Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5241 _____________________________ MAREK KRYSIAK, CORRECTED PAGES: pg 2, & 5 CORRECTIONS ARE UNDERLINED IN RED Appellant, MAILED: March 10, 2020 BY: FTA v. CITY OF KISSIMMEE, TOHO WATER AUTHORITY/PREFERRED GOVERNMENT CLAIMS SOLUTIONS, Appellees. _____________________________ On appeal from an order of the Judge of Compensation Claims. Thomas W. Sculco, Judge. Date of Accident: October 12, 2016. February 13, 2020 PER CURIAM. In this workers’ compensation case, Claimant appeals the Judge of Compensation Claims’ (JCC’s) order finding that Claimant is not entitled to make his own selection of a one-time change of physician, and that temporary partial disability (TPD) benefits are not payable because Claimant’s postinjury employment was terminated due to his misconduct. We affirm the JCC’s ruling on the issue of the one-time change based on his determination that Claimant acquiesced to the Employer/Servicing Agent’s (E/SA’s) choice of physician and thus waived the option of making his own selection. But we reverse his ruling on the TPD benefits because the record contains no competent, substantial evidence that Claimant committed the misconduct resulting in his discharge from employment. I Procedural Background On October 12, 2016, Claimant sustained a compensable workplace injury to his left shoulder. He was initially subject to work restrictions, but in February 2017, the authorized physician placed him at maximum medical improvement with no work restrictions and no permanent impairment. Although Claimant returned to full duty work, he was discharged on October 31, 2017, for violating the Employer’s substance abuse policy. Claimant subsequently filed petitions for benefits (PFBs) seeking authorization of Dr. Winters as his one-time change of physician under section 440.13(2)(f), Florida Statutes (2016), and payment of TPD benefits. II One-Time Change Section 440.13(2)(f) provides: Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. 2 The E/SA denied Claimant’s request for Dr. Winters as his one- time change of physician on the ground that they had already timely authorized Dr. Reuss. In the alternative, the E/SA maintained that Claimant acquiesced to their selection of Dr. Reuss and, as a result, waived the option of selecting Dr. Winters as his one-time change. The JCC ultimately found in favor of the E/SA on the acquiescence argument. For that reason, he did not address the issue of the timeliness of the E/SA’s authorization. The salient facts on the acquiescence issue are not disputed. On March 6, 2018, Claimant’s attorney sent the E/SA’s attorney a fax requesting authorization of an alternate orthopedist. In a follow-up email sent March 10th, Claimant’s attorney informed the E/SA’s attorney that he had not received a response to this request and would forward information on Claimant’s choice of orthopedist shortly. On March 27th, Claimant filed a petition for benefits (PFB) seeking an alternate orthopedist under section 440.13(2)(f) and naming Dr. Winters as his selection of the one- time change of physician. Neither the E/SA nor their attorney responded directly to Claimant’s attorney’s fax or email correspondence. The claims adjuster later admitted that she received the March 6th fax from the Claimant’s attorney a few days after it was sent, but stated she did not consider this to be a request for a one-time change under the statute because the email requested an “alternate” doctor. She did not authorize a one-time change until designating Dr. Reuss in the E/SA’s March 30th response to Claimant’s March 27th PFB. On April 3rd, the claims adjuster sent Claimant and his attorney a letter stating that she had scheduled an appointment with Dr. Reuss for April 20th. Claimant’s attorney emailed the E/SA’s attorney on April 12th and advised him that Claimant would not accept Dr. Reuss because the E/SA did not respond to the one-time change request within five days of the request. Claimant’s attorney requested the E/SA authorize Dr. Winters as the one-time change and stated that Claimant would treat with Dr. Winters under the self-help provisions of the statute if they failed to do so. After April 12th, Claimant attended at least two 3 appointments 1 with Dr. Reuss—he evidently never saw Dr. Winters. At the final hearing, Claimant testified that he had no choice but to attend appointments with Dr. Reuss because he lacked the money to pay for an unauthorized physician. Because the JCC made no findings concerning the timeliness of the E/SA’s response, this issue turns on whether the JCC erred when he found Claimant waived the right of selection. To the extent the question turns on resolution of the facts, our standard of review is