Workers’
compensation — Temporary partial disability — Affirmative defenses —
Termination of claimant for misconduct premised solely on claimant’s attorney’s
statement that claimant had shared that she had suicidal and homicidal thoughts
arising from her injuries — Judge of compensation claims properly found that
claimant’s statements to her attorney, including statement that claimant felt
like “punching the lights” out of her co-worker, did not constitute misconduct
as defined by statute — Statute addresses only intentional or deliberate
conduct that violates standards of behavior or employer’s interests, and
malevolent thoughts alone, without requisite evidence establishing intent to
harm, do not meet this definition

CORY FAIRBANKS MAZDA/ THE PMA INSURANCE GROUP, Appellants,
v. CONNIE MINOR, Appellee. 1st District. Case No. 1D15-1600. Opinion filed May
25, 2016. An appeal from an order of the Judge of Compensation Claims. Thomas
W. Sculco, Judge. Date of Accident: July 15, 2013. Counsel: Kimberly J.
Fernandes of Kelley Kronenberg, Tallahassee, and Timothy A. Dunbrack of Kelley
Kronenberg, Orlando, for Appellants. Charles H. Leo of the Law Offices of
Charles H. Leo, P.A., Orlando, and Richard W. Ervin, III, of Fox &
Loquasto, P.A., Tallahassee, for Appellee.

(PER CURIAM.) In this workers’ compensation case, the
Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC’s)
rejection of its misconduct defense under paragraph 440.15(4)(e), Florida
Statutes (2013). Claimant cross-appeals the JCC’s denial of her claim for an
alternate neurologist. Although we affirm the JCC’s order in all respects, we
write to discuss the meaning of “misconduct” under subsection 440.02(18),
Florida Statutes (2013), when an employee expresses anger about a co-employee’s
actions.

I.

Claimant, an office worker in a car dealership, sustained
compensable workplace injuries to her head, neck, low back, and left knee as a
result of two accidents occurring in 2013. In both, Claimant was injured at
work when she was struck by a door opened by a co-worker. Claimant had
previously filed a harassment complaint against the co-worker who she believed
had intentionally injured her (the record does not reflect what action, if any,
was taken against the co-worker). Claimant admitted that she became angrier
with the co-worker after the second accident.

Claimant received authorized medical care for her physical
injuries, was assigned certain medical restrictions, and subsequently returned
to work with accommodations. In November of 2013, Claimant filed petitions for
benefits (PFBs) seeking authorization of a neurologist and a psychiatrist (as
recommended by the authorized orthopedist) and payment of temporary partial
disability (TPD) benefits. On January 27, 2014, during a hearing on a discovery
matter, Claimant’s attorney announced that Claimant was “getting increasing[ly]
angry and hostile and showing symptoms of psychiatric stress.” At one point, he
suggested that an emergency psychiatric hearing was necessary because something
bad might happen. When the JCC requested more specific evidence to warrant an
emergency hearing, Claimant’s attorney stated that Claimant had “discussed
homicide and suicide, but not to the level where it’s Baker Actable.” He later
summarized that “Claimant has expressed suicidal and homicidal ideation, but
not to the degree of [imminent] threat” although there “is a potential
emergency psychiatric situation.” Ultimately, the JCC concluded that, despite
the lack of medical evidence, an emergency conference was warranted based on
the Claimant’s attorney’s representations.

That evening, the Employer terminated Claimant’s employment
based on Claimant’s attorney’s representation. The Employer also called the
police to obtain a “no trespass” order. Witnesses for the Employer later
testified that they had no knowledge of any actual threats made by Claimant,
but considered her thoughts enough of a threat to jeopardize the safety of
other employees. The E/C subsequently amended its defenses to say that Claimant
is ineligible for TPD benefits because she was terminated for misconduct. §
440.15(4)(e), Fla. Stat.

Claimant underwent two psychiatric examinations. Although
she admitted to making statements that she felt like “punching the lights” out
of her co-worker, both psychiatrists concluded that Claimant did not present
evidence of imminent threat to herself or others. One of the psychiatrists
described Claimant’s expressions of anger as “blowing off steam” as opposed to
a declaration of an intent to inflict physical harm. Following the last
psychiatric evaluation, the E/C agreed to authorize a psychiatrist to treat Claimant’s
injury-related symptoms of depression.

Relative to the unresolved TPD claim, Claimant’s attorney
objected, based on attorney-client privilege, to the questions posed to
Claimant during a merits hearing concerning her conversations with her attorney.
The JCC allowed a proffer of Claimant’s testimony that she told her attorney
that she would like to punch the co-worker but that she had no idea what
triggered her attorney’s belief that she had homicidal ideations. Claimant
presented testimony from Ms. Navas, another co-worker, who said Claimant shared
her thoughts of punching the co-worker. On cross-examination, Ms. Navas
clarified that Claimant never told her that she was actually going to hurt the
co-worker. The co-worker testified at the hearing, stating that Claimant never
harmed her or told her she would harm her.

