Workers’ Compensation Discovery, Procedure Including Public Records Issues

Brian BoltonFlorida Bar Board Certified in Workers’ Compensation Law,

“AV” Rated by Martindale-Hubbell and a Member of the Florida Bar Association Workers’ Compensation Section and

City, County and Local Government Section

What Is Discovery?

Discovery-Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. Generally discovery devices include depositions, interrogatories, requests for admissions, document production requests and requests for inspection.

Workers’ Compensation Discovery – Q Rules

60Q-6.114. DISCOVERY

(1) Any party may commence with discovery methods specifically authorized by statute, including depositions, issuance of subpoenas and requests for production, prior to invoking the jurisdiction of the judge.

Depositions

(2) Depositions.

(a) Depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure.

(b) Approval of the judge is not necessary to take a deposition by telephone. If a deposition is taken by telephone, the oath shall be administered in the physical presence of the witness by a notary public or other person authorized by law to administer oaths.

Production and Entry on Land

(3) Production and entry on land. Any party may seek production of documents or other tangible things from other parties or non-parties and may seek entry onto land or other property as provided in the Florida Rules of Civil Procedure.

What Is A Public Records Request?

It is generally a request made by a person, business entity, attorney, group, etc., to a public entity, person, committee, agency, etc., for information obtained or generated by the public entity made to perpetuate, communicate and formalize knowledge of public business. The request may be made in writing or orally.

What Is An Advantage Of A Public Records Request For

Discovery Purposes?

Note, a Public Records request is not a form of formal discovery! It may however be a tool to obtain the same type of information that may otherwise be obtained through formal discovery.

What Is The Advantage Of A Public Records Request For

Discovery Purposes? (Continued)

There are advantages to requesting public records from the government employer instead of issuing a request to produce. Ordinarily, a claimant’s attorney does not have to wait thirty (30) days to receive the documents from the governmental entity via a Public Records Request.

Distinctions Between A Public Records Request And A

Request To ProduceOne is a pleading, the other is not.One goes to the attorney, the other to the Records Clerk with the consent of the local government’s attorney.They are distinctive writings, one will not serve to trigger the other.

Public Records-Strong Public Policy!

Florida has a strong public policy in favor of the right to access to governmental records and meetings of collegial bodies of governmental entities. Article I, Section 24, Florida Constitution, provides that every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee, except if the public record is deemed by the legislature to be exempt or confidential.

Public Records-Strong Public Policy! (Continued)

Chapter 119, Florida Statutes, the Public Records Act, contains the majority of the laws relating to public records, including laws pertaining to records which are exempt or confidential from public inspection. However, many other laws relating to public records are scattered throughout the Florida Statutes.

Does A Carrier Have A Duty To Provide Its Records When

Presented With A Public Records Request?

The question is whether the Carrier is an agency acting on behalf of the public entity. Chapter 119 defines “agency” to include private entities “acting on behalf of any public agency.” F.S.119.011(2). The answer is, probably, yes.

Does A Carrier Have A Duty To Provide Its Records When

Presented With A Public Records Request? (Continued-public

function)

“When the agreement transfers the actual public function, public access follows.” See B & S Utilities, Inc., v Baskerville-Dononvan, Inc., 988 So.2d 17, 21 (Fla. 1st DCA 2008).

Does A Carrier Have A Duty To Provide Its Records When Presented

With A Public Records Request? (Continued-contact counsel)

The attorney for the governmental entity should be contacted and advised of the request. And, when litigation commenced, defense counsel should be made aware. In fact, there is an ethical issue if the request is made in the presence of litigation and defense is not contacted in advance.

Does A Carrier Have A Duty To Provide Its Records When Presented

With A Public Records Request? (Continued-Negotiations Exemption)

F.S.624.311(3) states that “records of insurance claims negotiations of any state agency or political subdivision are confidential and exempt from…the public records law until termination of all litigation and settlement of all claims…”

Public Records-RemedyCompliance with the Public Records Act-Remedy is to file a civil lawsuit, for which § 119.11(1), Fla. Stat., requires an expedited hearing. Petition for writ of mandamus is also a possible remedy. In either case the requestee can ask for an in camera inspection if it believes that the records include confidential or exempt material. § 119.07(1)(g), Fla. Stat. If the requestor presents a prima facie claim for relief in the petition for writ of mandamus, the court will issue an order to show cause so that it can receive further consideration on the merits. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992). Personnel records commonly have a plethora of exempt material, such as social security, ridesharing information, medical information, etc., and may be

redacted.

