Cases

Claimant while on the job was shot 7 times at close range by an unidentified shooter.  The parties stipulated that the shooting occurred in the course and scope of the claimant's employment with the employer (Value), the only issue in dispute was whether the injuries the claimant sustained from the shooting arose out of the work performed for Value.  The JCC awarded benefits. Benefits were awarded notwithstanding the fact that there was no evidence as to why the claimant was attacked. On appeal, JCC's decision reversed.

To be compensable under the Workers' Compensation Act, an employee must suffer an accidental compensable injury arising out of work performed in the course and scope of employment.  The "arising out of" element of proof refers to the origin or the cause of the accident and "in the course and scope of employment" refers to the time, place and circumstances under which the accident occurs. For an injury to arise out of and in the course of employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from a natural consequence of the employment.  It is the claimant's burden of proof to prove the requirements for a compensable accident being satisfied. In this case, the employer/carrier conceded that the claimant's injuries occurred in the course and scope of employment. There was no proof, however, as to why the shooting occurred satisfying the "arising out of" element of proof.

Once the injury/accident is deemed to have arisen out of employment and was caused by activity in the course and scope of employment, the burden shifts to the employer to prove that the major contributing cause of the injuries sustained was the accident.  In this case, the accident was deemed to be non-compensable and accordingly, did not trigger the major contributing cause analysis. 

In this case, the court determined that the shooting did not present evidence as to occupational causation for his injury and therefore benefits were denied. Chapter 440 does not cover workplace injuries; it covers work caused injuries.  Mere presence at the workplace when an accident occurs is never enough, standing alone, to meet the "arising out of" prong in determining compensable claims.  The facts establish only that the claimant was in the course and scope of employment when he was shot. The claimant, however, had to show that he was shot as a direct result of his working when the incident occurred (arising out of).

Case certified to Supreme Court to determine compensability when an act of a third party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment.  Motion for Rehearing en banc denied. See separate summary of opinion at 48 FLW D2045.

(Original opinion at 46 FLW D1241) Prior opinion withdrawn and this opinion issued in its place. 

JCC ordered employer/carrier to provide medical treatment by a particular doctor.  Based upon an allegation that the medical care was not provided, a Petition for Rule Nisi was filed by the claimant in circuit court to enforce the JCC's order.  Order entered by circuit court requiring the provision of the medical care and imposed a $15,000 "fine" plus claimant's attorney's fees.  The question in this case is whether the circuit judge had jurisdiction to enter an order fining the employer/carrier.

According to Section 440.24(1), Florida Statutes, the circuit judge has jurisdiction to issue a writ of execution or such other process or final order as may be necessary to enforce the JCC's order. If it is not possible to retroactively provide the benefit that was denied, the court may fashion a monetary remedy equivalent to the lost benefit.  The purpose of such a remedy is to make whole the person entitled to the Rule Nisi.  No evidence was presented of any damages the claimant incurred due to the employer/carrier's delay in withholding the claimant's medical treatment and accordingly, the $15,000 award was overturned.

The court determined that the circuit court has inherent authority to enforce a judgment by use of its contempt powers. Contempt sanctions are broadly categorized as either civil or criminal. The purpose of criminal contempt is generally to punish while civil contempt is generally remedial in nature and for the complainant's benefit.  In order to award civil contempt sanctions, there must be evidence of the actual loss suffered by the injured party.  Court, however, determined that there was no evidence to support the civil court's imposition of a fine as either a compensatory or coercive civil contempt sanction.

Petition for Death Benefits filed by personal representative of deceased at a time prior to the appointment of the personal representative.  Petition did not include the Certificate of Good Faith and Fraud Statement that by statute is required in the filing of a petition.  JCC dismissed petition and appeal taken.  Appellate court reversed.  Failure to provide a Certificate of Good Faith and Fraud Statement is no basis upon which a Petition for Benefits should be dismissed.  Section 440.105(7) does not provide for the dismissal of a claim for failure to provide the statements with the petition.  In this case, the personal representative filing the petition was appointed personal representative after the filing of the petition.  Court determined that such appointment related back to the date of the filing of the petition.  Accordingly, court determined that JCC's dismissal of petition was in error.

Claimant filed a Petition for Writ of Prohibition to disquality the JCC pursuant to a Motion for Disqualification.  The JCC sought to be disqualified left the bench before the appellate court ruled on the Petition of Prohibition. Court determined that issue of disqualification was moot and dismissed the Writ of Prohibition.  The petitioner in this instance sought to have the appellate court reverse all prior JCC interlocutory orders ruled upon by the previous JCC that was no longer in office.  However, the court determined that a Writ of Prohibition was preventative not corrective and should not be used as a substitute for an appeal of prior orders.  The current JCC was not bound by orders of the prior JCC.  A successor judge has the power to vacate or modify a prior judge's interlocutory rulings.

