STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGE OF COMPENSATION CLAIMS WEST PALM BEACH DISTRICT OFFICE Sherman Adams, Employee /Claimant, vs. Vision Quest National Ltd. /Crum & Forster, Employer /Carrier /Servicing Agent. OJCC Case No. 16-002179MAD Accident date: 5/21/2015 Judge: Mary A. D'Ambrosio / FINAL COMPENSATION ORDER AFTER PROPER NOTICE TO ALL PARTIES, a Final Merits Hearing was held on September 8, 2016. Present for the hearing were Sherman Adams, Claimant, Alan Aronson, Esq., counsel for the Claimant and Andrew Borah, Esq., counsel for the Employer /Carrier. The Petitions for Benefits at issue were filed on January 28, 2016 and February 19, 2016. CLAIMS 1. Authorization of cervical facet block injections per Dr. Krost; 2. Payment of TPD benefits from 1/8/16 to present and continuing; 3. Attorney's fees. DEFENSES TPD; 1. Misrepresentation pursuant to F.S.440.09 and F.S. 440.105; 2. The Employer terminated the Claimant for misconduct and no entitlement to 3. Attorney's fees are not due and owing. STIPULATIONS MADE AT TIME OF HEARING 1. The parties agree to an average weekly wage of $380.00. 2. The parties agree the Claimant is not at maximum medical improvement. EXHIBITS 1. Pretrial Stipulation filed June 30, 2016 - Judge's Exhibit #1; Page 1 of 11
2. Notice of Denial - Claimant's Exhibit #1; 3. Records of Dr. Stuart Krost - Claimant's Exhibit #2; 4. Petitions for Benefits (composite) - Joint Exhibit #1; 5. Deposition of Sherman Adams - Joint Exhibit #2; 6. Deposition of Rob Iezzi - Joint Exhibit #3; 7. Deposition of Claims Adjuster, Chandra Esser - Joint Exhibit #4; 8. Notice of Defense - Employer /Carrier's Exhibit #1; The audio CD submitted by the Employer /Carrier was marked as Proffer "A" for identification for the Employer /Carrier. The Claimant's objection to admission of the CD was sustained pursuant to F.S. 934.06, 934.03 and 934.02. Extensive argument of counsel was considered which is evident in the record of the proceeding. Proferred testimony of Mr. Iezzi regarding the audio CD was placed on the record outside of the presence of the undersigned Judge. Live testimony was taken from Sherman Adams, Keith Johnson and Rob Iezzi. FINDINGS OF FACT 1. The Claimant was employed as a Childcare Worker at Vision Quest, a shelter for children in the Department of Children and Families (DCF) system. There are seven homes in Palm Beach County and the Claimant had the responsibility of mentoring, counseling, providing life skills and monitoring children in the homes. 2. The Claimant's supervisor through July, 2015 was Keith Johnson. Mr. Johnson provided testimony at the Final Hearing. He is the former Chief Administrator and is no longer employed with Vision Quest, being asked to resign in July, 2015. He was subpoenaed to attend the final hearing and provide testimony for the Employer /Carrier. Mr. Johnson testified as to the duties of a Childcare Worker at Vision Quest. He described the Claimant as a "below average" employee with questionable behavior. On one occasion he was in the residence hall and overheard the Claimant addressing the youth calling them "losers" and "delinquents ". He does not recall the date this occurred. He did not place this incident in writing but testified he advised the Claimant that his behavior was not acceptable or tolerated. Page 2 of 11
He testified there was a staff meeting with a new Program Director for the purpose of implementing new procedures. The Claimant became angry and he told the Claimant to calm down. He testified as to an incident with Child Net, a company that contracts with Vision Quest and represents DCF. There was a visit from Martha, the Child Net representative. The Claimant allegedly became adversarial when Martha questioned the food and cleanliness in the home. Martha sent an email alleging the disrespectful comments. The Claimant personally called Mr. Johnson and they discussed Martha's complaint. Mr. Johnson told the Claimant his behavior was inappropriate, disrespectful and would not be tolerated in the future. Mr. Johnson considered these three instances to be reprimands. He was unaware of any written documentation of these conversations in the Claimant's personnel file and left his employment involuntarily in July, 2015. He testified that Vision Quest provided training and refresher training for all employees. If an employee needed additional training they would be given it. Any evidence of additional training would be in the employee's personnel file. He thought the Claimant had this additional training Mr. Johnson also testified to being positive that the Claimant was sent home without pay for the incident with Martha. 3. Robert Iezzi testified at the hearing and in deposition. He is the current Chief Administrator for Vision Quest since August 23, 2015. He took over from Keith Johnson, but has never met Mr. Johnson nor spoken with him. His duties include overseeing the program managing contracts and employees, financial and budgeting. Terminating employees is part of his job. He doesn't know when or how he first met the Claimant but considered himself the Claimant's supervisor. He testified he was aware of prior misconduct exhibited by the Claimant. Page 3 of 11