Public Records-Attorney FeesIf the court determines that the requestee unlawfully refused to give access to any of the public records, it shall assess costs and reasonable attorneys fees to the requestor. § 119.12, Fla. Stat. Attorney fees may be recoverable even if the requestee denied access on a good faith but reasonable belief that the documents were exempt. In addition, a non-criminal infraction with a fine of up to $500 may be imposed. If the requestee knowingly violated the Public Records Act, it may be found guilty of a first degree misdemeanor. § 119.07(10), Fla. Stat. E.g., News and Sun-Sentinel Company v. Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987). Cf., Alston v. City of Riviera Beach, 882 So. 2d 436 (Fla. 4th DCA 2004).

Public Records-Cost To Copy

F.S. § 119.07(4)(a)1, Fla. Stat., limits fees for production to fifteen cents for letter-sized copies and an additional five cents for two-sided copies. However, the requestee may impose a special service fee if extensive time for clerical or supervisory assistance, or both, must be spent inspecting or copying and excising/redacting exempt or confidential portions of public records. § 119.07(4)(d), Fla. Stat. Florida Institutional Legal Services, Inc. v. Florida Dep’t of Corrections, 579 So. 2d at 269 (Fla. 1st DCA 1991)(Agency can charge a reasonable special fee for supervisory personnel necessary to review records for possible exemptions.) A governmental entity can charge only for the actual cost by a clerk and/or supervisor in retrieving, inspecting and copying records. Courts have deemed that the agency can charge for clerical or supervisory time if it is more than 15 minutes. E.g., Board of County Comm’rs of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).

Public Records-Confidentiality

The Public Records Act must be liberally construed in favor of open government, and exemptions from disclosure are to be narrowly construed. The access to public records which might otherwise be required under § 119.07(1)(a) is subject to hundreds of exemptions as described in various sections of Chapter 119 and many other chapters of the Florida Statutes. However, some records in the possession of a governmental entity or official, such as the notes taken by the city commissioners during the closed meeting, do not rise to the level of being a public record if they do not perpetuate, communicate, or formalize knowledge. E.g., Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988).

Public Records-Personnel Records

Generally, the Public Records Act does not exempt personnel records. Personnel records are subject to public inspection and copying, with the exception of information contained therein which is specifically exempt or confidential under the Public Records Act or other statute. All disciplinary records are open to inspection and copying because they are not exempt from the Public Records Act.

Public Records-Personnel Records-Exemptions

However, the right of access to personnel files is not the right to rummage free into public employees’ personal lives. All medical records and medical claims records are confidential and exempt from the Public Records Act. Written permission must be obtained. Michael v. Douglas, 464 So. 2d 545, 546 (Fla. 1985). The confidentiality of medical records applies even if the records are not retained solely in conjunction with an employee’s participation in a group insurance plan. News-Press Publishing Company, Inc. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987).

Public Records-Medical Records-Exemptions Continued

Medical records and medical claims of county or city employees are confidential and exempt from public access but may be given to the employee or the employee’s representative or to another person upon the written authorization of the employee. § 112.08(7), Fla. Stat. See also, § 440.125(1), Fla, Stat. (medical records and medical reports of injured employees are confidential). Personal identifying information of dependent children of current and former employees who are or were insured under the group health insurance plan, are exempt from the Public Records Act

Public Records-Medical Records-Exemptions

ContinuedMedical records and medical claims of county or city employees are confidential and exempt from public access but may be given to the employee or the employee’s representative or to another person upon the written authorization of the employee. § 112.08(7), Fla. Stat. See also, § 440.125(1), Fla, Stat. (medical records and medical reports of injured employees are confidential).

Public Records-Direct Deposit-Exemptions Continued

Direct deposit records are exempt and confidential pursuant to § 70.076(5), Fla. Stat. As in all records requests when there are exemptions, the city clerk will state the basis for the exemption and will cite to the applicable statute authorizing the exemption.

Public Records-Drug Free Workplace-Exemption Continued

Results of drug testing under F.S.440.102 (Florida Workers’ Compensation Drug Free Workplace Program) are exempt from the Public Records Law. See F.S.440.102(8)(a).

Public Records-Direct Deposit-Confidential Versus Exempt

It is worth noting that, when a record is confidential, the record may not be inspected by the public. WFTV, Inc. v. School Board of Seminole, 874 So. 2d 48 (Fla.5th DCA 2004). However, when a statute makes a record merely exempt, the governmental entity is not prohibited from disclosing the record. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991). The statutory exemptions do not apply if the information has been made public. See Downs v. Austin, 522 So. 2d 931 (Fla. 1st DCA 1988); Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986); Satz v. Blankenship, 407 So. 2d 396 (Fla. 4th DCA 1981); § 119.07(1)(e), Fla. Stat.

