Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

As I discussed here briefly, if a litigant in a workers' compensation proceeding fears that he will not receive a fair hearing at the hands of the JCC assigned to his case, Fla. Admin. Code R. 60Q-6.126 provides that he may file a motion seeking disqualification of the judge under the applicable Florida Rules of Judicial Administration.  The standard for granting relief under this rule is not whether the litigant has a subjective fear that he will not receive a fair hearing.  Rather, he must allege in his motion specific facts which would prompt a reasonably prudent person to conclude that he could not get a fair hearing.

Once legally sufficient factual allegations are made, however, Fla.R.Jud.Admin. 2.330(f) provides that the JCC may not pass on the truth of the facts alleged.  If the facts alleged are legally sufficient, he must grant the motion.  If the movant believes that his motion has been improperly denied, he may seek immediate review of that decision by filing a petition for writ of prohibition in the First DCA without having to wait for an adverse order from the JCC on the merits of his case.

In Schwartzkopf v. Sea Ray Boats, Inc., and Robinson v. Warden Construction, Inc., both decided on 5/8/2008, the First DCA by a 2-1 vote in each case summarily denied such petitions.  Both cases involved motions to disqualify JCC Terlizzese which were filed by the same attorney.  Because the court elected not to write a full opinion in either case, however, we know very little about the facts that were alleged in the petitioners' motions below.  (The motions also are not available on DOAH's website). 

However, from Chief Judge Browning's dissenting opinions, it appears that an adversarial relationship had developed not between the JCC and the claimant, but between the JCC and the claimant's attorney.  Without reciting them in detail, Judge Browning concluded that the facts alleged in the motions were legally sufficient and that they therefore should have been granted.  (There are, in fact, several decisions in non-workers' compensation cases holding that an adversarial relationship between a judge and a litigant's attorney can under certain circumstances form a sufficient basis for disqualification of the judge.  See, e.g., Franco v. State, 777 So.2d 1138 (Fla. 4th DCA 2001)). 

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"Justice delayed is justice denied," goes the old saying.  Consistent with that maxim, §440.25(4), Fla. Stat., provides that the JCC "shall" issue a final order within 30 days of a hearing on the merits of a claim.  But what if he doesn't?  What if instead of taking one month he takes, say, 23 months?  Previous decisions from the First DCA make it clear that the JCC's failure to issue a timely order is not reversible error per se; such "stale" orders will be reversed on appeal only if the losing party can demonstrate that it was prejudiced by the delay.  Prejudicial error has typically been found in cases where the resolution of one or more factual determinations necessary to the decision turned on the credibility of the witnesses who testified live before the JCC.  In such cases, the First DCA has concluded that the JCC could not possibly have remembered the details of the testimony, thus requiring reversal of the "stale" order and a remand for a hearing de novo.

But over the last several years, the First DCA has added yet another requirement to securing a reversal in such cases - before filing the notice of appeal, the aggrieved party must first file a motion for rehearing with the JCC in order to preserve the issue for appellate review.  Apparently, the claimant's failure to file such a motion resulted in the court's per curiam affirmance of the JCC's order in Suluki v. American Airlines, decided on 5/8/2008.  Chief Judge Browning concurred in the result but wrote separately to express his view that the JCC's 23-month delay in issuing her order would otherwise constitute reversible error per se. 

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Just a few days ago, I wrote about Lentini v. City of West Palm Beach, a case where the First DCA reiterated that in order to rebut the presumption of compensability afforded by §112.18(1), the so-called "Heart-Lung" bill, an employer need only present "competent substantial evidence."  After all, the statute itself says the presumption applies "unless the contrary be shown by substantial evidence" (Emphasis added).

Now comes the court's revised opinion in Butler v. City of Jacksonville, issued on motion for clarification on 5/8/2008.  The court's original opinion in this case, issued on 1/31/2008, held that the JCC had erred: (1) in failing to afford the claimant, a firefighter, the benefit of the §112.18(1) presumption for his peripheral vascular disease ("PVD"); and (2) in failing to find that the claimant's compensable disease rendered him permanently totally disabled under the criteria for disability used by the Social Security Administration. 

