By: Sarah Kippers, Associate, Gainesville

Historically, employers and carriers in Florida workers’ compensation claims have been able to access a claimant’s medical history. Once an employee reports an injury to his employer, he waives his physician-patient privilege for any medical treatment that is reasonably related to the alleged work injury. This allows the employer/carrier to obtain medical records from a broad spectrum of previous and current medical providers. See Florida Statute 440.13(4)(c). Despite statutory language and case law allowing such discovery, claimant’s attorneys are using a recent non-final order from the First DCA in Romero v. Vazquez as argument that the employer/carrier is not allowed to conduct medical discovery in the absence of a pending PFB, because the JCC has no jurisdiction. (Case No. 1D15-0623, OJCC No. 14-006910) While some may worry that the Vazquez order threatens to turn discovery in Florida workers’ compensation on its head, a detailed look at the facts of the Vazquez case demonstrates why that interpretation of the case may be misplaced.

The claimant, Edwin Vazquez, suffered a severe head and brain injury while working on a construction site, leaving him incapacitated, and the claimant’s estate filed a petition for benefits on his behalf against three different employers. The employers all denied compensability based on lack of an employer/employee relationship, each pointing the finger at the other. The claimant voluntarily dismissed his petition and filed suit against all three potential employers in civil court. One employer, Carlos Romero, then voluntarily provided benefits to the claimant, and filed a Request for Contribution against the other two employers. However, the claimant declined both indemnity and medical benefits offered by Romero, and continued to pursue his action in civil court.

After the claimant dismissed the petition, employer Carlos Romero issued a Notice of Production for medical records from the hospital where the claimant treated immediately after his accident. The claimant objected, stating there was no right to conduct discovery because there was no pending petition. The JCC denied the claimant’s objection, and cited to ample case law in support of his assertion that the employer/carrier has both the right and the duty to investigate a workers’ compensation claim once it receives notice of the injury.

Several months later, employer Carlos Romero filed a Motion to Compel Production and Deposition against the claimant – still without a pending petition–for use in his contribution case against the other two employers. The JCC granted the employer/carrier’s motion, compelling the claimant to attend a deposition as well as provide discovery and attend the final hearing regarding the contribution issue between the three employers. Claimant’s counsel filed a writ of prohibition to prevent the JCC from exercising jurisdiction over the employer’s discovery requests.

In a brief opinion, the First DCA granted the Claimant’s writ of prohibition against the employer’s attempted discovery of medical records from a non-party hospital and other discovery related to the contribution case. The Court specifically held that “[d]ismissal of a PFB divests a JCC of jurisdiction;” thus, the JCC erred in retaining jurisdiction over the discovery matters. Claimant’s counsel and staff counsel for the OJCC both requested rehearing by the DCA in early September.

Since the First DCA released this opinion, some claimant’s attorneys have started to object to any subpoenas issued by the employer/carrier without a pending petition, stating that Vazquez disallows any discovery absent a petition. There have also been a number of JCC opinions across the state where the judge declined jurisdiction over discovery matters without a pending petition. The legal legacy of Vazquez remains uncertain; however, a complete picture of the underlying facts in Vazquez seems to indicate that it has much more to do with a judge’s ability to compel discovery without a petition rather than the employer/carrier’s right to conduct discovery without a petition. The DCA makes no mention of an employer/carrier’s entitlement to conduct discovery on its own absent a pending petition, but rather concerns itself with the judge compelling discovery from the claimant when the claimant was not a party to the pending contribution action and was not receiving any benefits through workers’ compensation. However, while we wait to see if the DCA decides to rehear arguments in the Vazquez case, we will likely continue to see claimants’ attorneys use Vazquez as a shield against discovery and for judges to shy away from accepting jurisdiction with no petition pending.