Effective November 1, 2006 amendments to the Florida Administrative Code went into effect as it relates to the Workers’ Compensation Rules of Procedure.
Although there were many minor changes, the following is a list of the more major changes that must be complied with as well as an analysis as to its effect on the litigation process. A complete copy of the new rules can be obtained from our web site, www.rossvecchio.com, under Links & Resources.
New Rules In Effect:
60Q-6.103(2) – Exempt Information.
This subsection was changed completely. Subsection (2) now provides that no pleading shall contain information exempt from public records, with the exception that the social security number or equivalent thereto must be contained on the Petition for Benefits. Exempt information shall only be provided if necessary to the judge’s determination of a disputed matter, and shall be appended to a pleading in a separate document conspicuously marked “Exempt Information.”
What this means: This means that all pleadings must be void of the claimant’s social security number or other identification numbers. Other exempt information should be removed as well, including but not limited to the claimant’s date of birth. Failure to comply with this provision may result in sanctions.
60Q-6.105 – Commencing a Case; Subsequent Petitions.
This rule underwent significant changes. Subsection (1) previously read that a party commenced a case by filing a petition for benefits. Under the new rule it reads that an Employee or claimant seeking an award of benefits commences a new case by filing a petition for benefits.
What this means: The rule as it was previously written allowed for any party to commence an action by filing a Petition for Benefits. The rule as amended now limits the ability to commence an action to the employee/claimant who is seeking a benefit. This removes the ability for an employer, carrier, health care provider and the division from filing their own Petitions seeking determination of certain issues.
Subsection (4) previously required all petitions, whether initial or subsequent, to contain all known claims which are ripe, due, or owing on the date the petition is filed. This language has been deleted completely from the rules. This subsection now reads that an employee or claimant who asserts he or she cannot provide a social security number or who asserts a legal basis for refusing to provide one, shall file a verified motion for assignment of a substitute identification number along with the initial petition or request for case number.
What this means: This new rule will limit the amount of fraud defenses raised on identification issues.
60Q-6.111 – Authority of Mediators.
Subsection (1)(C) contains the only significant change. Previously Subsection (1)(c) merely read that phone appearances were at the discretion of the mediator; it now requires a request to appear via phone no fewer than 5 days prior to the mediation conference.
What this means: As the rule is written now, the mediator technically cannot grant permission to appear via phone with less than 5 days’ notice. Even if the mediator grants permission to appear via phone with less than 5 days’ notice, opposing counsel can still object and request sanctions, as the appearance was not in accordance with this Rule.
60Q-6.113 – Pretrial Procedure.
There were only two changes in this rule. Subsection (2) now applies to both pretrial stipulations and conferences. Subsection (3) has been changed to now state that the pretrial stipulation must be filed no later than 30 days after the order waiving mediation is entered.
What this means: The change to subsection (2) has no effect, as the process was already in practice. However, the new subsection (3) does change procedure in requiring parties who waive mediation to file their pretrial stipulations within thirty days of the order waiving mediation rather than 30 days prior to trial.
60Q-6.114 – Discovery.
Several significant changes were made to this rule. Provisions dealing with depositions previously in subsection (1) have been moved to subsection (2). Subsection (1) now holds that any party may commence with discovery methods specifically authorized by Statute and Rule prior to invoking the jurisdiction of the judge. This includes depositions.
What this means: Previously there was nothing in the rules that allowed for pre-petition discovery, and claimant attorneys would either fail to comply or demand fees for participating. Although it is likely claimant’s counsel will still demand attorney fees for having to attend pre-petition depositions, this new rule specifically requires compliance and is silent as to attorney fee entitlement. Therefore, it could be argued that no fees would be due for pre-petition discovery. Further, previously there was no recourse if a party didn’t comply with pre-petition discovery requests. As the rule is amended any party may now be able to invoke the jurisdiction of the judge to force compliance with pre-petition discovery under this rule. In the alternative, a party may be able to raise additional claims or defenses once a petition is filed if that party refused or failed to comply with discovery requests.
Subsection (2)(b) was amended to no longer allow for waiver of physical presence to swear in a deponent who is appearing via phone.
What this means: This provision merely requires an extra step for any telephone deposition. Rather than allowing a deponent to be in a different location than a court reporter, the court reporter will now have to be in the physical presence of the deponent or a notary will have to be at the deponent’s location to swear the witness in.
Subsection (4) was changed completely, as it previously dealt with surveillance and specifically allowed for surveillance to be withheld until a party intended to use it for trial. The rule is now silent as to surveillance requests.
What this means: The effect of the removal of the surveillance provision is speculative. Defense will argue that the information is privileged and that case law still supports that contention. However, claimants will likely argue that by removing this rule, the legislature specifically intended surveillance to be available upon request.
60Q-6.115 – Motion Practice.
Subsection (2) previously required all parties to make a good-faith effort to personally confer prior to the filing of a motion. The new language excludes the need to make that effort on motions to dismiss for lack of prosecution.
What this means: Although the previous rule did not exempt motions for lack of prosecution, judges did not require a party to confer prior to the filing of said motion. This is because it would put a party on notice of a potential dismissal and allow them an opportunity to “correct” the defect, thereby making the motion moot and prejudicing the other party. Therefore, this rule was merely amended to conform to practice.
Subsection (3) was replaced completely. The new subsection now holds that if a motion is unopposed, it shall specify the relief being requested in reasonable detail, not by referring to another document, and why an order is necessary.