Claimant's attorney sought to disqualify the JCC from hearing the issues in this case.  In an affidavit, the claimant sought to disqualify the JCC asserting that the JCC was prejudiced against his attorney. As a result of this prejudice, he feared that the JCC would be prejudiced against him and that he would not receive a fair trial/final hearing.  The basis of this belief was that in another case, the JCC had determined that the claimant's attorney was not credible.

The Rules of Procedure for Workers' Compensation Adjudications provide that any motion for disqualification of a judge shall be made and determined pursuant to the Florida Rules of Judicial Administration 2.330.  See Florida Admin. Code R60Q-6.126(1),  Under Rule 2.330(d), grounds supporting a Motion to Disqualify include that a party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of a judge.  Rule 2.330(f) states that the judge against whom the Motion to Disqualify is directed must determine only the legal sufficiency of the motion and should not pass on the truth of the facts alleged.  In determining whether a Motion to Disqualify is legally sufficient, the appellate court reviews the motion's allegations under a de novo standard.

A lawyer's request for a general disqualification of a particular judge will not be granted, i.e., a request to enjoin forever a particular judge from hearing any case in which the appellant appears.  In this case, the court determined that this was not a general attempt to disqualify the judge. Under Florida law, a judge's statement that he feels a party has lied is generally considered an indication of bias against the party.  Court determined that the facts alleged in this case were legally sufficient to support the Petitioner's Motion to Disqualify.  Accordingly, it was error for the judge not to grant the motion.

JCC refused to accept stipulation between the parties for the payment of a $20,000 attorney's fee payable by the employer/carrier for past benefits secured.   JCC awarded the claimant's attorney a statutory fee with the difference between the awarded fee and the stipulated fee being paid to the claimant.  On appeal, judge's decision reversed. 

The JCC had both the authority and the obligation to review the attorney fee stipulation and approve or disapprove the agreed upon fee.  However, the parties have the right to have a hearing on the question of the reasonableness of the stipulated fee for which approval from the JCC was sought.  Court determined that the JCC's denial of the stipulation was a violation of the claimant's attorney's due process rights when the order was entered without a proper evidentiary hearing affording the parties the opportunity to be heard. The court found on appeal that the JCC disapproved the stipulated fee assuming certain unestablished facts. Because of the denial of the judge to have a hearing on the issues, JCC's order reversed.

Employer/carrier filed a Writ of Prohibition to quash an order denying a Motion to Disqualify the Judge of Compensation Claims.  Court determined that the Motion to Disqualify was legally insufficient.  It was alleged in the motion that, having heard argument of counsel described by the judge as "ad nauseum" was not legally sufficent to support a Motion to Disqualify the judge and establish a determination that the judge was biased against the party or such comments were prejudicial to one party.  Notwithstanding the legal insufficiency of the motion, however, the court granted the writ since in response to the motion/writ filed on behalf of the JCC, the judge attempted to refute the alleged impartiality of the JCC by asserting, without any record support, that a JCC "did not interrupt or raise his voice to counsel" and the he "allowed both sides to fully make their arguments resulting in what would normally be a five to ten minute hearing lasting over an hour."  These comments effectively placed the JCC in an adversarial posture with petitioners by suggesting that the allegations in the Motion to Disqualify were an incomplete account of the factual circumstances bearing on the JCC's response filed on behalf of the judge did not directly controvert the allegations in the Motion for Disqualification, but did so indirectly by "mistakenly conveying the impression that the moveant's allegations are an incorrect and incomplete account of the factual circumstances."

Shortly before the final hearing, the claimant filed a claim for additional IB benefits.  The parties stipulated that the claim for these additional IB benefits should be reserved for future determination of such entitlement and should not be considered by the JCC.  The issue in this newly filed petition had not been mediated.  In such situation where the issues had not been mediated, it was proper for the judge to reserve jurisdiction.  Court determined that it was error for the JCC to deny IB benefits since the parties had agreed that this issue would be reserved and the issue of IB benefit entitlement had not been mediated.

JCC properly denied permanent total compensation to the claimant.  The decision in Westphal v. St. Petersburg, 122 So. 3d 440 supplants a claimant's need to establish attainment of MMI in order to have a determination made for PTD entitlement. However, this case does not automatically entitle the claimant to the payment of PTD.  The claimant is still required to present evidence that he otherwise meets the legal standards for such an award.

