FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4424

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EMPLOYBRIDGE and GALLAGHER 

BASSETT SERVICES, INC.,

Appellants,

v.

VIVIANA LLANES RODRIGUEZ,

Appellee.

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

Stephen L. Rosen, Judge.

Date of Accident: May 11, 2016.

September 7, 2018

PER CURIAM.

The Employer and Carrier in this workers’ compensation case 

appeal an order awarding temporary disability benefits after the 

Judge of Compensation Claims found that Claimant Viviana 

Llanes Rodriguez’s refusal to accept suitable employment offered 

by her employer was justifiable under § 440.15(6), Florida 

Statutes. We reverse because the record does not support the 

conclusion that Claimant’s refusal was justifiable.

REVERSED.
2

B.L. THOMAS, C.J., and OSTERHAUS, J., concur with opinions; 

BILBREY, J., dissents with opinion. 

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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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B.L. THOMAS, C.J., concurring with opinion. 

I concur in the result, but I would hold that under section 

440.15(6), Florida Statutes, an injured employee cannot refuse 

suitable reemployment, unless the refusal has some “plausible 

nexus” to the workplace injury, or the employee comes forward 

with persuasive evidence that the refusal is necessary to protect 

the employee’s health or safety. The overarching goal of the 

Worker’s Compensation Act regarding injured workers is to ensure 

the “worker's return to gainful reemployment at a reasonable cost 

to the employer.” § 440.015, Fla. Stat. (2016); Moore v. 

Servicemaster Commercial Servs., 19 So. 3d 1147, 1151 (Fla. 1st 

DCA 2009) (“It is the intent of the Legislature that the Workers’ 

Compensation Law be interpreted to facilitate the worker’s return 

to gainful employment at a reasonable cost to the employer.”); 

A. Duda & Sons, Inc. v. Kelley, 900 So. 2d 664, 669 (Fla. 1st DCA 

2005) (“The legislature clearly intends to strongly encourage 

injured workers, who are capable, to return to the workplace.”). 

This legislative intent is strongly enforced by the forfeiture of 

temporary disability benefits, when the employee refuses gainful 

employment offered by the employer. “The method of 

encouragement chosen by the legislature was to deny all 

compensation when the claimant refuses suitable employment.” 

Id. (emphasis in original). 

Here, the Employer met its burden of persuasion that it had 

offered Claimant suitable modified-duty work under section 

440.15(6), Florida Statutes, such that, once Claimant refused this 

suitable work, she was no longer eligible for temporary partial 

disability payments: “If an injured employee refuses employment 
3

suitable to the capacity thereof, offered to or procured therefor, 

such employee shall not be entitled to any compensation at any time 

during the continuance of such refusal unless at any time in the 

opinion of the judge of compensation claims such refusal is 

justifiable.” § 440.015(6), Fla. Stat. (emphasis added). The 

Employer suggests that this court should apply the rationale of our 

prior decision in ESIS/ACE American Insurance Company v. 

Kuhn in determining the proper authority of a judge of 

compensation claims to decide whether such a refusal is 

“justifiable.” 104 So. 3d 1111, 1113 (Fla. 1st DCA 2012). I agree. 

In Kuhn, this court correctly construed the discretion of a 

judge of compensation claims to award an advance payment of 

compensation under section 440.20(12), Florida Statutes, holding 

that the legislative intent could not have been simply to allow a 

claimant to obtain the advance payment for a reason unrelated to 

a workplace injury: 

We are dealing, however, with a statutory 

framework in Chapter 440 whose principal purpose is to 

address medical and related financial needs arising from 

workplace injuries. In context, the type of interest that is 

furthered by an advance under section 440.20(12)(c)(2) 

must at least have some plausible nexus to this purpose. 

A request for a $2000 advance, simply as an 

undifferentiated financial cushion with no relationship to 

the provision of medical or related care, does not have 

such a connection. Indeed, absent this nexus, awarding a 

$2000 advance could, in the extreme, become merely an 

automatic judicial act whenever such an advance is 

requested; we see no basis in the statutory framework for 

this result. 

