Employbridge and Gallagher Bassett Services, Inc. v. Viviana Llanes Rodriguez

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4424
_____________________________
EMPLOYBRIDGE and GALLAGHER
BASSETT SERVICES, INC.,
Appellants,
v.
VIVIANA LLANES RODRIGUEZ,
Appellee.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.
Date of Accident: May 11, 2016.
September 7, 2018
PER CURIAM.
The Employer and Carrier in this workers’ compensation case
appeal an order awarding temporary disability benefits after the
Judge of Compensation Claims found that Claimant Viviana
Llanes Rodriguez’s refusal to accept suitable employment offered
by her employer was justifiable under § 440.15(6), Florida
Statutes. We reverse because the record does not support the
conclusion that Claimant’s refusal was justifiable.
REVERSED.
B.L. THOMAS, C.J., and OSTERHAUS, J., concur with opinions;
BILBREY, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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B.L. THOMAS, C.J., concurring with opinion.
I concur in the result, but I would hold that under section
440.15(6), Florida Statutes, an injured employee cannot refuse
suitable reemployment, unless the refusal has some “plausible
nexus” to the workplace injury, or the employee comes forward
with persuasive evidence that the refusal is necessary to protect
the employee’s health or safety. The overarching goal of the
Worker’s Compensation Act regarding injured workers is to ensure
the “worker's return to gainful reemployment at a reasonable cost
to the employer.” § 440.015, Fla. Stat. (2016); Moore v.
Servicemaster Commercial Servs., 19 So. 3d 1147, 1151 (Fla. 1st
DCA 2009) (“It is the intent of the Legislature that the Workers’
Compensation Law be interpreted to facilitate the worker’s return
to gainful employment at a reasonable cost to the employer.”);
A. Duda & Sons, Inc. v. Kelley, 900 So. 2d 664, 669 (Fla. 1st DCA
2005) (“The legislature clearly intends to strongly encourage
injured workers, who are capable, to return to the workplace.”).
This legislative intent is strongly enforced by the forfeiture of
temporary disability benefits, when the employee refuses gainful
employment offered by the employer. “The method of
encouragement chosen by the legislature was to deny all
compensation when the claimant refuses suitable employment.”
Id. (emphasis in original).
Here, the Employer met its burden of persuasion that it had
offered Claimant suitable modified-duty work under section
440.15(6), Florida Statutes, such that, once Claimant refused this
suitable work, she was no longer eligible for temporary partial
disability payments: “If an injured employee refuses employment
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suitable to the capacity thereof, offered to or procured therefor,
such employee shall not be entitled to any compensation at any time
during the continuance of such refusal unless at any time in the
opinion of the judge of compensation claims such refusal is
justifiable.” § 440.015(6), Fla. Stat. (emphasis added). The
Employer suggests that this court should apply the rationale of our
prior decision in ESIS/ACE American Insurance Company v.
Kuhn in determining the proper authority of a judge of
compensation claims to decide whether such a refusal is
“justifiable.” 104 So. 3d 1111, 1113 (Fla. 1st DCA 2012). I agree.
In Kuhn, this court correctly construed the discretion of a
judge of compensation claims to award an advance payment of
compensation under section 440.20(12), Florida Statutes, holding
that the legislative intent could not have been simply to allow a
claimant to obtain the advance payment for a reason unrelated to
a workplace injury:
We are dealing, however, with a statutory
framework in Chapter 440 whose principal purpose is to
address medical and related financial needs arising from
workplace injuries. In context, the type of interest that is
furthered by an advance under section 440.20(12)(c)(2)
must at least have some plausible nexus to this purpose.
A request for a $2000 advance, simply as an
undifferentiated financial cushion with no relationship to
the provision of medical or related care, does not have
such a connection. Indeed, absent this nexus, awarding a
$2000 advance could, in the extreme, become merely an
automatic judicial act whenever such an advance is
requested; we see no basis in the statutory framework for
this result.
Id. at 1114-15 (emphasis added).
Here, there is an even more persuasive rationale than in Kuhn
to require a “plausible nexus” to Claimant’s work-related injury
before allowing Claimant to refuse suitable employment, because
of the statutory forfeiture of benefits to penalize an unjustified
refusal. In cases interpreting section 440.15(6), Florida Statutes,
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such a requirement would properly limit the discretion of a judge
of compensation claims, consistent with the statute’s legislative
intent to incentivize an injured employee’s return to employment
at a reasonable cost to the employer. Thus, I concur in the result
but would hold that an employee must present persuasive evidence
to demonstrate that a refusal of suitable employment has a
plausible nexus to the workplace injury or is necessary to protect
the employee’s health or safety.
