                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

PAMELA MITCHELL,                     NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2875

OSCEOLA COUNTY SCHOOL
BOARD, JOHNS EASTERN
CO., INC. AND LIBERTY
MUTUAL COMMERCIAL INS.
EXCESS,

      Appellees.


_____________________________/

Opinion filed March 10, 2015.

An appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.

Date of Accident: August 23, 2011.

Nicholas A. Shannin of the Shannin Law Firm, P.A., Orlando, and Blake J. Lange
of Morgan & Morgan, P.A., Naples, for Appellant.

Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse, P.A., Maitland, for Appellees.



PER CURIAM.

      In this workers’ compensation case, Claimant appeals the Judge of

Compensation Claims’ (JCC’s) order dismissing and denying all pending petitions
for benefits (PFBs) based on his determination that Claimant failed to establish an

employer-employee relationship with Appellee Osceola County School Board

(OCSB). Because it is not clear to us that the JCC employed the proper legal

standards in concluding OCSB was not a statutory employer under section

440.10(1)(b), Florida Statutes (2011), we reverse and remand for further

proceedings.

      On August 23, 2011, Claimant was assisting in a veterinary clinic for

Pawsitive Action housed at Harmony High School (HHS) in Osceola County when

she was bitten by a dog, suffering injuries. Claimant filed multiple PFBs against

Pawsitive Action (a nonprofit organization) as her employer and HHS/OCSB as her

statutory or special employer. Claimant voluntarily dismissed all PFBs against

Pawsitive Action, which had no workers’ compensation coverage.

      The litigation of the remaining PFBs was subsequently bifurcated so that the

only issue for determination at the final hearing was whether an employer-employee

relationship existed between OCSB and Claimant. Claimant raised several legal

theories to establish OCSB as her employer, including that of a statutory employer

under section 440.10(1)(b), which provides:

               In case a contractor sublets any part or parts of his or her
               contract work to a subcontractor or subcontractors, all of
               the employees of such contractor and subcontractor or
               subcontractors engaged on such contract work shall be
               deemed to be employed in one and the same business or
               establishment, and the contractor shall be liable for, and
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             shall secure, the payment of compensation to all such
             employees, except to employees of a subcontractor who
             has secured such payment.

The JCC rejected all of Claimant’s theories, finding, in particular, that OCSB was

not Claimant’s statutory employer under 440.10(1)(b).

      Here, the undisputed evidence showed that Pawsitive Action and HHS had a

“business partnership” whereby HHS students in the school’s veterinary assisting

program were given the opportunity to obtain required clinical hours by assisting

with, and observing, veterinary services provided by Pawsitive Action to county

residents at a reduced cost. Significantly, OCSB prepared a pamphlet entitled

“Harmony High School Veterinary Assisting Pet Clinic” which described the

school’s program at HHS and the low-cost services available at the veterinary clinic

located at HHS, listing the prices of various services for the potential customers of

the clinic. This pamphlet was published by OCSB (or its direct agents), and

distributed at the front desk of HHS or at the front desk in the guidance department.

Although Pawsitive Action set the prices for the described veterinary services and

received all the fees for its own use as a non-profit, the pamphlet explains that HHS

students “participate in all areas of clinic procedures and provide animal care under

the direct supervision of licensed veterinarians, vet technicians, vet assistants or

program instructors.”




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      In the final order on appeal, the JCC ruled that OCSB was not a statutory

employer under section 440.10(1)(b), based on his determination that there was no

evidence of a contractual obligation owed to a third party and then sublet to

Pawsitive Action by OCSB. Indeed, there is no formal written contract here—either

between OCSB and Pawsitive Action or between OCSB and the county residents. It

is well established, however, that to satisfy section 440.10(1)(b), the contractual

obligation may be implied, and does not need to be pursuant to an express provision

in a written contract. See, e.g., Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126,

1129 (Fla. 1st DCA 1997); Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556,

557 (Fla. 3d DCA 1995), review denied, 668 So. 2d 602 (Fla. 1996). Moreover, a

contract may arise from an offer contained in an advertisement. See, e.g., Izadi v.

Machado (Gus) Ford, Inc., 550 So. 2d 1135, 1139 (Fla. 3d DCA 1989).

      In Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661, 663-64 (Fla. 1st DCA

1994), this court held that a hotel met the definition of a statutory employer for

employees of a restaurant not owned or operated by the hotel, where the hotel, as

part of its marketing strategy, provided guests with meal vouchers redeemable only

at the specified restaurant. Applying our reasoning in Antinarelli, we conclude that

here, there was evidence that could establish a contract between OCSB and the

community for low-cost veterinary services as evidenced by the pamphlet prepared

by OCSB for the obvious purpose of offering veterinary services to county residents.

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We further conclude that the evidence could support a finding that some portion of

OCSB’s contractual obligation to county residents for veterinary services, as offered

by the pamphlet, was sublet by OCSB to Pawsitive Action, Claimant’s employer. In

the order on appeal, the JCC concluded that OCSB did not enter into any contracts

with the public to provide veterinary services, but in so concluding, the JCC

provided insufficient legal analysis as to whether the advertising published by

OCSB, ostensibly offering the services of its “business partnership” at specific prices

(to be paid by the public, not the students), comprised a contractual offer that could

be accepted by members of the public to form a contract. Accordingly, because we

are uncertain that the JCC employed the correct standards to reach the ultimate

conclusion in this case, we reverse and remand for reconsideration of the evidence

using the proper standards.

      In reaching this determination, we find no contradiction between our ruling

in Rabon and the unique circumstances here involving public school participation in

a “business partnership” for the provision of veterinary services. In Rabon, we held

that the definition of “statutory employer” under section 440.10(1)(b) requires a

contractual obligation, not an obligation under statutory or common law. Although

the general obligation OCSB has to county residents to provide educational services

derives from constitutional or statutory law, rather than a contract, the specific

contractual obligation at issue here concerns the low-cost veterinary services made

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available to county residents. The educational services otherwise provided by OCSB

are thus immaterial to the narrow question of whether OCSB published an

advertisement offering veterinary services, to be accepted by members of the public.

Accordingly, the JCC’s order finding that OCSB is not Claimant’s statutory

employer under section 440.10(1)(b) is REVERSED and the case is REMANDED

for further proceedings consistent with this opinion.



MARSTILLER, RAY, and SWANSON, JJ., CONCUR.




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