          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-4064
                  _____________________________

MJM ELECTRIC, INC./OCIP and
SEDGWICK CMS,

    Appellants,

    v.

WILLIAM SPENCER,

    Appellee.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.

Date of Accident: August 1, 2017.


                           July 29, 2019


PER CURIAM.

     In this workers’ compensation case, the Employer/Carrier
(E/C) challenge the Judge of Compensation Claims’ order
awarding William Spencer medical care and temporary partial
disability (TPD) benefits. We affirm, without discussion, six of the
seven issues raised in this appeal. At the same time, we reverse
the JCC’s rejection of the E/C’s affirmative defense that Spencer
voluntarily limited his income by refusing suitable employment
after the date the Employer terminated his employment, and we
remand the case for further proceedings.
                                 I

     TPD benefits are payable to an injured employee if he has not
reached overall maximum medical improvement from the injury
and the medical conditions resulting from the injury create
restrictions on the employee’s ability to work. § 440.15(4)(a), Fla.
Stat. (2017); see also Wyeth/Pharma Field Sales v. Toscano, 40 So.
3d 795, 799 (Fla. 1st DCA 2010). The employee’s prima facie
burden of proving TPD entitlement includes showing a causal
connection between loss of employment at the pre-injury wages
and the workplace injury. Id. (citing Photo Elec. Corp./WPEC v.
Glick, 432 So. 2d 164, 165 (Fla. 1st DCA 1983)). Once the injured
employee persuades the JCC that this causal connection exists, the
burden shifts to the E/C to demonstrate affirmatively a
superseding or intervening cause of the wage loss, such as
voluntary limitation of income or deemed earnings. See, e.g.,
Church’s Chicken v. Anderson, 112 So. 3d 545, 547 (Fla. 1st DCA
2013); Toscano, 40 So. 3d at 803.

     Here, the E/C do not dispute the JCC’s finding that Spencer
met his prima facie burden of proving entitlement to TPD benefits
for his August 1, 2017, workplace shoulder injury. Instead, the E/C
argue that the JCC erred as a matter of law when she rejected
their affirmative defense of a voluntary limitation of income after
August 16, 2017, the termination date of Spencer’s employment.
In making this argument, the E/C rely primarily on Spencer’s
alleged refusal of suitable employment under section 440.15(6).
This statutory provision states that an employee who refuses
suitable employment is not entitled to indemnity benefits, such as
TPD benefits, “at any time during the continuance of such refusal
unless at any time in the opinion of the [JCC] such refusal is
justifiable.” See also, Moore v. Servicemaster Commercial Servs.,
19 So. 3d 1147 (Fla. 1st DCA 2009). In her order, the JCC found
that Spencer voluntarily limited his income by refusing suitable
employment up until the date his employment was terminated, but
that after this date, the defense no longer applied because the E/C
stopped offering suitable employment. Here the JCC erred.

                                 II

    Mr. Hott, the Employer’s service manager and shop
superintendent, hired Spencer through the union hall to work as a
                                 2
journeyman electrician. Spencer testified that, on the morning of
August 1st, he reported his workplace injury to his direct
supervisor, Mr. Carney, and then went home. He stayed home for
the next two days and when he returned to the workplace on the
third day, he was taken to see Dr. Owi, an authorized physician.
According to Mr. Hott, Mr. Carney spoke with Spencer on August
2nd, but when he heard nothing from him the next day, he and the
on-site safety employee tried calling Spencer three times that day
without success. On August 8th, Spencer called Mr. Carney and
told him that he was not coming in to work. ∗ Mr. Hott testified that
he called the union hall on the 14th and was told that they had not
heard from Spencer.

      At one point, Mr. Hott received an email from the doctor
listing Spencer’s work restrictions. He tried calling Spencer on
August 10th and 14th, but when Spencer did not answer, he left
voice mail messages advising him that light duty work was
available and that he needed to come to work. He did not text or
mail Spencer any offer of light duty employment. In his testimony,
Mr. Hott described the light-duty job available to Spencer as one
that fell within his work restrictions. Additionally, he stated that
the Employer would have been able to accommodate whatever
restrictions were assigned short of no-duty. And, according to Mr.
Hott, the Employer would have kept Spencer in a modified
“transitional” duty position “continuously until that was wrapped
up and they said, ‘hey, this guy can never work again’” or until he
was released to go back to work.

     On August 15th, the on-site safety manager sent an email to
payroll indicating that Mr. Polanco, the assigned safety manager,
had not heard anything from Spencer, including whether he
attended a follow-up appointment. The Employer mailed Spencer
a statement terminating his employment for job site abandonment
on August 16th. As of the date of the final hearing, Spencer had
not returned to work and had not looked for work. He testified that
he did not believe he has been able to work safely since the accident


    ∗
      Other testimony suggests that Spencer sent a text on August
7th stating that he had a doctor’s appointment and would not be
in.

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and that he “can’t work” because “there’s no such thing as light
duty on a job like [he] was working on.” Although he anticipated
retiring, he did not plan to do so for at least another six to nine
months.