OSTERHAUS, J., concurring with opinion.
I vote to reverse the JCC’s order because Claimant offered
ordinary, manageable, and self-imposed commuting limitations
rather than reasonable justifications for refusing the suitable work
offered by her Employer.
I.
In 2013, Claimant and her husband became employed with
the Employer in the Employer’s Tampa office. But soon thereafter
they were assigned to work at a client company in Largo. ∗ They
then moved to Largo to be closer to work.
In 2016, Claimant tripped over a box and fell on her right
knee. The accident required medical treatment and resulted in a
compensable claim. The authorized doctors assigned work
restrictions that prevented Claimant from performing her regular
job duties. An Employer representative testified that its client
companies, like the one in Largo, typically engage in industrial or
manufacturing work and do not have light-duty work available.
But for a short time, the Employer was able to provide clerical-type
work for Claimant in Largo. After five days of work in Largo, the
Employer offered Claimant a similar clerical position in its Tampa
office. But she declined.
Claimant filed a petition for benefits seeking temporary
partial disability (TPD) benefits. The Employer and Carrier
∗
The Employer also had a branch office in Largo that serviced
the client from across the street.
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responded with affirmative defenses including voluntary
limitation of income and unjustifiable refusal of suitable
employment pursuant to section 440.15(6). After a final hearing,
the JCC awarded TPD benefits, justifying Claimant’s refusal to
accept the Tampa job by citing the difficult commute between
Largo and Tampa. This appeal followed.
II.
The workers’ compensation statute, section 440.15(6), Florida
Statutes, generally doesn’t permit an injured employee to refuse
suitable employment offered by an employer and still receive
compensation. § 440.15(6), Fla. Stat.; see also A. Duda & Sons, Inc.
v. Kelley, 900 So. 2d 664, 668 (Fla. 1st DCA 2005). But an employee
can refuse suitable work and receive compensation if “in the
opinion of the judge of compensation claims such refusal is
justifiable.” § 440.15(6), Fla. Stat. Because of the wide discretion
given to JCCs in this statute, we will only reverse if the JCC’s
finding amounts to an abuse of discretion, or isn’t supported by
competent substantial evidence. Ullman v. City of Tampa Parks
Dep’t, 625 So. 2d 868, 873 (Fla. 1st DCA 1993) (recognizing the
appellate court’s role “to guard against fanciful or arbitrary abuse
of discretion in workers’ compensation cases, . . . by scrutinizing
JCC findings under the light of the basic rule requiring competent
substantial evidence in support of [its] findings”). See also Moore
v. Servicemaster Comm. Servs., 19 So. 3d 1147, 1151 (Fla. 1st DCA
2009) (noting that “the reasonableness of the justifications
provided by Claimant as the basis for her refusal [is an issue] of
fact which will not be disturbed in the presence of competent
substantial evidence supporting such findings”).
In this case, there is no dispute that the Employer offered
Claimant a suitable job in Tampa. Claimant is able to perform the
light-duty work within the restrictions assigned from her knee
injury. But the JCC decided that Claimant could refuse the work
and receive workers’ compensation benefits instead, because of
difficulties associated with the 17-mile commute. The JCC credited
the following hardships as justifying her refusal to work:
I find it is unreasonable to expect this particular claimant
to go to work in the Tampa office of the employer with her
language limitations, her driving limitations, a singular
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vehicle in the family mainly used by her husband during
his odd work hours, no familiarity with public
transportation, suggestion of dependence on other family
members to drive from Tampa to Largo to pick up the
claimant, take her back to Tampa, and then back to Largo
at the end of the workday . . . .
I understand from these findings that Claimant would have
to solve some logistical hurdles, or rely on public transportation in
order to get to the job offered to her in Tampa. I also understand
from the JCC’s findings that Claimant did not investigate her
public transportation options, even though there are bus stops
near her home and work. The commuting “limitations” identified
by the order describe rather ordinary and manageable commuting
difficulties that cannot justify her decision to refuse a good job in
favor of receiving public benefits, especially when her commuting
options haven’t been investigated. Under the Workers’
Compensation Act, the refusal to work a suitable job must be
“justifiable.” § 440.15(6), Fla. Stat. The Workers’ Compensation
statute is bent on “strongly encourag[ing] injured workers, who are
capable, to return to the workplace.” A. Duda & Sons, Inc., 900 So.
2d at 669. And “[i]t is the intent of the Legislature that the
Workers’ Compensation Law be interpreted to facilitate the
worker’s return to gainful employment at a reasonable cost to the
employer.” Moore, 19 So. 3d at 1150-51. It follows that an injured
employee cannot simply identify ordinary commuting obstacles
and self-imposed commuting limitations as the basis for refusing a
suitable job, especially where conventional commuting options
haven’t been investigated.