Id. at 1114-15 (emphasis added). 

Here, there is an even more persuasive rationale than in Kuhn

to require a “plausible nexus” to Claimant’s work-related injury 

before allowing Claimant to refuse suitable employment, because 

of the statutory forfeiture of benefits to penalize an unjustified 

refusal. In cases interpreting section 440.15(6), Florida Statutes, 
4

such a requirement would properly limit the discretion of a judge 

of compensation claims, consistent with the statute’s legislative 

intent to incentivize an injured employee’s return to employment 

at a reasonable cost to the employer. Thus, I concur in the result 

but would hold that an employee must present persuasive evidence 

to demonstrate that a refusal of suitable employment has a 

plausible nexus to the workplace injury or is necessary to protect 

the employee’s health or safety. 

OSTERHAUS, J., concurring with opinion. 

I vote to reverse the JCC’s order because Claimant offered 

ordinary, manageable, and self-imposed commuting limitations 

rather than reasonable justifications for refusing the suitable work 

offered by her Employer.

I.

In 2013, Claimant and her husband became employed with 

the Employer in the Employer’s Tampa office. But soon thereafter 

they were assigned to work at a client company in Largo.∗ They 

then moved to Largo to be closer to work.

In 2016, Claimant tripped over a box and fell on her right 

knee. The accident required medical treatment and resulted in a 

compensable claim. The authorized doctors assigned work 

restrictions that prevented Claimant from performing her regular 

job duties. An Employer representative testified that its client 

companies, like the one in Largo, typically engage in industrial or 

manufacturing work and do not have light-duty work available. 

But for a short time, the Employer was able to provide clerical-type 

work for Claimant in Largo. After five days of work in Largo, the 

Employer offered Claimant a similar clerical position in its Tampa 

office. But she declined.

Claimant filed a petition for benefits seeking temporary 

partial disability (TPD) benefits. The Employer and Carrier 

 ∗ The Employer also had a branch office in Largo that serviced 

the client from across the street.
5

responded with affirmative defenses including voluntary 

limitation of income and unjustifiable refusal of suitable 

employment pursuant to section 440.15(6). After a final hearing, 

the JCC awarded TPD benefits, justifying Claimant’s refusal to 

accept the Tampa job by citing the difficult commute between 

Largo and Tampa. This appeal followed.

II.

The workers’ compensation statute, section 440.15(6), Florida 

Statutes, generally doesn’t permit an injured employee to refuse 

suitable employment offered by an employer and still receive 

compensation. § 440.15(6), Fla. Stat.; see also A. Duda & Sons, Inc. 

v. Kelley, 900 So. 2d 664, 668 (Fla. 1st DCA 2005). But an employee 

can refuse suitable work and receive compensation if “in the 

opinion of the judge of compensation claims such refusal is 

justifiable.” § 440.15(6), Fla. Stat. Because of the wide discretion 

given to JCCs in this statute, we will only reverse if the JCC’s

finding amounts to an abuse of discretion, or isn’t supported by 

competent substantial evidence. Ullman v. City of Tampa Parks 

Dep’t, 625 So. 2d 868, 873 (Fla. 1st DCA 1993) (recognizing the

appellate court’s role “to guard against fanciful or arbitrary abuse 

of discretion in workers’ compensation cases, . . . by scrutinizing 

JCC findings under the light of the basic rule requiring competent 

substantial evidence in support of [its] findings”). See also Moore 

v. Servicemaster Comm. Servs., 19 So. 3d 1147, 1151 (Fla. 1st DCA 

2009) (noting that “the reasonableness of the justifications 

provided by Claimant as the basis for her refusal [is an issue] of 

fact which will not be disturbed in the presence of competent 

substantial evidence supporting such findings”).

