Originally published, here. 
3rd DCA Tosses Injured Worker’s Award for Retaliatory Discharge Claim 5.0

By Sherri Okamoto (Legal Editor) State: FloridaTopic: Top Florida’s 3rd District Court of Appeal on Wednesday threw out a $571,883.64 jury verdict in favor of an injured worker on his retaliatory discharge claim.

The court said the conduct of Caterpillar Logistics could not have been the cause of Rudolf Amaya’s lost wages since he was unable to work due to his industrial injury.

“To be entitled to an award of lost wages, the employee must be ready, willing, and able to accept employment,” the court explained. This is because the purpose such an award is to restore a wrongfully discharged employee to the economic position he would have occupied but for his termination, the court explained.

Amaya injured his back and knee eight years ago, while moving a box at the Caterpillar Logistics Center in Miami Lakes. According to a press release from his trial attorneys, Caterpillar had demanded that Amaya sign paperwork waiving his right to make a comp claim. After Amaya refused and filed a claim, Caterpillar suspended him without pay.

Caterpillar called Amaya back to work a few days later, but once he was back, Amaya said the company failed to abide by the work restrictions imposed by his treating doctors. He also said Caterpillar began falsely accusing him of violating company policies and reprimanding him for petty matters.

Amaya said he complained to the head of Caterpillar’s human resources department in Miami Lakes, but the harassment continued and intensified.

Additionally, when Amaya insisted that he be given work within his work restrictions, he said, the company gave him the job of sweeping the warehouse with a hand broom. He said the warehouse was thick with years’ worth accumulated dust.

Amaya also said Caterpillar gave him nothing to protect him from inhaling the dust, even though he told the company that he had dust allergies. He blamed his exposure to the dust for causing a respiratory injury, and he filed a second comp claim.

He said the harassment got even worse after he filed this second claim, and he filed an internal complaint with the Caterpillar’s corporate human resources department.

Amaya’s trial attorneys said Caterpillar’s corporate human resources manager in Illinois testified under oath that he deliberately violated Caterpillar’s own anti-retaliation policy to investigate all internal employee complaints by refusing to investigate Amaya’s complaints.

Amaya began receiving temporary total disability benefits from Caterpillar’s workers’ compensation carrier in November 2008, once the doctor treating his back injury placed him on “no work” status. The following day, Caterpillar indefinitely suspended him.

After being ordered off the Caterpillar premises, Amaya said he suffered a panic attack.

The doctor treating Amaya for his knee injury subsequently put him on “no work” status. Although this doctor later said Amaya could perform sedentary work, the doctor treating Amaya’s back injury never lifted the “no work” restriction. The doctor treating Amaya’s knee injury also wound up reinstating the “no work” restriction, and Amaya continued to collect TTD benefits until he settled his comp claim in October 2010.

Amaya then filed a retaliatory discharge suit against Caterpillar. The case went to trial in 2012.

His treating psychologist testified that he had major depressive disorder and a generalized anxiety disorder as a result of the harassment he had suffered at Caterpillar. The psychologist opined that Amaya was unable to work because of these conditions, and that he will need further psychological and psychiatric treatment.

Amaya still had the “no work” restrictions in place for his back and knee injuries at the time of trial as well.

A jury found Caterpillar had taken an adverse employment action against Amaya for filing a valid workers’ compensation claim and that Caterpillar would not have undertaken the same employment action for reasons apart from Amaya’s workers’ compensation claim.

The jury then awarded Amaya $79,280 for lost back pay and benefits and $537,847 for future lost wages and benefits, but it awarded no damages for emotional distress and mental anguish or future psychological/psychiatric expenses.

Miami-Dade Circuit Court Judge Marc Schumacher granted a post-trial motion allowing Caterpillar to offset the back pay award by the amounts Amaya received from the workers’ compensation carrier, which reduced the final award to $571,883.64.

Caterpillar appealed, arguing that Amaya was not entitled to an award of back pay or front pay, as a matter of law.

The 3rd DCA agreed in its ruling Wednesday.

Under Florida law, the court said, “when a plaintiff is unable to return to work for an independent reason not caused by the employer, lost past and future wages and benefits may not be awarded.”

Since Amaya was physically unable to work immediately prior to and following the alleged retaliatory discharge, the court said, “Amaya’s claim that he was psychologically unable to work due to Caterpillar’s retaliation could not be the but-for cause of Amaya’s past or future lost wages and benefits.”

Had Amaya been physically capable of returning to work, only to be disabled by his psyche condition, then the court said it would have affirmed the jury’s award – but because Amaya was not cleared for work based on his physical on-the job workers’ compensation injuries through the time of trial, and the jury rejected Amaya’s claims of emotional distress and mental anguish, the court said, “we are compelled to reverse the final judgment as Amaya is not entitled to an award of back pay or front pay as a matter of law.”

Amaya’s trial attorneys – Gonzalo R. Dorta, Roderick V. Hannah and Pelayo Duran – did not return calls seeking comment Wednesdays. His appellate attorneys – Lauri Waldman Ross and Theresa L. Girten of Ross & Girten – also could not be reached.

Gordon James III, Robert C. Weill, Lenore C. Smith and Javier J. Rodriguez represented Caterpillar. They also were unavailable on Wednesday.

Defense attorneys Rayford Taylor of Casey Gilson and George Kagan of Miller, Kagan, Rodriguez & Silver said the 3rd DCA’s ruling in Caterpillar Logistics Services v. Amaya had caught their attention though.

Kagan said he thought the case had been worth a read because it is relatively rare to see a published appellate decision on the issue of damages for a retaliatory discharge claim.

“When you file a claim for wrongful termination,” he said, “the first thing everyone wants to know is what your damages were.” In this case, it wound up being nothing, “because you weren’t able to work, and you’ve already been compensated for that,” Kagan said.

Taylor said Wednesday’s decision was the first case he could remember seeing about damages for a retaliatory discharge claim.

“Most cases involve a dispute over whether you can sue at all,” he said.

Taylor opined that the court’s decision was “logical,” as Amaya was “already being paid his lost wages” through his receipt of TTD benefits, and “you can’t double-dip like that.”

He said the point of the decision seemed to be that “you’ve for to be ready, willing and able to work during the periods you’re trying to collect lost wages.”

Taylor said the practice pointer for claimants’ attorneys is that “in future cases like this, you’re going to have to make a causal-connection between the loss of wages from the termination,” and differentiate them from the loss of wages due to the accident.

He also said he wouldn’t be surprised if Amaya appeals Wednesday’s decision to the Florida Supreme Court. Taylor said would expect the argument to be that the 3rd DCA has “confused the idea of causation with offset,” and that Amaya ought to be able to recover all his damages from the retaliation, less the amounts he received in workers’ comp benefits, just like what happens with a 3rd party tortfeasor situation.