Piezo Technology v. Smith, ZZ-27

• Decision Date: 26 April 1982
• Docket Number: No. ZZ-27,ZZ-27
• Parties: PIEZO TECHNOLOGY and Professional Administrators, Inc., and Old Republic Ins. Co., and Southern Fire Adjusting Co., Appellants, v. Geraldine SMITH, Appellee.
• Court: Florida District Court of Appeals

Page 121

413 So.2d 121

PIEZO TECHNOLOGY and Professional Administrators, Inc., and Old Republic Ins. Co., and Southern Fire Adjusting Co., Appellants, v. Geraldine SMITH, Appellee.

No. ZZ-27.

District Court of Appeal of Florida,

First District.

April 26, 1982.

Bernard J. Zimmerman, William G. Berzak and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.

Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.

PER CURIAM.

Employer/carrier appeals a workers' compensation order which found that claimant was wrongfully discharged contrary to the provisions of § 440.205, Florida Statutes. We conclude that a deputy commissioner is without jurisdiction to make such a determination unrelated to any pending claim for benefits otherwise due under Chapter 440, Florida Statutes, and we therefore reverse.

The order determining that employer Piezo Technology violated § 440.205, Florida Statutes, is based on findings (1) "that the employer improperly terminated Geraldine Smith as a result of her attempts to claim further workmen's compensation benefits" instead of the alleged reason of excessive absenteeism; (2) that the deputy had "jurisdiction to hear this cause pursuant to Fla.Stat. § 440.205, § 440.25, and § 440.45," and (3) that a prior order denying additional benefits for the claim in question "does not preclude the undersigned from considering a violation of Fla.Stat. § 440.205 inasmuch as that statute is not predicated upon a showing that monetary benefits are due the injured worker."

Section 440.205, Florida Statutes, provides that:

No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The legislative history of § 440.205 shows that the bill was at one time drafted with explicit provisions for sanctions and jurisdiction in the circuit court. Journal of the House of Representatives, pp. 208-210 (April 10, 1979). By amendment these provisions were deleted, and the law as enacted prescribes no specific sanctions or jurisdiction. Because the omitted provisions covered only matters of remedy often left to general law, the amendment can be regarded as deletion of surplusage having no significant bearing on the question of forum for enforcement. ¹ Certainly the language of the provision enacted, supra, does not negate a civil remedy in courts of general jurisdiction, nor does it support application of the maxim for construction of laws which are amended by substitution of language that gives a different meaning:

Where the journals recording the history of the enactment of the statute show that language that gave a particular construction to it was taken out by an amendment, another provision being substituted that gives a different meaning, a construction based on the provision before its amendment will be avoided. [emphasis supplied]

See 30 Fla.Jur., Statutes, § 103 (1974) (citing State ex rel. Finlayson v. Amos, 76 Fla. 26, 79 So. 433 (1918). Equally certain is the fact that the purpose of the provision, stated in the title of the act, is "prohibiting retaliatory discharges of employees." ² Because, as detailed below, that purpose is not susceptible of accomplishment within the limited jurisdiction of deputy commissioners under Chapter 440, and because we may not assume that the provision is a nullity or useless enactment, ³ we conclude that the creation of a cause of action for wrongful discharge, ⁴ cognizable in the circuit court, was the means intended for accomplishment of the stated legislative purpose.

We conclude however that a wrongful discharge action is clearly not cognizable by a deputy commissioner within the parameters of Chapter 440. Although deputy commissioners are authorized by § 440.25(1) to "hear and determine all questions" in respect to a claim for compensation, the request for a § 440.205 wrongful discharge finding in the case before us is neither a claim for "compensation" nor "benefits" as those terms are used in Chapter 440.

The order appealed in this case is likewise not properly entered by a deputy commissioner under Chapter 120. Section 120.565 provides for declaratory statements by way of agency opinion and final agency action; however, § 440.021 establishes that deputy commissioners are exempt from Chapter 120 and shall not be considered an agency or a part thereof. We find no authority for imbuing a deputy commissioner with "agency status" for the limited purpose of § 440.205 adjudications, and we therefore conclude that such adjudications may not be made under § 120.565, since that statute expressly requires agency action.

