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What's Hot in Workers' Comp

First District Court of Appeals Holds that the Proper “Misconduct” Analysis Must Be Guided by the Amended Text of Florida’s Reemployment Assistance Law

Cobb v. TECO Energy Inc., 423 So. 3d 63 (Fla. 1st DCA 2025)

February 4, 2026

by Blake J. Hood

The claimant was terminated for “misconduct,” and filed for temporary indemnity benefits, which the employer/carrier denied. The judge of compensation claims agreed with the employer/carrier that the claimant was not entitled to benefits per section 440.15(4)(e), Florida Statutes (2023). The First District Court of Appeals (DCA) affirmed the denial, agreeing that the judge correctly rejected the claimant's argument that the ruling of the unemployment agency shows there was no misconduct under the same facts. The judge noted that the outcome of the unemployment claim was not binding on him.

 

The more important aspect of the Cobb case is what it says regarding the applicable definition of “misconduct” to be applied in workers’ compensation claims. The parties and the judge cited to numerous unemployment compensation decisions as examples of application of the “misconduct” standard. However, the opinions cited by the parties utilized a previous definition of “misconduct” under section 443.036(29) Florida Statutes (2004). The First DCA noted that definition was later significantly altered in amendments effective in 2011 and 2012 to include the language below:

  • (29) ’Misconduct,’ irrespective of whether the misconduct occurs at the workplace or during working hours, includes, but is not limited to, the following, which may not be construed in pari materia with each other:

  • (a) Conduct demonstrating conscious disregard of an employer's interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee. Such conduct may include, but is not limited to, willful damage to an employer's property that results in damage of more than $50, or theft of employer property or property of a customer or invitee of the employer.

  • (b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

  • (c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.

  • (d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.

  • (e)1. A violation of an employer's rule, unless the claimant can demonstrate that:

    • a. He or she did not know, and could not reasonably know, of the rule's requirements;

    • b. The rule is not lawful or not reasonably related to the job environment and performance; or

    • c. The rule is not fairly or consistently enforced.

  •    2. Such conduct may include, but is not limited to, committing criminal assault or battery on another employee, or on a customer or invitee of the employer or committing abuse or neglect of a patient, resident, disabled person, elderly person, or child in her or his professional care.

The court explained that where the legislature uses the exact same words or phrases in two different statutes, we may assume the same meaning was intended to apply. While the statutory definition of “misconduct” under section 440.02(27) of the Workers’ Compensation Act is substantially weaker than the definition under section 443.036(29) of the Reemployment Assistance Law, the court nonetheless held that the language and case law applicable to the Reemployment Assistance Law likewise applies in workers’ compensation cases.

What’s Hot in Workers’ Comp, Vol. 30, No. 2, February 2026, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2026 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact MEDeSatnick@mdwcg.com.

Firm Highlights

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

New Jersey Workers’ Compensation Legislation Updates

Since June 1, 2026, there have been no new New Jersey workers’ compensation related cases from the Appellate or Supreme Courts. As such, below will highlight any new legislative updates since February. A1023 | S3984 - Medical Use of Cannabis Under Certain Circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045  - Certain Injuries to Volunteer and Professional Public Safety and Law Enforcement Personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A1384 | S2757 - Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1870 | S1379 - Workers' Compensation Benefits For Certain Workers Due to September 11, 2001 Terrorist Attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 - Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 -  Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3167 | S2372 - Workers’ Compensation Insurance Requirements for Certain Corporations and Partnerships This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3548 | S3571 – Maximum Benefits for Certain Volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee. A3724 - Personal Liability to Employer Officers for Failure to Pay for Coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617  - Certain Workers' Compensation Supplemental Benefits and Funding Method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026 and referred to the Assembly Labor Committee. S241 - Inclusion in Database of Appointed Officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. S2290 -  Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026 and referred to the Senate Judiciary Committee. S3144 - Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. S3342  - Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026 and referred to the Senate Judiciary Committee.

Thought Leadership

Appellate Court Rejects Horizontal Immunity Defense to Company Not Acting as Statutory Subcontractor

The First District Court of Appeal held that a property management company was not entitled to horizontal immunity under section 440.10(1)(e), Florida Statutes, in a negligence action brought by an employee of another company working on the property. The claimant was injured while servicing a swimming pool at an apartment complex. His employer had contracted with the property owner to maintain the pool. Following the accident, the claimant received workers' compensation benefits through his employer’s carrier. The claimant subsequently filed a negligence action against the property management company, alleging that it failed to maintain the premises in a reasonably safe condition and failed to warn him of a dangerous condition that caused his injuries. The property management company had been retained by the property owner to maintain the complex in good operating condition and to perform routine maintenance and repair work. The property management company argued that it was immune from suit under section 440.10(1)(e) of Florida’s Workers’ Compensation Law. That provision grants immunity to a subcontractor providing services in conjunction with a contractor on the same project or contract work from civil actions brought by employees of another subcontractor, subject to limited exceptions. According to the property management company, it qualified as a subcontractor working on the same project as the claimant’s employer and was therefore entitled to horizontal immunity. The trial court agreed and entered summary judgment in its favor. On appeal, however, the claimant argued, and the appellate court agreed, that horizontal immunity applies only when a contractor has sublet work arising from a contractual obligation owed to a third party. The court noted that prior decisions consistently held that an entity acting solely on its own behalf as the owner of property, rather than pursuant to a contract with a third party, is not a “contractor” under section 440.10(1), even when it hires other companies to perform work on the property. In Teed, the property management company could not establish that the property owner had a primary contractual obligation to a third party to maintain either the apartment complex or the swimming pool, which it then delegated to the claimant’s employer or the property management company. As a result, the property owner did not qualify as a statutory contractor, and the property management company was not a subcontractor entitled to horizontal immunity under section 440.10(1)(e). The First District therefore reversed the lower court’s ruling and remanded the case for further proceedings on the claimant’s negligence claim.

Event

Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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News

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Result

Defense Verdict in Complex Medical Malpractice Trial