Transcript of I. Chair’s Report by Chair Kevin Murphy
WCRAC Agenda April 2018 Omni ChampionsGate, International Ballroom
II
I. Chair’s Report by Chair Kevin Murphy
A. Call to Order-Welcome Members and Guests!
B. Approval of Minutes (December 2017) Pg. 9
C. Internal Operating Procedures/Committee Assignments Pg. 19
D. Final Rules for Submission Pg. 25
60Q-6.115(4) (Motion Practice)
60Q-6.108(1)(g)(Filing and Service)
II. New Business
A. Proposal by Erik Grindal to 60Q- 6.108(2) Pg. 44
Presenter: Neil Ambekar
If the employer/carrier/servicing agent is not represented by
counsel, no prior petition for benefits has been filed, and the
e-
mail address for the claims representative of the
carrier/servicing agent is unknown, the good faith effort
contemplated by 440.192(4), F.S., may be effectuated by
service of a written request for benefits sent to the e-mail
address of the carrier registered with the OJCC. The written
request shall contain the name of the employee or claimant,
employer, date of injury, and if known, the claim number.
April 2018 WCRAC Agenda Page 1
B. Proposal by Neil Ambekar to 60Q- 6.107(2) Pg. 44
Presenter: Neil Ambekar
60Q- 6.107
(2) A petition or request for assignment of case number may
only be amended by written stipulation of the parties or by
order of the judge, except that changes of addresses, e-mail
addresses, or phone numbers of parties or, if represented,
their
attorneys of record can be accomplished by filing a notice of
change. The judge shall permit the employee or claimant to
amend a petition upon proper motion for good cause. For the
purposes of entitlement to attorney’s fees and/or costs, an
amended petition for benefits shall be treated as though
received by the employer, carrier or servicing agent on the
date
of amendment.
C. Proposals by Judge Hill to 60Q- 6.104, 6.108, 6.108(1)
(b),6.115, 6.116, and 6.124 (2) Pg. 51
Presenter: Chair Kevin Murphy
60Q- 6.104
(3) If an attorney intends to impose a lien for attorney fees
and/or costs following withdrawal, notification must be filed
simultaneously with the motion to withdraw or stipulation for
substitution of counsel. The notice must contain the legal
basis
in support of the lien sought, whether the lien is for
attorney
fees and/or costs, and the amount thereof.
60Q-6.108
(1)(a) All documents filed with the OJCC, except documents
filed by parties who are not represented by an attorney, shall
be
by e-filing electronic means through the OJCC website. Any
document filed in paper form by an unrepresented party by
U.S.
mail, facsimile, or delivery shall be filed only with the
OJCC
clerk in Tallahassee. Documents filed by represented parties
shall be by e-filing only. Documents shall be filed by only
one
method, e-filing, facsimile or U.S. mail and shall not be
filed
multiple times. Duplicate filings will not be docketed and
will
be destroyed.
(1)(b) Service made by a represented party’s attorney to
another
represented party’s attorney shall be by electronic mail,
facsimile, or U.S. mail. The use of electronic mail by parties
or
attorneys is approved only when the serving party or attorney
uses the opposing party’s or attorney’s e-mail address with
the
serving party using the electronic mail address the opposing
party or attorney, or their designated representative has
registered with the OJCC, as listed in e-JCC. Service by or
to
an unrepresented party shall be by electronic mail, if
available,
or by U.S. mail or facsimile. . . . When a represented party
e-
files a pleading or other paper with the OJCC, that party
must
serve the other party or parties, or their designated
representative, with a copy of that pleading or paper
simultaneously by electronic mail, if available. In the event
a
represented party files a pleading or other paper with the
OJCC
by electronic means, that party shall be required to
April 2018 WCRAC Agenda Page 3
6.108(1)(g) Any document filed electronically shall be
uploaded individually, except that exhibits, supporting
documents, and proposed order for any motion may be filed
along with the motion. In naming uploaded motions, counsel
shall specifically identify the type of motion by naming the
relief sought. In naming depositions filed electronically,
counsel shall include the deponent’s name and the date of the
deposition. If an uploaded document is specifically intended
as
a hearing exhibit at the time of filing, the name shall also
include “proposed hearing exhibit” and the date of the
scheduled hearing. All uploaded documents shall include
sufficient specificity in naming to allow identification of
the
document from the docket remark.
60Q-6.115
(2) Except for motions to dismiss for lack of prosecution, or
motions to withdraw as counsel of record, prior to filing any
motion, the movant shall personally confer . . . .
60Q-6.116(1)
(1) All parties shall diligently prosecute or defend the claim
or
petition, including but not limited to timely conducting all
necessary discovery. A required for a continuance shall be
made by motion, shall specify the reason that the continuance
is
necessary, and shall demonstrate due diligence by describing
the specific actions the moving party has taken to correct
the
circumstances alleged to be beyond the party’s control. The
April 2018 WCRAC Agenda Page 4
failure to diligently seek, schedule and complete timely
discovery, standing alone, may not constitute sufficient
reason
for continuance.
standing alone, shall not constitute circumstances beyond the
party’s control sufficient to obtain a continuance.
60Q-6.124(2)
The claimant employee and the employer/carrier/servicing
agent may stipulate to the payment of attorney’s fees and
costs.
The stipulation submitted for the judge’s approval shall be
accompanied by an attorney’s fee data sheet verified by
Claimant’s counsel and counsel for the
employer/carrier/servicing agent, and indicate with
specificity
the benefit provided that results in a
employer/carrier/servicing
agent-paid fee, the value of the benefit, and how the benefit
value was determined. The stipulation shall be accompanied by
a payout ledger documenting the benefit obtained for which
the
fee is being sought. If claimant’s counsel is seeking payment
of
a fee from the employer/carrier/servicing agent which exceeds
the statutory fee, counsel must submit an affidavit
establishing
the basis for approval of the fee. The claimant must be
provided
with notice of any stipulation providing for an
employer/carrier/servicing agent-paid fee.
III. Old Business
A. Internal Rules Committee
Current Pending Work: 60Q- 6.102(13) and 60Q-6108(2)
1st reading/Concept vote 60Q.6.102 (verified definition):
10-4-1
(13) “Verified” means sworn under oath before a notary public
that the representations contained in the verified pleading
are
true and correct.
(e) Transmitting the document by facsimile or electronic mail
Service by electronic mail on a party or attorney is only
effective if the serving party or attorney uses the opposing
party’s or attorney’s e-mail address registered with the
OJCC, as listed in e-JCC. Service of a petition for benefits
or
response to a petition for benefits sent by electronic mail
shall be effectuated, and deemed received by the opposing
party at the same time that service is effectuated, upon
electronic mailing if sent by the OJCC on behalf of the
serving party through the e-JCC program to the registered e-
mail address of the opposing party as listed in e-JCC.
Service
shall not be effected facsimile unless the pleading or paper
being served is on an emergency basis and the opposing
party, attorney or designated representative does not have an
e-mail address registered with the OJCC, as listed in e-JCC.
C. Drafting Committee #2 (60Q-6.110-6.118)
Presenter: Kevin Murphy
procedure–of live judge/eliminating VTC
1st reading/Concept vote 60Q- 6.115 (7): 9-8-0
(7) All motions requiring the taking of evidence, including,
but
not limited to, testimony and documents other than pleadings,
April 2018 WCRAC Agenda Page 6
shall plainly state so in the title of the motion.
Evidentiary
motions shall be set for hearing.
1st reading vote live judge/eliminating VTC: 17-0-0
D. Drafting Subcommittee #3 (60Q-6.119-6.128) Pg. 54 Presenter:
Kevin Murphy
Current Pending Work: 60Q-6.124(3)(a) and 60Q 6.124(4)
1st reading/concept vote: 60Q-6.124(3)(a): 13-0-0
1st reading/concept vote: 60Q 6.124(4): 14-0-0
(3) Payment of Disputed Attorney’s Fees and Costs.
(a) Any motionpetition for attorney’s fees and/or for costs
shall
be verified and filed, and shall include:
1. A statement of the facts relied on in support of the
motion petition;
(b) Within 30 days after the motionpetition is served, the
opposing party or parties shall file a verified response to
the
motionpetition, which includes a detailed recitation of all
matters which are disputed in the form outlined in
subparagraphs (3)(a)1.-6. Failure to file a timely and
specific
response to a motion petition for attorney’s fees and costs
detailing matters that are disputed shall, absent good cause,
result in acceptance of the allegations in the motion petition
as
true.
(4) Payment of Disputed Attorney’s Fees and Costs –
Appellate. Upon issuance of mandate by the appellate court in
a
matter awarding attorney’s fees, the awarded party shall
serve
and file a verified petition to determine the amount of
appellate
attorney’s fee and costs within 15 days from the date of the
order entered by the court.
April 2018 WCRAC Agenda Page 7
E. Special Drafting Subcommittee Addressing Bifurcation 60Q- 6.106
Pg. 44
Presenter: Kevin Murphy
1st reading/concept vote: 8-6-0
The judge, on the judge’s own initiative or upon the motion
of
any party, may bifurcate any proceeding to initially
adjudicate
only issues of jurisdiction, compensability,
misrepresentation,
notice, or the statute of limitations, if the judge finds
that
determination of the exact nature and amount of benefits due
to
claimant will require substantial expense and time.
