       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         ANGEL CONTRERAS,
                             Appellant,

                                    v.

REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and HAROLD
                     L. SIMPSON,
                      Appellees.

                             No. 4D14-3820

                          [November 12, 2015]

  Appeal from the State of Florida, Reemployment Assistance Appeals
Commission; L.T. Case No. 14-02668.

   Angel Contreras, Lantana, pro se.

  Amanda L. Neff, Executive Senior Attorney, Tallahassee, for appellee
Reemployment Assistance Appeals Commission.

  Matthew C. Sanchez and Nicole M. Villarroel of Hackleman, Olive &
Judd, P.A., Fort Lauderdale, for appellee Harold L. Simpson.

STEVENSON, J.

   Angel Contreras appeals the Reemployment Assistance Appeals
Commission’s order which reversed the decision of the Appeals Referee
and found that Contreras committed misconduct disqualifying him from
receiving unemployment benefits. Because Contreras’s actions did not
constitute “misconduct” as defined in section 443.036(29), Florida
Statutes (2014), we reverse.

   The facts, as found by the Referee, are briefly stated as follows.
Contreras was hired on or around March 23, 2010, as one of the
caregivers/companions for an elderly man (“patient”) who suffered from
dementia. The caregivers were provided a list of medications to be
administered to the patient. Tylenol and Tramadol were on the list as
acceptable medications to administer as needed for pain. Occasionally,
other pills, not on the list, were left in envelopes by the licensed nurse
practitioner for the caregivers to administer to the patient.
   On February 19, 2014, the patient underwent surgery. The caregivers
were instructed to administer Tylenol or Tramadol if the patient
complained of pain. Shortly after Contreras arrived to work on February
21, the patient began screaming out in pain. The previous caregiver told
Contreras they were out of Tylenol. Contreras had given the patient
Tramadol on prior occasions and understood that “the drug took
approximately an hour to begin relieving pain.” Unidentified pain pills,
“new pain pills,” were left in envelopes with instructions to administer for
pain. These new pills were Percocet, but were not labeled as such.
Contreras gave the patient the Percocet, “assum[ing] that a new pain pill
prescribed by the surgeon would probably be stronger and take effect
quicker than Tramadol.”           He was subsequently terminated for
insubordination for giving the Percocet instead of Tylenol or Tramadol.

   Contreras applied for benefits from the Reemployment Assistance
Program. The Reemployment Assistance Program found that he was
disqualified from benefits because he was terminated for misconduct. He
then sought review before an Appeals Referee. After an evidentiary
hearing, the Referee reversed the disqualification, finding that misconduct
was not shown. The employer appealed to the Reemployment Assistance
Appeals Commission. The Commission adopted the Referee’s factual
findings, but reversed, holding Contreras did commit misconduct and was
disqualified from receiving benefits. This appeal followed.

   A person is disqualified from benefits if he or she has been discharged
by his or her employer “for misconduct connected with his or her work.” §
443.101(1)(a), Fla. Stat. (2014).      “Misconduct” includes “[c]onduct
demonstrating conscious disregard of an employer’s interests.”           §
443.036(29)(a), Fla. Stat.

   Ordinary negligence in isolated instances or good faith errors in
judgment is not misconduct that supports the denial of benefits.
Responsible Vendors, Inc. v. Reemployment Assistance Appeals Comm’n,
172 So. 3d 561, 561–62 (Fla. 3d DCA 2015). The burden is on the
employer to prove the employee acted “intentionally or with a degree of
carelessness or negligence that manifests a wrongful intent.” Id. at 562.
Furthermore, conduct which justifies discharge from employment does not
necessarily preclude entitlement to benefits. Flint v. Fla. Unemployment
Appeals Comm’n, 79 So. 3d 115, 115 (Fla. 3d DCA 2012) (citing Kelley v.
Pueblo Wholesale Co., 627 So. 2d 534 (Fla. 3d DCA 1993)).

   This Court will defer to an “agency’s interpretation of a statute it is
given the power and duty to administer when that interpretation is

                                     2
reasonable.” Conservation Alliance of St. Lucie Cnty. Inc. v. Fla. Dep’t of
Envtl. Prot., 144 So. 3d 622, 624 (Fla. 4th DCA 2014). We have recognized
that a “referee’s findings are to be accorded a presumption of correctness.”
Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So. 2d 498, 501 (Fla.
4th DCA 2004). The appeals commission “cannot reweigh the evidence
and substitute its findings for those of the referee.” Id. at 502. As the fact
finder, the Referee determined that Contreras’s testimony was more
credible. Her factual findings are supported by competent, substantial
evidence. Thus, the Commission was required to defer to the Referee’s
factual findings.

   According to the Referee’s factual findings, the employer did not
demonstrate that Contreras acted with a conscious disregard of the
employer’s interests. Contreras gave the patient the new pain pills
because he believed they would work faster to relieve the patient’s severe
pain. This belief was reasonable given that the pills were prescribed by
the patient’s surgeon and were left in the home in an envelope, which
occurred on occasion. Contreras trusted that the employer would not have
medication in the home that the caregivers could not administer. Under
these facts, the employer did not prove that Contreras acted with “wrongful
intent.” Responsible Vendors, Inc., 172 So. 3d at 561–62. Additionally,
this was one “isolated instance” of an “error in judgment” in almost four
years of employment. See id. at 562.

   Under Flint, although Contreras’s actions may have justified his
termination of employment, his actions did not rise to the level of
misconduct justifying preclusion from benefits. 79 So. 3d at 115. The
Commission erred in finding that Contreras’s actions legally barred his
entitlement to unemployment benefits. Accordingly, we reverse the
Commission’s order.

   Reversed.

DAMOORGIAN and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      3