Speaking only Spanish, for instance, is not a reasonable
justification for Claimant’s refusal to work a suitable job. Many
Spanish-speaking workers in Florida can drive or ride to work
every day. Indeed, Claimant herself has obtained a drivers’ license
and drives locally around her house. I don’t see how Claimant’s
lack of English-language proficiency prevents her from commuting
to work, or investigating the Tampa-area’s public transportation
options. The other limitations identified in the order also don’t
justify her refusal. That Claimant might have to work out sharing
a car with her husband, rely on rides from family members, carpool
with others, or investigate and use public transportation are
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unremarkable “limitations.” Again, many workers must coordinate
with their families to solve commuting-related inconveniences and
obstacles, or use car-pooling, ride-sharing, or public transportation
options. Offered a suitable job, Claimant cannot refuse it simply
on the basis of ordinary, manageable, or self-imposed limitations.
The JCC’s order also mentions the possibility of a physical,
injury-related justification for refusing employment as follows:
[I]t is unreasonable to expect this particular claimant to
go to work in the Tampa office of the employer with . . .
[her] unrefuted testimony that she has pain from her
knee to her hip when sitting for long periods of time[.]
To the extent that the order bases Claimant’s justifiable refusal
decision on commute-related leg pain, however, competent
substantial evidence does not support the finding. Claimant never
asserted that pain prevented her from commuting to the job in
Tampa. In fact, time-and-time again Claimant’s position in her
testimony, trial memorandum, and other argument was that her
refusal arose not from a medical condition, but from her lack of
transportation. She stated unequivocally that she could work the
Tampa job if she had a ride. The only testimony in the record that
can be read to support a leg-pain rationale for refusing to work
came in response to the JCC’s question: “When you drive around
your house to the grocery store – small errands – how does your
right knee feel?” Claimant answered: “I cannot do it for too, too
long because it hurts all the way up here.” That Claimant
expressed a vague complaint of leg pain when she drives around
doing errands in her car for “too, too long” (no medical testimony
bolstered this complaint), is not support for the conclusion that she
cannot commute to the suitable job that is available to her in
Tampa.
Finally, I do not support my colleague’s preference for deciding
this case based upon a new, court-made rule that “an injured
employee cannot refuse suitable reemployment, unless the refusal
has some ‘plausible nexus’ to the workplace injury, or the employee
comes forward with persuasive evidence that the refusal is
necessary to protect the employee’s health or safety.” Rather, I
think we should follow the statute. Section 440.15(6) only limits
the JCC’s consideration where an injured employee refuses
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suitable employment by requiring that such refusal be
“justifiable.” The statute doesn’t say “medically justifiable,” or
some such thing. This means that JCCs may take account of non-
injury-related factors tending to justify an employee’s refusal to
accept employment. It is easy to imagine job-offer scenarios in
which a JCC might reasonably find justifiable refusal, even though
the employee’s refusal isn’t related to the workplace injury, health,
or safety. This could occur, for example, if the job requires a two
hundred-mile commute; requires a single-parent employee with
young kids to work 24-hour shifts; requires an offender-
probationer employee to violate the terms of his or her probation;
requires an employee to violate sincerely held religious or moral
beliefs; or requires an employee to complete impossible tasks for
non-injury-, health-, or safety-related reasons (e.g., requiring a
non-reader to read legal documents, an employee without a license
to drive a delivery truck, etc.). The statute doesn’t forbid the JCC
from considering factors like these in addition to those related to
the workplace injury or the protection of health and safety.
And so, I think we needn’t decide this case on the basis of a
court-made rule that doesn’t hew to the statute. Rather, I vote to
reverse the JCC’s order because Claimant offered ordinary,
manageable, and self-imposed commuting limitations rather than
reasonable justifications for refusing the suitable work offered by
her Employer.
BILBREY, J., dissenting with opinion.
The Employer/Carrier (E/C) in this workers’ compensation
case appeal an order by the Judge of Compensation Claims (JCC)
awarding temporary disability benefits after finding that
Claimant’s refusal of suitable employment was justifiable
pursuant to section 440.15(6), Florida Statutes. Because the JCC’s
conclusions in his opinion are supported by record evidence, I
would affirm the order. Since the majority substitutes its view of
the facts in place of the broad discretion afforded the JCC by the
Legislature, I respectfully dissent.