He testified he has personal knowledge that the Claimant was advised about past unacceptable behavior, although nothing is written in his personnel file and he did not indicate how he had learned this knowledge. He was aware from the personnel file of an incident on May 29, 2015 involving an email between Sevon Jobes and Child Net. The email indicated the Claimant "was suspended today for behavior ". He had no personal knowledge of this incident other than reading what was in the email. He cannot speak to whether the Claimant attended a special behavioral class as he does not know. On September 4, 2015, Mr. Iezzi was in the courthouse waiting for the Claimant to transport a youth from the home for a hearing. He testified he and the Claimant were on the phone several times that day because they were running late to court. After the hearing, Mr. Iezzi was driving the youth back to the home and had a voice message on his phone from the Claimant. He listened to it and testified the Claimant was on the other end cursing at the youth using vulgar language. This audio recording was proffered on the record outside of my presence as it was not admitted into evidence. Mr. Iezzi testified that the Claimant returned back to the home and, at that time, he told the claimant that his conduct was unsatisfactory and he terminated him. He testified the youth involved complained of the incident to him, but nothing was written up. The evidence is conflicting as to whether Mr. Iezzi was alone when he terminated the Claimant or whether Savon Jobes, the Program Director and Terry Price, the Human Resource representative were present. 4. A termination letter dated September 4, 2015 was produced at Mr. Iezzi's deposition and signed by Mr. Jobes, Mr. Price and Mr. Iezzi. There is a handwritten documentation on the bottom of the form referencing the voice message incident. Mr. Iezzi testified this was not his handwriting, but it did contain his initials. Several times throughout his Page 4 of 11
testimony both in trial and in deposition, Mr. Iezzi had extreme difficulty recalling or remembering several events including who was present when the termination occurred. 5. The adjuster, Chandra Esser, testified by deposition. The Claimant's accident was accepted as compensable with injuries to the neck and left shoulder. Med Express, Dr. Waeltz and Dr. Krost were authorized. Indemnity benefits were paid in the form of temporary partial disability from June 19, 2015 through July 1, 2015. The carrier authorized one facet injection on the recommendation of Dr. Krost which was performed on September 11, 2015. The adjuster has received 2 Petitions for Benefits. She did not file any Response to the second Petition for Benefits. She has not had any conversations with Savon Jobes, Keith Jackson or Robert Iezzi regarding the Claimant's termination. She filed a Notice of Denial on June 3, 2016 denying all future benefits based on the misrepresentation defense under F.S. 440.09 and F.S. 440.105. She based the defense upon testimony given by the Claimant at his deposition although she admitted she has never read the deposition of the Claimant. She relied upon a deposition summary from her defense counsel. She is unaware that the Claimant received unemployment compensation benefits after his termination. She based the misrepresentation defense on the Claimant's deposition testimony that he was terminated because of his injury and was told he was a liability by his employer, rather than for using vulgar language and exhibiting unprofessional behavior. 6. The records of Dr. Krost indicate the Claimant has been assigned work -related restrictions of no carrying or lifting over 25 pounds, no pushing or pulling over 25 pounds, no overhead lifting over 10 pounds and sitting and walking 1 to 2 hours without changing position. The Claimant has never been placed at maximum medical improvement. Dr. Krost recommended three facet blocks, and the Claimant has only had one to date. Page 5 of 11
