Judging Misconduct In The Workplace- Recent JCC Decisions Regarding An Interpretation Of The Misconduct Defense Under 440.15(4

Judging Misconduct In The Workplace- Recent JCC Decisions Regarding An Interpretation Of The Misconduct Defense Under 440.15(4)(E), Which Precludes An Injured Worker's Entitlement To Temporary Partial Disability Benefits

Posted By Crystal Corry || 29-Mar-2018

I. Relevant Statutes: Misconduct Defense- “The Law”

Sexual harassment, bullying, and incidents of violence- all too prevalent headlines stream across the screens of our daily lives time and again. As such, it may be no surprise that these types of facts have likewise been incorporated into recent JCC decisions regarding whether an injured worker’s termination of employment is due to “misconduct,” thus precluding entitlement to wage loss benefits.

Employees who are deemed to have been terminated due to “misconduct”, as defined under Florida Statutes, are precluded from receiving temporary partial disability (“TPD”) benefits post termination of employment as per 440.15(4)(e), Fla. Stat. Of note, termination for misconduct is not a defense to payment of TTD benefits. “Misconduct” is defined under 440.02(18), Fla. Stat., as:

(a) Conduct evidencing 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 or substantial disregard of an employee’s interests or of the employee’s duties and obligations to the employer.

A determination into whether a claimant’s termination of employment meets the criteria of a termination for “misconduct” is based upon very specific factual findings and must be based upon competent substantial evidence. Because misconduct is a dispositive defense for employer/carriers, the JCC must set forth those factual findings which do not uphold a valid misconduct defense.

Florida’s unemployment laws contain similar statutory provisions which preclude the receipt of unemployment benefits if a worker is discharged for “misconduct”. The unemployment statutory definition of misconduct as per 443.036(29)(a) to (b), Fla. Stat., also happens to be virtually identical to the worker’s compensation definition of misconduct as per 440.02(18), Fla. Stat.

The 1st DCA has held that unemployment case law which interprets “misconduct” is binding precedent for JCC’s decisions regarding the validity of misconduct defense. Interestingly, however, JCC’s are not bound by the factual findings or legal conclusions rendered in unemployment hearings, though the findings may be considered persuasive for analysis purposes.

Termination for “good cause” is not the same as termination for “misconduct”, with the latter being more difficult to prove, as confirmed with recent case law and JCC decisions. A claimant who is terminated for cause is not automatically disqualified from TPD benefits; rather the E/C has the burden to prove that the claimant acted intentionally or with a degree of careless or negligence that evidences wrongful intent. In sum, the alleged conduct must be rather egregious, i.e. jaw dropping or shocking rather than bothersome or irritating in nature.

Isolated incidents, such as those based on a violation of a rule or policy or based on ordinary negligence, are generally not enough to justify the defense, but can be deemed sufficient if the action is adequately or deliberately egregious. Continued violations of company policy after repeated warnings can be considered willful and/or deliberate and intentional, although again, this will depend on the totality of the facts.

II. Recent JCC decisions and Case Law: What is “Misconduct”? Below are examples of recent cases in which the JCC found injured worker’s action were

sufficient enough to warrant a misconduct defense:

- Single incident of physical threat to co-worker- no misconduct found

Salus v. Island Hospitality Management and Gallagher Bassett, OJCC #17-009262, March 2,

2018: The claimant was terminated post accident for threatening another co-worker, as prohibited per the employee handbook. The claimant got into an argument with another employee, which resulted in his stating in a “slightly raised voice” near the front desk, “Let’s go outside and I’ll beat you with my bad arm”. This statement was the sole basis for the claimant’s termination, with no prior incidents at work.

The JCC found the claimant’s actions demonstrated poor judgment but did not rise to the level of misconduct which would preclude entitlement to TPD benefits. TPD benefits denied for reasons unrelated to the misconduct defense.

- Alleged act of uninvited touching of a female co-worker- no misconduct found

Ippolito v. Morton’s of Chicago/Palm Beach, LLC and Corvel Corp., OJCC#17-013893, February

21, 2018: The claimant was terminated for violating the employee handbook by engaging in an uninvited touching of a female co-worker. The co-worker did not testify at the final hearing. The JCC found claimant’s testimony to be more credible than his co-worker’s deposition testimony, with no evidence to rebut claimant’s allegation that the incident was consensual and part of an ongoing joke between them.

The JCC found that this claimant may have been guilty of poor judgment but did not engage in misconduct which would preclude his receipt of TPD benefits. TPD benefits granted.

- Allegation of theft discovered post termination – no misconduct found

Toney v. Dollar General and Dollar General Corporation, OJCC#17-003648, February 5, 2018: The claimant was terminated for alleged theft of store merchandise. However, the evidence supported a finding that the employer's knowledge of the alleged theft did not occur until four days after her termination. As such, the JCC concluded there was no evidence to support a misconduct defense. TPD benefits granted.