What this means: This rule was likely created to reduce the need for court appearances. This was also a practice already in effect. Therefore, the rule appears to have been created to conform to existing practice.
Subsection (4) – Previously the rule allowed for only 7 days upon service of the motion to file a response; it now allows for 10 days. The new rule also holds that if a hearing is not scheduled within 14 days following the 10-day response period, then the request for a hearing is deemed withdrawn.
What this means: The change in this rule allows for 3 additional days to provide a response to motions. This is helpful if a carrier has yet to hire counsel. It also disposes of motions not set for hearing within 14 days, limiting the time in which motions can be considered outstanding.
60Q-6.116 – Prosecution of Claims and Petitions for Benefits.
Subsection (4), which allows testimony to be taken via telephone, now requires the oath to be administered in the physical presence of the witness. The parties can no longer waive this requirement.
What this means: Previously the judge could administer the oath to a witness appearing via phone. As a result of this rule change, a party will have to arrange for a notary or other duly authorized officer of the court to be in the presence of the witness to administer the oath.
Subsection (6) was added and requires any attorney or claimant who filed a petition to file a pleading with the judge in order to cancel the corresponding final hearing. The pleading must indicate the manner in which each issue was resolved.
Subsection (7) was added and requires each party to submit a trial memorandum and all evidence at least two full business days prior to the final hearing.
What this means: Subsection (6) was likely added as a housekeeping measure to ensure that the Court is informed as to how issues have been resolved and to prevent litigation of issues that were previously resolved or withdrawn. Subsection (7) merely puts into writing what the judges already require.
60Q-6.118 – Expedited Hearings.
Subsection (3) was amended to Subsection (4). Subsection (3) now holds that no mediation conference and pretrial hearing shall be held unless requested in writing within 10 days of service of the notice of the expedited hearing.
What this means: This provision merely limits the ability to force a party to a mediation or hearing.
60Q-6.120 – Summary Final Order.
Subsection (2) now limits the time to file a motion for summary final order to no less than 45 days prior to a final merits hearing. Subsection (3) was amended to require the opposing party to file a response within 30 days of service of the motion. Subsections (3) and (4) were moved to subsections (4) and (5), respectively.
What this means: The changes in this rule merely limit the time period in which a motion for summary final order can be filed and requires the opposing party to file a response. Failure of the opposing party to file a response could result in entry of an order in the moving party’s favor.
60Q-6.123 – Settlements Under Section 440.20(11), Florida Statutes.
Several changes were made to this rule. The changes that affect the settlement process are as follows: Subsection (1)(a)2 was changed to allow the claimant to file an affidavit indicating indemnity was previously settled if a prior petition and order are not available.
What this means: When a claimant is unrepresented, judges take a closer look at settlements to ensure fairness. If indemnity issues were previously settled, the parties had to submit the previous stipulation, which could be difficult to locate. This merely allows an affidavit to avoid delay.
Subsection (1)(a)(4) was changed to eliminate the necessity of addressing the claimant’s current work status and other sources of income in the joint petition, if already addressed in the Joint Stipulation.
What this means: This merely eliminates duplicative work.
Subsection (1)(a)(5) requiring establishment of overall MMI was moved to subsection (1)(a)(10) and Subsection (1)(a)(6) requiring an estimate of future medical care was removed. These changes apply only to settlements under (11)(a).
What this means: Previously the rule required establishment of MMI and future medical care even under contested claims settled under 440.20(11)(a). This requirement was burdensome and rarely followed as it was illogical to require this information for a contested claim. The rule was merely modified to conform to practice. You are still required to provide this information under (11)(b) settlements.
Subsection (2)(a) now requires the claimant and his/her counsel to sign any motion for approval of attorney’s fees and child support allocation for settlements under (11)(c),(d), or (e). Subsection (3) is new and requires equitable distribution of settlement proceeds when more than one support order exists.
What this means: These provisions appear to be housekeeping provisions. The signature required by the claimant is a fail safe measure ensuring that the claimant approved fees and child support allocations by signing the motion and the allocation provision is to ensure fairness.
60Q-6.124 – Payment of Attorney’s Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes.
Although much of the language in this rule was amended, there are only two subsections that affect an Employer/Carrier’s obligations. Subsection (3)(b) now allows 30 days rather than 20 days to respond to a verified petition for attorney’s fees. Subsection (4) was added to require carriers to report all fees paid to their defense counsel no later than October 1 of each year.
What this means: The change in subsection (3)(b) allows additional time to research and prepare an appropriate response to the petition for attorney fees. Subsection (4) places a burden on the carrier and makes the amount paid to defense counsel public record.
60Q-6.127 – Procedure for Relief from Appellate Filing Fee and Costs.
This rule was added to allow for preparation of the record and appeals of those deemed indigent in accordance with Fla. R. App. P. 9.180.
What this means: This provision is primarily for the benefit of claimants who are unable to cover costs of an appeal. It is unlikely an employer or carrier will be able to utilize this provision.
60Q-6.128 – Destruction of Obsolete Records.
This is a new rule that allows for the destruction of any case that has been closed or inactive for two years. It also allows for the destruction of all recordings or hearings after two years regardless of the case being closed or inactive. Finally, it allows for the destruction of any other document where filing is not required upon receipt by the judge’s office.
What this means: Although it is rare you would need to go back and look at a court file or recording two years after the case is closed or inactive, there is the rare instance when something comes up. Therefore, parties will have to ensure that their records are maintained in accordance with their own ethical and legal requirements.
