I advocate that judges should prepare orders. My feelings about how lawyers and parties seek relief are as clear. The Rules of Procedure for Workers' Compensation Adjudications are consistent with both of these. And, these are not new topics, see On Motions, Sanctions and Recriminations.
This came back to me recently when I was presented with a riddle to solve. An OJCC staff had uploaded an order regarding approval of attorney's fees, but the order was uploaded to the incorrect case docket. As I dug back through the paperwork in search of the disconnect that had resulted in this, I located the Motion for Approval. It had been filed appropriately, but the attorney had included a "proposed order." The attorney, I am certain, did so with the best of intentions, seeking to minimize the time required to receive an order back from the Judge's office. However, in a spectacular error, the attorney put an incorrect case number on that proposed order.
That led me to question how such an error could occur at the lawyer's office. There are two ways to begin a case in the Florida workers' compensation adjudication system, the OJCC. First is to file a Petition for Benefits (PFB) and second is to file a Request for Assignement of Case Number (RACN). These choices are in Rule 60Q6.105(1) and (3). And, in this situation, an attorney had filed an RACN, a case number was assigned, and the case was assigned to a Judge of Compensation Claims.
About a month later, the other attorney involved in the case filed a second RACN for the same injured worker, which the OJCC database accepted. Generally, the database and e-filing system will catch an error like that. But, in this case, the second attorney used a different date of accident, a few days after the date of accident used by the attorney that filed the first RACN. Thus, at that moment, the same injured worker had two open cases for what was the same claim (albeit with two different accident dates stated).
Within minutes, the second attorney noticed the error and filed a Notice of appearance in the case that had been created by the first RACN. About two hours later, the attorney filed a "Notice of Error" in the second case, regarding the second RACN. This stated that the lawyer "files this Notice of Error in requesting case number files this Notice of case number filed in error." And, that redundancy would create no real harm, except that redundancy is all that this notice said. It did not say (1) what the error was, or (2) what perhaps could be done to alleviate the error. This was an attempt to follow Rule 60Q6.108(1)(h). But, a notice of error is not of significant help to anyone if it does not describe the error.
The Judge's office did not notice that there were now two cases pending with the same injured worker. When the second RACN was filed, it could perhaps be hoped that staff would notice its duplicate or redundant nature. But, the OJCC staff process many incoming filings every day, in a multitude of cases. If the document does not make a statement, describe a problem, or ask for relief, there is not much for staff to work from. But, about a week later, one of the Central Clerks noticed the duplication, the second case number was closed, and an Order Closing File was issued by the Deputy Chief Judge regarding the second case number.
About two weeks after that, the attorney filed the Motion for Approval of Child Support and Attorney Fees in that first case. As a side note, the attorney that filed the Motion also included a two-page cover letter that essentially said "here is a motion," followed by a series of documents, the first of which was titled "Motion." We do not need or want cover letters, see Rule 60Q6.108(1)(c) which specifically says do not file "correspondence to the judge or judge's staff." The cover letter was two pages long and conveyed nothing of value or substance. It was, essentially, a waste of everyone's time and of data storage space.
Somehow the process in the lawyer's office had been tainted with that second case number. The unnecessary cover letter had the correct (first) case number stated upon it. The documents were all filed in the correct (first) case docket. But, the Motion and the proposed "Settlement Order" had the incorrect, second, closed case number on them.
Notably, the proposed order should never have been submitted with the motion. Rule 60Q6.103(4) clearly states:
Except as provided in subsection 60Q-6.115(3), F.A.C., proposed orders shall not be submitted unless requested by the judge.
They shall be clearly indexed in the docket as “proposed orders” and shall be sent to all other parties or, if represented, their attorneys of record prior to being submitted to the judge.
Proposed orders shall be a separate document and not be included as a part of a motion.
This order (1) was not requested by the judge, (2) was not apparently sent to other parties prior to filing, and (3) was an integrated part of the Motion for Approval filing, not a separate filing. It was inappropriate in each instance. The Judge and staff did not notice (1) that the order stated a case number different from that in which it was filed. Perhaps, they were misled by that unnecessary cover letter that listed the correct case number?
And, if the OJCC staff or judge had keyed that case number, to prepare an order, it is likely that the error would have been noticed. That the Motion was not present in that case docket would likely have been a red flag that stopped the process and resulted in some investigation and review. But, the proposed order alleviated that check and balance in the process.
The erroneous proposed order was signed by the judge. The OJCC staff then uploaded that order based upon the erroneous case number that was stated on it. Thus, the order approving fees and child support allocation was uploaded to the wrong (closed) file. Days later, apparently upon discovery of the error, the order was uploaded again, but again in the wrong case. The point of that repetition remains unclear (there is no documentation or explanation).
A complication with service and notice then occurred. Since the first attorney had been working using that first case number, and since that second case number had been rapidly closed, the first attorney never filed a Notice of Appearance on that second case. Thus, when the order was uploaded in error to that second case, the first attorney did not receive a copy of the order. Unfortunately, it was this first attorney whose client was to make payment pursuant to the order. The implication of that attorney receiving no notice of the approval will be readily apparent.
The first case number remains "active" with this office today. Nothing has occurred to close it (such as an order approving the settlement). The second case has been "inactive" since the order that closed the file about a week after it was established and the second attorney's error was discovered. It remained inactive all that time, despite the uploading of two Orders Approving Attorney Fees and Child Support Allocation. And, to this day, the date of accident stated in that second RACN has been settled, while perhaps the (different) date of accident stated in that first RACN remains potentially active and unsettled.
The lessons of this long description are several. First, filing documents is effective only if they say something. If filing a Notice of Error, Rule 60Q6.108(1)(h), say what the error is ("this was mistakenly filed when Claimant already has an open case for this accident, case YY-000000, and this case should be closed and deleted"). Or, if you seek relief from the Judge, file a Motion, Rule 60Q6.115(1), state the error as above, and "move for entry of an order closing" the file or "consolidating the erroneously instigated case" so that there is some connection established and noted between the two. This "motion" advice is likely the best. Whenever action is needed from this Office, a motion is likely a good place to start.
The second lesson is being careful and diligent. Certainly, this series of unfortunate events illustrates that multiple people had opportunities to catch the various errors. Everyone involved, attorneys, judge, and staff might have caught the errors and made corrections. Errors included opening the second case number, the misstatement of accident date, the misstatement of case number on the Motion, the inclusion of a proposed order against the rules, the misstatement of the case number on that proposed order, the filing of the cover letter, and the uploading of the order to the wrong case docket (albeit the one with which that proposed order was labelled). There were multiple errors and multiple opportunities to prevent the ultimate outcome. That is true in every case and diligence has to be the ultimate goal of us all.
But, the third lesson, or reminder, is that accidents will happen, errors will occur, and nobody is perfect. We are all human, and will make errors. Thus, once you have accepted lesson three, refer back to lesson one for the advice on how to alleviate the effect of our collective and individual humanity. File a motion or a notice, be specific as to what needs correcting, and ask for the assigned judge to rectify the error. That methodology, with details, will both help to correct the error(s) and will establish a record that documents both how the situation occurred and how it was concluded. And that may be helpful to someone in years to come when that still "active" OJCC file comes back to someone's attention.