Public Records-Attorney Client Privilege

The attorney-client privilege established under the Evidence Code under § 90.502 does not apply to written communications between the government and its attorney. However, § 119.071(1)(d), Fla. Stat., gives a limited statutory work product exemption.

Public Records-Limited Work Product Exemption

A public record prepared by the agency attorney, or at the attorney’s express direction, that is prepared exclusively for litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from public records. However, the exemption applies only to that portion of an attorney communication that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney.

Public Records-Limited Work Product Exemption (Continued)

The communications of defense attorney such as status memos and deposition summaries, will have to be inspected by the city and excised of any mental impressions, conclusion, litigation strategy, or legal theory of the attorney. Any facts or other information obtained from witnesses, the claimant, or others which do not reflect mental impressions, conclusions, litigation strategy, or legal theory of the attorney are not exempt.

Public Records-Limited Work Product Exemption (Continued)

Discussion of Adjusters notes, emails, notes of medical case manager, notes of conversations with supervisors, surveillance.

Public Records-Limited Work Product Exemption Temporary

The limited statutory work product exemption is temporary. At the conclusion of the litigation, the limited statutory work product exemption ends, and it is accessible by the public with the exception of other exemptions or confidential information such as medical information, social security numbers and the like.

Public Records-Limited Work Product Exemption Temporary

(Continued)

The limited statutory work product exemption is temporary. At the conclusion of the litigation, the limited statutory work product exemption ends, and it is accessible by the public with the exception of other exemptions or confidential information such as medical information, social security numbers and the like. §119.071(5), Fla. Stat.

Public Records-Exemptions Temporary (Continued)

The limited statutory work product exemption is temporary. At the conclusion of the litigation, the limited statutory work product exemption ends, and it is accessible by the public with the exception of other exemptions or confidential information such as medical information, social security numbers and the like. §119.071(5), Fla. Stat.

Claimant’s Burden Of Proof – Preponderance of the Evidence

The Concurrence in Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly D982c (1st

DCA, 5/9/11), explained that the Preponderance of the evidence standard

applies. See Alston v. Etcetera Janitorial Services., 634 So. 2d 1133, 1134 (Fla. 1st DCA 1994)

Claimant’s Burden Of Proof – Preponderance of the Evidence

(Continued)The Concurrence in Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly D982c (1st DCA, 5/9/11), explained the legislature, by

eliminating the presumptions in favor of claimants in effect prior to 1990, and requiring that a claimant prove his or her case “on the merits,” intended to require claimants to prove entitlement to relief by a preponderance of the evidence, or a

greater weight of the evidence, a standard which represents the lowest burden of persuasion in the law. See Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295 (Fla. 1974) (describing three basic

standards of proof).

Claimant’s Burden Of Proof – Preponderance of the Evidence (Continued)

The Concurrence in Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly D982c (1st DCA, 5/9/11), further explained that Black's Law Dictionary 196-

97 (6th ed. 1990) is instructive and defines burden of proof, and states “burden of establishing” a fact means burden of persuading the trier of fact that existence of the fact is more probable than its non-existence. See State v.

Edwards, 536 So. 2d 288, 292-93 (Fla. 1988) (explaining that substantial evidence standard is used for preliminary rulings on admissibility of

evidence, not for adjudication of ultimate facts). The Fla. Std. Jury Instr. (Civ.) 401.3 explains "Greater weight of the evidence” as meaning more

persuasive and convincing force and effect of entire evidence in case. See Fla. Std. Jury Instr. (Civ.) 601.1 (explaining jury may use reason and common

sense to make factual findings and may draw reasonable inferences from the evidence in determining facts).

Responses

(4) Responses and objections to depositions, production, or entry shall be made as provided in the Florida Rules of Civil Procedure.

JCC’s Authority

(5) The judge may enter orders to effectuate discovery, including orders compelling discovery, protective orders, and orders imposing sanctions for failure to comply with or for using discovery methods not specifically authorized by statute. For good cause shown, the judge may enlarge or shorten applicable timeframes for complying with discovery.

General Rule - Discovery

In considering whether to permit discovery, a judge should consider whether the information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence. Spry v. Gallagher Bassett, 985 So.2d 1187 (Fla. 1st DCA 2008).