The revised opinion, issued in response to the employer's motion for clarification, reaches the same result and is almost identical to the original opinion with one notable exception - Judge Kahn's new concurring opinion.  Judge Kahn takes issue with these statements in the majority opinion: (1) "The presumption switches the burden of proof from the claimant to the employer and may be overcome by clear and convincing evidence that the disease was caused by a specific non-work-related event or exposure" (emphasis added); and (2) "[t]he employer did not present any evidence, let alone clear and convincing evidence, that the claimant's PVD was caused by a specific non-work-related event or exposure" (emphasis added).

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When settling a workers' compensation claim with an employee, most Florida employers - particularly if they're self-insured -  want the employee to settle not only his rights under the Florida Workers' Compensation Law, but any other kind of employment-related claim which the employee may have as well.  As Manzini & Associates, P.A. v. Broward Sheriff's Office indicates, however, all parties should take care in entering into such agreements.

The plaintiff/claimant in the case was pursuing both a civil rights claim and a workers’ compensation claim against her employer, Broward Sheriff’s Office, using two different lawyers. She eventually fired her civil rights lawyer (Manzini), however, and subsequently entered into an agreement to settle all of her claims against Broward, using her workers’ compensation lawyer. (We don’t have the general release, but you can see the motion for approval of attorney’s fees in the workers’ compensation case and the JCC’s order approving the motion here). 

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The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer.  The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries.  For example, in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991), one of the few Florida decisions to address the doctrine, an employee was allowed to sue her employer when, after the manufacture of the defective product which injured the employee, the employer merged with the manufacturer of the product. 

In Griffin, Inc. v. Loomis, Fargo & Co., however, decided on 4/23/2008, the Second DCA refused to apply the doctrine to permit a claim for contribution by a third-party tortfeasor against the employer's successor corporation.  The facts of the case are a little complicated, but here goes:

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Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding.  Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim?  Not necessariliy, said the First DCA in Myers v. Hillsborough County School Board, decided on 4/23/2008.

Myers had filed a claim for an award of PTD benefits commencing in April 2000 which the JCC denied in April 2004.  In September 2006, he filed a second claim for PTD benefits, this time commencing in September 2005.  Because the second PTD claim covered a different time period, and because the April 2004 denial "did not go to the entire merits of future disability claims," the First DCA said the second PTD claim was not barred by res judicata.

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I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims.

In Ferrell Gas v. Childers, decided on 4/7/2008, the court was more direct. Upholding the JCC's award of PTD benefits in which he considered the claimant's vocational abilities as well as his physical limitations, the court specifically compared the pre-1994 statute with the 2003 amendment governing awards of permanent total disability benefits, noting that "the pertinent language in the current version of §440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors."

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As I discussed here, one of the legislative changes enacted in 2003 concerns the issue of costs in workers' compensation litigation.  Formerly, §440.34(3) authorized an award of costs only in favor of a prevailing claimant in a workers' compensation proceeding.  The 2003 amendment to the statute, however, authorizes an award of costs in favor of the prevailing party.

Construing this amendment in Guckenberger v. Seminole County, decided on 4/23/2008, the First DCA held that the JCC could award costs in favor of the prevailing employer/servicing agent and against the non-prevailing claimant even though he had not reserved jurisdiction to do so in his final compensation order.  The claimant's challenge to the amendment on "public policy" grounds, said the court, was better addressed to the legislature.

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A pretrial order compelling discovery can be reviewed by way of petition for writ of certiorari  without waiting until the conclusion of the trial so long as the petitioner can show: (1) that the order constitutes a departure from the essential requirements of law; (2) that it would cause material harm; and (3) that the harm caused by the order cannot be adequately remedied by way of a post-trial appeal.  As with an appeal, however, the petition must be filed within 30 days of rendition of the order sought to be reviewed.  Failure to file the petition timely will result in its dismissal.  That's what happened in Caldwell v. Wal-Mart Stores, Inc., decided on 5/5/2008.  Although the petition in Caldwell was filed within 30 days of an order denying the claimant's "Motion for Reconsideration of Order Entered February 28, 2007" the First DCA concluded that the claimant's real challenge was to the February 28 order compelling him to submit to an independent medical examination with a doctor who was allegedly friendly with the insurance industry, not with the much later order denying his "motion for reconsideration."  Because the petition was filed more than 30 days from 2/28/2007, the court dismissed it as untimely.

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