Sarasota County School Board/Johns etc. v. Alice Brockman

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2259
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SARASOTA COUNTY SCHOOL
BOARD/JOHNS EASTERN
COMPANY, INC.,
Appellants,
v.
ALICE BROCKMAN,
Appellee.
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On appeal from an order of the Judge of Compensation Claims.
Diane B. Beck, Judge.
Date of Accident: May 19, 2016.
June 4, 2018
PER CURIAM.
In this workers’ compensation case, the Employer/Carrier
(E/C) appeals an order of the Judge of Compensation Claims (JCC)
awarding Claimant temporary partial disability (TPD) benefits
and associated penalties, interest, costs, and attorney’s fees
(PICA). We reverse and remand, for the reasons that follow.
Claimant, a school custodian with almost thirty years of
employment with the school board, was within six months of the
date her full retirement would vest. She had incurred various
compensable injuries while working for the school board, and also
had some ongoing disciplinary issues (absenteeism and poor
performance assessments), when she sustained the compensable
injury at issue on May 19, 2016. Upon Claimant’s post-injury
return to work, her Employer was able to accommodate her work
restrictions and she received her full salary. Within five months,
however, she retired (on the very day she vested). She has not
worked since retirement or reached maximum medical
improvement (as of the date of the final hearing). She subsequently
filed the instant claim seeking TPD benefits and PICA.
The E/C contested the claim, arguing that Claimant’s
retirement was an intervening cause that broke the chain of
causation between her compensable injuries and her loss of
earnings. The JCC rejected this argument, finding that Claimant’s
retirement was not entirely voluntary and so was the equivalent
of termination (a finding not challenged here), and that “the
accident is the major contributing cause of her lost wages.”
But the JCC, in her (otherwise quite thorough) order, did not
expressly determine whether the termination was an intervening
cause that broke the causal connection between the compensable
injuries and the loss of earnings. See generally Wyeth/Pharma
Field Sales v. Toscano, 40 So. 3d 795, 803 (Fla. 1st DCA 2010)
(“[T]he cause of a claimant’s displacement from employment and
wages, once established, remains the cause unless an intervening
or superseding cause is established.”). We hesitate to infer a
finding on this matter in the absence of underlying findings about
the circumstances of the termination.
The JCC recited Claimant’s testimony that she was
terminated due to absences that might or might not have related
to her compensable injuries. The JCC also recited testimony of
Claimant’s supervisor that the termination was due to insufficient
job performance that, again, might or might not have related to
her work restrictions. But the JCC neither accepted one witness
over the other, nor determined whether either absences or poor
performance were due to work restrictions.
Although the JCC wrote that the “loss of earnings was caused
by the industrial injury and not by any voluntary limitation of
income or voluntary retirement,” the JCC did not find that the loss
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of earnings was not caused by the involuntary retirement
(termination) independent of the injury. Accordingly, we remand
for the JCC to make a finding, based on the record as it stands, as
to whether Claimant left her employment “for unjustifiable
reasons.” Id. at 802 (“[B]ecause competent substantial evidence
supports the JCC’s finding that Claimant did not leave her
employment as a result of misconduct or for unjustifiable reasons
– both valid legal considerations in determining an employee’s
entitlement to TPD benefits under the statute – the E/SA fails to
demonstrate error based on the JCC’s consideration of these
factors.”).
In the event the JCC concludes the termination was an
intervening cause, the JCC will review the record for a “means by
which a claimant may establish a causal relationship between a
claimant’s compensable injuries and claimant’s temporary partial
wage loss,” Thayer v. Chico’s FAS, Inc., 90 So. 3d 766, 768 (Fla. 1st
DCA 2012), and if none are present in the record, to enter
judgment for the E/C. If, on the other hand, the JCC instead
concludes the separation from employment was for justifiable
reasons, the JCC shall enter judgment for Claimant.
REVERSED and REMANDED.
B.L. THOMAS, C.J., and LEWIS and MAKAR, JJ, concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Ben H. Cristal and Marko A. Crespo of Cristal Hanenian, Tampa,
for Appellants.
Kimberly A. Hill, of Kimberly A. Hill, P.L., Fort Lauderdale, for
Appellee.
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