On March 9, 2015, the JCC entered an order rejecting the
E/C’s misconduct defense and ordering the payment of TPD benefits from the date
of Claimant’s termination. In the order, the JCC found that Claimant had
established a prima facie claim for TPD benefits and that the E/C had
not established misconduct because no evidence existed that Claimant intended,
or reasonably expected, that the Employer would learn of her statements.

II.

Because the E/C does not challenge the JCC’s finding that
Claimant met her prima facie burden of proof for the benefits sought, the issue
we address is whether the E/C established its affirmative defense based on
termination for misconduct. § 440.15(4)(e), Fla. Stat. (2013). The statutory
definition of “misconduct” is as follows:

“Misconduct”
includes, but is not limited to, the following, which shall not be construed in
pari materia with each other:

(a)
Conduct evincing such willful or wanton disregard of an employer’s interests as
is found in deliberate violation or disregard of standards of behavior which
the employer has the right to expect of the employee; or

(b)
Carelessness or negligence of such a degree or recurrence as to manifest
culpability, wrongful intent, or evil design, or to show an intentional and
substantial disregard of an employer’s interests or of the employee’s duties
and obligations to the employer.

Here, the E/C’s allegation of misconduct is premised solely
on Claimant’s attorney’s statement that Claimant shared that she had suicidal
and homicidal thoughts arising from her injuries. Based on the evidence
presented, the JCC found that Claimant’s statements to her attorney did not
constitute “misconduct” as defined by the statute because there was no evidence
that Claimant intended, or reasonably expected, that the Employer would learn
of her statements.

On appeal, the E/C disputes the JCC’s finding and argues the
requisite intent was demonstrated because Claimant intended to harm or kill her
co-worker;1 further, it is irrelevant that
Claimant spoke only to her attorney and did not actually threaten anyone. In
making these arguments, the E/C overstates the facts and seeks to blur the line
between thoughts or ruminations of an employee to her attorney and the standard
of conduct required under the statute to establish misconduct. The statute
addresses only intentional or deliberate conduct that violates standards of
behavior or the employer’s interests. Malevolent thoughts alone, without the
requisite evidence establishing an intent to harm, do not meet the definition.
This is not to say that such thoughts, if they become known to an employer, may
not constitute good cause for taking appropriate disciplinary action; they do
not, however, constitute “misconduct” by operation of law for purposes of
section 440.15(4)(e). Termination for “good cause” is not the same as termination
for “misconduct,” the latter a more stringent evidentiary standard. See Thorkelson
v. NY Pizza & Past, Inc., 956 So. 2d 542, 543 (Fla. 1st DCA 2007)
(affirming application of paragraph 440.15(4)(e) with evidence of termination
for misconduct because “[c]learly a claimant is not disqualified from workers’
compensation benefits just because she ‘was terminated . . . for cause”). We
take no position on the propriety or validity of the termination.

In making his findings, the JCC was presented with no evidence
that Claimant had any intent whatsoever to act upon her expressed ideations.
Her attorney said there was no imminent danger (just an urgent need for care),
the co-worker said no threats were made or harm occurred, and another co-worker
said that Claimant’s statement did not express an intent to actually punch
anyone. Competent substantial evidence supports the JCC’s findings of no
misconduct. See Thorkelson, 956 So. 2d at 545 (“ ‘Whether a
claimant commits misconduct connected with work is a question of law, [but the]
findings of fact [on which the legal question is based] must be accepted if
supported by competent, substantial evidence.’ ” (quoting Suaerland v.
Unemplmt. App. Comm’n, 923 So. 2d 1240, 1241 (Fla. 1st DCA 2006)).

We note the E/C’s beliefs that it is being punished for
taking action in terminating Claimant’s employment and that Claimant is being
rewarded for her “bad thoughts.” As to the latter point, Claimant has
job-related injuries and lost her job based on ideations (that amounted to
“blowing off steam”) arising from her workplace injuries; in seeking benefits,
she lost the usual privacy considerations that attach to medical information. See
§ 440.105(b), Fla. Stat. (2013) (making unlawful any statement, presented for
any claim or payment of benefit, that contains any false, incomplete, or
misleading information). As to the former point, nothing has changed the
ability of employers to take actions they deem appropriate to safeguard their
workplaces; but when they seek to deny benefits based on employee “misconduct”
they must present evidence and prove their defense, which the E/C failed to do
in this case. The order below is AFFIRMED. (WETHERELL, MAKAR and WINOKUR, JJ.,
CONCUR.)

__________________

1Contrary to the assumption of both
the E/C and the JCC, Claimant’s attorney did not identify the name of the
co-worker who was the focus of Claimant’s ideations.

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