Adjuster’s Records Discovery-Claims File

In GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d DCA 2006), the 2nd DCA held that requiring the disclosure of claim file materials during the litigation of coverage issues would result in irreparable harm and denied plaintiff’s access to any materials in the adjuster’s file in an auto accident case wherein coverage was denied on the basis of misrepresentation in the application process. Coverage issue included circumstances when a claimant was seeking additional benefits even after some money had been paid. See Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA 1998)

Adjuster’s Records Discovery-Claims File (Continued)

Coverage Resolved

In GEICO General Ins. Co. v. Hoy, 927 So.2d 122 (Fla. 2d DCA 2006), the appellate court stated that a claim’s file is not discoverable until after the coverage issue has been resolved.

Adjuster’s Records Discovery (Continued) – Theory: “Cat

Out Of The Bag” The Florida Supreme Court discussed the theory behind disclosure of materials in Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Disclosure of “cat out of the bag material” such as material that constitutes work product, trade secrets, or is otherwise protected by privilege may cause irreparable injury if disclosed.

Adjuster’s Records Discovery (Continued) –Accident

Investigation Not Discoverable

Generally speaking, “the contents of an insurer's accident investigation file constitute work product.” W. Am. Ins. Co. v. Neva Prods., Inc., 490 So.2d 117, 118 (Fla. 2d DCA 1986).

Financial Records Discovery

The Florida Constitution protects the financial information of individuals if there is no relevant or compelling reason to compel disclosure. See Spry v. Gallagher Bassett, 985 So.2d 1187 (Fla. 1st DCA 2008); See also Article I, section 23, of the Florida Constitution (Right to Privacy)(Case law interpretations address financial privacy).

Financial Records Discovery Procedure – Evidentiary

Hearing

The party seeking discovery of financial records must provide evidence to show that the information is relevant. Spry v. Gallagher Bassett, 985 So. 2d 1187 (Fla. 1st DCA 2008)

Discovery

IME and EMA reports

Are fully discoverable irrespective of who requests the evaluation.

Work Product Privilege

Non-Witness Experts

Reports of other experts hired in a non-witness capacity are not discoverable. See Nevin v. Palm Beach County School Bd., --- So.2d ----, 2007 WL 1518269 (Fla. 1st DCA, May 25, 2007). See also, Metric Engineering, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003).

Exception to Non-Witness Rule

Rule 60Q-6.114(2)(a) provides that depositions shall be governed in all respects by the Florida Rules of Civil Procedure. Rule 1.280(b)(4)(B) permits a party to depose an expert not listed as a witness only “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”

To demonstrate a “need,” sufficient to compel discovery of work-product materials, “a party must present testimony or evidence demonstrating that the material requested is critical to the theory of the requestor's case, or to some significant aspect of the case. See Metric Engineering, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003).

Work Product Privilege

Attorneys, Investigators, Adjusters

Information from attorneys, investigators and adjusters obtained in anticipation of litigation or in connection therewith is also not discoverable. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); Federal Express Corp. v. Cantway, 778 So.2d 1052 (Fla. 4th DCA 2001).

Third Party Attendance At IME

Florida Law In General

…case law provides that parties in civil cases are generally entitled to have their attorneys and court reporters or videographers attend both physical and mental examinations unless there are good reasons for excluding them. See, U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla. 2000).

Third Party Attendance At Psychiatric IME

…it is a clearly established principle of Florida law that a person who is required to submit to a mental examination in an adversarial proceeding or setting is entitled to have the examination attended by her attorney and a court reporter or videographer, subject to the court's authority to limit attendance for good cause. See, Cimino at 701; Maramanv. State, -- So.2d--, 2008 WL 199878 (2nd DCA, January 25, 2008).

Discovery Of Non-Privileged Attorney-Client Communications

Attorneys can be compelled to disclose communications with claimant concerning whether claimant was advised of statutory statute of limitations language. See, Waffle House v. Scharmen, 2008 LEXIS 7191 (Fla. 1st DCA, May 21, 2008)(Refers to old wage loss cases for knowledge of performing a job search or concerning trial dates).  

Waffle House v. Scharmen

In Waffle House v. Scharmen, the JCC abused her discretion by denying E/C the opportunity to depose Claimant's counsel to determine whether counsel informed Claimant of the applicable statute of limitations, thereby providing Claimant with actual knowledge of the same.

