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MJM Electric, Inc. v. Spencer

Florida Court of Appeals, First District

July 29, 2019

MJM Electric, Inc./OCIP and Sedgwick CMS, Appellants,
v.
William Spencer, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from an order of the Judge of Compensation Claims. Ellen H. Lorenzen, Judge.

          Robert B. Griffis of Jones, Hurley & Hand, P.A., Orlando, for Appellants.

          Bill McCabe of William J. McCabe, P.A., Longwood, and Dana L. Greenbaum of Dana L. Greenbaum, P.A., St. Petersburg, for Appellee.

          PER CURIAM

         In this workers' compensation case, the Employer/Carrier (E/C) challenge the Judge of Compensation Claims' order awarding William Spencer medical care and temporary partial disability (TPD) benefits. We affirm, without discussion, six of the seven issues raised in this appeal. At the same time, we reverse the JCC's rejection of the E/C's affirmative defense that Spencer voluntarily limited his income by refusing suitable employment after the date the Employer terminated his employment, and we remand the case for further proceedings.

         I

         TPD benefits are payable to an injured employee if he has not reached overall maximum medical improvement from the injury and the medical conditions resulting from the injury create restrictions on the employee's ability to work. § 440.15(4)(a), Fla. Stat. (2017); see also Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795, 799 (Fla. 1st DCA 2010). The employee's prima facie burden of proving TPD entitlement includes showing a causal connection between loss of employment at the pre-injury wages and the workplace injury. Id. (citing Photo Elec. Corp./WPEC v. Glick, 432 So.2d 164, 165 (Fla. 1st DCA 1983)). Once the injured employee persuades the JCC that this causal connection exists, the burden shifts to the E/C to demonstrate affirmatively a superseding or intervening cause of the wage loss, such as voluntary limitation of income or deemed earnings. See, e.g., Church's Chicken v. Anderson, 112 So.3d 545, 547 (Fla. 1st DCA 2013); Toscano, 40 So.3d at 803.

         Here, the E/C do not dispute the JCC's finding that Spencer met his prima facie burden of proving entitlement to TPD benefits for his August 1, 2017, workplace shoulder injury. Instead, the E/C argue that the JCC erred as a matter of law when she rejected their affirmative defense of a voluntary limitation of income after August 16, 2017, the termination date of Spencer's employment. In making this argument, the E/C rely primarily on Spencer's alleged refusal of suitable employment under section 440.15(6). This statutory provision states that an employee who refuses suitable employment is not entitled to indemnity benefits, such as TPD benefits, "at any time during the continuance of such refusal unless at any time in the opinion of the [JCC] such refusal is justifiable." See also, Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009). In her order, the JCC found that Spencer voluntarily limited his income by refusing suitable employment up until the date his employment was terminated, but that after this date, the defense no longer applied because the E/C stopped offering suitable employment. Here the JCC erred.

         II

         Mr. Hott, the Employer's service manager and shop superintendent, hired Spencer through the union hall to work as a journeyman electrician. Spencer testified that, on the morning of August 1st, he reported his workplace injury to his direct supervisor, Mr. Carney, and then went home. He stayed home for the next two days and when he returned to the workplace on the third day, he was taken to see Dr. Owi, an authorized physician. According to Mr. Hott, Mr. Carney spoke with Spencer on August 2nd, but when he heard nothing from him the next day, he and the on-site safety employee tried calling Spencer three times that day without success. On August 8th, Spencer called Mr. Carney and told him that he was not coming in to work. [*] Mr. Hott testified that he called the union hall on the 14th and was told that they had not heard from Spencer.

         At one point, Mr. Hott received an email from the doctor listing Spencer's work restrictions. He tried calling Spencer on August 10th and 14th, but when Spencer did not answer, he left voice mail messages advising him that light duty work was available and that he needed to come to work. He did not text or mail Spencer any offer of light duty employment. In his testimony, Mr. Hott described the light-duty job available to Spencer as one that fell within his work restrictions. Additionally, he stated that the Employer would have been able to accommodate whatever restrictions were assigned short of no-duty. And, according to Mr. Hott, the Employer would have kept Spencer in a modified "transitional" duty position "continuously until that was wrapped up and they said, 'hey, this guy can never work again'" or until he was released to go back to work.

         On August 15th, the on-site safety manager sent an email to payroll indicating that Mr. Polanco, the assigned safety manager, had not heard anything from Spencer, including whether he attended a follow-up appointment. The Employer mailed Spencer a statement terminating his employment for job site abandonment on August 16th. As of the date of the final hearing, Spencer had not returned to work and had not looked for work. He testified that he did not believe he has been able to work safely since the accident and that he "can't work" because "there's no such thing as light duty on a job like [he] was working on." Although he anticipated retiring, he did not plan to do so for at least another six to nine months.

         Spencer testified further that he did not really know whether the Employer had called him after his accident, but when he sees a phone number "that's not dialed in" he usually does not answer it because he has "gotten a lot of harassing calls before." He also does not retrieve voice mail unless he recognizes the telephone number; nevertheless, he testified at the final hearing that no voice mail message was left on his phone. He stopped calling because he was getting depressed over the situation. He believed that Mr. Hott called the union hall, but he ...


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