IV. Next Meeting Dates
Conference August 20, 2018 8:30 a.m.-11:30 a.m. at the
Orlando
World Center Marriott Deadline for Submitting Committee
Reports
August 1, 2018. B. Discussion of Future Meetings Dates
V. Closing Remarks and Adjournment
April 2018 WCRAC Agenda Page 8
December 5, 2017 (scheduled 12:00 until 1:30 p.m.)
Telephonic Committee Meeting
Vice Chair & Secretary Wendy Loquasto Richard Eric Chait
Vice Chair Kellye A. Shoemaker Hayley Lewis Folmar (excused)
Neil A. Ambekar Jonathan Bruce Israel
Michele Tabitha Bachoon Paolo Longo, Jr. (excused)
James Francis Fee, Jr. Jodi Kay Mustoe/Middleton
Rachic Avanni Glover Peter S. Schwedock
Marissa Michelini Hoffman Mary Ann Stiles(excused)
Tracey J. Hyde Paul Neumarx White-Davis (excused)
Yvonne Patterson Gary Shepard Lesser, Bar Liaison
Michael Martin Riedhammer (excused)
I. Chair’s Report by Chair Kevin Murphy
A. Call to Order & Welcome Members & Guests: Chair Murphy
called the
meeting to order at 12:05 p.m. He welcomed new member Judge Jack
Weiss, who
was appointed to replace Judge Hill, who resigned from the
Committee. He
reminded people to identify themselves before speaking, to moot
phones, and to
not put the conference on hold in order to facilitate a good
meeting.
B. Approval of Minutes from August 2017 (pages 3-18 of agenda):
Vice
Chair/Secretary Loquasto moved to approve the minutes from the
August 7,
2017, Committee Meeting. Jim Fee seconded the motion, and it was
approved
unanimously.
April 2018 WCRAC Agenda Page 9
Page 2 of 10
agenda): Chair Murphy pointed out that the current IOP appear in
the agenda at
pages 19-22 and the Committee assignments appear at page 23-24. He
stated that
the only subcommittee change was that Judge Weiss had been
substituted for
Judge Hill on Drafting Subcommittee #2 (60Q-6.110 -6.118).
D. Final Rules for Submission (pages 25-37): Chair Murphy
summarized
that we have five rules that have been previously approved and are
now ready for
submission to the Division of Administrative Hearings, Office of
Judges of
Compensation Claims (DOAH/OJCC), but that Judge Weiss had raised
concern
about the fact that the amendments to Rule 60Q6-.125(4)(a) (pages
36-37)
inconsistently use the word “provision” and “provisions” (with an
“s”) in the first
and fourth line and that in the second and fourth lines the
amendment spells out
“Florida Statutes” while the remainder of the rules use the
abbreviated form “F.S.”
Jim Fee moved to amend the amendment to use the word
“provisions”
(with the “s”) and the abbreviation “F.S.” in both places so that
the rule will
be uniform. Tracey Hyde seconded the motion and it was passed
unanimously
without further discussion.
Chair Murphy also noted that the title to the amendment to Rule
60Q.6-123
(page 32) appears in upper and lower case, while the other rule
titles are all
uppercase.
Neil Ambekar moved to capitalize the rule title. Henry Suarez
seconded
the motion, and it passed unanimously without further
discussion.
Chair Murphy mentioned that Judge Weiss had commented that
the
amendment to Rule 60Q.6-125 speaks to section 440.32, Florida
Statutes, as
opposed to the more specific 440.32(3). Judge Weiss stated,
however, that
changing the statute to reflect subsection (3) would be a
substantive change, and
since the rule necessarily only applies to subsection (3), if the
amendment is passed
as written, then the absence of the specific subsection will have
no impact.
Consequently, Judge Weiss withdrew this comment from
consideration.
Chair Murphy asked if there was any other discussion of the final
rule
amendments. Hearing none, he stated that the Committee will proceed
with
submission of those amendments to the DOAH.
Neil Ambekar questioned whether an additional vote was required
since the
IOP are silent on submissions. Vice Chair/Secretary Loquasto
commented that the
Committee had voted at the April 2017 meeting to submit these rules
to DOAH,
April 2018 WCRAC Agenda Page 10
Page 3 of 10
that we had clarified at the August 2017 meeting that the Committee
approved the
amendments as to both content and form, and so they were ready for
submission to
DOAH without need for further vote based on the April vote.
II. Old Business
A. Internal Operating Rules Committee (page 38-39): Chair
Murphy
announced that IOP Subcommittee Chair Paolo Longo could not attend,
so this
item would be deferred until the April meeting. It was reported
that the
Subcommittee had a working draft, and Vice Chair/Secretary/IOP
Subcommittee
Member Loquasto invited submissions from others so the Subcommittee
could
consider them between now and April. Neil Ambekar suggested that a
full
Committee meeting would be needed for discussion and approval of
the new IOP.
B. Drafting Subcommittee #1 (60Q-6.101-6.109) (pages 40-48):
Chair
Murphy summarized that this Subcommittee had been tasked with
considering two
items – a definition for the term “verified” and service by fax,
and that the
Subcommittee had also addressed three other items.
Subcommittee Ambekar then reported, in reverse order, that he
had
proposed two amendments – one to adopt guidance for bifurcation in
Rule 60Q-
6.107(2) (Proposal 4 on page 43) and the other providing guidance
in Rule 60Q-
6.106 on when amendments to petitions for benefits (PFB) should be
granted
(Proposal 5 on page 43). Mr. Ambekar reported that neither of those
proposals had
passed out of Subcommittee, but he recommended that they be added
as New
Business for next year.
As to the Erik Grindal Proposal 2 (pages 42-43), which came to
the
Subcommittee by way of referral from Deputy Chief Judge
Langham,
Subcommittee Chair Ambekar would add this language to Rule
60Q-6.108(2)(g)
providing that the good-faith duty required for PFB could be
satisfied by e-mailing
a written request for benefits to the carrier’s email address
registered on the OJCC.
This proposal had likewise failed to be passed out of Subcommittee,
but Mr.
Ambekar recommended that it be added as New Business for the full
Committee’s
consideration.
As for Proposal 2 on page 42 regarding service by fax, Subcommittee
Chair
Ambekar reported that had been deadlocked in the full Committee in
August and
Chair Murphy voted to break the deadlock and send the item to the
Subcommittee
for consideration, but it did not pass out of Subcommittee.
Subcommittee Ambekar reported that Proposal 1 on pages 40-42 was
the
April 2018 WCRAC Agenda Page 11
Page 4 of 10
only one that received a majority vote by the Subcommittee and it
would add a
definition of the word “verified” to Rule 60Q-6.102 in a new
subsection (13).
Chair Murphy asked Subcommittee Chair Ambekar to provide
additional
background information for the failed proposals in event anyone on
the Committee
wanted to move to send them back to the Subcommittee with
additional guidance.
Proposal #3: Subcommittee Chair Ambekar then explained that
Mr.
Grindal’s suggestion was Proposal 3 on page 43 and it was meant to
cover the
situation in which the adjuster or appropriate fax number cannot be
found, so the
procedure would allow for service of a written request for benefits
by email on the
carrier. Mr. Ambekar suggested that Mr. Grindal’s language had been
a little
vague and that Judge Langham had referred the issue to the
Committee. Mr.
Ambekar reported that the Subcommittee did not discuss the proposal
in great
detail, but he was personally in favor of it, although he
acknowledged it might be a
matter better fit for the Legislature and statutes, as opposed to a
rule.
Bar Liaison Mikalla Davis suggested the best way to proceed is to
take a
vote so that the Committee could then report back the result of its
consideration to
the referring persons. Vice Chair/Secretary Loquasto concurred,
offering that the
Appellate Court Rules Committee also reports the result of any
outside referral
after the ACRC’s work was completed.
Based on the fact that it had been reported there had not been
much
discussion, Vice Chair/Secretary Loquasto moved that the proposal
be
referred back to the Subcommittee for an explanation as to its
action or lack
of approval. Yvonne Patterson seconded the motion, stating that it
merits
discussion.
Jim Fee offered that it should be added to New Business for April.
There
was some discussion clarifying that the Subcommittee would remain
in effect (not
be dissolved) through at least the end of the term on June 30,
2018. Mikalla Davis
suggested that the motion should have more specific directions to
the
Subcommittee.
Vice Chair Loquasto amended the motion directing the
Subcommittee
to contact Mr. Grindal and Judge Langham to clarify why the
rule
amendment is required and that the Subcommittee then consider
those
reasons. Ms. Patterson seconded the motion and it was passed
unanimously.
Chair Murphy volunteered to contact Mr. Grindal and Judge Langham
to
obtain the clarification.
Page 5 of 10
Proposal #4: Subcommittee Chair Ambekar then discussed his proposal
to
Rule 60Q-6.107 regarding guidance to the JCCs on when to allow
amendment to
PFB, which had failed out of Subcommittee. (See Proposal 4 on page
43.)
Currently, the rule allows amendment only upon written stipulation
of the parties
or order for anything other than minor changes. He believes that
there should be a
standard for when amendments should be made. Consistent with other
amendment
practice, he suggested amendment should be permitted once as a
matter of right,
but that amendments should be treated as effective on the date of
the amendment,
as opposed to retroactive to the date of the original PFB, for
attorney-fee purposes.
Mr. Ambekar commented that some JCCs related back the amendment to
the
original PFB date, which is prejudicial to employer/carriers. He
summarized that
the proposal does not eliminate language from the rule, but rather
adds language.
See page 43.
Jim Fee moved to take Proposal 4 up as New Business in April.
Michele
Bachoon seconded, and it passed unanimously.