competent, substantial evidence (CSE); to the extent it involves an interpretation of law, review is de novo. See Benniefield v. City of Lakeland, 109 So. 3d 1288, 1290 (Fla. 1st DCA 2013). In Pruitt v. Southeast Personnel Leasing, Inc., 33 So. 3d 112, 114 (Fla. 1st DCA 2010), this Court held that section 440.13(2)(f) does not . . . give the employee an absolute right to select the alternate physician. Only if the E/C does not timely authorize an alternate physician does the statute give the employee the option of selecting the physician. If the employee fails to exercise that option, he or she may waive the right to select the alternate physician. This court affirmed the denial of the claimant’s selection of the one- time change of physician in Pruitt and found no error under circumstances where “not only did Claimant fail to select an alternate treating physician, but he also acquiesced in the E/C’s selection of the alternate physician . . . .” Id. See also Gadol v. Masoret Yehudit, Inc.,/U.S. Adm’r Claims, 132 So. 3d 939, 941 (Fla. 1st DCA 2014) (noting that claimants can waive right to select doctor under section 440.13(2)(f) “[a]s demonstrated in Pruitt (where the claimant never named his selection of doctor, and treated with the employer/carrier’s selection of alternative physician”)). 1 Although the medical reports indicate Claimant saw Dr. Reuss at least once before his last appointment on May 30, 2018, the actual date of his first appointment—specifically, whether Claimant attended the April 20th appointment initially scheduled by the adjuster—is unclear from the record. 4 As Claimant correctly points out, Pruitt is not factually on point because the claimant there never named his choice for the one-time change of physician. Here, not only did Claimant select Dr. Winter as his one-time change, he also expressly objected to the E/SA’s selection of Dr. Reuss. Although we agree that the facts in this case may be persuasive on these points, whether Claimant nevertheless waived the option of selecting the one-time change depends on Claimant’s response to the E/SA’s selection given the totality of the circumstances. Here, Claimant’s act of attending an appointment with Dr. Reuss contradicted his previously expressed objection and his stated intent to treat instead with Dr. Winters. We cannot accept Claimant’s argument that, having once objected, he can never acquiesce in the E/SA’s selection. 2 Under these circumstances, Claimant should have informed the E/SA that his attendance at any appointment with Dr. Reuss was under protest. Because he did not, we find that the JCC did not err when he found that Claimant acquiesced to the E/SA’s selection of Dr. Reuss as his one-time change and thus waived the right to make his own selection. III Misconduct Effective October 1, 2003, section 440.15(4)(e) provides that “[i]f the employee is terminated from postinjury employment based on the employee’s misconduct, [TPD] benefits are not payable as provided in this section. . . .” Under section 440.02(18), “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 2 While we agree with Claimant that prior case law concerning the deauthorization of physicians is relevant in the analysis—in particular, Crenshaw v. Florida Farm Bureau, 489 So. 2d 186 (Fla. 1st DCA 1986), which was cited as authority in Pruitt—we do not find that these cases mandate a different result here. 5 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. The employer has the burden of proving misconduct sufficient to disqualify an employee from receiving benefits. See, e.g., Cesar v. Reemp’t Assistance Appeals Comm’n, 121 So. 3d 1181, 1182 (Fla. 1st DCA 2013). 3 See also Trihn Trung Do v. Amoco Oil Co., 510 So. 2d 1063, 1064 (Fla. 4th DCA 1987) (noting that “the question [on review of a denial of an unemployment compensation claim for misconduct] is whether the evidence supports a conclusion that [the discharged employee] was guilty of misconduct as that term is defined by the statute”). Thus, in this case, the issue is not whether the Employer had cause or the right to terminate Claimant’s employment, but instead whether the E/SA proved termination was based on acts of misconduct, as defined in the statute. 3 This Court previously held that the definition of “misconduct” in Chapter 440 is so similar to the one in unemployment compensation statute that a JCC is not free to ignore its judicial construction in unemployment compensation law. See Thorkelson v. NY Pizza & Past, Inc., 956 So. 2d 542, 545 (Fla. 1st DCA 2007) (citing definition of misconduct in § 443.029(a- b), Fla. Stat. (2004)). The statutory definition of misconduct for unemployment compensation cases has since been expanded. See § 443.036(30)(c)-(e), Fla. Stat. (2011). These changes were not made in the definition of “misconduct” in Chapter 440 which has not been amended since its adoption in 2003. See § 440.02(18), Fla. Stat. (2018). It follows that the pre-2011 case law addressing disqualification from unemployment compensation based on misconduct remains relevant in workers’ compensation cases. 