Ortega v. ENGINEERING SYSTEMS TECHNOLOGY, 3D08-1607.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior |
| Citation | 30 So.3d 525 |
| Parties | Ricardo ORTEGA, Appellant, v. ENGINEERING SYSTEMS TECHNOLOGY, INC., Appellee. |
| Docket Number | No. 3D08-1607.,3D08-1607. |
| Decision Date | 16 April 2010 |
Ricardo ORTEGA, Appellant,
v.
ENGINEERING SYSTEMS TECHNOLOGY, INC., Appellee.
No. 3D08-1607.
District Court of Appeal of Florida, Third District.
January 20, 2010.
Rehearing and Rehearing En Banc Denied April 16, 2010.
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.
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...
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...causation by showing the protected activity and the adverse action are not completely unrelated." Ortega v. Eng'g Sys. Tech., Inc. , 30 So. 3d 525, 529 (Fla. 3d DCA 2010). "But mere temporal proximity, without more, must be Very close.’ " Thomas , 506 F.3d at 1364 (quoting Breeden , 532 U.S......
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...reasons were not what motivated its conduct, or that the proffered reasons are not worthy of belief." Ortega v. Eng'g Sys. Tech., Inc., 30 So. 3d 525, 529 (Fla. 3rd DCA 2010). There is no dispute that Stallworth filed a workers' compensation claim, that her position was eliminated, and that......
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...action occurred; and (3) the adverse action was causally related to the employee's protected activity." 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)). Based on the current Complaint, howeve......
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Chavous v. City of Saint Petersburg, 8:20-cv-1614-KKM-JSS
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...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 ......