Proposal #5: Subcommittee Chair Ambekar then discussed Proposal 5
on
pages 43-44, which would amend Rule 60Q-6.106 to provide guidance
on
bifurcation. Mr. Ambekar noted that Florida Rule of Appellate
Procedure 9.180
specifically permits nonfinal appeals of compensability,
jurisdiction and venue.
He believes there are broader issues that could be similarly
addressed by
bifurcation, such as misrepresentation and statute of limitations.
Therefore, he has
proposed the language appearing on page 43 of the agenda, which
allows the judge
to bifurcate any proceeding to adjudicate “only issues of
jurisdiction,
compensability, misrepresentation, notice, or the statute of
limitations, if the judge
finds that determination . . . will require substantial expense and
time.” Mr.
Ambekar reiterated that this proposal did not pass out of
Subcommittee.
As the proponent, Subcommittee Chair Ambekar moved to approve
the
proposal in concept. Tracey Hyde seconded the motion.
Discussion ensued with Judge Weiss stating that rule 9.180 governs
appeals
from nonfinal orders and commenting that this amendment could muddy
the waters
in that area. He also commented that parties bring the case and if
bifurcation is
brought to JCC’s attention, it can be bifurcated. If the issue is
not listed in rule
9.180 as an appealable, nonfinal order, however, it will be a
nonfinal,
nonappealable order. Vice Chair Loquasto agreed.
Subcommittee Chair Ambekar stated that his concern in making the
proposal
was not with appeals, but rather that the rules do not provide for
bifurcation at all.
We have an ad hoc system and no procedural mechanism to
bifurcate.
April 2018 WCRAC Agenda Page 13
Page 6 of 10
Judge Weiss replied that section 440.33, which addresses how claims
are
handled, provides general authority to bifurcate. He has not seen
any problem with
getting bifurcation in the past, but acknowledged that perhaps some
JCCs don’t
bifurcate because there is no rule.
Subcommittee Chair Ambekar acknowledged that he has never had
bifurcation denied when requested, but stated some JCCs are
uncomfortable about
doing so because there is no rule.
Jim Fee also commented that in his many years of practice he’s
never had
bifurcation denied, so he does not see this is a problem that calls
for a rule.
Hearing no further discussion, the vote on the motion was as
follows:
Tracey Hyde – yes
Jim Fee – no
Neil Ambekar – yes
Yvonne Patterson – yes
Henry Suarez – yes
Judge Weiss – yes
Kellye Shoemaker – no
Rachic Glover- yes
Kim Syfrett – no
Gray Sanders – yes
Marissa Hoffman – yes
Wendy Loquasto – no
Jane-Robin Wender – no
Michele Bachoon – yes
8-6 in favor of the concept no abstention.
Chair Murphy concluded that the proposal would be assigned to
a
subcommittee, and since it had already been addressed and failed in
Subcommittee
#1, he would either assign it to a special subcommittee and he
called for
volunteers. After Jim Fee mentioned that the vote appeared to be
along practice-
lines, discussion was had about the need to balance the
subcommittee. The
following members were appointed to this Ad Hoc Subcommittee on
Bifurcation:
Tracey Hyde (defense), Neil Ambekar (defense), Jim Fee (claimant),
Judge Weiss
(neutral), Gray Sanders (neutral as he does both sides), and Wendy
Loquasto
(claimant). Neil Ambekar was appointed Chair of the Subcommittee
and it was
clarified that he would permitted to vote in that capacity. Chair
Murphy directed
the Ad Hoc Subcommittee to report at the April meeting.
April 2018 WCRAC Agenda Page 14
Page 7 of 10
Proposal #1: Chair Murphy then opened discussion to proposal #1 on
page
40 to add a definition of the word “verified” to Rule 60Q-6.102 in
a new
subsection (13). This proposal was passed 4-1 by Drafting
Subcommittee #1, so
the it would be considered as a motion without the need for a
second.
Vice Chair Loquasto opened the discussion by commenting that she
did not
like the use of the word “sworn” in the proposed definition because
the term
“swear” suggests an “oath” and oath is linked to swearing to God.
She pointed out
that section 92.525, Florida Statutes, which was the source of the
definition,
provides for an oath or affirmation and that use of the term
affirmation does not
require belief in God, but does require declaration of the truth.
Ms. Loquasto
suggested that the definition be revised to say: “‘Verified’ means
made under oath
or affirmation in accordance with 92.525 . . . .”
Judge Weiss suggested that the definition could be shortened to
simply
say: “‘Verified’ is defined in accordance with 92.525, F.S.” since
the statute is
the law, and, after Ms. Loquasto agreed, he moved to change the
proposal
accordingly. Jane-Robin Wender seconded.
Discussion ensued as to whether this motion was to approve the
definition in
concept and form both, and it was clarified that the concept had
already been
approved at a previous meeting, so this was a motion to approve the
definition
form. There was also discussion that we were required to deal with
the
Subcommittee motion first and whether Subcommittee Chair Ambekar
could
accept the changed definition on behalf of the Subcommittee as a
“friendly
amendment.” Mr. Ambekar stated that the Subcommittee did not
discuss the oath
or swearing aspect and that the revised definition proposed by
Judge Weiss was
consistent with their discussions. It was established that a
majority of the
Subcommittee was present at the meeting, and they all stated they
had no objection
to the revised definition proposed by Judge Weiss (Neil Ambekar,
Michele
Bachoon, Henry Suarez, Yvonne Patterson, and Gray Sanders). There
was also
discussion about eliminating the phrase “by a person with personal
knowledge of
the matters being sworn to” and the consensus was that would affect
the credibility
of the statement and that verification was simply required so the
statement could be
considered evidence.
will be:
April 2018 WCRAC Agenda Page 15
Page 8 of 10
rule precluding fax service except in limited circumstances, which
appears on page
42, had tied 8-8 at the August meeting, but it failed to pass out
of Subcommittee.
Since there was no Subcommittee motion and none made at the meeting
to take it
up, it failed and will not be considered by the Committee.
C. Drafting Subcommittee #3 (60Q-6.119-6.128) (pages 49-58):
Chair
Murphy noted that Subcommittee #3 had two proposals recommended for
Rule
60Q-6.124 and he asked Subcommittee Chair Fee to provide a
synopsis, but also
noted that it was his preference to take both matters up for vote
at the same time.
Subcommittee Chair Fee 60Q-6.124 reported that one proposal was
to
change the all the words “motion,” as they pertain to motions for
attorney’s fees, to
“petition” in subsection (3) for consistency, since one or two had
not been
previously picked up in the change to petition. Although this is a
straightforward
amendment, the difference in language was not viewed as
detrimental, and the
consensus was to delay a vote until the other proposal was
considered.
Subcommittee Chair Fee then explained that the second proposal was
to
change the word “order” to “mandate” in subsection 6.124(4) to
clarify when
verified petitions for attorney’s fees should be filed after an
appeal. This was a
change that had been recommended by Wendy Loquasto in April 2017.
Mr. Fee
reported that the proposal had been circulated to an elite group of
appellate
practitioners for their input, their responses had been reviewed,
and the
Subcommittee felt it was prudent to send the proposal to the
Appellate Court Rules
Committee (ACRC) for its review and to be sure it would be
consistent with the
appellate rules. Vice Chair Loquasto agreed this procedural history
and
recommendation.
Chair Murphy agreed that the proposals could be readdressed in
April after
we have heard back from ACRC, and he agreed to send the proposal to
ACRC, but
asked for help with the language from Subcommittee Chair Fee and
Vice Chair
Loquasto.
Vice Chair Loquasto moved to submit the proposal to the ACRC;
Gray
Sanders seconded the motion. It passed unanimously without
further
discussion.
III. New Business
A. Judge Hill’s Proposals (page 59-61): Chair Murphy noted that we
were
now at 1:30 and out of time for this meeting.
Jim Fee made a motion to move “New Business” to the April
agenda
April 2018 WCRAC Agenda Page 16
Page 9 of 10
and Tracey Hyde seconded the motion, which passed
unanimously.
Yvonne Patterson then asked what the “New Business” was and
Chair
Murphy explained it was Judge Hill’s proposals on pages 59-61 of
the agenda.
Neil Ambekar then suggested a friendly amendment to separate
the
proposed amendment to Rule 60Q-6.108(1)(g) on pages 59-60, which
would
eliminate the sentence “If an uploaded document is specifically
intended as a
hearing exhibit at the time of filing, the name shall also include
‘proposed
hearing exhibit’ and the date of the scheduled hearing.” Judge
Weiss agreed.
The motion was then restated as Jim Fee’s motion to move New
Business to April, with Neil Ambekar’s friendly amendment to
separate Rule
60Q-6.108(1)(b) and consider that today. Tracey Hyde seconded the
motion
as stated.
Discussion ensued about whether we had lost a quorum because people
had
dropped off the call. Roll call established that the following
members were still
present:
The motion was passed unanimously.
Neil Ambekar then moved to approve the proposed amendment to
Rule
60Q6.108(1)(g), as it appears on pages 59-60 of the agenda, in both
concept
and form. Tracey Hyde seconded the motion.
Vice Chair Loquasto moved to table the issue until April because
she was
not prepared as this was a matter that had never been discussed
previously, and if
April 2018 WCRAC Agenda Page 17
Page 10 of 10
she had to vote today, she would vote no. Jim Fee agreed this had
never been
discussed.
Tracey Hyde stated that the motion had to be considered
first.
