FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2259

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SARASOTA COUNTY SCHOOL 

BOARD/JOHNS EASTERN 

COMPANY, INC.,

Appellants,

v.

ALICE BROCKMAN,

Appellee.

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On appeal from an order of the Judge of Compensation Claims. 

Diane B. Beck, Judge.

Date of Accident: May 19, 2016.

June 4, 2018

PER CURIAM.

In this workers’ compensation case, the Employer/Carrier 

(E/C) appeals an order of the Judge of Compensation Claims (JCC) 

awarding Claimant temporary partial disability (TPD) benefits 

and associated penalties, interest, costs, and attorney’s fees 

(PICA). We reverse and remand, for the reasons that follow.

Claimant, a school custodian with almost thirty years of 

employment with the school board, was within six months of the 

date her full retirement would vest. She had incurred various

compensable injuries while working for the school board, and also 
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had some ongoing disciplinary issues (absenteeism and poor 

performance assessments), when she sustained the compensable 

injury at issue on May 19, 2016. Upon Claimant’s post-injury 

return to work, her Employer was able to accommodate her work

restrictions and she received her full salary. Within five months, 

however, she retired (on the very day she vested). She has not 

worked since retirement or reached maximum medical 

improvement (as of the date of the final hearing). She subsequently 

filed the instant claim seeking TPD benefits and PICA.

The E/C contested the claim, arguing that Claimant’s

retirement was an intervening cause that broke the chain of 

causation between her compensable injuries and her loss of 

earnings. The JCC rejected this argument, finding that Claimant’s 

retirement was not entirely voluntary and so was the equivalent 

of termination (a finding not challenged here), and that “the 

accident is the major contributing cause of her lost wages.”

But the JCC, in her (otherwise quite thorough) order, did not 

expressly determine whether the termination was an intervening 

cause that broke the causal connection between the compensable 

injuries and the loss of earnings. See generally Wyeth/Pharma 

Field Sales v. Toscano, 40 So. 3d 795, 803 (Fla. 1st DCA 2010) 

(“[T]he cause of a claimant’s displacement from employment and 

wages, once established, remains the cause unless an intervening 

or superseding cause is established.”). We hesitate to infer a 

finding on this matter in the absence of underlying findings about 

the circumstances of the termination. 

The JCC recited Claimant’s testimony that she was 

terminated due to absences that might or might not have related 

to her compensable injuries. The JCC also recited testimony of 

Claimant’s supervisor that the termination was due to insufficient 

job performance that, again, might or might not have related to 

her work restrictions. But the JCC neither accepted one witness 

over the other, nor determined whether either absences or poor 

performance were due to work restrictions. 

Although the JCC wrote that the “loss of earnings was caused 

by the industrial injury and not by any voluntary limitation of 

income or voluntary retirement,” the JCC did not find that the loss 
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of earnings was not caused by the involuntary retirement 

(termination) independent of the injury. Accordingly, we remand 

for the JCC to make a finding, based on the record as it stands, as 

to whether Claimant left her employment “for unjustifiable 

reasons.” Id. at 802 (“[B]ecause competent substantial evidence 

supports the JCC’s finding that Claimant did not leave her 

employment as a result of misconduct or for unjustifiable reasons 

– both valid legal considerations in determining an employee’s 

entitlement to TPD benefits under the statute – the E/SA fails to 

demonstrate error based on the JCC’s consideration of these 

factors.”).

In the event the JCC concludes the termination was an 

intervening cause, the JCC will review the record for a “means by 

which a claimant may establish a causal relationship between a 

claimant’s compensable injuries and claimant’s temporary partial 

wage loss,” Thayer v. Chico’s FAS, Inc., 90 So. 3d 766, 768 (Fla. 1st 

DCA 2012), and if none are present in the record, to enter 

judgment for the E/C. If, on the other hand, the JCC instead 

concludes the separation from employment was for justifiable 

reasons, the JCC shall enter judgment for Claimant.

REVERSED and REMANDED.

B.L. THOMAS, C.J., and LEWIS and MAKAR, 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.

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Ben H. Cristal and Marko A. Crespo of Cristal Hanenian, Tampa,

for Appellants.

Kimberly A. Hill, of Kimberly A. Hill, P.L., Fort Lauderdale, for 

Appellee.