Dorothy E. Hauser, Appellant,
Goodwill Industries of SW Florida, Inc. and United Heartland, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: April 10, 2017.
appeal from an order of the Judge of Compensation Claims.
Frank Clark, Judge.
McCabe of William J. McCabe, P.A., Longwood; and Olivia
Devonmille of Law Office of Olivia Devonmille, P.A., Vero
Beach, for Appellant.
A. Beatty of Henderson, Franklin, Starnes & Holt, P.A.,
Naples, for Appellees.
workers' compensation case, Dorothy Hauser, the injured
employee, appeals the Judge of Compensation Claims'
(JCC's) denial of her claim for temporary partial
disability (TPD) benefits for the time period following her
termination of employment with the Employer, Goodwill. In the
order, the JCC found that Goodwill justifiably terminated
Hauser's employment for misconduct as defined by statute
and, as a consequence, is ineligible for TPD benefits under
section 440.15(4)(e), Florida Statutes. On appeal, Hauser
does not deny that the conduct attributed to her, if proved,
constitutes misconduct under the statutory definition of
section 440.02(18), Florida Statutes. Instead, she argues
that the JCC erred when he admitted Goodwill's exit
interview form as evidence of this conduct. Because we find
this form contains inadmissible hearsay, we agree and
exit interview form in question indicates that Goodwill fired
Hauser because she made derogatory comments about persons of
Mexican heritage to a co-employee that were overheard by a
customer. The Employer/Carrier (E/C) did not present
testimony from any witness with personal knowledge of the
incident described in this form. The district director for
Goodwill testified that she typed up the description in the
form based on information she received in a telephone
conversation with the complaining customer. She did not
testify as to the substance of her conversation with the
customer. She admitted that she did not keep the
customer's initial voicemail message, had lost the
customer's contact information, and did not even remember
his name. She also did not recall speaking with the
co-employee or undertaking any further investigation. Hauser
denied making the comments attributed to her in the
form∗ and objected
to its admission as hearsay. The JCC overruled Hauser's
hearsay objection and admitted the form as evidence of her
JCC's decision to admit evidence is reviewed for abuse of
discretion. See King v. Auto Supply of Jupiter,
Inc., 917 So.2d 1015, 1017 (Fla. 1st DCA 2006) (holding
JCC's admission of evidence is reviewed for abuse of
discretion). "However, the question of whether a
statement is hearsay is a matter of law and is subject to de
novo review on appeal." Cannon v. State, 180
So.3d 1023, 1037 (Fla. 2015). Here, the JCC gave two reasons
for overruling the objection. First, he found that the exit
interview form is admissible because Hauser
"admitted" to the described incident, presumably
under the admissions exception to hearsay under section
90.803(18), Florida Statutes. Although Hauser had a vague
recollection of the event, she adamantly denied making the
derogatory comments: the very basis of the misconduct alleged
here. Because we find no record support for the JCC's
finding of any admission by Hauser relevant to the hearsay
issue here, we find no exception on this basis.
the JCC found the form was admissible under the business
records exception to the hearsay rule found in section
90.803(6)(a), Florida Statutes. Although the form itself
appears to satisfy this exception, the portion of the form
setting forth the alleged misconduct also consists of
hearsay, and it is this evidence that the E/C sought to
introduce as evidence of Hauser's misconduct. Section
90.805 states that "[h]earsay within hearsay is not
excluded under s. 90.802, provided each part of the
combined statements conforms with an exception to the hearsay
rule as provided in s. 90.803 or s. 90.804"
(emphasis added). See, e.g., Harris v. Game & Fresh
Water Fish Comm'n, 495 So.2d 806, 809 (Fla. 1st DCA
1986) (noting general rule concerning hearsay within hearsay
and quoting Charles W. Ehrhardt, Florida Evidence,
§ 90.805, at 563 (2d ed. 1984): "For example, if a
business record includes a statement of a bystander to an
accident, the bystander's statement is hearsay and not
included within the business records exception because the
statement was not made by a person with knowledge who was
acting within the regular course of the business
activity."); see also Carter v. State, 951
So.2d 939, 943-44 (Fla. 4th DCA 2007) (finding police
report/victim affidavit did not fit within business records
exception to hearsay); Van Zant v. State, 372 So.2d
502, 503 (Fla. 1st DCA 1979) ("[I]f the person who
prepared the record could not testify in court concerning the
recorded information, the information does not become
admissible as evidence merely because it has been recorded in
the regular course of business.").
the customer-the bystander to the derogatory comments
allegedly made by Hauser-was not acting in the regular course
of Goodwill's business activities when he made his
complaint. Furthermore, the district director who prepared
the business record could not testify concerning the
customer's statement. The E/C has not alleged any other
hearsay exception that would apply to the written record of
the customer's statement. As a result, the exit interview
form was not admissible as proof of the misconduct alleged by
the E/C. The JCC, therefore, erred when he admitted the exit
interview form as evidence in support of the E/C's
we Reverse the order below and Remand for a new hearing on
Hauser's petition for benefits.
and M.K. ...