Temporary Partial Disability and Termination for Misconduct in Florida Workers’ Compensation Cases
Generally, when an injured worker is under restrictions from an authorized doctor and the injury-related restrictions result in earning less than 80% of his/her average weekly wage-the employer/carrier should pay the injured worker Temporary Partial Disability benefits. However, the Temporary Partial Disability statute states that “If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable”.
The effect of termination for misconduct can have far reaching and costly impacts for an injured worker in a Florida workers’ compensation case.
The statute defines misconduct as follows:
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 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.
Misconduct in Florida Workers’ Compensation Cases is a very fact-specific question of law resolved by a judge based upon findings of fact [on which the legal question is based] and must be based on competent, substantial evidence. Given the many shapes and forms of workers’ compensation injuries and different work place dynamics, this is a difficult concept to pin down. For example, in the case of Cory Fairbanks Mazda/PMA v. Connie Minor, the claimant made statements to her attorney she would like to “punch her coworker”. The claimant’s statement made its way into argument before the court at an emergency psychiatric hearing. Based upon the statement by the claimant’s attorney alone, the employer terminated the claimant and alleged the claimant was terminated for misconduct. The specific coworker in question testified and at the hearing, stating the claimant never harmed or said she would harm her. The judge found there was no evidence of misconduct because no evidence existed the claimant intended, or reasonably expected, that the employer would learn of her statements. The judge’s finding the employer/carrier failed to establish misconduct was upheld by the First DCA under these circumstances. However, if the facts were different-for example, if the claimant said it to the coworker face-to-face and the threat was imminent, the ruling may be different. If you take it a step further and place it in the social media context—something that unfortunately, is not that far of a stretch, would the threat still be imminent? These are interesting questions and illustrate the many different scenarios which could come up dealing with Misconduct in Florida Workers’ Compensation Cases.
If you have questions regarding Misconduct in Florida Workers’ Compensation Cases, or have questions regarding Temporary Partial Disability, contact one of our Tampa work comp attorneys to discuss your case. We offer free consultations and offer in-home consultations, if necessary. Our Tampa work comp lawyers are dedicated to protecting the rights of injured workers.
 440.15(4)(e) Florida Statute (2016)
 Suaerland v. Enemplmt. App. Comm’n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006).
 Case No. 1D15-1600 Opinion filed May 25, 2016 from the 1st DCA.