Wednesday, October 29, 2014

The New Rules, 2015

There is a pattern, barely discernible. But we seem to look at the Florida Rules of Procedure for Workers' Compensation Adjudication (yes, they have a name) rules about every two years. I sometimes see them abbreviated, but the rules themselves do not state how they should be abbreviated. I have no idea what the Blue Book solution would be, but using my ALWD, I think the appropriate abbreviation is "Fla.R.Pro.Work.Comp." 

(Update; 10.30.14: I received several emails on citation form. Judge Anderson and Randall Porcher each referred me to Appellate Rule 9.800(i) as requiring the citation to be to the Florida Administrative Code, "Fla.Admin.Code.R. 60Q______." Judge Lazzara noted that the Florida Style Manual, Seventh Edition, published by Florida State University Law Review would support the same format. Attorney Gil Godfrey suggested "FRWCA," as in Rule 60Q6.____, FRWCA," in parallel to citations to civil rules as in FRCP." I am pleased that so many shared thoughts.) 

The 2014 rules will not be effective on Halloween as in other recent iterations, but shortly thereafter. They were published on October 21, 2014 and are therefore effective November 10, 2014. What is different, what is new?

First of all, I encourage everyone to read for themselves. The new rules are on the OJCC website,, and this link will lead directly there.

There is a new definition in the rules, for "personally conferred." There have been those who think the litigation "form letter" is "conferring." They draft a motion and send it to opposing counsel with a cover letter that essentially says "if I do not hear from you in "x" days, I will file this and state that you object." In the Hollywood blockbuster Fantastic Four, a villian is terminated by his boss. In the conversation, the boss says "this is not a negotiation, it is a notification." That is not what personally confer means. It is supposed to be a discussion, which might lead to agreement or compromise. That is the whole point. Fla.R.Pro.Work.Comp., Rule 60Q6.102.

When petitions are filed, the whole point is to obtain benefits. This is enhanced if everyone is on the same page, including defense counsel. When a petition is filed in an existing case, the Petition must be served on defense counsel if known. Fla.R.Pro.Work.Comp., Rule 60Q6.105(6).

E-service is coming for employers! In preparation for that process, all employers will now be required to register with the OJCC providing a single, general delivery, email and physical address. This will be an ongoing effort. As the programming comes online to accomplish utility of this data, we will update the community. Fla.R.Pro.Work.Comp., Rule 60Q6.108(11).

For years, most adjusters have attended mediation by telephone. The rules allowed mediators to grant permission for telephonic attendance. The rule now has a presumption that telephonic attendance will be allowed for represented adjusters "unless an objection is filed" on the "basis of good cause." Fla.R.Pro.Work.Comp., Rule 60Q6.110(5)(a).

Clarity is provided for the disqualification of mediators. The potential has always existed for such a situation, but the rules were silent. The reassignment process is by motion (all requests for an order or other relieve should be by motion, see Rule 60Q6.115). Fla.R.Pro.Work.Comp., Rule 60Q6.111(1)(c).

Pretrial procedure is provided with a timeline. The Rules now require that the claimant or counsel provide their portion of the stipulation form 14 calendar days before the pretrial hearing, and then is to be returned to the claimant or counsel seven days prior to the hearing. This may lead to a more organized progression of the stipulation form and more predictability for counsel. This may allow the counsel to plan their work on the pretrial with more certainty. Fla.R.Pro.Work.Comp., Rule 60Q6.113(2).

What does "amendment" mean. There is additional language added to the rules to convey that amendments will clarify. So "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." The rule also adds "the failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense." Fla.R.Pro.Work.Comp., Rule 60Q6.113(2)(a).

Affirmative defenses must now be "raise with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days." This section goes on to provide that "failure to plead with specificity shall result in the striking of the defense." The same constraint is applied to "objections/responses to the affirmative defenses." Fla.R.Pro.Work.Comp., Rule 60Q6.113(2)(h).

Want a stipulation to result in an order? The stipulation provision now says that a judge may enter an order reflecting the terms of a written stipulation or agreement of the parties "upon proper motion of any party," which is consistent with 60Q6.115, which has long said "any request for an order or other relief shall be by motion." Fla.R.Pro.Work.Comp., Rule 60Q6.116(5).

What to do with those x-ray films or video evidence, or anything that cannot be readily scanned to a PDF? Each party will file a trial memorandum, and such evidence that cannot be filed electronically "shall be filed contemporaneously with the memorandum and served on all parties by the same method" used to provide it to the judge's office. Fla.R.Pro.Work.Comp., Rule 60Q6.116(7).

The new rules have a provision regarding motions for rehearing. Attorneys have discussed the workers' compensation rules for rehearing and there has been much discussion over the years. The new rules provide that a motion for rehearing is "deemed denied" if no order is entered "by the close of business 10 days after service." Fla.R.Pro.Work.Comp., Rule 60Q6.122.

There are occasions when there are several child support recipients for whom consideration must be given in a settlement order. The new rules provide that allocations in those situations will be made in accord with the formulaic process defined for income deduction orders in Section 61.1301(4)(c) F.S. Fla.R.Pro.Work.Comp., Rule 60Q6.123(4)(b). Counsel would do well to take a few minutes to review that section.

There are changes as regards requiring verified petitions for fees. The Rule now provides a bifurcation between entitlement petitions and amount petitions. The rule says that "the judge shall require the filing of a verified motion" when only fee entitlement is at issue. The judge likewise "may require the" filing if the issue is fee amount. Fla.R.Pro.Work.Comp., Rule 60Q6.124(5).

This is a highlighting of the changes. I encourage everyone to read for themselves. The new rules are on the OJCC website,, and this link will lead directly there. 

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