6 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 CSE. See Thorkelson v. NY Pizza & Past, Inc., 956 So. 2d 542, 545 (Fla. 1st DCA 2007) (citing Sauerland v. Fla. Unemp’t Appeals Comm’n, 923 So. 2d 1240, 1241 (Fla. 1st DCA 2006)). The E/SA argued below that Claimant committed misconduct by violating the Employer’s policy on substance abuse. Generally, a single isolated instance of failing to follow employer policy has not been viewed as rising to the level of misconduct. See Ash v. Fla. Unemp’t Appeals Comm’n 872 So. 2d 400, 402 (Fla. 1st DCA 2004) (“While a violation of an employer’s policy may constitute misconduct, ‘[r]epeated violations of explicit policies, after several warnings, are usually required.’” (quoting Barchoff v. Shells of St. Pete Beach, Inc., 787 So. 2d 935, 936 (Fla. 2d DCA 2001) (footnote omitted))). In this case, the E/SA submitted evidence of corrective action taken in 2016 when Claimant violated the policy by purchasing alcohol while on duty. At that time, Claimant was given warning by way of a “last chance agreement” in lieu of termination. Rebecca Martinez, the Employer’s human resources director, testified that Claimant’s employment was terminated when he broke that last chance agreement with a second violation. According to Martinez, the Employer has posted on its website a 135-page written employee policy manual. The written policy was not submitted in evidence; however, Martinez testified that the policy prohibits, among other things, being “under the influence” of alcohol while at work. She conceded that the policy does not designate a specific prohibited alcohol level or otherwise define the phrase “under the influence.” In late 2017, Claimant’s supervisor contacted Martinez with complaints that Claimant was demonstrating poor attendance patterns and had been absent for more than a couple of days without calling in. Martinez drafted a letter to Claimant to notify him that his absence would be considered job abandonment, but he contacted the Employer before the letter was sent. Martinez testified that when Claimant returned to work, the supervisor called her and told her that Claimant “does not look ready to work.” 7 She recommended that Claimant be sent for testing to determine the presence of alcohol or drugs. According to Martinez, the test came back twice as “positive” and Claimant’s employment was terminated. The JCC ultimately found that the E/SA proved the misconduct defense based on Claimant’s intentional violation of the substance abuse policies given the “totality of the evidence.” On appeal, Claimant argues that the JCC erred to the extent he relied on Martinez’s testimony on the test results and that the record does not otherwise contain CSE to support a finding that Claimant was “under the influence” when he was discharged. We agree that the vague second-hand description of Claimant’s appearance that day is insufficient: Martinez admitted that she did not have any personal interaction with Claimant at that time and had no opportunity to observe him or his behavior, and the supervisor, who actually saw Claimant, did not testify. Because Claimant was discharged for being under the influence while at work, we also find little probative value in the evidence concerning his absences. 4 In short, without evidence of the test results and accompanying admissible evidence interpreting those results, the record here contains no CSE in support of the JCC’s finding of misconduct. In this case, the E/SA chose not to submit the test results or evidence from anyone with personal knowledge of the testing. At the final hearing, Claimant testified that he was told that his employment was terminated because he tested positive for alcohol. During cross-examination, the E/SA attempted to question Claimant in greater detail about the test results, but Claimant objected based on hearsay grounds. The JCC allowed the question to establish Claimant’s understanding of the reason his employment was terminated, but he ruled that the E/SA could not use this testimony to admit direct evidence of the specific facts of the test results. When Martinez was later asked if she learned the 4 In an amendment to the pretrial stipulation, the E/SA expressly raised a misconduct defense based on alcohol abuse, not absenteeism. Misconduct, as an affirmative defense, must be pled with specificity. See Fla. Admin. Code R. 60Q-6.113(h). 