Florida: “Angry Thoughts” About Co-Worker Do Not Constitute Employee Misconduct

Statements made by a workers’ compensation claimant to her attorney that she felt like “punching the lights” out of a co-worker, whom the claimant felt had intentionally caused the claimant injury at work, were not the sort of acts that constituted employee “misconduct,” justifying the termination of workers’ compensation benefits under § 440.15(4)(e), Fla. Stat., held a Florida appellate court. Claimant, who sustained two similar injuries when she was struck by a door opened by the same co-worker, admitted she harbored anger at the co-worker following the second incident. She received authorized medical care, was assigned some medical restrictions, and returned to work with accommodations. She subsequently sought authorization of a neurologist and a psychiatrist (as recommended by the authorized orthopedist) and payment of TPD benefits. At a hearing, the claimant’s attorney suggested that an emergency psychiatric hearing was necessary because “something bad might happen.” When the JCC asked for clarification, the attorney announced that the claimant had “discussed homicide and suicide, but not to the level where it’s Baker Actable.” That evening, the employer terminated the claimant, secured a “no trespass” order with the police, and later amended its defenses to the workers’ compensation claim, contending the claimant was ineligible for TPD benefits because she had been terminated for misconduct. The JCC rejected the misconduct defense and the appellate court agreed. Noting that a psychiatrist described the claimant’s expressions of anger as “blowing off steam,” as opposed to a declaration of an intent to inflict physical harm, the court said it was one thing for the employer to terminate the employee, but quite a different matter to seek termination of her comp benefits. It had failed to meet its burden of proof that she was guilty of misconduct.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Cory Fairbanks Mazda v. Minor, 2016 Fla. App. LEXIS 7984 (May 25, 2016)

See generally Larson’s Workers’ Compensation Law, § 33.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.