7. The Claimant testified at the final hearing and in deposition. It is his testimony that he was nothing but a professional while working for Vision Quest. He could not recall if he ever used vulgar language, but he denied using any vulgar language on the day he was terminated. He denies leaving a voice message for Mr. Iezzi on September 4, 2015. He testified he had never been reprimanded for using vulgar language or unprofessional behavior. He testified he has never called the children "losers" or "delinquents ". He testified he did not recall any verbal reprimands from Keith Johnson. He characterized Mr. Johnson's instructions to be with regard to tasks versus policy violations. He testified that there has never been any conduct written up in his personnel file. The Claimant testified that on the day he was terminated, Terry Wright, Savon Jobes and Robert Iezzi were present. He testified Mr. Iezzi did not discuss the voice message at all. He testified he was told he was too aggressive, was considered a liability and would have to be let go. He testified he was told that it was Vision Quest's fault for not providing sufficient training. He was not given the opportunity to respond, did not sign any paper work, and was not given any paperwork regarding the termination. 8. The Claimant denied being suspended without pay on May 29, 2015. The evidence reveals a pay stub which covers May 29th showing the Claimant was paid biweekly for 80 regular hours +3 hours overtime. Mr. Iezzi testified that this pay stub alone does not prove that the Claimant was paid on May 29th. The Claimant argues it is proof that he was paid on May 29. CONCLUSIONS OF LAW 1. Florida Statute 440.09(4)(b) states: "an employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims determines Page 6 of 11
that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers compensation benefits." 2. Florida Statute 440.105(4)(b) states: "It shall be unlawful for any person: 1. To knowingly make, or cause to be made, any false, fraudulent or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter. 2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim. 3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self -insurance program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim." 3. I find that the testimony of Mr. Iezzi, at the hearing and in deposition, is lacking in sufficient detail due to his lack of recall on crucial details regarding the Claimant's termination. I find it unbelievable that Mr. Iezzi, when terminating the Claimant, cannot recall whether anyone was in the room with him at the time he performed the firing. Even when presented with the termination letter signed by two other coworkers, his testimony remained that he could not recall who was in the office with him and the Claimant. His testimony lacks credibility as to the order of events in which the termination took place. The Claimant's point is well taken that if the termination was based upon the voice message, the voice message incident should have been listed in the body of the termination letter and not as a footnote at the bottom. It is unclear when that footnote was written as Mr. Iezzi Page 7 of 11
denied that it was his handwriting. Additionally, the Claimant was never given a chance to dispute the allegations against him. 4. The Claimant argues that any misstatements in the May 9, 2016 deposition regarding prior reprimands could not have been made for the purpose of securing workers compensation benefits since, at that time, he was still receiving Worker's Compensation benefits and the claim had not been denied. I reject this argument as it is clear from the record that the Claimant had two Petitions for Benefits pending, the first requesting a series of 3 epidural injections (for which the Claimant had only received one to date), and a Petition for temporary partial disability benefits from January 8, 2016 (when the unemployment compensation benefits ran out and the claimant was without employment) to the present. 5. The adjuster's testimony does not lend any support to the misrepresentation defense as it is clear she was only acting, in filing the Notice of Denial, on the defense counsel's recommendations. She had no personal knowledge of the Claimant's actual deposition testimony and had not had any discussions with any of the employer representatives involved in the termination. 6. The testimony I find the most compelling is that of Keith Johnson, the former Chief Administrator of Vision Quest and the Claimant's supervisor during the events in question. Mr. Johnson was subpoenaed to attend the hearing and only resigned with Vision Quest upon request. If he had not resigned, he testified he would have been terminated. I find that Mr. Johnson was an unbiased witness with nothing to gain by giving testimony positive to his former employer. I accept his testimony that the Claimant was a "below average" employee with questionable behavior. I accept his testimony that he overheard the Claimant yelling at the children calling them "losers" and "delinquents ". Even though discussions with the Claimant Page 8 of 11