8 results of the testing, the JCC allowed the question over Claimant’s similar objection, but again for the limited purpose of establishing the witness’s subjective understanding. However, Claimant did not enter an objection when the E/SA immediately asked a follow-up question and Martinez responded that the test results were positive. In a motion for rehearing, Claimant challenged the JCC’s reliance on Martinez’s testimony establishing the positive test results. In denying the motion, the JCC expressly recognized that Martinez’s testimony constitutes inadmissible hearsay. 5 Nevertheless, he found that Claimant had waived any objection by failing to raise a contemporaneous objection or to make a standing objection. He explained that his ruling on the earlier question concerning when Martinez “learned the results of the testing” was proper because the question did not technically call for hearsay. Based on the JCC’s findings on this point, the E/SA argue that Claimant did not preserve his objection to Martinez’s testimony concerning the positive test results. We cannot agree and find the JCC’s explanation ultimately unpersuasive. In his earlier rulings, the JCC emphasized that questions about the test results would be permitted to prove state of mind as opposed to the truth of the matter. And, although the JCC expressly ruled that the E/SA could not rely on Claimant’s hearsay testimony as a conduit to admit the test results, he 5 It is well-established that the Florida Evidence Code applies to worker’s compensation proceedings. See Alford v. G. Pierce Woods Mem’l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993). The Florida Statutes defines hearsay as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla. Stat. (2018). Under section 90.802, such out-of-court statements are inadmissible as hearsay. But, if a statement is offered for some purpose other than its truth, it is not hearsay. See id.; Penalver v. State, 926 So. 2d 1118, 1132 (Fla. 2006). (“[I]f the statement is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.”). 9 eventually relied on the truth of Martinez’s similarly inadmissible testimony concerning the test results to find Claimant was under the influence of alcohol while at work. The failure to make a contemporaneous objection to the admissibility of evidence can result in waiver so that hearsay evidence can be considered when deciding if CSE supports a JCC’s ruling below. See § 90.104(1)(a), Fla. Stat. (2018) (requiring timely objection to admission of evidence with statement of specific ground if not apparent from context). But section 90.104(1)(b) further provides that “[i]f the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer proof to preserve a claim of error for appeal.” See, e.g., Everett v. State, 54 So. 3d 464, 476 (Fla. 2010) (finding where objection raised regarding expert’s qualifications out of presence of jury, renewed objections unnecessary each time opinion was offered). Here, Claimant reasonably relied on the JCC’s prior rulings limiting the purpose of the hearsay testimony concerning the test results, and he assumed that Martinez’s testimony that the test was positive was admitted to show only the Employer’s subjective motivation; i.e., not as proof of the actual test results (the “truth of the matter” of the hearsay statement). After all, these test results themselves were clearly excluded from the evidence by the JCC. Under the specific circumstances presented here, the objection to hearsay testimony establishing the positive test results was preserved. The JCC, therefore, erred when he relied on positive test results as evidence that Claimant violated the Employer’s substance abuse policy. Given the absence of CSE in support of the finding of misconduct, we reverse. In sum, we AFFIRM the JCC’s denial of Claimant’s request for the authorization of Dr. Winters as his one-time change of physician; we REVERSE the JCC’s finding of misconduct with instructions to re-consider the claim for TPD benefits on REMAND. WOLF and JAY, JJ., concur; KELSEY, J., concurs in part and dissents in part with opinion. 10 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ KELSEY, J., concurring in part and dissenting in part. I concur with the majority’s affirmance on the one-time- change issue. I respectfully dissent, however, from the majority’s reversal on the misconduct issue. I conclude that competent, substantial evidence supported the JCC’s finding that Claimant was guilty of misconduct. I would therefore also deny Claimant’s request for costs and fees. _____________________________ Will B. Ramhofer of Ramhofer Garcia & Moore, PLLC, Miami, for Appellant. Kristen L. Magana and Megan Oliva of Broussard, Cullen & Blastic, P.A., Orlando, for Appellees. 11