Medical Evaluation Records Probably Admissible Under

F.S.440.29(4)In Nunez v. Gallagher Bassett, the referral to a neurosurgeon resulting in an examination which included review of an MRI and a diagnosis was for the purpose of determining if surgery was warranted to treat claimant’s condition…and the 1st DCA held that “evaluation and diagnosis constitutes treatment”…33 Fla. L. Weekly D1707a (1st DCA, July 7, 2008); F.S.440.29(4)(Medical records of authorized treaters are admissible upon filing).

Sanctions

Fla. Admin. Code R. 60Q-6.125(6) "Any order imposing sanctions shall describe the conduct determined to constitute a violation of the rule and explain the basis for the sanction imposed."

Hill v. ACE USA, 33 Fla. L. Weekly D2078c (Fla. 1st DCA, August 29, 2008)

Sanction of dismissal of petitions with prejudice for claimant’s divulging information obtained at a mediation to a doctor about the doctor’s opinions was too harsh of a penalty.

Standard For Dismissal-Willful Disregard Of The Judge’s

Authority

Where record lacks evidence of willful or flagrant disregard for court's authority, dismissing complaint without prejudice for failure of counsel to appear is too severe a sanction to impose upon a litigant. See Martinez v. Collier County Public Schools, 804 So. 2d 559 (1st DCA 2002).

Sanctions - Hadden v. Florida Medical Center

In Hadden v. Florida Medical Center, 33 Fla. L. Weekly D 1665 (1st DCA, June 27, 2008), claimant’s Petition was stricken and she then re-filed within days after the JCC granted the employer's and servicing agent's motion to strike her then timely, pending petitions as a sanction for her failure twice to appear at previously scheduled depositions. A summary final order was entered with prejudice by the JCC based on the running of the Statute of Limitations.

Hadden v. Florida Medical Center Holding

Reversed – The order striking claimant's petition for benefits was improper, and it was remanded with directions that the judge reconsider that order pursuant to the principles expressed in Martinez, 804 So. 2d 559 (1st DCA 2002). “Should the judge again decide to grant the motion to strike, an order must be entered containing the requisite findings of willfulness on claimant's part.” The Court explained that “in light of our disposition of this point, we must also reverse the summary final order, since the petition upon which it was predicated was necessarily filed because of the striking of claimant's earlier petitions.

Unripe Claims May Not Be Adjudicated-Repetitive Trauma

In Farnam v. U. S. Sugar Corporation, 34 Fla. L. Weekly D509c (Fla. 1st DCA, March 6, 2009), The 1st DCA reversed a JCC’s findings concerning a repetitive trauma claim stating that under Section 440.192(9), Florida Statutes, only claims that have been listed in a petition for benefits and mediated may be adjudicated by a JCC. There, the claim for compensability of the back condition, based on a repetitive trauma theory, was the subject of a petition for benefits, but had not gone through the mediation process.

Unripe Claims May Not Be Adjudicated

See Also, Parodi v. Florida Contracting Company, Inc., 34 Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09), in which claimant's counsel alerted the JCC to the fact that several PFBs had been filed that had not yet been mediated. The E/C would not agree to try the unmediated issues and, as a result, the JCC reserved jurisdiction on these unmediated PFBs for a subsequent hearing. When a claim is ripe, absent some action on Claimant's part to bring this to the attention of the JCC, res judicata will bar a subsequent claim and by reserving jurisdiction on the claims, the JCC did all that was required to preserve the issues for a subsequent hearing.

Ripe Claims That Are Not Adjudicated Are Considered To Have

Been WaivedIn M.D. Transport v. Paschen, 996 So.2d 902 (Fla. 1st DCA 2008), the claimant’s treating doctor recommended psychiatric care based on a 2002 letter. The claimant testified in a 2002 deposition about the psychiatric problems. A petition was filed for such care in 2004. A hearing took place in 2005 but did not include the psychiatric claim. No mediation was held on the 2004 petition before the 2005 hearing. At a subsequent hearing, E/C argued res judicata but the JCC allowed the claim for psychiatric care and awarded benefits. The 1st DCA reversed stating that the claim was ripe and waived, and that failure to mediate made no difference.

Claims Dismissed Are Considered To Have Been Waived

In McLymont v. A Temporary Solution, 738 So.2d 447 (Fla. 1st DCA 1999) the claimant voluntarily dismissed his petition for benefits requesting authorization for dental care shortly before the merits hearing, because the dentist's deposition could not be taken in time. This court held the claimant waived his claim because it was ripe at the time of the hearing.