were not reduced to writing, I accept Mr. Johnson's testimony that he personally told the Claimant that such behavior was not tolerated. Even though Mr. Johnson was not present when the Claimant spoke with Martha at Child Net, I accept his testimony that the Claimant called him personally and they addressed Martha's complaint. I accept his testimony that he told the Claimant that his behavior was inappropriate, disrespectful and not to be tolerated. I find that these conversations between Mr. Johnson and the Claimant were clearly verbal reprimands. I find it disingenuous that the Claimant did not recall these conversations with Mr. Johnson and flat out refused that they even took place. The Claimant testified that both Mr. Iezzi and Mr. Johnson would be lying if they testified as to verbal reprimands. I also find the Claimant's position that if a reprimand was not reduced to writing, it somehow did not take place, to be disingenuous and not credible. I find that the testimony of Mr. Johnson directly contradicts the Claimant's deposition testimony that he has never been reprimanded for unprofessional behavior. (Depo. Page 44 line 5) I find that the testimony of Mr. Johnson directly contradicts the Claimant's deposition testimony that he has never received any employment warnings for unprofessional behavior. I find that the testimony of Mr. Johnson directly contradicts the Claimant's deposition testimony that he has never been reprimanded for past incidents of unprofessional behavior. 7. I find that the Claimant made false, fraudulent or misleading statements in deposition in order to secure workers compensation benefits in direct violation of Florida Statute 440.09 (4) (b) and Florida Statute 440.105(4) when he made the statements deposition, which are in direct contravention of the testimony of Keith Johnson, which I accept as credible and unbiased. At the time the statements were made, the Claimant had already been terminated from Page 9 of 11
employment and had a pending claim for payment of injections and temporary partial disability benefits. 8. The Employer /Carrier also defended the indemnity claim under Florida Statute 440.15(4)(e) which states that temporary partial disability benefits are not payable if the employee is terminated from post injury employment based on the employee's misconduct. I deny the misconduct defense on the basis that the only testimony regarding the termination was from Mr. lezzi whose testimony I have not accepted. The receipt of unemployment compensation benefits is a factor that I have considered. The Employer did not appeal the finding and the evidence submitted before me does not clearly prove a misconduct defense. WHEREFORE, it is ORDERED AND ADJUDGED that: 1. I find that the Claimant knowingly or intentionally engaged in the acts described in Florida Statute 440.105(4)(b)1, 2 and/or 3. 2. Pursuant to Florida Statute 440.09(4)(a), the Claimant is not entitled to compensation or benefits under this chapter. 3. The Employer /Carrier's misconduct defense is denied. 4. The Petitions for Benefits filed on January 28, 2016 and February 19, 2016 are denied and dismissed with prejudice. DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida, this 16 day of September, 2016. Mary A. D'Ambrosio Judge of Compensation Claims Division of Administrative Hearings Page 10 of 11
Office of the Judges of Compensation Claims West Palm Beach District Office One Clearlake Centre, Suite 200 250 S. Australian Avenue West Palm Beach, Florida 33401 (561)650-1040 www.j cc.state.fl.us CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing Final Compensation Order was entered on the 16 day of September, 2016 and that a copy thereof was electronically served on counsel and mailed the parties. frmc-1-(i Secretary to Judge of Compensation Claims Alan M. Aronson, Esquire aaronson @rosenthallevy. com Andrew R. Borah, Esquire aborah@hrmcw.com,sfournier@hrmcw.com Page 11 of 11