Workers’ compensation — Temporary partial disability —
Where employer had fired claimant, it was error to award claimant temporary
partial disability without determining whether claimant had been discharged for
misconduct — Termination for misconduct precludes an award of temporary partial
disability benefits

SOUTHEAST MILK/ZURICH NORTH AMERICA, Appellants, v. GUY W. FISHER, Appellee.
1st District. Case No. 1D13-4411. Opinion filed April 14, 2014. An appeal from
an order of the Judge of Compensation Claims. Ralph J. Humphries, Judge. Date of
Accident: November 9, 2012. Counsel: H. George Kagan of Miller, Kagan, Rodriguez
& Silver, P.L., West Palm Beach, for Appellants. Bill McCabe, Longwood, and
Richard J. Manno, Winter Park, for Appellee.

(PER CURIAM.) In this workers’ compensation case, the Employer/Carrier (E/C)
challenges an order of the Judge of Compensation Claims (JCC) to the extent it
awards temporary partial disability (TPD) benefits for the period of May 3,
2013, through July 2, 2013. Because the Employer had fired Claimant on December
19, 2012, the E/C argues that the JCC erred in, inter alia, declining to
determine whether Claimant had been discharged for misconduct, given that
section 440.15(4)(e), Florida Statutes (2012), unequivocally provides that TPD
benefits are not payable if termination is based on misconduct. We agree with
the E/C here and remand for a finding on whether Claimant was terminated for
misconduct.

As background, Claimant, a driver, suffered a compensable injury on November
9, 2012, when the door of his truck cab slammed into his left side. Subsequently
he was restricted to light duty work, and to accommodate his work restrictions,
the Employer offered him his regular hours and regular rate of pay to come in to
the office to watch safety training videos. Claimant watched the videos for part
of two nonconsecutive days and then stopped coming to work. On at least one day
of absence, he did not call in as required by a company policy that indicated
“no-call no show” could result in termination. The Employer considered
Claimant’s absences to be unauthorized and terminated him for that reason.

The JCC stated in the final order that his award of TPD benefits “would be
the same [even] if [he] determined the claimant was terminated for ‘misconduct’
as defined by section 440.02(18).” This statement is not accurate, because,
again, termination for misconduct statutorily precludes an award of TPD
benefits. Given that the E/C raised a dispositive defense based on an allegation
of statutory misconduct, the JCC erred in not reaching the issue of whether
Claimant’s conduct rose to the level of misconduct as defined by section
440.02(18), Florida Statutes (2012). Thus, we REVERSE and REMAND for a finding
of whether Claimant was discharged for statutory misconduct and entry of an
order accordingly. (LEWIS, C.J., WOLF and MAKAR, JJ., CONCUR.)