Chair Murphy clarified that this proposal was first made by Judge
Hill, in
her capacity as chair of the JCC rules committee, but Judge Weiss
was the
proponent. He explained that very few attorneys follow the rule and
he questioned
why we should have it as a rule if no one is following it. Neil
Ambekar agreed and
that the effect of the proposal would be that assistants would not
longer have to
enter this information when uploading filings.
The vote was as follows:
Yes: Michele Bachoon
No: Wendy Loquasto
Abstain: Jim Fee for the same reasons stated by Ms. Loquasto
Yvonne Patterson due to time constraints
Kim Syfrett
Chair Murphy concluded that the amendment to 60Q-6.108(1)(g)
was
approved in both concept and form and would be submitted to
DOAH.
IV. Next Meeting Dates
Chair Murphy announced that the next meeting would be on April 12,
2018,
at 5:00 p.m. during the Workers’ Compensation Forum in Orlando. He
encouraged
everyone to attend the Forum and reminded everyone that a
registration form and
hotel information were in the agenda packet at pages 62-63.
Neil Ambekar moved to adjourn, Michele Bachoon seconded, and
the
motion passed unanimously.
April 2018 WCRAC Agenda Page 18
1
THE WORKERS’ COMPENSATION RULES COMMITTEE
NATURE AND PURPOSE OF COMMITTEE
The Workers’ Compensation Rules Committee (Committee) is charged
with the duty of regular review, evaluation of the Rules of
Procedure for Workers’ Compensation Adjudications promulgated by
the Division of Administrative Hearings (DOAH) and Office of Judges
of Compensation Claims (OJCC) and assist DOAH and OJCC in the
drafting rules of Workers’ Compensation procedure “to advance
orderly and inexpensive procedures in the administration of
justice.” See, Fla. R. Jud. Admin. 2.130(b)(6).
The Committee does not perform the same role as other standing
“rules” committees of The Florida Bar. The Florida Supreme Court
has determined that it lacks jurisdiction to promulgate rules of
Workers’ Compensation procedure. See, Amendments To The Florida
Rules Of Workers’ Compensation Procedure, 29 Fla. L. Weekly S 734
(Fla. Dec. 2, 2004). Therefore, the Committee does not follow the
procedure for amending rules as set forth in Fla. R. Jud. Admin.
2.130. Instead, the Committee's primary focus is Workers’
Compensation procedural rules proposed by DOAH and OJCC.
The Committee's goal is to provide assistance to DOAH and OJCC in
drafting Workers’ Compensation procedural rules and has authority
to propose rules. The Committee is composed of experienced Workers’
Compensation practitioners.
The Committee is responsible to monitor rules changes proposed by
DOAH and OJCC and advise the Board of Governors whether the
Committee is in favor of or against the rules.
The Committee shall inform The Florida Bar and its members of
procedural rules promulgated by DOAH and OJCC.
The committee's duties with regard to “rules” are outlined below
under “Adoption of Rules.”
COMMITTEE ORGANIZATION AND MEETINGS
In accordance with Chapter 2 of the Rules Regulating The Florida
Bar (Bylaws of The Florida Bar), the Committee “shall select from
its membership such officers other than the chair and vice-chair
[who are selected by the president-elect of the Bar] as it deems
advisable and subcommittees may be designated by the chair from the
membership of the Committee.” Bylaw 2-8.2. Upon taking office, the
chair should appoint a member of the committee to serve as
recording secretary for the term of one year.
The Committee anticipates creating three standing subcommittees,
and members for each should be appointed by the new chair yearly to
serve on an annual basis. These standing committees shall be the
Drafting Subcommittee, the Law and Ethics Subcommittee and the Rule
Challenge Subcommittee. The Drafting Subcommittee will be
April 2018 WCRAC Agenda Page 19
2
responsible for drafting proposed rules and amendments to the
current DOAH rules. The Law and Ethics Subcommittee is designed to
bring to the attention of the full committee any developments in
the case law pertaining to procedural issues and to identify
ethical issues that fall within the scope of the committee's areas
of responsibility. The function of the Rule Challenge Subcommittee
is to research and consider challenging rules promulgated by DOAH
under Chapter 120.
The Committee “shall meet at such times and places as may be
designated by the chair or vice-chair.” Bylaw 2-8.2 Meetings
generally are held three times per year during annual meetings of
The Florida Bar and Workers’ Compensation Educational Conference.
The chair may determine that there is no need for the Committee to
meet. The Committee members shall have notice of each meeting. The
meetings shall be governed by Roberts Rules of Order.
The Chair shall send meeting agendas with any attachments to each
Committee member. The Committee shall file with the president and
executive director all minutes, annual reports, procedures and
recommendations. “No action, report, or recommendation of any
committee shall be binding upon The Florida Bar unless adopted and
approved by the board of governors.” Bylaw 2-8.2.
Regular Bar meetings are announced by notice and in the Bar News.
Any other meetings will be separately noticed.
ATTENDANCE AND EXCUSED ABSENCES
Members unable to attend a meeting should write to the chair and
attempt to obtain an excused absence. Attendance and participation
at meetings are noted in the minutes and may be reviewed by Bar
Presidents when they choose new members and officers for the
following years. Appointments are not effective until July of the
year appointed. Newly appointed members who attend the June meeting
before the effective date of their appointment are not allowed to
vote on committee business and may not be appointed to
subcommittees until their appointments are effective.
ADOPTION OF CODE PROVISIONS
The Committee is authorized by the Board of Governors to propose
rule amendments to DOAH and OJCC. The committee shall abide by the
following internal operating procedures for drafting and proposing
rule amendments. All matters not otherwise addressed herein shall
be governed by Roberts Rules of Order.
A. Introduction of Rule Amendments: Issues may come before the
Committee by the following means:
1. The Committee may receive notice of proposed rule amendments
from DOAH and OJCC.
April 2018 WCRAC Agenda Page 20
3
2. The Committee may advance proposed rule amendments of its own to
DOAH and OJCC. Committee members are encouraged to bring to the
attention of the chair any cases or matters deemed to be of
interest to the Committee for its discussion.
3. The Committee may entertain a non-member's request to adopt a
proposed rule amendment.
B. Appointment of Task Force and Liaisons
The chair may appoint a task force to further study specific rules
proposed by DOAH. Alternatively, the chair may appoint an
individual to further study an issue and report back to the full
committee. The chair should annually appoint one liaison to the
Judicial Administration Rules Committee, to confer with the
committee to better facilitate joint consideration of particular
matters. The chair should annually appoint one liaison each to the
Executive Council of the Workers’ Compensation Section of The
Florida Bar and to the Conference of Judges of Compensation Claims,
for the same reasons. The chair may appoint any other liaisons to
confer with other Bar committees and/or sections as deemed
appropriate.
C. Voting Procedure.
The Committee must vote on the action to be taken by the committee;
for example, to support or oppose a rule, suggest amended language,
or take no present position on the issue.
D. Policies and Procedures for Approval.
1. The committee seeks to offer a balanced, non-partisan view to
those who would consider the adoption of workers’ compensation
rules of procedure. With respect to committee-initiated proposals,
the committee will proceed carefully, actively requesting input and
comments from interested entities within and outside The Florida
Bar, before the committee finally determines whether a particular
proposal merits the committee's efforts to formally request its
adoption.
2. The procedures for approval of a committee-initiated proposal
are as follows:
a. By a two-thirds vote of those present, the committee will make
an initial determination whether the proposal is acceptable in
concept and in form. If the concept is not acceptable, the proposal
will terminate. If the concept is acceptable but the form is
unacceptable, then the proposal will be referred to a drafting
subcommittee.
b. Upon approval by a two-thirds vote of those present, to both the
concept and the form of a proposal, the committee may proceed
with
April 2018 WCRAC Agenda Page 21
4
either a formal rule challenge under Chapter 120 or the committee
may in the alternative, circulate the proposal to the bench and bar
for suggestions and comments. If a formal rule challenge is not
initiated, proposals may circulate as a composite once a year,
immediately following the June committee meeting. If a formal rule
challenge is not initiated, then upon receipt of suggestions and
comments from the bench and bar, but no later than the subsequent
January meeting, the full committee shall consider further
disposition of the proposal.
c. If the urgency of a matter so requires, these rules may be
suspended by a two-thirds vote of those present.
E. Recommendations
All recommendations approved by a majority vote shall be sent to
The Florida Bar Board of Governors.
