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on light duty restriction, and advised Orkin that he could return to work. Id. When he
returned, the plaintiff learned that his initial work assignment exceeded his physical
limitations. Id. Orkin informed him that other work was available within his restrictions.
Id. When he arrived at work the second time, he again learned that the work provided
[**14] exceeded his limitations. Id. He was also offered a position within his restrictions
but was later informed that the position was no longer available. Id. Orkin refused to
make further worker's compensation payments on the ground that the plaintiff refused to
return to work. Id. 132 Plaintiff then filed suit alleging, inter alia, violation of section 440.205. Id. at 259. The
trial court, however, dismissed his complaint for lack of jurisdiction finding the dispute
within the jurisdiction of the Judge of Compensation Claims ["JCC"]. Id. Plaintiff argued
on appeal that Orkin was attempting to coerce him "into settling his workers'
compensation claim by not respecting his physical limitations, and by claiming to have
work which he can perform, when such work is not actually available." Id. The third
The third district distinguished the supreme court's holding in Smith v. Piezo Technology
and Professional Administrators, 427 So. 2d 182, in which the supreme court had held
that section 440.205 created a cause of action for retaliatory discharge and that the circuit
court rather than the JCC had jurisdiction [**15] to adjudicate a claim under the statute.
Id. The third district also noted that in Smith, the employee had actually been discharged.
Id. In the case before it, however, the dispute was instead a case involving an employee's
refusal to work and an employer's refusal to rehire. Id. The court concluded that such a
dispute belongs before the JCC:
In the present case, by contrast, plaintiff alleges an ongoing dispute with the employer
wherein the employer contends that the plaintiff unreasonably refused to return to work.
The plaintiff claims that the employer has not offered work with the plaintiff's physical
limitations, and that the plaintiff's refusal to return to...
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- Spring '08