Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-736 _____________________________ VICTOR CABRERA, Appellant, v. KABLELINK COMMUNICATIONS, LLC/SEDGWICK CMS and NEW HAMPSHIRE INSURANCE COMPANY, Appellees. _____________________________ On appeal from an order of the Judge of Compensation Claims. Timothy S. Stanton, Judge. Date of Accident: August 24, 2016. October 6, 2021 OSTERHAUS, J. Victor Cabrera appeals an order denying his petition for workers’ compensation. Cabrera fell and was injured while installing cable for Kablelink Communications. Although he worked as an independent contractor, he argues that he qualifies as an “employee” for purposes of Florida’s workers’ compensation law and is eligible for benefits because he worked “in the construction industry.” See § 440.02(15)(c)(2), Fla. Stat. We affirm. I. The parties don’t dispute the underlying facts here. Cabrera was working to install a residential cable line for Kablelink in 2016, when he fell from a ladder and was severely injured. He filed a petition seeking workers’ compensation benefits from Kablelink. But Kablelink disputed that Cabrera was eligible under its plan because he was an independent contractor. See § 440.09(1), Fla. Stat. (2016) (making benefits available only to “employees”). A prior agreement between Cabrera and Kablelink recognized him to be “an independent contractor and not an employee.” Notwithstanding the agreement, Cabrera asserted that he is considered a Kablelink employee under Florida law because independent contractors are “employees” if they are working and engaged “in the construction industry.” § 440.02(15)(c)3., (d)1., Fla. Stat. Cabrera believes that the law’s “construction industry” definition includes the cable-laying work he was doing for Kablelink. See § 440.02(8), Fla. Stat. After some procedural twists and turns, the Judge of Compensation Claims found Cabrera to be an independent contractor who did not qualify for benefits as an employee under the statute. * II. Cabrera’s appeal challenges the JCC’s conclusion that he was not an “employee” for purposes of Florida’s workers’ compensation * Cabrera argues that the JCC abused its discretion by not reopening the case so that he could introduce evidence about a federal labor law case involving Kablelink. Here, as well as in a related appeal of an order denying Cabrera’s petition to modify and stay the JCC’s final order, see case no. 1D20-2413, Kablelink sought to block the final order in view of records becoming available in a matter involving a United States Department of Labor investigation into Kablelink’s employment practices. But we agree with the trial court that these records do not bear on the definitions and interpretations of the state statutes that are at the heart of this case. 2 law. We review a JCC’s findings of fact for competent substantial evidence, but review statutory interpretation issues de novo. See Cal-Maine Foods/Broadspire v. Howard, 225 So. 3d 898, 902 (Fla. 1st DCA 2017). Claimant’s main argument here is that his installation of residential cable for Kablelink was work “in the construction industry,” which made him an “employee” under the law. § 440.02(15)(b)–(d), Fla. Stat. Indeed, the law plainly says that “[e]mployee” includes “[a]n independent contractor working or performing services in the construction industry . . . [but] does not [include a]n independent contractor who is not engaged in the construction industry.” § 440.02(15)(c)3., (d)(1), Fla. Stat. But the parties dispute whether Claimant’s work qualified as working or being engaged “in the construction industry.” The answer in Claimant’s case is bound up with the statute’s definition of “construction industry.” “Construction industry” means for-profit activities involving any . . . substantial improvement in the . . . use of any structure . . . . The division may, by rule, establish codes and definitions thereof that meet the criteria of the term “construction industry” as set forth in this section. § 440.02(8), Fla. Stat. As the statute allows, the Division of Workers’ Compensation promulgated a rule establishing that “an employer is engaged in the construction industry when any portion of the employer’s business operations is described in the construction industry classifications that are adopted in this rule.” Fla. Admin. Code § 69L-6.021(2). The rule goes on to incorporate the classification codes and descriptions published in the National Council on Compensation Insurance Inc. (NCCI) Scopes of the Basic Manual (2001 ed.). The JCC denied Claimant’s petition by focusing on the Division’s rule and deciding that Kablelink’s work didn’t overlap with the NCCI classification codes. And so, the JCC concluded that Claimant was an independent contractor who was not working “in the construction industry.” Neither the rule nor a previous case specifically addresses the question whether the cable installation work done by Claimant for 3 Kablelink qualifies as work “in the construction industry,” that is, whether it involves working, performing services, or engagement “involving . . . substantial improvement in the . . . use of any structure.” § 440.02(8), (15)(c)3., (15)(d)(1), Fla. Stat. In prior cases dealing with the definition of “in the construction industry” we have reached different outcomes based upon job-specific factors. For instance, we affirmed the grant of benefits where a claimant fell through a skylight while working to seal and repair a hangar’s roof. Ficocelli v. Just Overlay, Inc., 932 So. 2d 1230, 1233 (Fla. 