Exception - Newly Discovered Evidence

Where a claim is based on newly discovered evidence, it cannot be barred for failure to raise it at an earlier proceeding, because it was not mature at the earlier proceeding. See Correa v. Miami Airport Hilton, 813 So. 2d 1070-71 (Fla. 1st DCA 2002)(holding claim for TMJ not barred by res judicata where MRI was obtained after merits hearings, and prior to obtaining MRI, claimant was advised she had no TMJ problem)

Exception – Lack Of Knowledge

In Thomas v. Ekerd Drugs, 987 So.2d 1262 (Fla. 1st DCA 2008), Claimant would have had no reason to continue the case at the hearing time, or delay rendition of the final order. Instead, from the evidence presented, it could be reasonably inferred that she dismissed her lumbar claim because she had no reason to litigate that claim. Specifically, at the time of the hearing, she had been told by two physicians that there was nothing wrong with her back and her lumbar pain was due to fibromyalgia or chronic fatigue syndrome, not her compensable accident.

2 Dismissals Rule

Mieses v. Applebee’s, 14 So. 3rd 1228, (Fla. 1st DCA, July 3, 2009), the 1st DCA held that “…a claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice of voluntary dismissal . . . . [A] second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or [PFB] previously the subject of a voluntary dismissal.” Fla. Admin. Code R. 60Q-6.116(2). However, subsequent claims not ripe at the time of the second dismissal are not barred by the 2 Dismissal Rule.

Florida Evidence Code Applies To Workers' Compensation

Proceedings

Amos v. Gartner, Inc., 34 Fla. L. Weekly D1721a (Fla. 1st DCA, August 21, 2009)(JCC allowed an

FCE report into evidence over hearsay objections, JCC reversed)

U.S. Sugar v. Henson, 823 So. 2d 104, 106 (Fla. 2002)

Martin Marietta Corp. v. Roop, 566 So. 2d 40, 42 (Fla. 1st DCA 1990)

Business Records Exception Applies To Medical Records But All Elements Must Be

Proven

In German v. Ryta Food Corp., 36 Fla. L. Weekly D977c (1st DCA, 5/9/11), the 1st DCA reversed a JCC’s admission of medical records and bills where E/C interposed a timely

hearsay objection to the entry of medical records and bills and where the custodian who testified could not testify as to a key element of the Business Records Exception - that the

records were made contemporaneously with the event or by a person with knowledge. Thus the records were

inadmissible even though they were made in the normal course of business and that such a record is usually made in

the regular course of business.

Expert Reliance On Hearsay

In Amos v. Gartner, Inc., 34 Fla. L. Weekly D1721a (Fla. 1st DCA, August 21, 2009), even though some

medical providers properly relied on an inadmissible FCE report to various degrees (See Fla. Stat. 90.704) for rendering opinion testimony, such reliance does not make the report itself admissible. Allowing an

expert to act as a conduit for entry of an inadmissible report defeats the purposes of the Rules

of Evidence. See Linn v. Fossum, 946 So. 2d 1032, 1037-38 (Fla. 2006).

Waiver Of Privilege

F.S. 90.507  Waiver of privilege by voluntary disclosure.

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable

when the disclosure is itself a privileged communication.

Disqualification Of An Attorney

Attorney disqualification constitutes a material injury. See, e.g., Bon Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So. 2d 774, 775 (Fla. 2d DCA 2007); Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So. 2d 1142, 1144 (Fla. 2d DCA 2003). Disqualification of counsel is an extraordinary remedy and should be avoided if possible as it deprives a party of counsel of choice.

Recovery Of Attorney-Client Materials

To recover documents, a party must prove:

1. The documents are privileged. See 90.507

2. The disclosure was unintentional.

3. The unintentional disclosure must be plead timely.

See Also, Walker v. River City Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA 2009).

Ethics Opinion 93-3 (2/1/94)An attorney who receives documents that appear to be privileged under the attorney-client privilege and which are inadvertently disclosed has an obligation to notify the sender of the disclosure. See also Florida Supreme Court Rule 4-4.4(b) and Opinion 74-7 (revised 10/6/08). This obligation applies if the attorney knows or reasonably should have known of an inadvertent disclosure. It is a question of fact for the Court.

IME: Evidentiary Considerations

• “No medical opinion other than the opinion of a medical advisor appointed by the JCC, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the JCC.” –F.S.440.13(5)(e)

• Each party is bound by his or her selection of an IME and the opinions of the IME.

IME Before PFB?