In this case, there is no dispute that the Employer offered 

Claimant a suitable job in Tampa. Claimant is able to perform the 

light-duty work within the restrictions assigned from her knee 

injury. But the JCC decided that Claimant could refuse the work

and receive workers’ compensation benefits instead, because of 

difficulties associated with the 17-mile commute. The JCC credited 

the following hardships as justifying her refusal to work:

I find it is unreasonable to expect this particular claimant 

to go to work in the Tampa office of the employer with her 

language limitations, her driving limitations, a singular 
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vehicle in the family mainly used by her husband during 

his odd work hours, no familiarity with public 

transportation, suggestion of dependence on other family 

members to drive from Tampa to Largo to pick up the 

claimant, take her back to Tampa, and then back to Largo 

at the end of the workday . . . .

I understand from these findings that Claimant would have 

to solve some logistical hurdles, or rely on public transportation in 

order to get to the job offered to her in Tampa. I also understand 

from the JCC’s findings that Claimant did not investigate her

public transportation options, even though there are bus stops 

near her home and work. The commuting “limitations” identified 

by the order describe rather ordinary and manageable commuting 

difficulties that cannot justify her decision to refuse a good job in 

favor of receiving public benefits, especially when her commuting 

options haven’t been investigated. Under the Workers’ 

Compensation Act, the refusal to work a suitable job must be 

“justifiable.” § 440.15(6), Fla. Stat. The Workers’ Compensation 

statute is bent on “strongly encourag[ing] injured workers, who are 

capable, to return to the workplace.” A. Duda & Sons, Inc., 900 So. 

2d at 669. And “[i]t is the intent of the Legislature that the 

Workers’ Compensation Law be interpreted to facilitate the 

worker’s return to gainful employment at a reasonable cost to the 

employer.” Moore, 19 So. 3d at 1150-51. It follows that an injured 

employee cannot simply identify ordinary commuting obstacles 

and self-imposed commuting limitations as the basis for refusing a 

suitable job, especially where conventional commuting options 

haven’t been investigated. 

Speaking only Spanish, for instance, is not a reasonable 

justification for Claimant’s refusal to work a suitable job. Many 

Spanish-speaking workers in Florida can drive or ride to work 

every day. Indeed, Claimant herself has obtained a drivers’ license 

and drives locally around her house. I don’t see how Claimant’s 

lack of English-language proficiency prevents her from commuting 

to work, or investigating the Tampa-area’s public transportation 

options. The other limitations identified in the order also don’t 

justify her refusal. That Claimant might have to work out sharing

a car with her husband, rely on rides from family members, carpool

with others, or investigate and use public transportation are 
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unremarkable “limitations.” Again, many workers must coordinate

with their families to solve commuting-related inconveniences and 

obstacles, or use car-pooling, ride-sharing, or public transportation

options. Offered a suitable job, Claimant cannot refuse it simply 

on the basis of ordinary, manageable, or self-imposed limitations.

The JCC’s order also mentions the possibility of a physical, 

injury-related justification for refusing employment as follows:

[I]t is unreasonable to expect this particular claimant to 

go to work in the Tampa office of the employer with . . . 

[her] unrefuted testimony that she has pain from her 

knee to her hip when sitting for long periods of time[.]

To the extent that the order bases Claimant’s justifiable refusal 

decision on commute-related leg pain, however, competent 

substantial evidence does not support the finding. Claimant never 

asserted that pain prevented her from commuting to the job in 

Tampa. In fact, time-and-time again Claimant’s position in her 

testimony, trial memorandum, and other argument was that her 

refusal arose not from a medical condition, but from her lack of 

transportation. She stated unequivocally that she could work the 

Tampa job if she had a ride. The only testimony in the record that 

can be read to support a leg-pain rationale for refusing to work 

came in response to the JCC’s question: “When you drive around 

your house to the grocery store – small errands – how does your 

right knee feel?” Claimant answered: “I cannot do it for too, too 

long because it hurts all the way up here.” That Claimant 

expressed a vague complaint of leg pain when she drives around 

doing errands in her car for “too, too long” (no medical testimony 

bolstered this complaint), is not support for the conclusion that she 

cannot commute to the suitable job that is available to her in 

Tampa.

