Employbridge v. Rodriguez

• Decision Date: 07 September 2018
• Docket Number: No. 1D17-4424,1D17-4424
• Citation: 255 So.3d 453
• Parties: EMPLOYBRIDGE and Gallagher Bassett Services, Inc., Appellants, v. Viviana Llanes RODRIGUEZ, Appellee.
• Court: Florida District Court of Appeals

255 So.3d 453

EMPLOYBRIDGE and Gallagher Bassett Services, Inc., Appellants,
v.
Viviana Llanes RODRIGUEZ, Appellee.

No. 1D17-4424

District Court of Appeal of Florida, First District.

September 7, 2018
Rehearing Denied October 22, 2018

Juliana L. Curtis and Barbi L. Feldman of Vecchio, Carrier, Feldman & Johannessen, P.A., Lakeland, for Appellants.

Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa, for Appellee.

Per Curiam.

255 So.3d 454

The Employer and Carrier in this workers' compensation case appeal an order awarding temporary disability benefits after the Judge of Compensation Claims found that Claimant Viviana Llanes Rodriguez's refusal to accept suitable employment offered by her employer was justifiable under § 440.15(6), Florida Statutes. We reverse because the record does not support the conclusion that Claimant's refusal was justifiable.

REVERSED .

B.L. Thomas, C.J., and Osterhaus, J., concur with opinions; Bilbrey, J., dissents with opinion.

I concur in the result, but I would hold that under section 440.15(6), Florida Statutes, an injured employee cannot refuse suitable reemployment, unless the refusal has some "plausible nexus" to the workplace injury, or the employee comes forward with persuasive evidence that the refusal is necessary to protect the employee's health or safety. The overarching goal of the Worker's Compensation Act regarding injured workers is to ensure the "worker's return to gainful reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (2016) ; Moore v. Servicemaster Commercial Servs., 19 So.3d 1147, 1151 (Fla. 1st DCA 2009) ("It is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful employment at a reasonable cost to the employer."); A. Duda & Sons, Inc. v. Kelley, 900 So.2d 664, 669 (Fla. 1st DCA 2005) ("The legislature clearly intends to strongly encourage injured workers, who are capable, to return to the workplace."). This legislative intent is strongly enforced by the forfeiture of temporary disability benefits, when the employee refuses gainful employment offered by the employer. "The method of encouragement chosen by the legislature was to deny all compensation when the claimant refuses suitable employment." Id. (emphasis in original).

Here, the Employer met its burden of persuasion that it had offered Claimant suitable modified-duty work under section 440.15(6), Florida Statutes, such that, once Claimant refused this suitable work, she was no longer eligible for temporary partial disability payments: "If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable ." § 440.015(6), Fla. Stat. (emphasis added). The Employer suggests that this court should apply the rationale of our prior decision in ESIS/ACE American Insurance Company v. Kuhn in determining the proper authority of a judge of compensation claims to decide whether such a refusal is "justifiable." 104 So.3d 1111, 1113 (Fla. 1st DCA 2012). I agree.

In Kuhn , this court correctly construed the discretion of a judge of compensation claims to award an advance payment of compensation under section 440.20(12), Florida Statutes, holding that the legislative intent could not have been simply to allow a claimant to obtain the advance payment for a reason unrelated to a workplace injury:

255 So.3d 455

We are dealing, however, with a statutory framework in Chapter 440 whose principal purpose is to address medical and related financial needs arising from workplace injuries. In context, the type of interest that is furthered by an advance under section 440.20(12)(c)(2) must at least have some plausible nexus to this purpose . A request for a $2000 advance, simply as an undifferentiated financial cushion with no relationship to the provision of medical or related care, does not have such a connection. Indeed, absent this nexus, awarding a $2000 advance could, in the extreme, become merely an automatic judicial act whenever such an advance is requested; we see no basis in the statutory framework for this result.

Id. at 1114-15 (emphasis added).

