JCC's 23-Month Delay in Entering Final Order Affirmed
"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.
