Tuesday, May 27, 2014

The Equities of Enforcement of JCC Orders

A case from the Florida Third DCA in May provided reminders about the Rule Nisi process. Roig v. Mosquera, No. 3D13-390, 05/07/2014. The injured worker in this workers' compensation case sought enforcement of the Judge of Compensation Claims (JCC) ruling in her case.

Rule Nisi is "an expedited procedure to enforce a compensation order," as described by the Florida Fifth District in Orange County v. New, 39 So.3d 423 (Fla. 5th DCA 2010). It is a statutory remedy, provided in Fla. Stat. 440.24(1), and allows for "any beneficiary under such order" of the judge of compensation claims to apply to Florida's court of general jurisdiction, the Circuit court, for an order compelling any employer or carrier that is in default to show cause why a writ of execution or other enforcement should not be issued.

This process is specifically for instances of "default by the employer or carrier" in the payment of benefits under a compensation order, "or other failure by the employer or carrier to comply with such order" after it has become "final." In Orange County the Court explained that this remedy is for the injured worker or other beneficiary of a compensation order, not for employers or carriers seeking enforcement of orders in their favor. That inequality, according to the Court, results from the specific wording of Fla. Stat. 440.24(1).

In Roig, the JCC order was not about payment of compensation, that is indemnity to the injured worker, but about a 2007 order in which the JCC ordered the Carrier to provide orthopedic care. Contending that the ordered care had not been provided under the order, the Claimant brought that issue back to the JCC and obtained a second JCC order in 2009 essentially holding that "the 2007 order was in full force and effect;" that order "directed Appellant (the injured worker) to seek enforcement from a tribunal that has authority to enforce same."

That JCC order in 2009 was appealed to the First District Court in Tallahassee, which considers all workers' compensation appeals. The Court affirmed the JCC order in 2010.

The injured worker then sought a Rule Nisi from the Circuit Court, but it was denied. The Employer/Carrier contested enforcement, arguing that the Court lacked jurisdiction to enforce the JCC ruling because there were "factual disputes as to whether the Appellee (Carrier) complied with the 2007 order." The Circuit Court concluded that any such factual disputes should be first resolved by the JCC, before enforcement could be perfected. It therefore denied the petition for Rule Nisi. The injured worker appealed that decision to the Third District.

The Third District Court, in Roig, recited the plain language of Fla. Stat. 440.24(1), stressing that enforcement is appropriate for failure to pay pursuant to an order or for "other failure by the employer" pursuant to an order. The Court noted that "the question of whether Appellee (Carrier) complied with the 2007 order was fully resolved and not subject to re-litigation" following the decision of the JCC in 2009 (and appellate review of that decision by the First District Court in 2010).

The Rule Nisi is a summary proceeding, an "expedited procedure." The point is that the Circuit Court is there for enforcement of a final determination, not for an extended evidentiary consideration of contested factual disputes. the Third DCA's holding in Roig essentially endorses the process employed by the Claimant. That is, to litigate the factual disputes in the administrative process before the JCC. If necessary, that set of determinations can be reviewed by direct appeal, as can all JCC decisions. The 2009 order was affirmed by the First District Court of Appeal. Then, jurisdiction of the Circuit Courts is clear for the expedited enforcement procedure of Fla. Stat. 440.24(1).
On on May 7, 2014, with this explanation the Roig court remanded the case to the Circuit Court for Rule Nisi proceedings for enforcement of the JCC's 2007 order compelling the Carrier provide orthopedic care for the injured worker.

Some good lessons come from this situation. First, the appropriate process in any event of factual disputes regarding the efficacy of an order is to seek enforcement before the assigned JCC. This will afford both parties with the evidentiary proceeding in which any factual disputes can be resolved.

Second, the litigation process, including this "expedited enforcement" can be very time consuming. In this instance, a 2007 order for medical care is in the Circuit Court for enforcement pursuant to Fla. Stat. 440.24(1) in 2014, following evidentiary proceedings before the JCC in 2009, an appeal of that order to the First District, unsuccessful Rule Nisi proceedings in the Circuit Court, and ultimately the Third District decision that Rule Nisi would be appropriate in this setting.

Seven years hardly seems consistent with our statutory goal of "quick and efficient delivery of disability and medical benefits to an injured worker" in Fla. Stat. 440.015. Seven years seems like a long time to wait for medical care.

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