The order appealed is reversed.

WENTWORTH and JOANOS, JJ., concur.

ERVIN, J., dissents w/opinion.

ERVIN, Judge, dissenting.

I respectfully dissent. It is my view that the deputy does in fact have jurisdiction to entertain a claim alleging wrongful discharge.

By looking only to the words of Section 440.205, it is difficult for one to glean the extent of the legislative purpose behind its enactment. Although the statute clearly precludes retaliatory discharge, it provides no sanctions for such conduct, nor does it explicitly vest jurisdiction in either the courts or the deputy commissioners for determining whether an alleged wrongful discharge occurred.

The statute's history is a curious one: as first introduced in the Senate as Senate Bill 188, Journal of the Senate, p. 68 (April 3, 1979), it contained various amendments to Chapter 440, yet it made no provision relating to the subject matter of Section 440.205. That same day a committee substitute was passed with minor amendments, none of which referred to Section 440.205. Id. at pp. 68-71. The bill was then referred to the House. On April 10, 1979, the House adopted amendments to the bill and passed it as amended. One of those amendments introduced a provision which eventually became Section 440.205. Journal of the House of Representatives, pp. 208-210. The House bill, as amended, provided:

(1) No employer shall discharge, threaten to discharge, intimidate or coerce any employee by reason of such employee's claim for compensation or attempt to claim compensation under the Workmen's Compensation Act of Florida.

(2) Any employer who violates the provisions of this section--

(a) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation;

(b) may be enjoined from further violations of this section in order to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of such employee's claim for compensation under the Workmen's Compensation Act of Florida; and

(c) shall be subject to a civil penalty of not more than $500.00 for each violation as to each employee.

(3) Any individual who is reinstated to a position of employment in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during such period and shall be reinstated to his position of employment without loss of seniority and shall be entitled to participate in insurance or other benefits offered by the employer pursuant to the established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such individual was discharged.

(4) The employer alone and not the employer's insurance carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from liability for such penalties and payment shall be void.

(5) In an action or proceeding under this section, the court shall award a prevailing employee who brings such action by retained counsel a reasonable attorney's fee as a part of the costs. The court may award a prevailing employer a reasonable attorney's fee as part of the costs if the court determines that the action is frivolous, vexatious, or brought in bad faith.

(6) An action by an employee to enforce this section shall be brought in the Circuit Court of the county in which such employer maintains a place of business.

Id. at 210.

On April 17, 1979, the bill was returned to the Senate and referred to its Ways and Means Committee. Although that committee recommended adoption, the full Senate refused, requesting instead that the House recede from its amendments or appoint a conference committee. Upon the House's refusal, a conference committee was appointed, which ultimately amended the bill passed by the House. One of the amendments eventually became Section 440.205, and, as finally enacted, retained only Section 1 of the House's amended bill and deleted all provisions for damages, injunctions, civil penalties and attorney's fees as provided in the amended House bill. Journal of the Senate, pp. 263-296 (April 26, 1979); Journal of the House of Representatives, pp. 323-352 (April 24, 1979).

After considering the above history, I can only conclude that the legislature's enactment of Section 440.205, which eliminated all but Section 1 of the House's amended bill, does not reflect any intention that there be created a civil cause of action in the circuit court. This conclusion corresponds with the long-standing rule of statutory construction to the effect that

where the journals recording the history of the enactment of the statute show that language that gave a particular construction to it was taken out by an amendment, another provision being substituted that gives a different meaning, a construction based on the provision before its amendment will be avoided.

30 Fla.Jur., Statutes, § 103, p. 261 (1974) (citing to State ex rel. Finlayson v. Amos, 76 Fla. 26, 79 So. 433 (1918). See also Mayo v. American Agricultural Chemical Co., 101 Fla. 279, 133 So. 885 (1931).

Nor in my view was there created a claim that is cognizable under...