Ortega v. ENGINEERING SYSTEMS TECHNOLOGY

Decision Date16 April 2010
Docket NumberNo. 3D08-1607.,3D08-1607.
PartiesRicardo ORTEGA, Appellant, v. ENGINEERING SYSTEMS TECHNOLOGY, INC., Appellee.
CourtFlorida District Court of Appeals

Bill McCabe, Longwood; Pelayo M. Duran, for appellant.

Carmen Rodriguez, for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

SHEPHERD, J.

Ricardo Ortega appeals a summary final judgment rendered against him in an action where he claims Engineering Systems Technology, Inc., unlawfully discharged him in retaliation for making a valid workers' compensation claim. See § 440.205, Fla. Stat. (2007).1 Engineering Systems defends the summary final judgment on the ground that the failure of the employer's workers' compensation carrier to unequivocally advise it that Ortega was released to work constitutes a complete bar to Ortega's claim. We disagree and therefore reverse and remand this case for further proceedings. A brief summary of the facts of this case, set forth in the light most favorable to the non-movant, as the law requires at this stage of the proceeding, is necessary to explain our decision.

FACTS

Engineering Systems is engaged in the business of installing fire protection devices, such as fire alarms and sprinklers. A typical installation crew consists of an "installer" and a "helper." Engineering Systems employed Ortega as a "helper." On October 31, 2006, Ortega fell off a ladder during the course of a job site installation and fractured his right wrist. Enrique Borja, Ortega's boss and the owner of Engineering Systems, provided immediate notification of the accident to his workers' compensation insurance carrier, Associated Industries Technology Insurance Company, which assumed responsibility for managing Ortega's care and benefits.

Dr. Donald Caress first saw Ortega for his injury on November 2, 2006. Caress noted his activity status as "No use of right arm," "Must wear splint," and recommended Ortega see a hand surgeon as soon as possible. On November 7, Dr. Franklin A. Reyes, a hand specialist, examined Ortega, confirmed his right wrist fracture, and recommended surgery. Ortega had surgery on November 8. He visited Dr. Reyes again on November 9, November 14, December 5, and December 21. The record reflects most of these visits were for therapy. Through this entire time period, Ortega was on a "no work" status.

On February 1, 2007, Dr. Reyes examined Ortega and, for the first time, authorized Ortega to engage in the "limited use of his injured hand" with a twenty pound weight restriction. On the same day, Ortega called Borja, hoping to return to work. Borja advised Ortega he did not have any light-duty jobs available for him and stated "he should go back to his workman's compensation and make sure they... do what they have to do ... to make sure he can work without any limitations." Referring specifically to whether he would take Ortega back when he was sufficiently recovered, Borja stated, "I don't have a problem ... anybody can work." On February 9, 2007, Carol Cooper, the Associated Industry's adjustor assigned to Ortega's case, completed the Division of Workers' Compensation Form DWC-4, indicating February 1, 2007 as Ortega's "RELEASED TO RETURN TO WORK DATE," with restrictions. A copy of the DWC-4 form was furnished to Engineering Systems and filed with the Florida Department of Workers' Compensation, as required by law under Florida Administrative Rule 69L-3.0091. Through a conversation with Tonya Borja, Enrique Borja's office manager and wife, Cooper also confirmed the company did not have any work available for an individual with Ortega's limitation.

After further treatment and therapy under the care and supervision of Dr. Reyes, Dr. Reyes, on April 12, 2007, issued a report to Associated Industries, stating Ortega reached maximum medical improvement and "he can return to work with no limitations." A copy of this report was supplied to Ortega, who in turn faxed it to Engineering Systems. Twelve days later, on April 24, 2007, Dr. Reyes furnished Associated Industries with the Division of Workers' Compensation Form DWC-25, indicating Dr. Reyes assigned Ortega a permanency rating of five percent of the body as a whole, and confirming again Ortega was released from all work limitations. Upon receipt of this form, Cooper prepared a second DWC-4 form on April 24, 2007, reciting Ortega had reached maximum medical improvement as of April 12, 2007, but left blank, both the "RELEASED TO RETURN TO WORK DATE" field, and the work restrictions field. As Cooper explained in her deposition, it was not her carrier's practice to fill-in these fields when an employee was released to full duty because the worker must advise the employer if he wishes to return to work.2 Borja was furnished a copy of the Division of Workers' Compensation Form DWC-4, but not the Division of Workers' Compensation Form DWC-25.

Four days after Dr. Reyes informed Ortega he could return to work with no limitations, Ortega had a conversation with Borja, during which Ortega testified he told Borja he was ready to return to work and had been cleared of all limitations. According to Ortega, Borja replied, "I don't have work for you ... I removed you from my staff two months ago." Although Ortega's telephone records reflect three calls to the Engineering Systems office— one six minutes in length—on the date Ortega stated he had this conversation with Borja, Borja denied having this or any other conversation with Ortega during the year 2007. Rather, Borja testified Ortega never contacted him or told him he had been fully cleared to return to work or wanted to work. Moreover, he testified he was without obligation to put Ortega back to work until he received a properly completed Division of Workers' Compensation Form DWC-4, stating he was cleared to work without limitations. Borja denied ever receiving the second of the two DWC-4 forms furnished to him by Cooper, and could not recall receiving the report issued by Dr. Reyes on April 12, 2007. Both forms were found in his files.

ANALYSIS

In order to prevail on a retaliatory discharge claim under section 440.205 of the Florida Workers' Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee's protected activity....

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  • Employment cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...occurred; and (3) the adverse action and the employee’s protected activity were causally related. Ortega v. Eng’g Sys. Tech., Inc. , 30 So.3d 525, 528 (Fla. 3d DCA 2010) (citing Russell v. KSL Hotel Corp. , 887 So.2d 372, 379 (Fla. 3d DCA 2004)). In order to establish a claim under section ......

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