Cases

The question in this case is whether the JCC erred by determining that the employer/carrier did not waive its statute of limitations defense by failing to assert it at the first hearing on the claim. Compensation benefits settled between the parties and thereafter a claim was asserted for the payment of medical benefits. Claimant’s attorney filed a request to produce documents and later filed a motion to compel production of documents. A hearing was held on the motion at which time the employer/carrier failed to assert the statute of limitations defense. The hearing resulted in an order to compel production of the documents. The employer/carrier did not attend the hearing even though attempts were made at the hearing to contact the carrier by telephone without success and a notice of hearing had been sent by certified mail to the carrier.

 

There was a question as to whether the employer/carrier had received proper notice of the hearing on the motion to compel. The JCC’s finding regarding notice was reviewed by the appellate court for competent substantial evidence. The statute of limitations defense is a substantive right, which is determined by the law in effect the year the claimant was injured. At the time of this accident, the statute of limitations was not jurisdictional and it could be waived unless asserted at the first hearing of such claim in which all interested parties are given reasonable notice and opportunity to be heard. The employer/carrier had the burden of proving the hearing on the motion to compel was not the first hearing at which all parties had reasonable notice and opportunity to be heard.

 

In this case, the notice of hearing on the motion to compel expressly provided that copies of the notice were sent to all parties including the employer. The JCC also noted in his order that the notice of hearing was sent by certified mail. Under these procedural rules in effect the year the first hearing took place, a certificate of service constituted prima facie proof of service. The employer/carrier failed to produce any evidence to rebut the presumption that certificates of service constituted prima facie proof of service. Accordingly, the judge’s finding that the hearing was inadequately notice was not supported by competent substantial evidence. If the judge’s order was the product of an inadequately noticed hearing, the employer/carrier’s remedy was to move to abate the order, not wait and argue at a hearing subsequently held that the notice was inadequate.

 

There was a question as to whether the judge could vacate an order that was previously entered. Section 440.25(5)(a), Florida Statutes, provides that a JCC’s order becomes final 30 days after mailing of such order to the parties. An order that is not final may be amended or vacated to correct clerical or technical errors or where due consideration of the motion for rehearing cannot be made before the order becomes final. Since the order in this instance was not final under Section 440.25(5)(a), Florida Statutes, the JCC had jurisdiction to vacate his order.