Probably not - KARELL v. MIAMI AIRPORT HILTON, 668 So. 2d 227 (Fla. 1st DCA 1996) held that the JCC could not order an IME before a suit was filed and the 1st DCA reversed the order accordingly. Rule 60Q-6114(1) states that discovery may be had if authorized by statute before jurisdiction of the JCC is invoked. Since there is no specific provision allowing for an IME before a PFB as there is with the taking of a claimant’s deposition, an IME would not be allowed before a PFB is filed.

Can An FCE Be Compelled?

Probably not – In State of Florida v. Wojick, 36 Fla. L. Weekly D2542a (Fla. 1st DCA, 11/22/11), the court held that a JCC does not have jurisdiction to order an FCE because there was no pending petition, no evidence it was medical necessary, could be a violation of the Constitutional right to privacy and there is no statutory authority to order same.

Testimony of an “Unauthorized”

Provider In Parodi v. Florida Contracting Company, Inc., 34 Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09), the First District Court of Appeals held that when the E/C wrongfully denies medical care and the claimant is required to utilize the self-help provisions of section 440.13(2)(c), the JCC is not obliged to exclude the opinions of the doctors from whom Claimant was forced to obtain medical treatment. In this case, the E/C authorized medical care then denied the entire claim based on MCC and fraud. The JCC excluded the opinions of the prior treaters as being “unauthorized”. The appellate court reversed and held that the doctors were authorized by operation of section 440.13(2)(c), as they provided care during the E/C's wrongful denial of benefits, and the JCC should not have excluded their medical opinions pursuant to section 440.13(5)(e).

Policy For Allowing Testimony of an “Unauthorized” Provider

“We note that no fewer than nine legislative sessions have commenced and recessed since our decision... (and)

although the Legislature has made substantial changes to the Florida Workers' Compensation Law, it has not altered

the statute in any way that would lead this court to conclude that our holding … (relative to the admissibility of

the opinions of doctors obtained through the self-help provision of the statute) is not a correct interpretation of the statutory scheme. Parodi v. Florida Contracting Company,

Inc., 34 Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09).

Policy For Allowing Testimony of an “Unauthorized” Provider

…When an employer abandons its obligation to provide appropriate care, however, it likewise

surrenders to the injured employee the right to select a physician and obtain treatment…

…An essential piece of the workers' compensation statute remains the availability of appropriate

treatment on a timely basis, so as to avoid public responsibility for such…

Parodi v. Florida Contracting Company, Inc., 34 Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09).

CertiorariAppeal-Basis

For a non-final workers' compensation order to be reviewable by certiorari, a petitioner is required to

demonstrate that: 1. The order constitutes a departure from essential requirements of law, and

2. Would cause material harm that cannot be adequately remedied by appeal. See Taylor v. TGI Friday’s Inc., 34 Fla. L. Weekly D1785a (Fla. 1st DCA, 8/28/09). In Taylor, The JCC ordered the

claimant to undergo an EMA evaluation and the appellate court held that the EMA, in this instance, is subject to remedy on appeal and will not cause

irreparable harm as it was non-invasive.

CertiorariAppeal-Basis

In Jackson v. Computer Science Raytheon, 36 So.3d 754 (Fla. 1st DCA 2010), the JCC’s order compelling production of financial records was reversed. The appellate court explained that the compulsion of private financial information-if irrelevant to the legal issues in dispute-is the kind of harm against which certiorari review guards. See Spry v. Gallagher Bassett, 985 So. 2d 1187 (Fla. 1st DCA 2008). Thus, their analysis hinged on whether Claimant's private financial information was relevant to the E/C's attempt to recoup perceived overpayments based on an allegedly miscalculated Social Security Disability offset. They held it was not relevant to that issue.

Striking Witnesses, Depositions Is Abuse Of Discretion Unless

Actual Prejudice Is ShownJCC's exclusion of testimony from properly disclosed witnesses, based on a per se application of his interpretation of the administrative rules, is not only antithetical to the analysis prescribed in Bingerv. King Pest Control, 401 So.2d 1310 (Fla.1981) but is also in direct conflict with the specific legislative intent of the Florida Workers' Compensation Law. See § 440.015, Fla. Stat. (2006) ( “It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits.”). “Excluding evidence is a drastic remedy to be used only in the most compelling circumstances.”

Conflict Of Laws440.09(1)(d) If an accident happens while the employee is employed elsewhere than in this state,which would entitle the employee or his or her dependents to compensation if it hadhappened in this state, the employee or his or her dependents are entitled to compensationif the contract of employment was made in this state, or the employment was principallylocalized in this state…

Windfall Protection

440.09(1)(d) …However, if an employee receives compensation or damages underthe laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.

