SOUTHEAST MILK/ZURICH NORTH AMERICA, APPELLANTS,
v.
GUY W. FISHER, APPELLEE
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In this workers' compensation case, the employer appeals a temporary partial disability (TPD) award, arguing the judge of compensation claims erred by failing to determine whether the employee was terminated for misconduct, which would bar TPD benefits under Florida law. The appellate court agrees and remands for a misconduct determination.
The court held that the judge erred by not reaching the dispositive misconduct defense raised by the employer/carrier. Under Florida law, TPD benefits are not payable if termination is based on misconduct, and the judge's statement that the TPD award would be the same regardless of a misconduct finding was legally inaccurate.
[1] Temporary partial disability benefits are not payable if termination is based on misconduct.
[2] A Judge of Compensation Claims must determine whether a claimant was terminated for misconduct when that issue is raised as a dispositive defense.
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Join FLexlaw to unlock all legal intelligence“TPD benefits are not payable if termination is based on misconduct”
Establishes the statutory bar on TPD benefits when termination involves misconduct under section 440.15(4)(e)
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Join FLexlaw to unlock all legal intelligenceThe claimant, a truck driver, suffered a compensable work injury on November 9, 2012, and was restricted to light duty work. The employer offered him …
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In this workers’ compensation case, the Employer/Carrier (E/C) challenges an order of the Judge of Compensation Claims (JCC) to the extent it awards temporary partial disability (TPD) benefits for the period of May 3, 2013, through July 2, 2013. Because the Employer had fired Claimant on December 19, 2012, the E/C argues that the JCC erred in, inter alia, declining to determine whether Claimant had been discharged for misconduct, given that section 440.15(4)(e), Florida Statutes (2012), unequivocally provides that TPD benefits are not payable if termination is based on misconduct. We agree with the E/C here and remand for a finding on whether Claimant was terminated for misconduct.
As background, Claimant, a driver, suffered a compensable injury on November 9, 2012, when the door of his truck cab slammed into his left side. Subsequently he was restricted to light duty work, and to accommodate his work restrictions, the Employer offered him his regular hours and regular rate of pay to come in to the office to watch safety training videos. Claimant watched the videos for part of two nonconsecutive days and then stopped coming to work. On at least one day of absence, he did not call in as required by a company policy that indicated “no-call no show” could result in termination. The Employer considered Claimant’s absences to be unauthorized and terminated him for that reason.
*583The JCC stated in the final order that his award of TPD benefits “would be the same [even] if [he] determined the claimant was terminated for ‘misconduct’ as defined by section 440.02(18).” This statement is not accurate, because, again, termination for misconduct statutorily precludes an award of TPD benefits. Given that the B/C raised a dispositive defense based on an allegation of statutory misconduct, the JCC erred in not reaching the issue of whether Claimant’s conduct rose to the level of misconduct as defined by section 440.02(18), Florida Statutes (2012). Thus, we REVERSE and REMAND for a finding of whether Claimant was discharged for statutory misconduct and entry of an order accordingly.
LEWIS, C.J., WOLF and MAEAR, JJ., concur.