Here, there is an even more persuasive rationale than in Kuhn to require a "plausible nexus" to Claimant's work-related injury before allowing Claimant to refuse suitable employment, because of the statutory forfeiture of benefits to penalize an unjustified refusal. In cases interpreting section 440.15(6), Florida Statutes, such a requirement would properly limit the discretion of a judge of compensation claims, consistent with the statute's legislative intent to incentivize an injured employee's return to employment at a reasonable cost to the employer. Thus, I concur in the result but would hold that an employee must present persuasive evidence to demonstrate that a refusal of suitable employment has a plausible nexus to the workplace injury or is necessary to protect the employee's health or safety.

I vote to reverse the JCC's order because Claimant offered ordinary, manageable, and self-imposed commuting limitations rather than reasonable justifications for refusing the suitable work offered by her Employer.

I.

In 2013, Claimant and her husband became employed with the Employer in the Employer's Tampa office. But soon thereafter they were assigned to work at a client company in Largo.^* They then moved to Largo to be closer to work.

In 2016, Claimant tripped over a box and fell on her right knee. The accident required medical treatment and resulted in a compensable claim. The authorized doctors assigned work restrictions that prevented Claimant from performing her regular job duties. An Employer representative testified that its client companies, like the one in Largo, typically engage in industrial or manufacturing work and do not have light-duty work available. But for a short time, the Employer was able to provide clerical-type work for Claimant in Largo. After five days of work in Largo, the Employer offered Claimant a similar clerical position in its Tampa office. But she declined.

Claimant filed a petition for benefits seeking temporary partial disability (TPD) benefits. The Employer and Carrier responded with affirmative defenses including voluntary limitation of income and unjustifiable refusal of suitable employment pursuant to section 440.15(6). After a final hearing, the JCC awarded TPD benefits, justifying Claimant's refusal to accept the Tampa job by citing the difficult commute between Largo and Tampa. This appeal followed.

255 So.3d 456

II.

The workers' compensation statute, section 440.15(6), Florida Statutes, generally doesn't permit an injured employee to refuse suitable employment offered by an employer and still receive compensation. § 440.15(6), Fla. Stat.; see also A. Duda & Sons, Inc. v. Kelley , 900 So.2d 664, 668 (Fla. 1st DCA 2005). But an employee can refuse suitable work and receive compensation if "in the opinion of the judge of compensation claims such refusal is justifiable." § 440.15(6), Fla. Stat. Because of the wide discretion given to JCCs in this statute, we will only reverse if the JCC's finding amounts to an abuse of discretion, or isn't supported by competent substantial evidence. Ullman v. City of Tampa Parks Dep't , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (recognizing the appellate court's role "to guard against fanciful or arbitrary abuse of discretion in workers' compensation cases, ... by scrutinizing JCC findings under the light of the basic rule requiring competent substantial evidence in support of [its] findings"). See also Moore v. Servicemaster Comm. Servs. , 19 So.3d 1147, 1151 (Fla. 1st DCA 2009) (noting that "the reasonableness of the justifications provided by Claimant as the basis for her refusal [is an issue] of fact which will not be disturbed in the presence of competent substantial evidence supporting such findings").

In this case, there is no dispute that the Employer offered Claimant a suitable job in Tampa. Claimant is able to perform the light-duty work within the restrictions assigned from her knee injury. But the JCC decided that Claimant could refuse the work and receive workers' compensation benefits instead, because of difficulties associated with the 17-mile commute. The JCC credited the following hardships as justifying her refusal to work:

I find it is unreasonable to expect this particular claimant to go to work in the Tampa office of the employer with her language limitations, her driving limitations, a singular vehicle in the family mainly used by her husband during his odd work hours, no familiarity with public transportation, suggestion of dependence on other family members to drive from Tampa to Largo to pick up the claimant, take her back to Tampa, and then back to Largo at the end of the workday ....

I understand from these findings that Claimant would have to solve some...