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CHANGE IS COMING! … To The Florida Rules Of Civil Procedure. Is Florida Workers’ Compensation Next?

Sean Jordan, Associate, Orlando, & Wes Heim, Associate, Tampa

Do you struggle to get to sleep at night? Or do you find yourself dropping off around midnight only to be wide awake at 2 or 3am? If this sounds all too familiar, you could be searching for tips to help you sleep better. Search no more, this month we are going to be covering the amendments to the Florida Rules of Civil Procedure, and analyzing their impact on the Florida Workers’ Compensation 60Q Rules.  If in depth analysis of the Rules of Civil Procedure does not put you on the fast track to “Snooze Town,” you are going to want to contact your family doctor or primary care physician.  Enough with the delay, let’s put on our jammies, cozy up under our blankets, and get ready for some electrifying civil procedure analysis. (Remember: do not read the Florida Rules of Civil Procedure if you plan on driving or operating heavy machinery in the next few hours).

[David Bowie impression]: Ch-ch-ch-ch-changes

Effective January 1, 2019, the Florida Supreme Court amended the Florida Rules of Civil Procedure.  The following two amendments could potentially impact the Florida Workers’ Compensation Claims.  The changes are, for the most part, only potential in nature due to the Florida Supreme Court’s December 2, 2004 decision in Amendments to the Fla. Rules of Workers ‘ Comp. Proc., 891 So. 2d 474 (Fla. 2004).  

In the December 2004 decision, the Supreme Court of Florida held the Court lacks the authority to promulgate rules of workers’ compensation procedure.  The Court noted while the original and appellate jurisdiction of the courts of Florida is derived entirely from Article V of the Florida Constitution, the Office of the Judges of Compensation Claims (OJCC) is not a court of this State because it is neither the Supreme Court, a District Court of Appeal, a Circuit Court, nor a County Court.  The OJCC is under the authority of the executive branch, and OJCC judges are executive branch officials, not judicial branch officials.  Thus, the Florida Supreme Court does not have the constitutional authority to promulgate rules of practice and procedure for this executive entity.

That being said, there are several sections of the DOAH Rules of Procedure, Section 60Q6.101, et. seq. Florida Administrative Code (“60Q Rules”), which directly adopt the Florida Rules of Civil Procedure, and, therefore, Amendments made by the Florida Supreme Court and automatically adopted by the 60Q Rules.  Additionally, the Florida State Legislature often takes its cues for amendments to F.S.440 and 60Q Rules from the Florida Supreme Court.  As a result, the exercise of analyzing the Court’s amendments to the Florida Rules of Civil Procedure could be indicative of what to expect from the Legislature in the coming sessions.  Responses to Discovery Requests

One of the amendments finalized by the Florida Supreme Court eliminates the addition of five days “mailing time” for e-mail service that was previously provided under Florida Rule of Judicial Administration 2.514(b). That means that discovery is due in thirty (30) days after service, regardless of delivery method, and importantly, objections to non-party subpoenas are due (10) days following service.

Discovery in workers’ compensation claims is governed by 60Q-6.114.  In pertinent part, this section states:

[An OJCC] may enter orders to effectuate discovery, including orders compelling discovery, protective orders, and orders imposing sanctions as provided in the Florida Rules of Civil Procedure for failure to comply with or for using discovery methods not specifically authorized by statute. For good cause shown, the Judge may enlarge or shorten applicable timeframes for complying with discovery.

As a result, amendment of Florida Rule of Judicial Administration 2.514(b) should directly apply to discovery in Florida workers’ compensation claims.  Thus, all discovery, regardless of delivery method, is due within thirty (30) days after service.

Calculating Deadlines

The Court also amended subdivision (a)(1)(A) of Rule 2.514 to require that, in computing deadlines, when the time period is stated in days or a longer unit of time, time frames are to be calculated beginning from the next day that is not a weekend, or legal holiday.   The rule applies to computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.

The most notorious deadline in workers’ compensation claims is most likely the five day deadline to respond to a Claimant’s request for a one-time change in physician, as set forth in Florida Statute 440.13(2)(f).  The Florida 1st DCA previously held the five day response period for one-time change requests is five (5) calendar days and not five (5) business days. The First DCA based this conclusion on the plain language of 440.13(2)(f) used by the Legislature, and indicated Rule 60Q-6.109, which states that weekends and legal holidays should be excluded from the 5 day time computation, does not govern one time changes. See Hinzman v. Winter Haven Facility Operations LLC, 109 So.3d 256 (Fla. 1st DCA 2013); Gadol v. Masoret Yehudit, Inc., 132 So.3d 939 (Fla. 1st DCA 2014); Zekanovic v. American II, Corp., 208 So.3d 851 (Fla. 1st DCA 2017). The 1st DCA added any policy concerns regarding the timelines laid out by FS440 need to be addressed by the State Legislature.

As a result, the amendments made by the Florida Supreme Court are not going to automatically change how JCCs and the Florida 1st DCA will interpret the plain language of 440.13(2)(f).  However, this may be a sign of things to come (we can only hope); the Legislature could very well look to the Florida Supreme Court for direction on how to amend and update the FS440 and the DOAH Rules of Procedure, Section 60Q6.101, et. seq. Florida Administrative Code (“60Q Rules”).

Conclusion

The ultimate impact of these changes has yet to be seen, but the January 1, 2019 amendments signal that the Florida Supreme Court is attempting to limit “gotcha” tactics, and instill fairness and uniformity in calculating its deadlines. It is our hope the Legislature will take these cues from the Florida Supreme Court and instill the same level of fairness in Florida Workers’ Compensation procedure. We will monitor the Legislature and provide any updates as they occur.

For the complete 2019 amendments to the Florida Rules of Civil Procedure, please refer to: In re Amendments to the Fla. Rules of Civil Proc., No. SC17-882, (Oct. 25, 2018). https://efactssc-public.flcourts.org/casedocuments/2017/882/2017-882_miscdoc_350018_e05.pdf