#509721
SUBCOMMITTEE LIST
Committee Chair: Kevin S. Murphy Committee Vice-Chairs: Kellye
Shoemaker Wendy Loquasto Secretary: Wendy Loquasto
Parliamentarian/Timekeeper: Neil A. Ambekar STANDING COMMITTEES:
Drafting Committee #1 (60Q-6.101-6.109) Neil A. Ambekar (chair)
Michele Tabitha Bachoon John Paul Brooks Richard Eric Chait Henry
Suarez Paolo Longo, Jr. Yvonne Patterson Lawrence Gray Sanders
Current Pending Work: 60Q- 6.102(13) and 60Q-6108(2) Drafting
Committee #2 (60Q-6.110-6.118) Paul Neumarx White-Davis (Chair)
Michael Martin Riedhammer Kimberly J. Syfrett Jane-Robin Wender
Hayley Lewis Folmar Tracey J. Hyde Judge Marjorie Renee Hill
Current Pending Work: 60Q- 6.115 (7) and Trial/Pretrial
procedure–of live judge/eliminating VTC (no rule number) Drafting
Committee #3 (60Q-6.119-6.128) James Francis Fee, Jr. (Chair)
Jonathan Bruce Israel Marissa Michelini Hoffman Rachic Avanni
Glover Peter S. Schwedock Mary Ann Stiles Jodi Kay Mustoe Current
Pending Work: 60Q-6.124(3)(a) and 60Q 6.124(4)
April 2018 WCRAC Agenda Page 23
Special Appointed Drafting Committee #1 (60Q-6.106) Neil A. Ambekar
(chair) Tracey Hyde Jim Fee Judge Weiss Gray Sanders Wendy Loquasto
Internal rules: Paolo Longo. (Chair) Wendy Loquasto Neil Ambekar
RULES READY FOR SUBMISSION 60Q-6.115(4) Gives Judge discretion to
set hearings on motions Vote: 13-0-0 60Q-6.102(5) Amended the
definition of “Electronic filing” to include “efiling.” Vote 13-0-0
60Q-6.123(5) Amends rule regarding attorney’s costs. Vote:12-0-1
60Q- 6.125(4) Safe Harbor Vote: 9-4-0
April 2018 WCRAC Agenda Page 24
December _____, 2017
Judge David Langham Deputy Chief Judge of Compensation Claims 1180
Apalachee Parkway Suite A Tallahassee, Florida 32301-4574
david.langham@doah.state.fl.us
Dear Judge Langham:
This letter is to inform you of the recommendations of the Florida
Bar’s Workers’ Compensations Advisory Committee (“Committee”).
These recommendations are made after years of the extraordinary
effort from our volunteer Committee members that thoroughly
evaluated and study the proposal. All rule amendments are in
legislative format and enclosed to this letter and explained
below.
The Committee suggest amending 60Q- 6.115(4) (Motion Practice) to
allow hearings on parties’ motions at the discretion of the judge
instead of parties to have to demonstrate exceptional circumstances
to get a hearing for a motion. The Committee suggests this
amendment to allow more flexibility to judge to hear matters
crucial to the claim but require an evidentiary hearing to resolve
the motion. This rule amendment will help ensure impartiality,
fairness, and smooth administration of justice for parties.
The Committee also recommends amending 60Q-6.102(5) (Definitions)
to specific that efiling is the same as electronic filing. The
Committee recommends adding a definition of verified that cites to
92.525, Florida Statutes for clarity for the parties.
The Committee suggests amendments to 60Q- 6.113 (2) and (5)
(Pretrial Procedure). The first amendment is suggested to solve
undue delay at trial, making it mandatory that all lack of
specificity defenses shall be raised within 14 days of the filing
of the completed pretrial. The second amendment is to eliminate the
30-day deadline for filing pretrial when mediation is waived as
this requirement is not needed.
The Committee recommends deleting subsection (5) of 60Q-6.123 as it
is no longer necessary with current practice.
The Committee further recommends amendment to 60Q- 6.125(Sanctions)
to emphasize that 21- day safe harbor provision would apply to
motions for sanctions under 440.32, Florida Statutes as well as
motions under rule 60Q- 6.125.
Last, the Committee suggests deleting the second to last sentence
in 60Q-6.108 (1) (g). The Committee makes this recommendation as
eliminating this language will make it easer to identifying
exhibits on the docket. Propose exhibit does not designate the
content of the exhibits and is not helpful in identifying the
specific document.
April 2018 WCRAC Agenda Page 25
The Committee thanks you for your time and consideration. Please
let us know if there are any questions or concerns. Sincerely, /s/
Kevin Murphy Chair of the Worker’s Advisory Committee
April 2018 WCRAC Agenda Page 26
60Q-6.115 MOTION PRACTICE.
(1) Any request for an order or for other relief shall be by motion
and shall have a title describing the relief requested. The judge
may treat any request for relief from an unrepresented party as a
motion. All motions shall be in writing unless made on the record
during a hearing and shall fully state the relief requested and the
grounds relied upon. Any document referenced in any motion shall
either have been filed prior to the motion or be attached to the
motion.
(2) Except for motions to dismiss for lack of prosecution, prior to
filing any motion, the movant shall personally confer with the
opposing party or parties or, if represented, their attorneys of
record to attempt to amicably resolve the subject matter of the
motion. All motions shall include a statement that the movant has
personally conferred or has used good-faith efforts to confer with
all other parties or, if represented, their attorneys of record and
shall state whether any party has an objection to the motion. Any
motion filed without this certification shall be summarily
denied.
(3) A motion which is unopposed shall state why an order is
necessary to execute the parties’ agreement and shall be
accompanied by a proposed order which has a title describing the
action to be taken. The motion and proposed order shall specify the
relief being requested or ordered in reasonable detail and not
merely by reference to any other document.
(4) If the motion has not been amicably resolved, the movant shall
file the motion. When time allows, the other parties may, within 15
days of service of the written motion, file a response in
opposition. Written motions may be ruled on by the judge before the
expiration of the response period and provide for filing an
objection to the order within 10 days of the order, or the judge
shall rule after the response is filed or after the response period
has expired, based on the motion, together with any supporting or
opposing memoranda. The judge shall not may hold hearings on
motions except in exceptional circumstances and for good cause
shown in the motion or response in his or her discretion.
(5) Motions for extension of time shall be filed prior to the
expiration of the deadline sought to be extended and shall
specifically describe the good cause for the request.
(6) Motions to expedite discovery or the final hearing shall set
forth good cause and shall be served by electronic mail, facsimile,
hand delivery, or overnight
April 2018 WCRAC Agenda Page 27
delivery. Any opposition to the motion must be filed within four
days from the date
the motion is served.
April 2018 WCRAC Agenda Page 28
60Q-6.102 DEFINITIONS.
(1) “Claim” means each assertion of a legal right or benefit under
Chapter 440, F.S.
(2) “Claimant” means the person asserting a claim.
(3) “Division” means the Division of Workers’ Compensation,
Department of Financial Services.
(4) “Office of the Judges of Compensation Claims” (OJCC) means the
office within the Department of Management Services, Division of
Administrative Hearings, where the Deputy Chief Judge and judges of
compensation claims preside.
(5) “Electronic filing” (efiling) means uploaded to the appropriate
case docket using the electronic judges of compensation claims’
e-filing system (e-JCC) accessed through a link on the OJCC website
at www.jcc.state.fl.us.
(6) “Electronic signature” means that a graphic version of the
e-JCC user’s signature or “s/” followed by the e-JCC user’s
typewritten name is deemed to be the legal equivalent of the e-JCC
user’s handwritten signature.
(7) “Filed” means received by the clerk of the OJCC in
Tallahassee.
(8) “Judge” means a judge of compensation claims appointed pursuant
to Chapter 440, F.S.
(9) “Parties” may include the petitioner, claimant, employer,
carrier, servicing agent, health care provider, and division.
(10) “Petition for benefits” means a pleading invoking the
jurisdiction of the OJCC and subject to the requirements of Section
440.192(1) through (4), F.S.
(11) “Pleading” means a petition for benefits or an amended
petition, a motion, a response to a petition or a motion, a
voluntary dismissal, a voluntary agreement to provide benefits, a
pretrial stipulation, a stipulation changing the issues pending in
a case, or a notice.
April 2018 WCRAC Agenda Page 29
(13) “Verified” is defined in accordancewith 92.525, F.S.
(Final Vote on 2nd Reading (8-0-6) in August 2017. Final Vote for
Subsection (13) Vote(5)Approved by 2nd Reading (14-0-0) in December
2017)
April 2018 WCRAC Agenda Page 30
60Q-6.113 PRETRIAL PROCEDURE.
(1) A judge, on the judge’s own initiative or on the motion of any
party, may conduct status conferences or pre-hearing
conferences.
(2) The parties or, if represented, their attorneys of record shall
confer and complete a written pretrial stipulation. The claimant or
claimant’s counsel shall forward the pretrial stipulation to the
employer/carrier or their counsel, if represented, no later than 14
calendar days prior to the pretrial hearing. The employer/carrier
or their counsel shall complete their portion and return the
pretrial stipulation to the claimant or claimant’s counsel, if
represented, no later than seven calendar days prior to the
pretrial hearing. The judge may excuse any party who has complied
with filing their completed and signed portion of the pretrial
stipulation from live or telephonic attendance at the pretrial
hearing. The judge may cancel the pretrial hearing if the
stipulation is timely filed. In pretrial stipulations and at any
pretrial hearing, the parties shall:
(a) State the claims, defenses, and the date of filing of each
petition for benefits to be adjudicated at the final hearing. Any
claims that are ripe, due, and owing, and all available defenses
not raised in the pretrial stipulation are waived unless thereafter
amended by the judge for good cause shown. Any amendment,
supplement, or other filing shall only be accepted if it clarifies
the claims and/or defenses pled. Absent an agreement of the
parties, in no event shall an amendment or supplement be used to
raise a new claim or defense that could or should have been raised
when the initial pretrial stipulation was filed, unless permitted
by the judge for good cause shown. The failure to diligently seek
and obtain discovery, standing alone, does not constitute good
cause for failure to timely raise a claim or defense;
(b) State each party’s position regarding the date of accident,
jurisdiction over the subject matter and over the parties, the
injuries alleged; venue, and timely notice of the pretrial hearing
and of the final hearing;
(c) Stipulate to such facts and the admissibility of documentary
evidence as will avoid unnecessary proof;
(d) Identify all exhibits, including impeachment and rebuttal
exhibits;
(e) Identify the names, addresses, and telephone numbers of all
witnesses, including impeachment and rebuttal witnesses, and state
whether the witnesses will testify in person, by telephone, or by
deposition;
April 2018 WCRAC Agenda Page 31
(f) Exchange all available written reports of experts to be offered
at trial;
(g) Consider and determine such other matters as may aid in the
disposition of the case; and
(h) Any defense raised pursuant to Sections 440.09(4)(a) and
440.105, F.S., and any affirmative defense, must be raised with
specificity, detailing the conduct giving rise to the defense, with
leave to amend within 10 days. Objections based upon lack of
specificity shall be raised in a motion within 14 days of the
filing of the completed pretrial, or any amendments to the
pretrial, and are waived if not timely raised. Failure to plead
with specificity shall result in the striking of the defense. Any
objections/responses to the affirmative defenses must be pled with
specificity.