     Spencer testified further that he did not really know whether
the Employer had called him after his accident, but when he sees
a phone number “that’s not dialed in” he usually does not answer
it because he has “gotten a lot of harassing calls before.” He also
does not retrieve voice mail unless he recognizes the telephone
number; nevertheless, he testified at the final hearing that no
voice mail message was left on his phone. He stopped calling
because he was getting depressed over the situation. He believed
that Mr. Hott called the union hall, but he personally did not call
for many days because he was “into a pretty deep state of
depression after [what] Dr. Owi said.”

     In the appealed order, the JCC found that the Employer
offered Spencer suitable light duty work within his restrictions
and that Spencer refused this offer when he “chose not to listen to
his voice mail messages and did not himself contact the employer
about returning to work.” Based on these factual findings, the JCC
concluded “as a matter of law” that Spencer was not entitled to
TPD from the date of accident through August 16th. Nevertheless,
she awarded TPD benefits from August 17th and continuing
because she found the E/C did not meet their burden of showing
available suitable employment after August 16th.

                                III

     The E/C here had the burden of proving their affirmative
defense of a voluntary limitation under section 440.15(6) (refusal
of suitable employment). See Moore, 19 So. 3d at 1151. To the
extent this issue turns on resolution of the facts, our standard of
review is competent substantial evidence (CSE); to the extent it
involves an interpretation of law, the standard is de novo. See
Benniefield v. City of Lakeland, 109 So. 3d 1288, 1290 (Fla. 1st
DCA 2013).

     The E/C argue that the JCC erred as a matter of law because
she assumed that the E/C were obliged to make repeated offers of
suitable employment. In Moore, this court held that an employer
                                4
is not required to “continually reoffer a job to avail itself of [this]
statutory defense.” 19 So. 3d at 1152. But at the same time, the
court emphasized the employer must, nevertheless, “establish the
continued availability of the job for each applicable period to obtain
the continued benefit of the defense.” Id.

     Moore involved a factual situation very similar to the instant
case. There, the employer offered the claimant a modified job
within her assigned work restrictions, but she indicated that she
wanted to complete physical therapy before returning to work. Id.
at 1151-52. Approximately one month later, the employer
terminated her employment. Id. at 1152. As the Moore court
explained:

    At first blush, it would seem that, as a matter of law,
    Claimant’s refusal of the modified-dusting position would
    cease upon the termination of her employment and the
    resulting rescission of the offer of suitable employment.
    Here, however, Claimant made it clear that she would not
    return to work until after she received physical therapy
    — a course of conduct not justified by any medical
    testimony. Accordingly, we do not agree with Claimant’s
    assertion that, as matter of law, her refusal of the
    modified dusting job ceased concurrently with the
    Employer’s termination of her employment.

Id. According to this analysis, termination will result in rescission
of an offer of suitable employment, but a claimant may
nevertheless be found to continue to refuse suitable available
employment. In other words, the fact that suitable employment is
terminated is not determinative of the defense. Instead, when the
injured employee’s employment is terminated, a three-part inquiry
applies: (1) did the employer establish the continued availability of
suitable employment after termination; (2) did the injured
employee continue to refuse suitable employment after
termination; and (3) was the refusal justified?

     The E/C argue that the JCC erred because her ruling is based
solely on her finding that the Employer did not make continuous
offers of suitable employment after August 16th. But here the
JCC’s findings suggest she considered more than whether repeated

                                  5
offers were made. For example, the JCC found that (1) Spencer
was offered no medical care after August 21st and thus could not
have returned to Dr. Owi to discuss any change in restrictions; (2)
Spencer’s independent medical examiner assigned work
restrictions on January 12, 2018; (3) the Employer was unlikely to
have employed Spencer in any light duty position after August
21st, the date Dr. Owi released Spencer to return to full duty work;
and (4) Mr. Hott did not testify that Spencer would have been
eligible to return to light duty work after termination if he had just
called. Although the JCC concluded her analysis with reference to
the lack of continuous offers after August 16th, these other
findings arguably relate to the continuing availability of light duty
employment.

     Although it seems telling that the JCC found that the E/C did
not show that light duty work “even existed” after August 16th,
she also acknowledged Mr. Hott’s testimony that suitable
employment would have continued if Claimant had returned to
work. Her finding that the Employer was not likely to offer light
duty work after Spencer’s release to full duty on August 21st seems
speculative based on this record and, even if supported by the
evidence, would not explain an award beginning August 17th. The
same may be said about her finding that Spencer was given work
restrictions after January 12, 2018. But at the end of the day, it is
simply not certain whether the JCC based her ruling on more than
the lack of continuous offers of employment after the date of
termination.

     Because the JCC’s analysis and application of the law is not
clearly in accord with the statute and the relevant case law, we
REVERSE the JCC’s rejection of the E/C’s affirmative defense of
refusal of suitable employment under section 440.15(6) and
REMAND for reconsideration with findings addressing: (1) the
continued availability of suitable employment; (2) Spencer’s
continued refusal of such suitable employment; and (3) any
justification for a continued refusal.

RAY, C.J., and BILBREY and JAY, JJ., concur.




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               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Robert B. Griffis of Jones, Hurley & Hand, P.A., Orlando, for
Appellants.

Bill McCabe of William J. McCabe, P.A., Longwood, and Dana L.
Greenbaum of Dana L. Greenbaum, P.A., St. Petersburg, for
Appellee.




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