Finally, I do not support my colleague’s preference for deciding 

this case based upon a new, court-made rule that “an injured 

employee cannot refuse suitable reemployment, unless the refusal 

has some ‘plausible nexus’ to the workplace injury, or the employee 

comes forward with persuasive evidence that the refusal is 

necessary to protect the employee’s health or safety.” Rather, I 

think we should follow the statute. Section 440.15(6) only limits

the JCC’s consideration where an injured employee refuses 
8

suitable employment by requiring that such refusal be 

“justifiable.” The statute doesn’t say “medically justifiable,” or

some such thing. This means that JCCs may take account of noninjury-related factors tending to justify an employee’s refusal to 

accept employment. It is easy to imagine job-offer scenarios in 

which a JCC might reasonably find justifiable refusal, even though 

the employee’s refusal isn’t related to the workplace injury, health, 

or safety. This could occur, for example, if the job requires a two 

hundred-mile commute; requires a single-parent employee with 

young kids to work 24-hour shifts; requires an offenderprobationer employee to violate the terms of his or her probation; 

requires an employee to violate sincerely held religious or moral 

beliefs; or requires an employee to complete impossible tasks for 

non-injury-, health-, or safety-related reasons (e.g., requiring a 

non-reader to read legal documents, an employee without a license 

to drive a delivery truck, etc.). The statute doesn’t forbid the JCC 

from considering factors like these in addition to those related to 

the workplace injury or the protection of health and safety.

And so, I think we needn’t decide this case on the basis of a 

court-made rule that doesn’t hew to the statute. Rather, I vote to 

reverse the JCC’s order because Claimant offered ordinary, 

manageable, and self-imposed commuting limitations rather than 

reasonable justifications for refusing the suitable work offered by 

her Employer.

BILBREY, J., dissenting with opinion.

The Employer/Carrier (E/C) in this workers’ compensation 

case appeal an order by the Judge of Compensation Claims (JCC) 

awarding temporary disability benefits after finding that 

Claimant’s refusal of suitable employment was justifiable 

pursuant to section 440.15(6), Florida Statutes. Because the JCC’s 

conclusions in his opinion are supported by record evidence, I 

would affirm the order. Since the majority substitutes its view of 

the facts in place of the broad discretion afforded the JCC by the 

Legislature, I respectfully dissent. 

Factual Summary

The JCC found the following facts. In 2013, Claimant, a 

woman in her mid-fifties, emigrated with her husband from Cuba 
9

to Tampa. At the time the JCC entered the challenged order in 

October 2017, Claimant did not understand or speak English “in 

any significant degree.” Claimant and her husband obtained 

employment with the Employer, an employee staffing company. 

Although hired in the Employer’s Tampa office, in March 2014 

they were assigned to work with a client company, Hit 

Productions, in Largo.1 A few weeks later, the couple moved to a 

residence in Largo five to six miles from the Hit Productions 

facility. Claimant testified that the reason for the move was to be 

closer to work and avoid a 35 to 40 mile roundtrip commute 

involving driving on the interstate and over a cross-bay bridge. 

Claimant’s job at Hit Productions involved operating a 

machine to print on items such as pens and key chains. On the 

date of accident, Claimant tripped over a box and fell on her right 

knee, resulting in a compensable claim and requiring medical 

treatment. The authorized doctors assigned work restrictions that 

prevented Claimant from returning to her regular job. An 

Employer representative testified that the Employer’s client 

companies engage in light industrial or manufacturing work and 

typically do not have light-duty work available. The Employer 

was, however, able to provide clerical-type work for Claimant in its 

Largo office. But this job lasted just five days after which the 

Employer offered Claimant a similar position in its Tampa office. 

The Employer offered this position to Claimant several times, but 

she declined.

Claimant filed a petition for benefits seeking temporary 

partial disability (TPD) benefits. The E/C responded with 

affirmative defenses including voluntary limitation of income and 

unjustifiable refusal of suitable employment pursuant to section 

440.15(6). The matter went to a final hearing at which an 

Employer representative testified that Claimant had recently 

contacted her seeking light-duty work in the Employer’s Largo 

office and was told none was available, and also that Claimant 

declined any work in the Tampa office “because of transportation.” 