1st DCA 2006). We considered the work to fit within the definition of “in the construction industry” because of the work involved functional improvements to the structure where the injury occurred. The roof repairs were considered “necessary to permit the airport hang[a]rs to continue to function as storage facilities that protect aircraft and other equipment from the elements.” Id. Conversely, we denied benefits in another case involving a claimant who did not satisfy his evidentiary burden of showing engagement in the construction industry. Allied Trucking of Fla., Inc. v. Lanza, 826 So. 2d 1052, 1053 (Fla. 1st DCA 2002). In Lanza, the claimant was injured hauling construction and demolition debris, but there wasn’t evidence that “Appellee was actively engaged in the construction industry at the time he sustained his injuries.” Id. This case falls into the latter category of cases. Here, we know that Claimant’s injury occurred on a Kablelink installation job replacing a residential cable line. But the record doesn’t show that Claimant was working or engaged in making a “substantial improvement in the . . . use of any structure.” § 440.02(8), Fla. Stat. On this point, it was Claimant’s burden to avoid the E/C’s defense by proving that he qualified as an “employee,” working and engaged in the construction industry. Lanza, 826 So. 2d at 1053; see also MBM Corp. v. Wilson, 186 So. 3d 574, 576 (Fla. 1st DCA 2016) (recognizing the claimant’s burden to prove entitlement to workers’ compensation benefits). Claimant argues that “as a matter of pure common sense” we should consider Kablelink’s work to satisfy the definition of “in the construction industry” because, for instance, our courthouse is a structure that relies upon cable-related communications in fulfilling its purpose. Indeed, we can appreciate that the 4 availability of modern communications services—telephones, the internet, and other connected services—is vital to our building’s ability to function as a modern courthouse. Without these services our building could not serve very well as a courthouse. But even granting Claimant’s point about the courthouse, the evidence in this case shows little of whether Claimant was working or engaged in the construction industry when he sustained his injuries. Going back to the statute, we specifically cannot determine whether Claimant’s cable installation work involved a substantial improvement in the use of the homes that he served. § 440.02(8), Fla. Stat. Thus, we have no basis for reversing the JCC on the record before us and deciding that the Claimant’s work involved making a “substantial improvement” in the use of the homes served by Kablelink. § 440.02(8), Fla. Stat. In addition, like the JCC, we see no rule-based rationale for concluding that Claimant’s cable-installation work qualified him as working or being engaged in the construction industry at the time of his injuries. See Fla. Admin. Code § 69L-6.021. AFFIRMED. BILBREY J., concurs; TANENBAUM, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ TANENBAUM, J., concurring. The analysis in the majority opinion is eminently correct, and I join that opinion in full. I write separately to highlight that there appear to be two separate elements that had to be established before the JCC in this case could conclude that the claimant was an “employee.” First, there needed to be evidence that the claimant was “working or performing services in the construction industry” at the time of the accident. § 440.02(15)(c)3., Fla. Stat. (2016). The present participles “working or performing” focus attention on whether the actual work being done by the claimant at the time of 5 the accident meets the definition of “in the construction industry.” Cf. § 440.02(36), Fla. Stat. (defining “arising out of” in terms of “occupational causation,” such that the work being performed at the time of the accident, “in the course and scope of employment,” was the major cause of injury). Second, there needed to be evidence that the claimant was “engaged in the construction industry.” § 440.02(15)(d)1., Fla. Stat. The exclusion from the definition of “employee” in subparagraph (d)1. uses the past participle “engaged” rather than the present participles “working or performing,” which suggests to me that the focus of (d)1. differs from that of (c)3. The past participle directs attention backward in time, to the claimant’s historical work. In turn, the latter element requires an inquiry into the type of claimant’s routine, day-to-day work historically performed as an independent contractor leading up to the occurrence of the accident. Despite being an independent contractor, then, before the claimant could qualify as an “employee,” these two subparagraphs together require competent, substantial evidence demonstrating both that the claimant’s accident occurred because of his doing work in the construction industry at the time, and that his work as an independent contractor regularly or consistently was in the construction industry over a period of time preceding the day of the accident. The evidence here failed to establish either element, but failure to establish just one of these elements would have been sufficient to deny the claimant status as an “employee.” _____________________________ Michael J. Winer of Winer Law Group, Tampa, for Appellant. Thomas P. Vecchio of Vecchio, Carrier, Feldman & Johannessen, P.A., Lakeland, and Christopher B. Lunny, Brittany Adams Long, and Laura M. Dennis of Radey Law Firm, Tallahassee, for Appellees. 6