compensation claims never found (and...