(3) If for any reason the written pretrial stipulation is not
completed by all parties or their counsel, if represented, as
provided in subsection 60Q-6.113(2), F.A.C., each party shall file
and serve separate proposed typewritten pretrial statements no
later than two business days prior to the pretrial hearing.
(4) Unless good cause is shown, a party’s failure to cooperate in
the preparation and filing of their portion of the joint pretrial
stipulation shall result in the imposition of appropriate
sanctions, including but not limited to the striking of claims
and/or defenses.
(5) Where mediation has been waived by the Deputy Chief Judge, the
parties shall file a pretrial stipulation that conforms to the
requirements of subsection (2) of this rule no later than 30 days
following the waiver order.
(6) Witness lists, exhibit lists, supplements, and amendments
served, and exhibits exchanged less than 30 days before the final
hearing must be approved by the judge or stipulated to by the
parties. Any amendments and supplements to the pretrial stipulation
must relate to claims and defenses pled in the initial pretrial
stipulation. In no event shall an amendment or supplement be used
to raise a new claim or defense that could or should have been
raised when the initial pretrial stipulation was filed, unless
permitted by the judge upon motion for good cause shown. The
failure to diligently seek and obtain discovery, standing alone,
does not constitute good cause for failure to timely raise a claim
or defense.
(7) The judge shall record the pretrial hearing by stenographic or
electronic means at the request of any party.
April 2018 WCRAC Agenda Page 32
(8) No discovery shall be permitted within 10 calendar days of the
final hearing absent prior approval by the judge for good cause
shown or by agreement of the parties.
(Final Vote on 2nd Reading (13-0-0) in August 2017
April 2018 WCRAC Agenda Page 33
60Q-6.123 Settlements Under Section 440.20(11), Florida Statutes.
SETTLEMENTS UNDER SECTION 440.20(11), FLORIDA STATUTES
(1) Settlements under Section 440.20(11)(a) or (b), F.S., involving
unrepresented claimants.
(a) When a joint petition signed by the parties is filed pursuant
to Section 440.20(11)(a) or (b), F.S., it shall be accompanied
by:
1. The settlement stipulation executed by any attorneys of record
and the employee or claimant;
2. A copy of any prior joint petition and order if indemnity
benefits were previously settled, or, if unavailable, an affidavit
from the claimant that indemnity was previously settled;
3. A summary or payout sheet indicating total indemnity and medical
benefits previously paid, including impairment income
benefits;
4. The employee’s current work status and other sources of income,
if not addressed in the joint stipulation;
5. A status statement from the OJCC or such other source as
designated by the Deputy Chief Judge regarding any child support
arrearage balance according to Department of Revenue records, and a
status statement regarding any child support arrearage balance
according to the Florida Clerks of the Circuit and County Courts,
as to whether the claimant has or owes any child support arrearage
and, if so, the amount thereof;
6. If the claimant is not a Florida resident, or was not a Florida
resident on the date of accident, the judge may require the
substantial equivalent of the status statements in subparagraph
(1)(a)5. from the equivalent authorities in the state or county of
residence at either the time of settlement or on the date of
accident;
7. A sworn statement by the employee that all existing child
support obligations have been disclosed in the joint
petition;
8. A letter or statement in the settlement stipulation from counsel
stating that the carrier will issue a check in the amount of the
arrearage or such other amount to be approved by the judge and that
the check will be sent to
April 2018 WCRAC Agenda Page 34
the Department of Revenue or the Florida Clerks of the Circuit and
County Courts, Central Depository;
9. Any other documents in the possession of the parties or their
attorneys, including any prior attorney’s fee lien, that is
material to the disposition of the settlement;
10. For settlements under Section 440.20(11)(a), F.S., the
notice(s) of denial; and
11. For settlements under Section 440.20(11)(b), F.S., the required
notice to the employer, a maximum medical improvement report
establishing the date of overall physical maximum medical
improvement and psychiatric maximum medical improvement if the
latter applies, permanent impairment rating, information concerning
the need for future medical care and an estimate of the cost of
future medical care, or an explanation as to why an estimate cannot
be reasonably obtained, and other essential medical
information.
(b) The date and description of all accidents/injuries included in
the settlement must be specified.
(c) Language regarding a general release of all liability or claims
shall not be included, and no such general release or separate
releases shall be attached.
(d) For settlements under Section 440.20(11)(a), F.S., and when a
hearing is deemed necessary by the judge for settlements under
Section 440.20(11)(b), F.S., the attorney for the employer/carrier
shall contact the judge to schedule a hearing date and shall
promptly notify the claimant of the hearing date, time, and
location.
(2) Settlements under Section 440.20(11)(c), (d), and (e),
F.S.
(a) When a motion for approval of attorney’s fees and child support
allocation is filed pursuant to Section 440.20(11)(c), (d), or (e),
F.S., it shall be signed by the claimant and the claimant’s
attorney, furnished to all other parties, and contain:
1. A statement that the parties have reached a total settlement of
the case;
April 2018 WCRAC Agenda Page 35
2. The total monetary amount of the settlement payable by the
employer/carrier;
3. The amount of attorney’s fees and costs agreed to and payable by
the claimant pursuant to the contract of representation and the net
settlement proceeds to be disbursed to the claimant;
4. The amount of child support arrearages, if any, owed by the
claimant, together with the amount of child support allocation the
claimant requests be deducted from the settlement proceeds, after
fees and costs, and the attorney responsible to remit the same to
the appropriate child support repository;
5. An attorney’s fee data sheet setting forth the benefits obtained
by claimant’s counsel and the value of those benefits, and,
depending upon the date of accident and the type of benefit
involved, should the claimant’s attorney seek a fee in excess of
the statutory percentage, an affidavit specifying the particular
statutory criteria forming the basis for the variance;
6. A status statement from the OJCC or such other source as
designated by the Deputy Chief Judge regarding any child support
arrearage balance according to the Department of Revenue records,
and a status statement regarding any child support arrearage
balance according to the Florida Clerks of the Circuit and County
Courts, as to whether the claimant has an arrearage or owes past
due child support and, if so, the amount thereof; a sworn statement
by the employee that all existing child support obligations have
been disclosed in the joint petition; and a letter from counsel
stating that the carrier will issue a check in the amount of the
arrearage and/or past due child support or such other amount to be
approved by the judge or that claimant’s counsel will deposit the
settlement proceeds in a trust account and will issue a check in
the amount of the arrearage and/or past due child support or such
other amount to be approved by the judge and that the check will be
sent to the Department of Revenue or the Clerk of the Circuit and
County Courts, Central Depository;
7. If the claimant is not a Florida resident, or was not a Florida
resident on the date of accident, the judge may require the
substantial equivalent of the status statements in subparagraph
(2)(a)6. from the equivalent authorities in the state or county of
residence at either the time of settlement or on the date of
accident; and
8. The OJCC may obtain child support arrearage data from the
Florida Department of Revenue and the Clerk of the various Circuit
and County Courts.
April 2018 WCRAC Agenda Page 36
The OJCC shall list the counties for which such information is
available to the OJCC on the internet. For those agencies/counties
listed, parties may obtain child support arrearage information
through written inquiry to the OJCC.
(3) No hearing shall be held except as deemed necessary by the
judge.
(4) Settlement approval when more than one current support order
exists. When more than one current support order exists, the judge
may approve a proposed settlement only if:
(a) It provides for an equitable share of settlement proceeds;
and
(b) The allocation shall be prorated in accord with Section
61.1301(4)(c), F.S.
(5) The judge shall consider the disclosed costs to the extent
necessary to determine they do not include the attorney’s overhead
or other fees. A claim for cost reimbursement in the amount of $250
or less shall not be set forth with specificity or detail.
Final Vote on 2nd Reading (12-0-1) in August 2017
April 2018 WCRAC Agenda Page 37
60Q-6.125 SANCTIONS.
(1) Generally. Failure to comply with the provisions of these rules
or any order of the judge may subject a party or attorney to one or
more of the following sanctions: striking of claims, petitions,
defenses, or pleadings; imposition of costs or attorney’s fees; or
such other sanctions as the judge may deem appropriate.
(2) Representations to the Judge. By filing a pleading or other
document or presenting argument before the judge at hearing, an
attorney or unrepresented party is certifying to the best of that
person’s knowledge, information, and belief, formed after inquiry
reasonable under the circumstances, that:
(a) It is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the
cost of litigation;
(b) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a non-frivolous argument for the
extension, modification, or reversal of existing law or the
establishment of a new law;
(c) The allegations and other factual contentions are true and have
evidentiary support or, if specifically so identified, are likely
to have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(d) The denials of factual contentions are true and warranted on
the evidence or, if specifically so identified, are reasonably
based on a lack of information or belief.
