Cases

Claimant requested a one-time change in physicians and named a particular doctor that he wished to see.  Employer/carrier responded by offering another doctor of its choice. Claimant went to the employer/carrier's chosen doctor alleging that he had no choice but to attend appointments with the employer/carrier's doctor because he lacked the money to pay for an unauthorized physician. Court determined that because the claimant went to the employer/carrier's doctor, he waived his right to make his own selection of an alternate medical care doctor.  If going to the employer/carrier's doctor, the claimant objected, he should have advised the employer/carrier that he was seeing their chosen doctor under protest.

The JCC denied claimant's entitlement to temporary benefits based on the misconduct defense, i.e., the claimant was terminated by the employer because of his misconduct. On appeal, this denial of benefits was reversed.  The issue in this case was not whether the employer had a cause or the right to terminate the claimant's employment but instead whether the employer/carrier proved termination was based on actual misconduct.  Whether a claimant commits misconduct is a question of law but the findings of fact of which the legal question is based upon must be accepted if supported by competent substantial evidence.

Generally, a single instance of failure to follow employer policy has not been reviewed as rising to the level of misconduct.  While a violation of an employer's policy may constitute misconduct, repeated violations of explicit policies after several warnings are usually required.  In this case, the court determined that there was no competent substantial evidence to support the judge's decision that the claimant had violated the employer/carrier's drug policy.  The only evidence of a violation was testimony of the employer that the claimant tested positive following a drug test.  Court determined that such testimony was inadmissible hearsay. 

Failure to make a contemporaneous objection to the admissibility of evidence can result in the waiver of such hearsay evidence when deciding if competent substantial evidence supports a JCC's ruling.  However, under Section 90.104(1)(b), Florida Statutes, if the court has made a definitive ruling on the record admitting or excluding evidence either at or before trial, a party need not review an objection or offer proof to preserve a claim of error for appeal. In this case, the JCC had made a prior ruling limiting the purpose of the hearsay testimony concerning test results.  Court ruled on appeal that the claimant had not waived his right to the admissibility of the employer's hearsay testimony in regards to the fact that the claimant's drug test tested positive.