Trial Judge discretion, specifically Judge of Compensation Claims discretion was recently the topic in a decision from the Florida First District Court. Employbridge v. Rodriguez, 255 So. 3d 453 (Fla 1st DCA 2018) is an interesting decision. Notably, it is an example of a "plurality" decision. There is an agreement by the majority regarding the outcome, but that agreement is based on different reasoning by the judges involved. This illustrates the collaborative and deliberative process of appellate decision-making. See What Did I Just Say ("Appellate judges usually get to work in a team setting").
The primary issue in the Rodriguez case was whether an injured worker's "refusal to accept suitable employment offered by her employer was justifiable under § 440.15(6), Florida Statutes." Concluding that the evidence did not support a conclusion that it was "justifiable," the Court reversed. One Judge wrote a concurring (agreeing with the outcome) opinion seeking to rewrite the statute to include new elements not included by the Legislature. That judge would require that such "a refusal has some “plausible nexus” to the workplace injury." This Judge disagreed with the statutory interpretation of the trial judge, based upon the appellate judge superimposing this new "nexus" onto the statute.
A second judge wrote separately "because Claimant offered ordinary, manageable, and self-imposed commuting limitations rather than reasonable justifications." This opinion focused upon the conclusion that "Claimant would have to solve some logistical hurdles" in order to accept the proffered work. That might mean reliance "on public transportation" or upon others for assistance.
This second Judge noted in particular that the worker had not "investigated her public transportation options" before declining the proffered job. This Judge disagreed with the trial judge's weighing of the evidence (essentially re-weighing it), concluding that "competent substantial evidence" did not support the trial judge's conclusion that the refusal was justified. This illustrates that there may be a fine line between determining the existence of evidence to support a conclusion and reweighing that evidence as supporting a different conclusion.
This second Judge noted in particular that the worker had not "investigated her public transportation options" before declining the proffered job. This Judge disagreed with the trial judge's weighing of the evidence (essentially re-weighing it), concluding that "competent substantial evidence" did not support the trial judge's conclusion that the refusal was justified. This illustrates that there may be a fine line between determining the existence of evidence to support a conclusion and reweighing that evidence as supporting a different conclusion.
The third judge ("dissenting" - disagreeing with the outcome) on the panel would have affirmed the trial judge's conclusion that the Claimant had demonstrated a reasonable justification for refusing the offered work. This Judge concluded that "the majority (plurality) substitutes its view of the facts in place of the broad discretion afforded the JCC by the Legislature." It is rare to read an appellate opinion that supports trial judge discretion, more rare still one that it is referred to as "broad discretion."
The dissent provides a detailed recitation of the facts in the case. Essentially, the worker was hired by a "staffing company" in Tampa but was later assigned to work in Largo. To avoid up to a 40-minute one-way commute, the worker and her spouse then moved to Largo. Thereafter, she was injured and her "assigned work restrictions" precluded her return to that work assignment. The Employer offered her "clerical-type work" in its Tampa office. The Claimant declined.
Fundamentally, the Claimant "declined any work in the Tampa office 'because of transportation.'" She also noted that limited familiarity with English, that her family "had one car," and that her husband's job involved sporadic scheduling, including "both day and night shifts." Upon that set of facts, the trial judge concluded that after dropping her husband at work at "4:00 a.m." she would have to "wait at the Employer's Tampa office for four hours until it opened."
The finding implied a conclusion that she could not return home after dropping him at work early in the morning (and later drive back to work herself). That was supported, according to the trial judge, by the Claimant's husband not wanting her to drive from Largo to Tampa "during regular business hours," due to her lack of familiarity with "the Interstate and other freeways." Such driving, the trial judge concluded, "can be confusing." Therefore, the Claimant "certainly could not have developed driving skills to drive from Largo to Tampa and back with interstate and high-speed travel and unfamiliar roads/highways.” It is likely each of us found freeway driving a challenge at one point in our lives. Over time, perhaps repetition and practice make new challenges into old habits?
