Iris C. Bagarotti, Appellant,
Reemployment Assistance Appeals Commission, et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Florida Reemployment Assistance Appeals
Commission. Lower Tribunal No. 16-745
C. Bagarotti, in proper person.
Cristina A. Velez (Tallahassee), for appellee Reemployment
Assistance Appeals Commission.
SUAREZ, C.J., and LAGOA and SCALES, JJ.
and claimant below, Iris Bagarotti, appeals a final order of
the Florida Reemployment Assistance Appeals Commission (the
"Commission"), finding that Bagarotti was not
entitled to receive reemployment assistance benefits, and
therefore must repay the benefits she received, in the total
amount of $4, 655. The basis of the Commission's decision
is that Bagarotti was not able to work and be available for
work during the benefits time period, as required by section
443.091(1)(d) of the Florida Statutes. Because we cannot
discern competent, substantial evidence from the record of
the administrative proceedings that Bagarotti was unable to
work during this time period, we reverse and remand the case
to the Commission for a new hearing to be conducted by a
worked as a kindergarten teacher. She was diagnosed with a
skin cancer in August of 2013. She needed to miss work once
every two weeks for a short period of time for treatments of
the skin cancer. Her employer objected to her missing time
from work and, eventually, discharged her. After filing a
claim for benefits for reemployment assistance, Bagarotti
received weekly payments of $245, from September 28, 2013
through February 1, 2014. On June 29, 2015, the Department of
Economic Opportunity (the "Department") sent
Bagarotti a notice of disqualification, advising her that she
had not been eligible to receive these benefits, that the
benefits were subject to recoupment, and that she had a right
Department-appointed referee heard Bagarotti's appeal on
November 18, 2015. The Department supplied the
Spanish-speaking Bagarotti with an interpreter for the
hearing. From our review of the record, it appears that
Bagarotti attempted to testify that she was able to work
during the period she received benefits while being treated
for the skin cancer, except that her work should not be in
the sunshine. It also appears that Bagarotti attempted to
testify that, at some time subsequent to her discharge,
including during the time of the November 18, 2015 hearing
itself, she suffered from a mental disability that prevented
her from seeking work. The record does not contain definitive
testimony as to when this mental disability affected
Bagarotti's ability to work: either while she was
receiving the benefits or after the benefits ceased.
testimony shifts back and forth between a discussion of her
skin cancer and her mental disability. Even with an
interpreter, Bagarotti appears unable to understand the
referee's effort to focus on her ability to work during
the nineteen-week benefits period and the referee appears
unable to distinguish between Bagarotti's references to
the skin cancer and the mental disability.
on the record before the referee and the testimony at the
hearing, the referee found that Bagarotti was not able and
available to work during the period in which she was paid
benefits. The referee found that "[t]he claimant has a
medically [sic] illness that prevents her from being employed
at the earliest possible time. The claimant, as of the date
of the hearing, has not been released to light duty
work." Thus, the referee determined there was an
overpayment of $4, 655 that Bagarotti must repay to the
Department. On April 27, 2016, the Commission affirmed the
administrative hearing officer's findings of fact may not
be disturbed by a reviewing court if those findings are
supported by competent, substantial evidence. Crespo v.
Fla. Reemployment Assistance Appeals Comm'n, 128
So.3d 49, 52-53 (Fla. 3d DCA 2012). We are not free to
reweigh the evidence. § 120.68(10), Fla. Stat. (2015);
Salinas v. E. Aero Marine, 908 So.2d 1169 (Fla. 3d
DCA 2005). Logically, we explore the record to determine
whether competent, substantial evidence exists to support the
pertinent findings of fact. Our exploration in the instant
case arrives at the confusion between the claimant and the
referee at the November 18, 2015 hearing. We conclude that
there is no clear evidence - in other words, there is
insufficient competent, substantial evidence - in the record
that Bagarotti was unable to work from September 28, 2013,
through February 1, 2014.
and remanded for a new ...