On motions for rehearing, rehearing en banc, certification, or clarification.  Original opinion at 40 FLW D1940 withdrawn and this opinion substituted. 

The JCC lacks jurisdiction over discovery requests filed after a Petition for Benefits had been voluntarily dismissed without prejudice by the claimant.  The dismissal of the Petition for Benefits divests the JCC of jurisdiction. 

The claimant in this case had filed petitions for benefits against three alleged employers, all of whom denied there was an employer/employee relationship existing between the claimant and that employer.  One of the employers attempted to rescind that denial of the employer/employee relationship, however, the injured worker refused to accept offered workers' compensation benefits and sued all employers in circuit court.  The accepting compensability employer then sought discovery from the claimant and the other alleged employers pursuant to Section 440.42(4), Florida Statutes.

Since compensability of the claimant's claim had not been accepted by all parties, including the  claimant, the withdrawal of the petition for benefits divested the JCC of jurisdiction to grant discovery.  Had benefits been paid and compensability accepted by all parties, there are certain situations in which the JCC has jurisdiction notwithstanding the fact that no formal petition has been filed.  However, in this instance, no beneifts had been paid and compensability had not been established.

In regards to granting discovery pursuant to Section 440.42(4), Florida Statutes, jurisdiction was not conferred on the JCC because that statutory provision applies only to disputes over carriers' relative coverage responsibilities after underlying liability has been conceded or otherwise established.  In this case, the underlying liability forming a compensable accident has not been established.

Department of Financial Services, Division of Workers' Compensation (Division), issued a stop work order and an Amended Order of Penalty Assessment against appellant for failure to have workers' compensation coverage in force.  Appellant sought an evidentiary administrative hearing pursuant to Chapter 120, Florida Statutes.  Appellant failed to respond to a discovery request made by the Division and accordingly, the Division filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction.  That motion was granted and jurisdiction was relinquished by the administrative law judge.  The administrative law judge denied a motion to re-open the case for lack of jurisdiction based on a request made by appellant that the discovery had been answered.  On appeal, appellant argued that the administrative law judge abused her discretion by failing to consider the merits of the motion to re-open the case administratively since the discovery had been responded to.  For purposes of appeal, appellant conceded that it did not timely respond to the Division's discovery request. 

Court determined that the administrative law judge properly relinquished jurisdiction of the case to the Division based on the failure to provide discovery.  See Section 120.57(1)(i), Florida Statutes.  Court determined that there was no authority for the judge to exercise any discretion when there has been a failure to provide discovery.

Competent and substantial evidence supported the JCC's determination that a pre-ventricular contraction condition was compensable pursuant to Section 112.18, Florida Statutes.  Court reversed JCC in part for failure to rule on the misrepresentation defense raised by the employer/carrier.  If the JCC fails to rule on a fully tried issue for adjudication and does not reserve jurisdiction, the absence of a ruling constitutes reversal error.  Case remanded to JCC to make a ruling on the employer/carrier's misrepresentation defense, based solely on the record previously established.

Court determined that it was an abuse of discretion by the JCC in failing to allow for a continuance of a hearing to take the deposition of a doctor or allow for post-hearing depositions to be taken in accordance with Rule 60Q-6.121(5).  The treating physician's deposition had been scheduled but at a wrong address where the doctor was located.  The deposition could not be rescheduled before the final hearing although the employer/carrier's attorney had offered to take the deposition by telephone.  Such denial constituted reversal error since the right of a litigant to call witnesses is an important due process right.

Claimant had argued that it was harmless error not to allow for the deposition to be taken.  The test for harmless error in workers' compensation cases is whether "but for error, a different result may have been reached." The proper inquiry centers upon whether the error may yield a different result than that which was determined by the JCC.

The final determination made by the court was that it was an abuse of discretion for the JCC to deny the employer/carrier' right to take the deposition of the claimant's authorized doctor.

JCC denied claimant's motion seeking both approval of an hourly attorney's fee retainer agreement and an evidentiary hearing to build a record to support a constitutional challenge to the attorney's fee statutes.  Court determined that the claimant was entitled to an evidentiary hearing.  Petition for Writ of Certiorari granted allowing for such a hearing.  The court declined to review the JCC's decision not to approve the hourly rate fee agreement or consider the constitutional arguments associated with such review as being premature.