- Single incident of failure to follow company’s “coupling” procedure- no misconduct found

Omidvar v. Schneider National Carriers, Inc. and Liberty Insurance, OJCC#16-008029, January

9, 2018: The claimant, a truck driver was terminated for her first offence of improperly “coupling” or attaching a cab to the hauling trailer. The employer considered this a terminable offence because of the risk to the motoring public. Because the claimant did not actually attempt to drive the improperly coupled vehicle, the court found that she correctly followed the company’s coupling procedure with regards to an improperly coupled truck. The JCC found claimant’s testimony credible and held that the claimant’s conduct did rise to the level of misconduct as per applicable workers’ compensation laws. TPD benefits granted.

- Violation of trucking company policy regarding out of date meat products – no misconduct found

Lee v. Winn Dixie Stores and Sedgwick CMS, OJCC#17-001764, November 30, 2016: THe claimant, a meat and seafood manger, was terminated post accident because 5-6 pieces of product, which were out of date by one day or displayed on the same date as the sale date, had been found in the claimant’s display case. The JCC found no evidence of prior written warnings for any violation or that claimant’s actions were intentional, although the employer alleged giving verbal warnings. The court considered that the food items in question did not violate any law and did not result in any sick customers.

The JCC found that the claimant’s actions did not rise to the level of “misconduct” as defined by Chapter 440, with no intentional action take in disregard of the employer’s interests. TPD benefits granted.

- Multiple & inconsistent allegations of walking off the job, encouraging other employees to quit, and power struggle issues with management- no misconduct found

Sams v. Family Dollar and Sedgwick CMS, OJCC#17-015392, December 21, 2017: The claimant was terminated for a number of reasons, to include walking off the job, encouraging other employees to quit, and engaging in a power struggle with management. The court found the evidence put forth by the employer as to the basis for her termination was inconsistent and therefore did not support a misconduct defense. TPD benefits granted.

- Multiple incidents of poor job performance, including final incident of violating personal protective equipment safety rule- no misconduct found

Shrowder v. Anchor Glass Containers and Safety National Casualty Corp., OJCC#17-0125641, December 9, 2017: The claimant was terminated on the date of the accident due to reasons of poor job performance. The claimant had a history of prior disciplinary actions, both verbal and written, for job performance related issues. The final incident involved violation of a safety rule due to the claimant retrieving personal property from the hot end of the plant in the business of bottle assembly.

The JCC found that the while the employer had every right to terminate the claimant, the job performance and minor safety rule violations were not sufficient for the E/C to meet its burden of proving an affirmative misconduct defense. The JCC noted that the job involved a fast paced, demanding work environment. As such, claimant’s lack of attention and other negative job performance issues did not appear to be wrongful intent or evil design. TPD benefits granted.

- Single incident of statements made to third party regarding desire to cause physical harm to co-worker- not misconduct

st

Minor v. Cory Fairbanks/PMA Insurance, (Fla. 1

DCA 2016), Case No. 1D15-160: The

claimant was terminated for statements made to her own attorney that she felt like “punching out the lights of a co-worker”, who caused the claimant’s work related injuries by striking her with a door. The JCC held there was lack of evidence showing that the claimant intended or expected that the employer would receive notice about the statements that she made about her co-worker.

The co-worker in question testified at the final hearing that the claimant never harmed or said that she would hurt her and thus there was no face to face contact between them. The claimant’s treating psychiatrist opined the claimant’s actions amounted to her merely “blowing off steam” as opposed to being declarations of an imminent intent to cause physical harm, to her co-worker. The JCC noted that, “Malevolent thoughts alone, without the requisite evidence establishing an intent to harm, do not meet the definition.” TPD benefits granted.

Other examples of conduct which has deemed sufficient to justify a misconduct defense in the past five years include the following:

- Failure to report to employer damage to pallet while operating a forklift considered isolated incident of poor judgement- not misconduct, (Howard v. Home Depot and Liberty Mutual Insurance, OJCC#08,025633, February 11, 2016);

- Boat operator, with 40 year history of employment, involved in isolated incident of accepting cash tips in violation of company rule – not misconduct, (Smith v. Dep- Wakulla Springs State Park/The Division of Risk Management, OJCC#13-005037, October 1, 2013); and

- Traffic ticket for careless driving received on account of subject motor vehicle accident considered bad judgment due to negligence. despite receipt of a ticket for another MVA while working for the employer – not misconduct (Porter v. Human Resources, OJCC#12-026896, June 19, 2013)

Alas! Misconduct Found: Below are examples of recent cases in which the JCC found conduct to be sufficient enough to warrant a misconduct defense:

- Single incident of pouring grease into deli floor drain found intentional –

misconduct found

Rodriguez v. Walmart and Sedgwick CMS/Walmart & Sam’s Club, OJCC#16-006230, October

9, 2017: Claimant was terminated for the witnessed act of pouring grease into the deli floor drain in violation of store policy. The claimant was held to have knowledge of this being a violation of policy through employee training. Her actions subjected the store to a multitude of potential fines or other penalties based on strict environmental laws and regulations.

