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Misconduct Defense Gets New Teeth in Florida

By: David Halpern, Partner, West Palm Beach

 In Florida, it is understood that an employee terminated for misconduct at some point after a work-related accident is not entitled to temporary partial disability (TPD) benefits. What is less clear is, (1) What exactly constitutes misconduct and, (2) is an employee terminated for misconduct permanently disqualified from receiving TPD?

The recent case of Bismark Batres v Safelite and Sedgwick CMS (OJCC Case #14-012125MGK) addressed both questions. In Batres, the claimant injured his right shoulder on March 12, 2014. He submitted to a post-accident drug test, but the results were not immediately available. On May 24, 2014, the drug test results became available, and showed the claimant had tested positive for cocaine. At that point, Safelite terminated the claimant’s employment and – believing that a positive drug test constituted misconduct – denied payment of TPD benefits. In so doing, it cited the company’s “zero tolerance” drug use policy which had been previously explained to the claimant. In good faith, Safelite agreed to provide ongoing medical benefits. On July 24, 2014, the claimant underwent surgery on his injured shoulder.

At trial, the claimant argued that he was entitled to TPD benefits following his termination. He claimed that his drug use (which he said occurred during non-working hours) did not constitute misconduct. He also argued that even if misconduct had occurred, an employer could not use that to deny TPD benefits forever, particularly where he had undergone accident-related surgery.

In her Final Merits Order, the JCC ruled for Safelite on the TPD issue, making several important findings. First, the JCC found that a direct violation of company policy constituted misconduct. Second, the JCC found that where misconduct had occurred, it was proper for Safelite to continue its denial of TPD benefits, even where the claimant had undergone surgery. In so doing, the JCC specifically found that the claimant’s surgery “did not break the causal connection” between the misconduct and the claimant’s lack of entitlement to TPD benefits. It should be noted that the employer testified that a job would have been available within the claimant’s post-surgical restrictions, but for the misconduct termination.

These findings were affirmed by the First District Court of Appeal in November 2015 by PCA. The lessons of Batres are twofold. First, employers should devise specific policies as to what constitutes prohibited activities, and have their employees sign a confirmation of the awareness of such policies. If those policies are later violated by an employee with an active workers’ compensation claim, TPD benefits can be denied. There are ample DCA decisions that address drug and alcohol usage, even after hours, as grounds for termination when an employer has a drug-free policy that is in place, and enforced. Second, where misconduct has occurred, employers now have a strong argument that TPD benefits can be denied for the entire duration of a claim.