Factual Summary
The JCC found the following facts. In 2013, Claimant, a
woman in her mid-fifties, emigrated with her husband from Cuba
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to Tampa. At the time the JCC entered the challenged order in
October 2017, Claimant did not understand or speak English “in
any significant degree.” Claimant and her husband obtained
employment with the Employer, an employee staffing company.
Although hired in the Employer’s Tampa office, in March 2014
they were assigned to work with a client company, Hit
Productions, in Largo. 1 A few weeks later, the couple moved to a
residence in Largo five to six miles from the Hit Productions
facility. Claimant testified that the reason for the move was to be
closer to work and avoid a 35 to 40 mile roundtrip commute
involving driving on the interstate and over a cross-bay bridge.
Claimant’s job at Hit Productions involved operating a
machine to print on items such as pens and key chains. On the
date of accident, Claimant tripped over a box and fell on her right
knee, resulting in a compensable claim and requiring medical
treatment. The authorized doctors assigned work restrictions that
prevented Claimant from returning to her regular job. An
Employer representative testified that the Employer’s client
companies engage in light industrial or manufacturing work and
typically do not have light-duty work available. The Employer
was, however, able to provide clerical-type work for Claimant in its
Largo office. But this job lasted just five days after which the
Employer offered Claimant a similar position in its Tampa office.
The Employer offered this position to Claimant several times, but
she declined.
Claimant filed a petition for benefits seeking temporary
partial disability (TPD) benefits. The E/C responded with
affirmative defenses including voluntary limitation of income and
unjustifiable refusal of suitable employment pursuant to section
440.15(6). The matter went to a final hearing at which an
Employer representative testified that Claimant had recently
contacted her seeking light-duty work in the Employer’s Largo
office and was told none was available, and also that Claimant
declined any work in the Tampa office “because of transportation.”
1 The Employer also had a branch office in Largo that serviced
only Hit Productions and was located across the street from its
facility.
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The representative also testified that the Tampa job remained
available.
After considering all of the evidence, the JCC found that
Claimant and her husband had one car which the husband used to
drive to Tampa to his job as a truck driver. The husband’s job
included both day and night shifts. The JCC accepted Claimant’s
testimony that if she drove her husband to Tampa when he worked
the day shift she would need to drop him off by 4:00 a.m. and then
wait at the Employer’s Tampa office (where the offered
employment was) for four hours until it opened. The JCC also
accepted Claimant’s testimony that due to her inexperience as a
driver, Claimant’s husband did not want her driving their car from
Largo to Tampa during regular business hours and that Claimant
was not familiar with the Interstate and other freeways. The JCC
also noted that the roads Claimant would have to drive from her
Largo home to Employer’s Tampa office can be confusing. The JCC
also noted Claimant’s testimony that she drives short, local
distances only and experiences pain in her knee and hip when
sitting for a long period of time. The JCC concluded that, under
the circumstances, Claimant “certainly could not have developed
driving skills so as to drive from Largo to Tampa and back with
interstate and high-speed travel and unfamiliar roads/highways.”
On the issue of public transportation Claimant testified that
she was aware of a bus stop outside the entrance to her mobile
home park, but that she was not sure whether the bus would take
her to Tampa. Claimant also testified that the bus schedule was
in English, so she could not read it. The JCC also noted that there
was no evidence that Claimant made any efforts to drive to Tampa
or obtain alternative transportation. Nonetheless, the JCC
ultimately found:
[I]t is unreasonable to expect this particular claimant to
go to work in the Tampa office of the employer with her
language limitations, her driving limitations, a singular
vehicle in the family mainly used by her husband during
his odd work hours, no familiarity with public
transportation, suggestion of dependence on other family
members to drive from Tampa to Largo to pick up the
claimant, take her back to Tampa, and then back to Largo
10
at the end of the workday, the claimant’s unrefuted
testimony that she has pain from her knee to her hip
when sitting for long periods of time, and the claimant’s
willingness to work for the Largo office of the employer
until light duty . . . ran out.
As a result, the JCC concluded that Claimant’s refusal of the
Tampa job was justified and that she had “not voluntarily limited
her income by refusing to do this job even though it may have been
within her physical limitations medically” and awarded TPD
benefits for the relevant period. This appeal by the E/C followed.
Analysis
Section 440.15(6), Florida Statutes, provides, in relevant part:
EMPLOYEE REFUSES EMPLOYMENT. — If an injured
employee refuses employment suitable to the capacity
thereof, offered to or procured therefor, such employee
shall not be entitled to any compensation at any time
during the continuance of such refusal unless at any
time in the opinion of the judge of compensation
claims such refusal is justifiable.
(emphasis added).