The JCC found that the claimant knowingly and intentionally violated company store policy and that her actions were in substantial disregard of the employer’s interests. The court found this claimant not very credible in her testimony regarding the reasons for her actions. E/C met its burden of proving misconduct. TPD benefits denied.

- Single incident of drug test showing positive results for controlled substances - misconduct found

Anders v. Marlin James and Summit, OJCC#17-011426, January 8, 2018: The claimant was terminated for the results of a drug test being positive for cocaine and marijuana. Although the JCC found there was insufficient evidence for the employer to meet the requirements of a drug free workplace defense, the employer had a policy in effect regarding a drug free workplace. The JCC found that claimant’s one time use of illicit drugs was sufficient for a finding of misconduct. TPD benefits denied.

- Single incident of placing unattended purse in personal vehicle - misconduct found

Mallette v. Walmart Stores, Inc. and Sedgwick CMS, OJCC#14-027537, December 20, 2017: The claimant was terminated for failure to comply with the company’s policy regarding found items. The claimant found an unattended purse in a shopping cart and placed it in his own vehicle. Although the claimant testified he was hoping to receive a monetary award, he should not have taken possession of a purse that did not belong to him and should have turned the purse in to the service desk. The employer called the police and charged the claimant with a third degree felony.

The JCC found that the reason for his unemployed work status and loss of income related to his violation of the employer’s policy regarding found items. PTD benefits denied.

- Single incident of falsely denying prior felony convictions on employment application – misconduct found

Flannery v. Keller Mechanical & Engineering, Inc. and Bridgefield Employers Insurance Company, OJCC#16-006236, November 30, 2017: The claimant was terminated for falsely denying any history of prior felony convictions on his employment application . The JCC found the employer’s testimony that they would not have hired the claimant if he had accurately reported his prior criminal history to be credible. The JCC found the claimant’s testimony lacked credibility. The E/C met its burden regarding its misconduct defense. TPD benefits denied.

Other examples of conduct which has deemed sufficient to justify a misconduct defense in more recent years include the following:

- Intentionally chasing down a shoplifter after recovering stolen property and causing damage to store property, thus causing safety concerns to employees and customers, plus history of prior warnings – misconduct found, (Farris v. Sweetbay/Kash n’ Karry/Risk Management/Food Lion, LLC, OJCC#11-025479, May 31,

2012.

- Drinking alcoholic beverages on the job during work hours- misconduct found, (Fulkerson v. Walmart Supercenter and Sedgwick CMS, OJCC#09-029118; and

III. Conclusion

And what to take from all this.... That drinking on the job, stealing, committing crimes, and lying are one way tickets to a misconduct defense... True. Seemingly, there must be a common thread from amongst these recent decisions.

One may surmise that a JCC is more likely to uphold a finding in favor of a misconduct defense if the actions involved violations of other laws, whether criminal, environment, or otherwise, or if the action resulted in damage to property or physical harm to others, or if the conduct posed a real threat to the safety of people. Those cases that did not meet the mark seemingly did not cross that line which would bring to life a more real and tangible threat to life and/or property, thus having potential consequences which are more detrimental to the employer’s business in nature instead of just plain irritating.

In sum, one should consider the consequences of the injured worker’s actions and the impact that said actions have upon the employer, its employees, and the public, i.e. the degree of jeopardy at stake as a direct result of the infraction, or violation(s) of a company policy.

Consideration should be given to unemployment law which includes a greater scope of cases addressing the type of actions which should warrant a finding of misconduct.

Employers should be careful to document any and all disciplinary issues, and provide detailed findings if an employee violates a company rule or procedure. Supervisors should be prepared to testify, if necessary, and therefore complete written statements to help preserve evidence which may be later needed for depositions and/or live testimony. Unemployment records should also be kept as they may be helpful regarding an analysis into whether a termination was justified on the grounds of misconduct.

Adjusters should be proactive in their communication efforts with the employer and possibly defense count to obtain the details surrounding a termination for cause. The efficient exchange of communication between parties is our greatest ally to ensure a continued endeavor to make informed decisions regarding employment related matters, decisions which should ultimately serve the best interests of our businesses, work environment, and injured workers, as well as provide benefits to workers when benefits are due and withhold benefits when there is simply no entitlement to same.

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