Summary Final Orders

60Q-6.120. SUMMARY FINAL ORDER

(1) The judge may enter a summary final order when such an order would be dispositive of the issues raised by the subject petition.

Summary Final Orders – Summary Judgment Standard

Applies

The courts evaluate the JCC's order for summary final order using the summary judgment standard. Thomas v. Ekerd Drugs987 So.2d 1262 (Fla. 1st DCA 2008)

Summary Judgment Standard

When reviewing a lower court's summary judgment ruling, an appellate court must draw all reasonable inferences in favor of the party opposing summary judgment. See Auto-Owners Ins. Co. v. Young, 978 So. 2d 850 (Fla. 1st DCA 2008). Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. See Spears v. Albertson’s, Inc., 848 So. 2d 1176 (Fla. 1st DCA 2003).

Conflicting Evidence

If the evidence is conflicting, will permit different reasonable inferences, or tends to prove the issues, it should be submitted to the trier of fact and it is improper to enter a final summary order. See Thomas v. Eckerd Drugs, 987 So.2d 1262 (Fla. 1st DCA 2008)

Lack of Prosecution

In Airey v. Sedgwick, 35 Fla. L. Weekly D85a (Fla. 1st DCA, 12/31/09), the JCC dismissed the PFB because it was pending too long. The appellate court explained that proper procedure would be to invoke section 440.25(4)(i), Florida Statutes (2008). That provision permits a judge of compensation claims to “dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.” However, such action may only be taken in response to a motion by a party or the judge.

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st DCA held that a hospital, Bryan LGH, had independent standing to bring a claim for payment for medical services it alleges are due from the E/C under the Workers' Compensation Law. See Rebich v. Burdine's, 417 So.2d 284 (Fla. 1st DCA 1982)(interpreting 1974 amendment to section 440.10(1) as creating independent standing on behalf of physician to bring an action against insurance company for payment of bills).

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st DCA explained that under F.S. 440.13(14)(2006) “A health care provider may not collect or receive a fee from an injured employee within this state, except as otherwise provided by the chapter. Such providers have recourse against the employer or carrier for services rendered in accordance with this chapter.”

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., the Court further explained that the proper forum for disposition of this dispute is within the Department of Financial Services (DFS). See F.S. 440.13(7)(a), Fla. Stat. (2009) (providing health care provider's petition for payment of medical services “must” be filed with DFS).

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., the Court identified F.S. 440.13(11)(c), Fla. Stat. (2009) as providing that DFS has “exclusive jurisdiction to decide any matters concerning reimbursement”); Avalon Ctr. v. Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007)(holding JCC does not have jurisdiction over reimbursement dispute because jurisdiction is vested in another agency); see also Terners of Miami Corp. v. Freshwater, 599 So.2d 674, 675 (Fla. 1st DCA 1992)(en banc) (explaining July 1, 1990 legislative amendments vesting jurisdiction in Division of Workers' Compensation to resolve reimbursement disputes are procedural changes that divest JCC of jurisdiction to resolve such disputes.

Controversy Between Carriers/Employers

Fla. Stat. 440.42(4) When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment, or other benefits under this chapter, the judge of compensation claims shall have jurisdiction to adjudicate such controversy;…

Controversy Between Carriers/Employers

…and if one of the carriers voluntarily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments either voluntarily or in compliance with a compensation order shall

be entitled to reimbursement from the carrier finally determined liable, and the judge of compensation claims shall have jurisdiction to order such reimbursement; however, if the carrier finally determined liable can demonstrate that it has been prejudiced by lack of knowledge or notice of its potential liability, such reimbursement shall be only with respect to payments made after it had knowledge or notice of its potential liability.

4 year Statute of Limitations for Contribution Claims

In City of Pembroke Pines v. Villasenor, the 1st DCA explained that the Statute of Limitations for a contribution claim is 4 years per Fla. Stat. 95.11(3)(f) as opposed to Fla. Stat. 440.19(1) because the latter applies only to petitions filed by claimants.

Expired Claims-ContributionPayments made by a subsequent carrier on a subsequent claim will not revive the statute on a prior claim even though a portion of the responsibility was due to a prior claim that had already expired. Contribution to the subsequent carrier in this instance was reversed in Medpartners/Diagnostic Clinic Medical Group, P.A. v. Zenith Ins. Co., 23 So. 3d 202 (Fla. 1st DCA 2009).