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
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
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,
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.
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
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.
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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,
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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
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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.
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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.
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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.
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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:
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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
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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
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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.
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
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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.
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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
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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.
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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)
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
December _____, 2017
Judge David Langham Deputy Chief Judge of Compensation Claims 1180 Apalachee Parkway Suite A Tallahassee, Florida 32301-4574 [email protected]
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.
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
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
delivery. Any opposition to the motion must be filed within four days from the date
the motion is served.
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.
(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)
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;
(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.
(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
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
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;
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.
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
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.
(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
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.
(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;
(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
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
From: Neil A. Ambekar To: Kevin Stuart Murphy Cc: [email protected]; 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.
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
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
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
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