Therefore, the trial judge excused the decision to forego the offered job and awarded temporary partial disability benefits. The judge concluded that "refusal of the Tampa job was justified" and therefore there was no voluntary limitation of income. I have since heard this case discussed on several occasions. Once, I was even asked whether I agree with the trial judge's conclusions, essentially "What would you have done." That is an intriguing question in any event, and most often the appropriate response is "It does not matter what I would have done."
The dissent concluded the statute was clear, concluding its "plain language gives JCCs broad discretion in determining whether an employee's refusal of suitable employment is justifiable." The dissent noted that the trial judge should make findings of fact and that those must be supported by "competent substantial evidence." Furthermore, such “findings must be sustained if permitted by any view of the evidence and its permissible inferences.”
The dissent suggests that this appeal essentially asks the appellate court "what would you have done," rather than the appropriate questions of what the statute itself says and whether competent evidence supports what the trial judge has done. The dissent sees the majority of two judges in this case departing from the appropriate inquiry "is there evidence to support what the trial judge did, even if I would not have rendered this decision on that evidence." It asserts that "the majority substitutes its view of the facts in place of the JCC in contravention of the authority granted the JCC under section 440.15(6)."
The dissent's focus is largely upon the statutory language that expressly pins the question of justification upon "the opinion of the judge of compensation claims." This is a rare example of statutory language that expressly defers to the trial judge. It is up to the trial judge "opinion." The Legislature surely knew the meaning of that word when it drafted this law? The dissent argues that the appellate review should thus be limited to an analysis essentially of (1) did the trial judge reach an opinion, and (2) whether such opinion was supported by competent substantial evidence. Beyond that, the dissent suggests, the court crosses that fine line.
The dissent proposes alternative hypothetical situations in which one might find refusal justifiable or not. It suggests that consideration of the factors thus described would be agreed upon by appellate court judges. However, it returns to the conclusion that "what would you have done" is not the appropriate analysis when dealing with a trial judge's opinion. Such decisions, it concludes, "depend[s] on a number of factors best left to the sound discretion of the fact-finding JCC." The dissent seems to support that the right response to "What would you have done" if you were the trial judge is "It does not matter what I would have done." Because answering that question in any other fashion merely substitutes one opinion for another. The Legislature, seemingly, conceded that it is a matter of "opinion" and selected to whose opinion the law would defer. Despite the dissent's eloquent opinion explanation, the majority disagreed.
And, it is imperative that everyone remembers that opinions are simply that. They are conclusions, sometimes better educated or informed than at other times, based upon belief. Almost a year ago, in February, there were those who ranked Ohio State number one in college football (at the end of the season, number 5, and not even in the playoff hunt). The same February opinions ranked Clemson number 3, behind Ohio State and Alabama (Clemson beat Alabama like a drum in the 2019 National Championship last night, "its biggest loss ever under Nick Saban.") Some will accuse me of piling on Alabama this morning, but the point is that a great many opinions ultimately turn out to be mistaken, misplaced, or just wrong. That is why we don't call them "facts."
The Rodriguez dissent concludes that cases of fact determinations "could go either way," and suggests that "appellate judges should defer to the JCC," unless the Legislature amends the statute that grants discretion to the trial judge's "opinion." That conclusion is supportive of JCC discretion. That conclusion is faithful to the statute and the Legislature that passed it.
But discretion is worthy of one further point. Since Rodriguez was published, I have heard various statements regarding a somewhat broad application of this logic: "Trial judges should have broad discretion." It is worthy of note that the dissent's focus on discretion in Rodriguez is founded on specific statute language deferring to opinion. And, despite that seemingly broad and clear grant of authority, the appellate court in this instance nonetheless concluded that the trial judge lacked discretion. The appearance, at least, is that the Judge of Compensation Claims discretion is limited.
Sure, the next question might be "What would you have done" if you were on the District Court panel. I am quite certain that the answer to that question is "it does not matter what I would have done." In addition to accepting that opinions differ (see, the University of Alabama discussion above), it is also important that trial judges accept that the opinion of the District Court is all that matters. That is the law until the Court decides it should be otherwise. See Westphal is Over, Questions Remain (June 2016).