The JCC's inability to rule on constitutional issues does not preclude the claimant's right to build an evidentiary record in preparation for a constitutional challenge.  Under Rule 60Q-6.115(4) of the Rules of Procedure for Workers' Compensation Adjudications, the judge does not have to hold hearing on motions except in exceptional circumstances and for good cause shown.  Court determined that the appellant's challenge to the constitutionality of the attorney's fee statutes, particularly because it is an "as-applied challenge," presents circumstances that should allow for a hearing.  JCC erred in denying claimant's motion for an evidentiary hearing.

JCC awarded claimant some benefits but denied others.  The JCC refused to award costs in favor of the employer/carrier on issues that they prevailed on.  Court determined that JCC erred in not awarding costs in favor of the employer/carrier on those issues that they prevailed on.  Cost awards to the prevailing parties are mandatory and cannot be denied as a matter of discretion. Case remanded to JCC to allow the parties to present evidence of specific costs including reasonableness and relevancy to all claims.  Court suggested that the interest of judicial efficiency would be better served in future cases if the JCC simply reserved ruling as to which party prevailed and thus reserve ruling on both entitlement and the amount of prevailing party costs until a full consideration of the relevant facts could be facilitated by the procedures in Florida Administrative Code Rule 60Q-6.124.  Concurring opinion.

Claimant filed petition claiming benefits and certifying that a good faith effort had been made to resolve the dispute.  Employer/carrier filed a Motion to Dismiss based on the fact that no good faith effort had been made to resolve the dispute.  JCC dismissed petition.  On appeal, court determined that this was error.  Section 440.192, Florida Statutes, does not independently give the JCC authority to go behind a counsel's representation of good faith effort to resolve the dispute in a petition for benefits.  Florida Administrative Code Rule 60Q-6.125 arguably would permit the employer/carrier to seek sanctions for failure to comply with Section 440.192, Florida Statutes, but the employer/carrier did not meet the procedural requirements of that rule.  The JCC erred also in excluding from fees awarded the time spent in regards to the Motion to Dismiss that was filed by the employer/carrier that was inappropriately granted by the JCC.

Rule 60Q-6.124(3)(b) requires the filing of a response to a Verified Petition for Attorney's Fee within 30 days after the petition is served.  In this case, the 30th day fell on a Sunday and accordingly, the deadline was extended to the next day.  See Florida Administrative Code Rule 60Q-6.109.  The deadline is further extended by Rule 60Q-6.108(6) for an additional five days after service of any pleading made by mail.  In this case, the Petition for Attorney's Fees was served by e-mail not U.S. mail and accordingly, there was no five day extension for filing the motion. 

In this case, the response was not timely filed.  The employer/carrier presented evidence of good cause for the untimely filing.  Because of the fact that there was a factual dispute on the issue of good cause that was not resolved by the JCC, the JCC erred in ignoring the verified response.  Because of the fact that factual disputes on the issue of good cause were not resolved by the JCC, case reversed and remanded for further proceedings.

Review of the JCC's determination as to good cause to excuse late filing is considered utilizing an abuse of discretion standard.  The definition of "good cause" is not defined in Rule 60Q-6.124 or any other workers' compensation rule of procedure.  The court in this case defined "good cause" as a showing of some good faith on the party seeking an enlargement and some reasonable basis for non-compliance with the time specified rather than simple inadvertence or mistake of counsel or ignorance of the rules.  The employer/carrier's attorney in this case testified that it was her understanding based on conversations with the claimant's counsel's office that claimant had agreed to an extension of time for filing the response to the petition for attorney's fees.  This was denied by the claimant's attorney.  If the understanding of the employer/carrier's attorney was accepted by the court as an agreement to extend the time for filing the response, court determined that there was good cause for extending the time.  The JCC should have received evidence and made findings on this issue before entering an order awarding the fees. 

Attorneys can agree to extensions of deadlines in the rules but the better practice is to file a Motion for Extension of Time.  The law favors resolution of cases on the merits, not by default.

Original opinion at 36 FLW D572 - Claimant did not file a Petition for Benefits seeking reimbursement for out of pocket medical expenses.  Accordingly, order awarding such benefits reversed.  The JCC's finding that the employer/carrier stipulated to determination of this issue at trial was not supported by competent and substantial evidence.  Due process bars a ruling on matters not at issue because the parties are entitled to notice in order to fairly present their case.  Concurring opinion.

