Misconduct and Temporary Partial Disability
One of the defenses that has become revitalized under the 2003 amendments to the Florida Workers' Compensation Act is that of "misconduct." This defense was originally enacted in 1989, and had to do primarily with the defense of a "wage loss" claim where the claimant's post-accident employment was terminated because of his own misconduct on the job. But since the legislature repealed the "wage loss" provisions in 1994, there apparently hasn't been very much litigation on the topic.
In 2003, however, the legislature enacted s.440.15(4)(e) and specifically made the claimant's post-accident "misconduct" on the job a defense to the payment of temporary partial disability ("TPD") benefits. But what is "misconduct" exactly? We now have some guidance from the First District Court of Appeal on that question.
In Thorkelson v. NY Pizza & Pasta, Inc., the Court noted that the statutory definition of "misconduct" found in s.440.02(18) is almost identical to the definition of "misconduct" found in s.443.036(29) of Florida's Unemployment Compensation Law. And for that reason, the Court looked to previous judicial interpretations of the unemployment compensation law. Under that law, whether an employer has reasonable grounds to terminate an employee is a separate issue from whether that employee is guilty of "misconduct."
Ms. Thorkelson's post-accident employment was terminated for unspecified acts of "insubordination." The Court was careful to note that a single isolated episode is ususally not sufficient to constitute "misconduct" - even though such an episode might very well give the employer sufficient grounds to terminate the claimant's employment. Ms. Thorkelson, however, was allegedly guilty of multiple acts of insubordination, and for that reason the Court affirmed the JCC's conclusion that she was guilty of "misconduct," thus disqualifying her from the receipt of TPD benefits.
One very important aspect of the decision is the Court's characterization of the "misconduct" issue as a "question of law." This is important, because it means that means that the First District will not simply defer to the findings of the JCC on this issue even though they might be supported by "competent substantial evidence." Questions of law are entitled to "de novo" review on appeal - meaning that the First District will decide for itself whether the claimant's conduct in a given case amounts to "misconduct."
