Florida Injury Attorney Blawg
Section 440.15(4)(e) of the Florida Statutes provides as follows: “If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”
Simple enough, right? Not necessarily.
For starters, 440.15(4)(e) is qualified by section 440.02(18), which provides in pertinent part as follows:
‘“Misconduct”’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.
This heightens the standard for authorizing the denial of temporary partial disability benefits (TPD) above innocent acts of misconduct. If Mr. Jones is fired for showing up late to work one day because of a flat tire, it is unlikely that TPD benefits will be denied on the basis of 440.15(4)(e). Now, if Mr. Jones makes a habit of showing up late on a regular basis without a darn good excuse — and even then — the story may likely have a different ending.
In the Mr. Jones example, the distinction is between termination for cause and termination for misconduct. See Thorkelson v. NY Pizza & Pasta Inc., 956 So. 2d 542 (Fla. 1st DCA 2007) (“Clearly a claimant is not disqualified from workers’ compensation benefits just because she ‘”was terminated . . . for cause.”‘)
Noting similar provisions under Florida’s Unemployment Compensation Law, Thorkelson reviewed some of the case law decided under the unemployment compensation system to reach its decision in a workers’ compensation case:
- Whether “an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria . . . are separate issues.” McCarty v. Fla. Unemplmt. App. Comm’n, 878 So.2d 432, 434 (Fla. 1st DCA 2004) (internal quotation marks and citation omitted); Lyster v. Fla. Unemplmt. App. Comm’n, 826 So.2d 482, 484-85 (Fla. 1st DCA 2002).
- “While a violation of an employer’s policy may constitute misconduct, `[r]epeated violations of explicit policies, after several warnings, are usually required.'” Ash v. Fla. Unemplmt. App. Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004) (quoting Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001)) (footnote omitted).
- “A single, isolated act of negligence does not constitute disqualifying misconduct.” Id.; Lusby v. Unemplmt. App. Comm’n, 697 So.2d 567, 567-68 (Fla. 1st DCA 1997).
- Ash, 872 So.2d at 402 (“`[T]he conduct complained of was, at most, an isolated incident of poor judgment that did not rise to a level of `misconduct,’ as the claimant was not acting willfully, wantonly, or in substantial disregard of the employer’s interest. See §§ 443.036(29), 443.101, Fla. Stat.'”) (quoting Cohen v. Fla. Unemplmt. App. Comm’n, 868 So.2d 664, 664 (Fla. 3d DCA 2004)).
- McCarty, 878 So.2d at 435 (“While an isolated incident can be disqualifying, if sufficiently egregious, the single-incident cases . . . involve unexcused, unequivocal, and deliberate disobedience. The present case is devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her employer’s interests, even though a policy was violated.)
- Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000) (“[P]roof of the claimant’s violation of the employer’s known policy did not rise to the level of disqualifying misconduct connected with work. The employer cites . . . cases in which a single act of misconduct was found as disqualifying. A common thread running through all of the cited cases is a finding, supported by competent substantial evidence, that the claimant acted in deliberate and intentional disobedience (in some instances, in flagrant disregard) of a supervisor’s order.”).”).
Interestingly, the Thorkelson appellate court agreed with the Judge of Compensation claims that the claimant was terminated for misconduct, resulting in the denial of TPD benefits.
These unemployment cases also address the issue:
- Betancourt v. Sun Bank Miami, N.A.. Although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits.
- Cullen v. Neighborly Senior Services. Meeting between employee and operations supervisor occurred in a private office and there were only two other employees present. isolated incident where employee raised voice to operations supervisor did not constitute misconduct connected with work.
- Benitez v. Girlfriday, Inc. Appellant’s isolated use of offensive language during a private argument with her supervisor was not misconduct connected with work.
- Johnson v. Florida Unemployment Appeals Comm’n. Offensive language was not misconduct where it was an isolated incident, was in a private office, and was neither a personal attack on the supervisor or calculated to undermine authority.
- Pascarelli v. Unemployment Appeals Comm’n. If the claimant’s refusal to perform the assigned task was unreasonable, his conduct constitutes misconduct connected with work.
- Bulkan v. Florida Unemployment Appeals Comm’n. Poor judgment does not constitute misconduct under 443.101.
- McKinney v. United States Sugar Corp. Isolated good faith errors in judgment do not constitute misconduct.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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