In construing a statute, courts must first look to its plain
language. See Perez v. Rooms To Go, 997 So. 2d 511, 512 (Fla. 1st
DCA 2008). Here, the statute’s plain language gives JCCs broad
discretion in determining whether an employee’s refusal of
suitable employment is justifiable. In Ullman v. City of Tampa
Parks Department, 625 So. 2d 868, 873 (Fla. 1st DCA 1993) (en
banc), this court stated that role of the court “must be to guard
against fanciful or arbitrary abuse of discretion in workers’
compensation cases, and we will continue to do so by scrutinizing
JCC findings under the light of the basic rule
requiring competent substantial evidence in support of such
findings.” The en banc court further stated in Ullman that the
JCC’s “findings must be sustained if permitted by any view of the
evidence and its permissible inferences.” Id.
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As the majority notes, there is no dispute concerning the
suitability of the offered employment with respect to Claimant’s
ability to perform the job, even with her assigned physical
restrictions. Thus, the remaining question is whether the JCC’s
findings in support of his opinion that Claimant’s refusal of the
position was justifiable are supported by competent substantial
evidence (CSE).
I respectfully submit that here the majority substitutes its
view of the facts in place of the JCC in contravention of the
authority granted the JCC under section 440.15(6). The statute’s
plain language refers to a JCC’s “opinion” regarding the
justifiability of a claimant’s refusal of suitable employment which,
as discussed, must be based on CSE. Here, the JCC’s opinion as
to these factors were based on Claimant’s testimony, which the
JCC could accept or reject in his role as trier of fact. 2 The majority
imposes on the JCC restrictions the statute simply does not
include, is contrary to our role as set forth in Ullman, and is
contrary to the JCC’s position as trier of fact. See City of W. Palm
Beach Fire Dep’t v. Norman, 711 So. 2d 628, 629 (Fla. 1st DCA
1998) (holding “the [JCC] determines credibility, resolves conflicts
in the evidence, and may accept the testimony of one [witness] over
that of several others.”). 3
2 Although in one instance the JCC cited his personal
experience with the route Claimant would have to navigate to the
Tampa job, there was sufficient additional CSE to support the
JCC’s findings.
3 Chief Judge Thomas supports the E/C’s argument that this
court should go further and adopt the “plausible nexus” standard
similar to the one this court has developed in cases involving
advances under section 440.20(12), Florida Statutes. I respectfully
submit that we are correct not to do so. Adopting such a standard
would require us to encroach on the Legislature’s prerogative to
provide, as it has for over forty years, for a JCC’s broad discretion
to consider all of the factors cited by a claimant for refusing
suitable employment, regardless of whether there is a direct
connection between the reason or reasons for the refusal and a
claimant’s employment or injury. If the Legislature wants to
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Consider, for instance, if the proposed substituted
employment required a daily commute from Largo to Jacksonville.
I have no doubt that most appellate judges would agree that it
would be reasonable for the Claimant to decline that daily
commute and for a JCC to find her refusal justifiable under section
440.15(6). 4 Conversely, if the E/C had offered evidence of a
company shuttle that would take Claimant to and from work after
a short ride each day, I think any appellate judge would agree that
CSE would not support a JCC finding that the refusal of
substituted employment under those conditions was reasonable.
What is too far a commute such that refusal of the substituted
employment is reasonable? I think it depends on a number of
factors best left to the sound discretion of the fact finding JCC. In
cases like this one that could go either way, I think appellate
judges should defer to the JCC. If the JCC has too much discretion
under section 440.15(6), I respectfully submit that it is the
Legislature which should impose limits on the JCC’s broad
discretion, not an appellate court.
Conclusion
Because the JCC’s findings in support of his opinion that
Claimant’s refusal of suitable employment are supported by record
evidence, I would affirm the challenged order. Since the majority
reverses, I respectfully dissent.
impose criteria that a JCC may consider when forming an opinion
as to whether a claimant’s refusal of employment is justifiable, it
certainly can do so, but it is not for this court to rewrite the statute.
“Work[ers’] compensation is entirely a creature of statute and
must be governed by what the statutes provide, not by what
deciding authorities feel the law should be.” J.J. Murphy & Son,
Inc., v. Gibbs, 137 So. 2d 553, 562 (Fla. 1962).
4If we adopted the “plausible nexus” standard, presumably a
claimant would have to commute to any suitable employment
offered anywhere in the world since the unduly burdensome
commute and associated expenses would have no plausible
connection to the workplace injury.
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_____________________________
Juliana L. Curtis and Barbi L. Feldman of Vecchio, Carrier,
Feldman & Johannessen, P.A., Lakeland, for Appellants.
Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa,
for Appellee.
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