(3) Determination of Violation. If, after notice and a reasonable
opportunity to respond, the judge determines that subsection (2)
has been violated, the judge may impose an appropriate
sanction.
(4) How Initiated.
(a) A motion for sanctions under this rule or under the provisions
of section 440.32, F.S., shall be made separately from other
motions or requests and shall describe the specific conduct alleged
to violate subsection (2) or the provisions of section 440.32, F.S.
It shall be served but shall not be filed unless the challenged
paper, claim, defense, allegation, or denial is not withdrawn or
appropriately corrected within 21 days after service of the motion.
If warranted, the judge may award to the party prevailing on the
motion the cost of the proceeding and attorney’s fees incurred in
presenting or opposing the motion.
April 2018 WCRAC Agenda Page 38
(b) On his or her own initiative, the judge may enter an order
describing the specific conduct that appears to violate subsection
(2) and directing an attorney or party to show cause why sanctions
should not be imposed.
(5) Nature of Sanctions.
(a) A sanction imposed for violation of these rules shall be
limited to what is sufficient to deter repetition of such conduct
or comparable conduct by others similarly situated. Penalties,
fees, and costs awarded under this provision may not be recouped
from the party unless the party has committed the violation.
(b) Monetary sanctions may not be awarded against a represented
party for a violation of paragraph (2)(b).
(6) Order. Any order imposing sanctions shall describe the conduct
determined to constitute a violation of the rule and explain the
basis for the sanction imposed.
Final Vote on 2nd Reading (9-4-0) in August 2017
April 2018 WCRAC Agenda Page 39
60Q-6.108 FILING AND SERVICE
(1) Filing.
(a) All documents filed with the OJCC, except documents filed by
parties who are not represented by an attorney, shall be filed by
electronic means through the OJCC website. Any document filed in
paper form by U.S. mail, facsimile, or delivery shall be filed only
with the OJCC clerk in Tallahassee. Documents shall be filed by
only one method, e-filing, facsimile, or U.S. mail, and shall not
be filed multiple times. Duplicate filings will not be docketed and
will be destroyed.
(b) Any pleading or other paper filed in a proceeding shall be
served on all other parties or, if represented, their attorneys of
record at the time the document is filed. Petitions for benefits
shall be served on the parties as provided in Section 440.192(1),
F.S., and copies of the petitions shall be served on counsel for
the opposing parties, if known, at the time the petition is filed
as provided in this rule. Service shall be by electronic mail,
facsimile, or U.S. mail. The use of electronic mail by parties or
attorneys is approved only when the serving party or attorney uses
the opposing party’s or attorney’s e-mail address registered with
the OJCC, as listed in e-JCC. Electronic mail sent by the OJCC on
behalf of the serving party through the e-JCC program shall be the
only approved alternative to certified U.S. mail for service of
petitions for benefits and responses to petitions for benefits. In
the event a represented party files a pleading or other paper with
the OJCC by electronic means, that party shall be required to serve
the other party or parties, or their designated representative,
with a copy of that pleading or paper simultaneously by electronic
means, if available.
(c) The following documents shall not be filed with the OJCC unless
relevant to an issue to be heard and not more than 10 days but at
least two days before the scheduled hearing: requests or notices to
produce and objections or responses thereto, deposition
transcripts, correspondence between counsel or parties,
correspondence to the judge or the judge’s staff, subpoenas and
returns of service.
(d) Except for filing using e-JCC, electronic mail or facsimile of
documents to the judge shall be used only when the judge authorizes
such use for that document; otherwise, the document will not be
considered.
April 2018 WCRAC Agenda Page 40
(e) Any document, whether filed by electronic or other means,
received by the OJCC after 5:00 p.m. shall be deemed filed as of
8:00 a.m. on the next regular business day.
(f) Any attorney, party, or other person who electronically files
any document shall be responsible for any delay, disruption,
interruption of the electronic signals, and readability of the
document, and accepts the full risk that the document may not be
properly filed as a result.
(g) Any document filed electronically shall be uploaded
individually, except that exhibits, supporting documents, and
proposed orders for any motion may be filed along with the motion.
In naming uploaded motions, counsel shall specifically identify the
type of motion by naming the relief sought. In naming depositions
filed electronically, counsel shall include the deponent’s name and
the date of the deposition. If an uploaded document is specifically
intended as a hearing exhibit at the time of filing, the name shall
also include “proposed hearing exhibit” and the date of the
scheduled hearing. All uploaded documents shall include sufficient
specificity in naming to allow identification of the document from
the docket remark.
(h) If a document is filed in error using e-JCC, the filing party
shall file the document in the correct case docket and separately
file a notice of the error in the case that contains the
erroneously-filed document.
(i) The clerk of the OJCC shall, upon order of the assigned judge,
place a document under seal and render it thereby viewable only
upon further order of the assigned judge.
(2) Service. Service is effectuated by:
(a) Handing the document to the party or, if represented, the
party’s attorney of record;
(b) Leaving the document at the attorney’s office with a clerk or
other person in charge or leaving it in a conspicuous place in the
office;
(c) If the office is closed or the person to be served has no
office, leaving the document at the person’s residence with a
member of the person’s family above 15 years of age and informing
that person of the contents;
April 2018 WCRAC Agenda Page 41
(d) Placing the document in the U.S. mail, except when the original
pleading or paper was filed with the OJCC by electronic means, in
which case simultaneous electronic service on the other party or
parties must be made, as referenced in paragraph (1)(b) above;
or
(e) Transmitting the document by facsimile or electronic mail.
Service by electronic mail on a party or attorney is only effective
if the serving party or attorney uses the opposing party’s or
attorney’s e-mail address registered with the OJCC, as listed in
e-JCC. Service of a petition for benefits or response to a petition
for benefits sent by electronic mail shall be effectuated, and
deemed received by the opposing party at the same time that service
is effectuated, upon electronic mailing if sent by the OJCC on
behalf of the serving party through the e-JCC program to the
registered e-mail address of the opposing party as listed in
e-JCC.
(f) All documents served by e-mail must be attached to an e-mail
message containing the subject line beginning with the words
“SERVICE OF OJCC DOCUMENT” in all capital letters followed by the
name of the injured worker, employer, and OJCC number, if
any.
(3) Service by delivery, facsimile, or electronic mail after 5:00
p.m. shall be deemed to have been made on the next day that is not
a Saturday, Sunday, or legal holiday.
(4) When service is made by U.S. mail, the copy shall be mailed
postage prepaid, to the last known address of the party or, if
represented, the party’s attorney of record.
(5) Service by U.S. mail shall be complete upon mailing.
(6) When service of any pleading other than a petition is made by
U.S. mail, five days shall be added after the period allowed for
the performance of any act required to be done, or allowed to be
done, within a certain time after service. When service is made by
any electronic delivery method or by hand delivery, no additional
time shall be added.
(7) All orders shall be electronically filed with the OJCC in
Tallahassee on the same day that the order is transmitted to the
parties by electronic mail or U.S. mail.
(8) All attorneys filing documents in workers’ compensation
proceedings before the OJCC shall register to use the e-JCC
electronic filing system. Each such
April 2018 WCRAC Agenda Page 42
attorney shall register an e-mail address and thereby consent to
receive documents from other counsel and the OJCC at that address.
Each attorney shall be responsible for amending that e-mail address
as necessary for it to remain current.
(9) Only attorneys, mediators, adjusters, and parties are permitted
to register with the e-JCC system.
(10) The OJCC will maintain a list of all e-JCC registrants and
their e-mail addresses.
(11) All employers, self-insurers, third-party administrators, and
carriers shall register a single, general delivery, e-mail address
with the OJCC for receipt of all electronically served documents,
including petitions for benefits. All employers, self-insurers,
third-party administrators, and carriers shall register a single,
general delivery U.S. Mail address and a single telephone number
with the OJCC. The e- JCC system will maintain a list of all
registered companies, and their e-mail addresses. Each such
self-insurers, third-party administrators, and carrier shall be
responsible for amending that e-mail address as necessary for it to
remain current.
(12) Any other party may register an e-mail address with the
OJCC.
(13) The OJCC will maintain a list of all registered parties and
counsel and their respective e-mail addresses.
Final Vote on 2nd Reading (7-1-3) in December 2017
April 2018 WCRAC Agenda Page 43
From: Neil A. Ambekar To: Kevin Stuart Murphy Cc:
KSB@shoemakerandshoemaker.com; Paolo Longo Jr.; Yvonne Patterson;
Michele Bachoon; John Paul Brooks;
Richard Eric Chait; Henry Suarez; Lawrence Gray Sanders; Davis,
Mikalla Subject: RE: Workers" Compensation Rules Advisory Committee
- Drafting Committee 1 Date: Tuesday, November 21, 2017 6:40:48 PM
Attachments: image79a069.PNG
Good evening, Kevin.
I received five ballots, from Kellye, Paolo, Michelle, Richard and
Henry.
For proposal 1 (defining “verified”), there were four votes in
favor and one opposed. For proposal 2 (governing fax service), two
in favor, three opposed. For proposal 3 (service of pre-PFB good
faith communication), there were two in favor, three opposed. For
proposal 4 (amending PFBs), two in favor, three opposed. For
proposal 5 (bifurcation), there were two in favor, three
opposed.
Only proposal 1 garnered a majority of votes cast. Interestingly,
only two ballots were identical. I did note vote since there were
no ties. I counted Yvonne, John and Gray (who I received an
out-of-office message from) as abstentions.