 1 The Employer also had a branch office in Largo that serviced 

only Hit Productions and was located across the street from its 

facility.
10

The representative also testified that the Tampa job remained 

available. 

After considering all of the evidence, the JCC found that 

Claimant and her husband had one car which the husband used to 

drive to Tampa to his job as a truck driver. The husband’s job 

included both day and night shifts. The JCC accepted Claimant’s 

testimony that if she drove her husband to Tampa when he worked 

the day shift she would need to drop him off by 4:00 a.m. and then 

wait at the Employer’s Tampa office (where the offered 

employment was) for four hours until it opened. The JCC also 

accepted Claimant’s testimony that due to her inexperience as a 

driver, Claimant’s husband did not want her driving their car from 

Largo to Tampa during regular business hours and that Claimant 

was not familiar with the Interstate and other freeways. The JCC 

also noted that the roads Claimant would have to drive from her 

Largo home to Employer’s Tampa office can be confusing. The JCC 

also noted Claimant’s testimony that she drives short, local 

distances only and experiences pain in her knee and hip when 

sitting for a long period of time. The JCC concluded that, under 

the circumstances, Claimant “certainly could not have developed 

driving skills so as to drive from Largo to Tampa and back with 

interstate and high-speed travel and unfamiliar roads/highways.”

On the issue of public transportation Claimant testified that 

she was aware of a bus stop outside the entrance to her mobile 

home park, but that she was not sure whether the bus would take 

her to Tampa. Claimant also testified that the bus schedule was 

in English, so she could not read it. The JCC also noted that there 

was no evidence that Claimant made any efforts to drive to Tampa 

or obtain alternative transportation. Nonetheless, the JCC 

ultimately found:

[I]t is unreasonable to expect this particular claimant to 

go to work in the Tampa office of the employer with her 

language limitations, her driving limitations, a singular 

vehicle in the family mainly used by her husband during 

his odd work hours, no familiarity with public 

transportation, suggestion of dependence on other family 

members to drive from Tampa to Largo to pick up the 

claimant, take her back to Tampa, and then back to Largo 
11

at the end of the workday, the claimant’s unrefuted 

testimony that she has pain from her knee to her hip 

when sitting for long periods of time, and the claimant’s 

willingness to work for the Largo office of the employer 

until light duty . . . ran out. 

As a result, the JCC concluded that Claimant’s refusal of the 

Tampa job was justified and that she had “not voluntarily limited 

her income by refusing to do this job even though it may have been 

within her physical limitations medically” and awarded TPD 

benefits for the relevant period. This appeal by the E/C followed.

Analysis

Section 440.15(6), Florida Statutes, provides, in relevant part:

EMPLOYEE REFUSES EMPLOYMENT. — If an injured 

employee refuses employment suitable to the capacity 

thereof, offered to or procured therefor, such employee 

shall not be entitled to any compensation at any time 

during the continuance of such refusal unless at any 

time in the opinion of the judge of compensation 

claims such refusal is justifiable. 

(emphasis added).

In construing a statute, courts must first look to its plain 

language. See Perez v. Rooms To Go, 997 So. 2d 511, 512 (Fla. 1st 

DCA 2008). Here, the statute’s plain language gives JCCs broad 

discretion in determining whether an employee’s refusal of 

suitable employment is justifiable. In Ullman v. City of Tampa 

Parks Department, 625 So. 2d 868, 873 (Fla. 1st DCA 1993) (en 

banc), this court stated that role of the court “must be to guard 

against fanciful or arbitrary abuse of discretion in workers’

compensation cases, and we will continue to do so by scrutinizing 

JCC findings under the light of the basic rule 

requiring competent substantial evidence in support of such 

findings.” The en banc court further stated in Ullman that the 

JCC’s “findings must be sustained if permitted by any view of the 

evidence and its permissible inferences.” Id.
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As the majority notes, there is no dispute concerning the 

suitability of the offered employment with respect to Claimant’s 

ability to perform the job, even with her assigned physical 

restrictions. Thus, the remaining question is whether the JCC’s 

findings in support of his opinion that Claimant’s refusal of the 

position was justifiable are supported by competent substantial 

evidence (CSE). 

