The Florida First District Court recently rendered Cabrera v. Kablelink Communications, case 1D20-736. It is an instructive opinion as regards burden of proof. A concurring opinion additionally provides interesting insight into the task of statutory construction; workers' compensation is inherently dependent upon statute for its existence and therefore such construction often lies at the heart of disputes. Understanding the intricacies of statutory construction is a critical tool in this community.
The critical issue in Cabrera involved coverage of the workers' compensation statute. Workers' compensation generally is a benefit and burden to employers and employees. Stated that way, there are periodically questions regarding who is burdened and benefitted. The crux of these statutory systems is that the answer is "everybody."
For example, employers are burdened with liability, often for injuries that occur despite their utmost efforts; they are benefitted by limitations on damages and tort immunity. Employees are similarly benefitted by rapid entitlement to benefits, even when the employer was not negligent, and a general absence of tort defenses such as comparative negligence. Note that the burden of one is the benefit of the other. The system is a conglomeration of various benefits and burdens generally in a macro-balance. See Micro v. Macro Analysis (April 2019).
The overall concept of workers' compensation is also generally mandatory for employers and employees, except in Texas. See Staffing, Compensation and Opt-out (November 2017). There are usually exceptions in state statutes for very small employers; Florida is mandatory for employers with four or more employees, section 440.02(17)(b)2 and 440.02(15)(c)(2), Fla. Stat. That mandate is general, and there is a more restrictive constraint for construction businesses; If the employer is in the construction industry then the requirement is for "one or more." Thus, coverage is required for a greater population of businesses in the construction industry.
The coverage by workers' compensation is not without cost. Whether an employer retains financial responsibility for workers injuries and illnesses, called "self-insured," or purchases an insurance policy to cover such expenses, there is financial impact to the business. The premium for workers' compensation insurance is calculated by reference to the number of employees a business has and the payroll it pays. Therefore, it is important to know who is or is not an employee, and for each person's payroll to be accurately recorded/reported. The alternative to employees is for a business to hire an independent contractor.
That distinction between "employee" and "contractor" is at the crux of the dispute in Cabrera. The parties did not dispute that Mr. Cabrera was performing work "in 2016 when he fell from a ladder and was severely injured." He contended that he was an employee of Kablelink and the company contended that he was an independent contractor. The critical point, according to Mr. Cabrera, was his allegation that "he worked 'in the construction industry.'” See § 440.02(15)(c)(2), Fla. Stat.
The Court noted that there was a contract that said Mr. Cabrera was an independent contractor. That such a contract may exist is not uncommon in contractor relationships. However, the statute controls interpretation of such agreements. Thus, if the law concludes one is an employee, a contract to the contrary may provide no relief. Mr. Cabrera argued that the statute should override the contract and conclude as a matter of law that he was an employee and thus entitled to benefits. This led the Court to analysis of what "construction industry" means.
The trial judge concluded that Kablelink and Cabrera were not in the construction industry. The appellate court agreed, affirming the trial judge's order. The Court explained that “Construction industry” means for-profit activities involving any . . . substantial improvement in the . . . use of any structure . . . ." Furthermore, it noted that the statute also provides that "the division may, by rule, establish codes and definitions thereof that meet the criteria of the term “construction industry.” Section 440.02(8), Fla. Stat. Thus, what is or is not included in "construction industry" was a question that the legislative branch delegated, at least in part, to the executive branch.
The Court focused on the Division's rule, which is dependent upon work codes that are used to define and delineate job functions. The insurance industry has determined that there are varying degrees of risk in different occupations. To quantify and classify those risks, insurance has compiled a list of occupations and work descriptions. These definitions are used to determine how work is defined and therefore classified for the purposes of insurance premiums. The Court noted that in defining "construction industry," the Florida Division of Workers' Compensation rule "incorporate(s) the classification codes and descriptions." That "Kablelink's work didn't overlap with" construction codes was deemed pertinent by the trial judge.
The Court further explained that the analysis of whether work was “in the construction industry” depends on "whether it involves working, performing services, or engagement 'involving . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1), Fla. Stat. (Emphasis added). Thus, in a prior case, the Court found a fall compensable when the worker was "working to seal and repair a hangar's roof." Ficocelli v. Just Overlay, Inc., 932 So. 2d 1230, 1233 (Fla. 1st DCA 2006). However, it concluded a truck driver was not involved "in the construction industry" when he was "injured hauling construction . . . debris." Allied Trucking of Fla., Inc. v. Lanza, 826 So. 2d 1052, 1053 (Fla. 1st DCA 2002). Thus, consistent with other aspects of workers' compensation, labelling will not be as persuasive as the actuality (labelling the contents of the vehicle "construction debris" was not controlling).
The analysis, the Court explains, is in the work performed and whether that work 'involv(es) . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1). The Court held that Mr. Cabrera had the burden of proving that his work did "involve substantial improvement," and that he had not met that burden.
An intriguing element of the Court's explanation addresses common sense. The Claimant argued that evidence was not necessary in satisfying the burden of proof. Mr. Cabrera argued instead that his work should be deemed related to "substantial improvement" “as a matter of pure common sense.” This is seemingly a proposal for an assumption that should be made about work performed, its purpose, and effect. The Court did not accept that "pure common sense" or assumptions control. It noted that even if one made such an "improvement" assumption about the nature of a business, "the evidence in this case shows little of whether Claimant was working or engaged in the construction industry when he sustained his injuries."
For clarity, the worker had to prove that his "cable installation work involved a substantial improvement in the use of the homes that he served." Concluding that he had not proven that, the Court affirmed the trial judge's determination. In the absence of proof that work "involved a substantial improvement," the Court had "no basis for reversing the JCC on the record before us." In trial, it is critical to provide evidence. See If you are not Perry Mason, Bring Evidence (May 2013)
A concurring opinion in Cabrera notes that the decision is "is eminently correct." However, it provides an insight into the construction of statutes, the use of language, and is instructive. This opinion describes there are "two separate elements that had to be established before the JCC in this case could conclude that the claimant was an 'employee.'” This conclusion is based upon the language used by the legislature in two statute sections.
In one, with the use of “working or performing services in the construction industry,” section 440.02(15)(c)3., there is focus upon "the actual work being done by the claimant at the time of the accident." This is present tense ("ing"). This also involves analysis of the "arising out of" requirement in section 440.02(36), Fla. Stat. For more on the "arising out of," see It's not That the Wind is Blowin' (June 2021). The concurring opinion notes that the tense of 440.02(15)(d)1. is past tense ("ed"), "that the claimant was “engaged in the construction industry.”
Thus, the concurring opinion directs the reader to both "attention backward in time, to the claimant's historical work" and "the type of claimant's routine, day-to-day work historically performed . . . leading up to the occurrence of the accident." This suggests that a worker must prove:
"both that the claimant's accident occurred because of his doing work in the construction industry at the time, and that his work as an independent contractor regularly or consistently was in the construction industry over a period of time preceding the day of the accident."
The decision provides guidance in three perspectives. First, the definitions of work classifications may be of relevance in determining a question such as this regarding what is or is not "construction." Second, the burden is clearly on the injured worker to demonstrate that the work performed was "involved (in) a substantial improvement" to property. Finally, the letter of the law may be critically important and there is the potential for even the tense of words to be of import in interpreting statutory meaning. For any that would interpret the law or render advice, there is merit in study of Cabrera v. Kablelink Communications.
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