JCC entered order approving a life care plan that had been prepared by a certified life care planner for various medical benefits plus medical care/costs to be incurred in the future.  The treating physician had approved the life care plan that had been prepared.  On appeal, JCC's order reversed.  The future benefits were not in default and ripe, due and owing.  In addition, the JCC erred in approving the life care plan as opposed to awarding the benefits recommended in the life care plan.  A life care plan is not in itself a benefit recognized under the workers' compensation law.  The JCC also erred by expressly stating that the employer/carrier would have to modify the order before it could deny the benefits recommended in the life care plan although those benefits were not ripe, due and owing.

The JCC also ordered attendant care.  The applicable statute for awarding compensation for attendant care is the statute in effect at the time the compensable care was given.  The order failed in this case to specify the type of assistance and the level of care required.  An award of attendant care providing a safe environment for the claimant is too vague to adequately describe the type of care required.  In addition, financial management of the claimant's affairs is not a compensable form of attendant care.  Section 440.13(2)(b), Florida Statutes, requires that the prescription itself specify the time periods for such care, the level of care required, and the type of assistance required.  Passive or on-call attendant care is awardable when medically necessary.  The testimony of a life care planner is not competent to establish the medical necessity for such attendant care.

Order of JCC in part reversed.  Claimant did not file a Petition for Benefits seeking reimbursement for out-of-pocket medical expenses and the JCC's finding that the employer/carrier stipulated to determination of this issue was not supported by competent and substantial evidence.  Due process bars a ruling on matters not at issue because the parties are entitled to notice in order to fairly present their case.  Specifically concurring opinion.

The JCC found that the employer/carrier timely authorized an alternative physician when the claimant made his initial request.  Claimant failed to attend an appointment with the physician as authorized.  Court determined that JCC did not err in denying the claimant's request for a change in the treating physician under these facts.

In accordance with Florida Administrative Code Rules 60Q-6.116(2), the second voluntary dismissal of a claim shall operate as an adjudication of denial of any claim previously the subject of a voluntary dismissal.  JCC ruled that if the same claim/petition files multiple claims for the same benefit, the dismissal of that claim/petition acts an adjudication of the multiple claims for the same benefits.  Under this rule for there to be an adjudication of denial, the second dismissed petition must have been dismissed previously, establishing the need for two separate documents dealt with on two separate occasions.  The adjudication of denial as found in Rule 60Q-6.116(2) requires two separate documents dealing with the same benefit filed on two separate occasions.  In this case, two requests for the same benefit (in this case authorization of an alternate physician) were dismissed simultaneously as they were stated in a single Petition for Benefits and since there were no separate documents filed at separate times, the rule above noted did not apply.

Employer/carrier and claimant’s attorney agreed to the payment of an attorney’s fee but the stipulation entered into between the parties did not contain the information required for approval by the JCC. Specifically, there was no indication from the pleadings or the docket file that all benefits upon which the attorney’s fee was based were secured through the attorney’s efforts. Such information was never provided and accordingly, an order was entered denying the motion for an attorney’s fee. The order specifically found that there was no evidence that any of the benefits forming the basis of the attorney’s fee were obtained by the claimant’s attorney thus there was no showing that the attorney was instrumental in helping to secure benefits being paid to the claimant forming the basis of the fee.

JCC scheduled a time period for which the claimant’s attorney was to present evidence supporting his entitlement to a fee. Evidence was not presented during this time period. On appeal, court determined that the judge had jurisdiction to set time limits for the provision of evidence supporting the fee. The judge has authority pursuant to 440.33(1), Florida Statutes, to do all things necessary to enable the judge to effectively discharge his duties. Although the parties in this case stipulated to the fee, the judge has an independent obligation to ensure that the fee was, in fact, based on benefits secured by the claimant’s attorney. Section 440.34(2), Florida Statutes (2002). The JCC could not have complied with this statutory provision without the documentation that he had requested from the claimant’s attorney. Dissenting opinion.

JCC erroneously sent order to claimant’s attorney at the wrong address. The order was subsequently sent to the correct address but after the time that an appeal could be taken. The question in this case was whether the JCC had jurisdiction to vacate and/or amend the order that was entered after it became final by operation of Section 440.25, Florida Statutes.

Generally, the JCC’s authority to vacate and amend orders is expressly limited to those orders which are not yet final by operation of Section 440.25. However, there are exceptional circumstances which would allow for amending or vacating orders that are otherwise final. The facts in this circumstance did constitute a situation that would allow the JCC to have jurisdiction to vacate an otherwise final order since the claimant’s attorney did not receive a copy of the order until after the time for appeal. An administrative tribunal has inherent power to correct its own errors in its orders. JCC erred in concluding that it did not have jurisdiction to correct an otherwise final order under the circumstances of this case.