I respectfully submit that here 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 statute’s 

plain language refers to a JCC’s “opinion” regarding the 

justifiability of a claimant’s refusal of suitable employment which, 

as discussed, must be based on CSE. Here, the JCC’s opinion as 

to these factors were based on Claimant’s testimony, which the 

JCC could accept or reject in his role as trier of fact.2 The majority 

imposes on the JCC restrictions the statute simply does not 

include, is contrary to our role as set forth in Ullman, and is 

contrary to the JCC’s position as trier of fact. See City of W. Palm 

Beach Fire Dep’t v. Norman, 711 So. 2d 628, 629 (Fla. 1st DCA 

1998) (holding “the [JCC] determines credibility, resolves conflicts 

in the evidence, and may accept the testimony of one [witness] over 

that of several others.”).3

 2 Although in one instance the JCC cited his personal 

experience with the route Claimant would have to navigate to the 

Tampa job, there was sufficient additional CSE to support the 

JCC’s findings. 

3 Chief Judge Thomas supports the E/C’s argument that this 

court should go further and adopt the “plausible nexus” standard 

similar to the one this court has developed in cases involving 

advances under section 440.20(12), Florida Statutes. I respectfully 

submit that we are correct not to do so. Adopting such a standard 

would require us to encroach on the Legislature’s prerogative to 

provide, as it has for over forty years, for a JCC’s broad discretion 

to consider all of the factors cited by a claimant for refusing 

suitable employment, regardless of whether there is a direct 

connection between the reason or reasons for the refusal and a 

claimant’s employment or injury. If the Legislature wants to 
13

Consider, for instance, if the proposed substituted 

employment required a daily commute from Largo to Jacksonville. 

I have no doubt that most appellate judges would agree that it 

would be reasonable for the Claimant to decline that daily 

commute and for a JCC to find her refusal justifiable under section 

440.15(6).4 Conversely, if the E/C had offered evidence of a 

company shuttle that would take Claimant to and from work after 

a short ride each day, I think any appellate judge would agree that 

CSE would not support a JCC finding that the refusal of 

substituted employment under those conditions was reasonable. 

What is too far a commute such that refusal of the substituted 

employment is reasonable? I think it depends on a number of 

factors best left to the sound discretion of the fact finding JCC. In 

cases like this one that could go either way, I think appellate 

judges should defer to the JCC. If the JCC has too much discretion 

under section 440.15(6), I respectfully submit that it is the 

Legislature which should impose limits on the JCC’s broad 

discretion, not an appellate court.

Conclusion

Because the JCC’s findings in support of his opinion that 

Claimant’s refusal of suitable employment are supported by record 

evidence, I would affirm the challenged order. Since the majority 

reverses, I respectfully dissent.

 

impose criteria that a JCC may consider when forming an opinion 

as to whether a claimant’s refusal of employment is justifiable, it 

certainly can do so, but it is not for this court to rewrite the statute. 

“Work[ers’] compensation is entirely a creature of statute and 

must be governed by what the statutes provide, not by what 

deciding authorities feel the law should be.” J.J. Murphy & Son, 

Inc., v. Gibbs, 137 So. 2d 553, 562 (Fla. 1962).

4 If we adopted the “plausible nexus” standard, presumably a 

claimant would have to commute to any suitable employment 

offered anywhere in the world since the unduly burdensome 

commute and associated expenses would have no plausible 

connection to the workplace injury. 
14

_____________________________

Juliana L. Curtis and Barbi L. Feldman of Vecchio, Carrier, 

Feldman & Johannessen, P.A., Lakeland, for Appellants.

Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa,

for Appellee.