The subcommittee therefore proposes that the following amendment be
put to the full committee for a vote.
Fla. Admin. Code R. 60Q-6.102, is amended to include the
following:
(13) “Verified” means sworn in accordance with 92.525, F.S., by a
person with personal knowledge of the matters being sworn to.
The original proposal from Judge Hill was substantially
different:
(13) “Verified” means sworn under oath before a notary public that
the representations contained in the verified pleading are true and
correct.
The original proposal was tabled at the April meeting, and never
voted on. My recollection is that the proposal was then approved in
concept but not form at the August meeting, so the full committee
would only need to vote on the new form.
One person who voted no to proposals 4 and 5 expressed interest in
having further discussion on those proposals. Perhaps we can
include these in the agenda for discussion, to see if they merit
further work in subcommittee.
Thank you for appointing me to chair this subcommittee.
April 2018 WCRAC Agenda Page 44
www.csklegal.com
Drafting Subcommittee 1 Members:
Good morning, all. The debate seems to have died after a few
spirited days, and we need to report back shortly so our proposals
can reach the agenda for the upcoming full committee meeting. As
such, I am proposing three amendments, and we can just have a
straight up-or-down vote on them. If you would like to offer
alternative language, that is fine too, but please vote on the
current proposal in case we do not have time to address the
alternative(s). Once we’ve voted, I will put any proposed
amendments in legislative format (i.e. underlining and
strike-throughs) for the full committee to consider, assuming
enough votes are garnered.
Please vote via email by the end of today, as the agenda will need
to be prepared tomorrow. If I have not heard from you by 6 p.m.
today you will be counted as an abstention. There are five
proposals to be voted on.
Proposal 1: This is a proposal to adopt a definition for
“verified.” The term is used in several rules
April 2018 WCRAC Agenda Page 45
without further definition, most notably 6.105(4) (motions for
assignment of substitute identification number must be verified),
and 6.124(3) (motion/petitions for attorney’s fees and responses
must be verified). There is no existing language being amended;
this proposal creates a new subsection, 6.102(13). I propose the
following language:
“Verified” means sworn in accordance with 92.525, F.S., by a person
with personal knowledge of the matters being sworn to.
Arguably, the statute already governs the method of verification
since the 60Q rules do not limit the methods of verification. It is
important to note that verification can be accomplished without
notarization under the statute – either by oath or affirmation
before a law enforcement or corrections officer, or by the
inclusion of language alluding to perjury. I had originally
included “by a party, or if represented, the party’s attorney of
record,” but that would potentially exclude affidavits from
treating providers, claimants’ spouses, and so forth, which might
be relevant to a motion.
Proposal 2: This is a proposal to amend 6.108(2) to limit the
circumstances in which facsimile transmission may be used to serve
documents. We have discussed this at length, and the full committee
previously deadlocked on the proposal to add “Service shall not be
effected facsimile unless the pleading or paper being served is on
an emergency basis and the opposing party, attorney or designated
representative does not have an e-mail address registered with the
OJCC, as listed in e-JCC.” As such, I am suggesting a slightly
looser variant, in which the requirement for an emergency is
removed, and the rule applies only to documents which are actually
filed. Discovery requests, letters and so on could still be faxed
under this amendment; motions could not. Judge Hill’s original
suggestion is in the email copied below. The current proposal on
which we are voting is:
(e) Transmitting the document by facsimile or electronic mail.
Service by electronic mail on a party or attorney is only effective
if the serving party or attorney uses the opposing party’s or
attorney’s e-mail address registered with the OJCC, as listed in
e-JCC. Service of a petition for benefits or response to a petition
for benefits sent by electronic mail shall be effectuated, and
deemed received by the opposing party at the same time that service
is effectuated, upon electronic mailing if sent by the OJCC on
behalf of the serving party through the e-JCC program to the
registered e-mail address of the opposing party as listed in e-JCC.
Service shall not be effected via facsimile unless the opposing
party, attorney or designated representative does not have an
e-mail address registered with the OJCC, or the document has not
been filed.
Proposal 3: After thinking about it, I am not sure that Erik
Grindal’s proposal would not be better directed to the legislature.
The PFB good faith requirement is not addressed elsewhere in our
rules, but only in 440.192. I think it is unlikely that any JCC
would find that service of a written request for benefits using the
carrier’s registered e-JCC email would not meet the requirements of
the statute. Moreover, the rule would apply to matters not yet
within the JCC’s jurisdiction with regard to an initial request for
benefits. Having said all that, I think we should at least vote on
the proposal. However, to me this is an entirely new rule since
none of the other rules apply to the pre-PFB good faith
requirement. However, lacking a better place to put it, this would
seem to fit best as a new subsection in 6.108(2), to be numbered
(g). I am modifying the proposed language slightly (Erik’s
April 2018 WCRAC Agenda Page 46
original proposal is in my original email below) as I feel it is
somewhat overbroad. Again, this is new language, rather than an
amendment to an existing rule. The proposed language on which we
are voting is:
If the employer/carrier/servicing agent is not represented by
counsel, no prior petition for benefits has been filed, and the
e-mail address for the claims representative of the
carrier/servicing agent is unknown, the good faith effort
contemplated by 440.192(4), F.S., may be effectuated by service of
a written request for benefits sent to the e-mail address of the
carrier registered with the OJCC. The written request shall contain
the name of the employee or claimant, employer, date of injury, and
if known, the claim number.
Proposal 4: This is my own suggested amendment to 6.107 to provide
guidance to JCCs on when amendments to PFBs should be permitted. To
me, there’s no reason why this rule shouldn’t track the other
amendment rules and case law. Proposed language for voting
is:
(2) A petition or request for assignment of case number may only be
amended by written stipulation of the parties or by order of the
judge, except that changes of addresses, e- mail addresses, or
phone numbers of parties or, if represented, their attorneys of
record can be accomplished by filing a notice of change. The judge
shall permit the employee or claimant to amend a petition upon
proper motion for good cause. For the purposes of entitlement to
attorney’s fees and/or costs, an amended petition for benefits
shall be treated as though received by the employer, carrier or
servicing agent on the date of amendment.
Proposal 5: This is my own suggested amendment to 6.106 to provide
guidance on bifurcation (I put it here since 6.106 already
addresses consolidation). This language tracks the consolidation
language and that of appellate rule 9.180 regarding appeal of
nonfinal orders, except that 9.180 only mentions jurisdiction,
venue and compensability. I have yet to see a case where venue was
still at issue by the time of the merits hearing, so I don’t think
it’s necessary for that to be included. The language to be voted
on:
The judge, on the judge’s own initiative or upon the motion of any
party, may bifurcate any proceeding to initially adjudicate only
issues of jurisdiction, compensability, misrepresentation, notice,
or the statute of limitations, if the judge finds that
determination of the exact nature and amount of benefits due to
claimant will require substantial expense and time.
Please review and email me your votes (either yes or no) on whether
to approve the submission of each amendment to the full committee,
in the format “proposal no., vote.” For example:
1. Yes 2. No 3. Yes 4. Yes
April 2018 WCRAC Agenda Page 47
5. Abstain
Please put your votes at the top of the email, with any commentary
or suggestions afterwards. Please note that our votes merely send
the new language to the full committee for consideration; this is
not final action which will be submitted to Judge Langham.
Our current internal operating procedures do not specify a quorum,
nor whether a supermajority is required for subcommittee action. As
such, I am exercising discretion as chair of the subcommittee and
deeming a simple majority of those voting to be sufficient.
However, we will need at least four members voting to make a
quorum; as noted above, non-votes will be counted as abstentions.
As chair, I am not voting except in the event of a tie, so we have
seven voting members.
Thank you, and I look forward to your feedback.
-Neil
Good afternoon, everyone, and please pardon any interruption.
If you are receiving this, you have been assigned to drafting
subcommittee 1, and I have the inestimable (really) honor of
serving as your subcommittee chair. We have been assigned
subsections 6.101 through 109 of the Q Rules. As you may recall,
there are two working proposals from the last general committee
meeting which we are specifically tasked with addressing.
First, the committee voted in principle to adopt a new definition
of “verified” as used in Rule 60Q- 6.102(13). During the meeting,
it was mentioned (by Gray Sanders, possibly?) that this is arguably
addressed by §92.525, Fla. Stat. (link). By its own terms, the
statute encompasses verification if required by rule of an
administrative agency (such as the OJCC). As such, my inclination
is that we should simply adopt the language of the statute by
reference.
More importantly, at least in my view, we had an 8-8 tie on a vote
to remove service by fax under Rule 60Q-6.108. The existing rule
reads is as follows, with the proposed addition underlined:
6.108(2) Service
(e) Transmitting the document by facsimile or electronic mail.
Service by electronic mail on a party or attorney is only effective
if the serving party or attorney uses the opposing party’s or
attorney’s e-mail address registered with the OJCC, as listed in
e-JCC. Service of a petition for benefits or response to a petition
for benefits sent by electronic mail shall be effectuated, and
deemed received by the opposing party at the same time that service
is effectuated, upon electronic mailing if sent by the OJCC on
behalf of the serving party through the e-JCC program to the
registered e-mail address of the opposing party as listed in e-JCC.
Service shall not be effected facsimile unless the pleading or
paper being served is on an emergency basis and the opposing party,
attorney or designated representative does not have an e-mail
address registered with the OJCC, as listed in e-JCC.
I believe this w