Sunday, September 27, 2015

Should the Rules Change?

The procedural rules for workers compensation disputes are administrative in nature. The proper name for the rules is a mouthful, the Florida Rules of Procedure for Workers' Compensation Adjudication. About a year ago I wrote about the rules. In that post, I suggested that the appropriate abbreviation might be Fla.R.Pro.Work.Comp. 

That post drew a few comments. Some thought that how the administrative rules are cited should be controlled by what the Courts say. That is interesting because the Courts cannot make procedural rules for the Office of Judges of Compensation Claims (OJCC). From 1973 until 2004 the Florida Supreme Court made procedural rules for the OJCC. They were referred to as the Workmens' Compensation Rules of Procedure. That "men's" evolved in the 1970s to be "workers'." Ebarrrasingly, there was recently a newspaper ad for a prominent Florida firm that used the term "workmens' compensation."

The first rules were adopted pursuant to the Court's inherent rule-making authority. The next year, 1974, the Florida Legislature delegated the rule-making authority to the Court statutorily. The Court then made various amendments to the rules over the years. The Court used a two-year cycle for consideration of rule changes. Such a cycle did not mandate changes in the rules, it was a cycle for considering rule changes periodically. 

In 2004, the Court was asked to again amend those rules. A lengthy opinion was delivered tracing the history of those rules. The Court explained the original "inherent authority" and the statutory delegation authority. It then noted statutory amendments regarding rule-making, speifically the 1993 amendment which granted rule-making authority to the OJCC. The Court concluded that it had no authority to promulgate rules for procedure before the OJCC.  

The opinion noted not only that conclusion, but said that the Court had never "had the constitutional authority to promulgate rules of practice and procedure for this executive entity." The Court explained clearly that the OJCC is not a court. The term "court" is defined in the Florida Constitution, and simply does not include the OJCC, an agency of the executive branch. That bothers a fair number of people who insist on nonetheless referring to this agency as "this court" or "the court."

The Court's conclusion was not unanimously popular. There were attorneys who belived that it was the legislature that lacked the constitutional authority to grant rule-making power to the OJCC. A professor I studied under liked to remind us that the Supreme Court is always right, because they are last. For the last 11 years, the Florida Rules of Procedure for Workers' Compensation Adjudication, or Fla.R.Pro.Work.Comp. have been the guide through the OJCC litigation process. Some use the Court's vernacular, citing "Fla.Admin.Code.R. 60Q________." Some use "FRWCA" as in "Rule 60Q6.______. FRWCA." Some just say "the 60Qs."

A long recitation of history. The original 60Qs were published in 2003. There were amendments in 2006, 2010, 2012, and 2014. And in 2015 the question has been asked "will there be amendments in 2016?" 

There is no "two-year cycle" for the administrative rules. That two-year cycle concept was a Supreme Court format. The Florida Rules of Procedure for Workers' Compensation Adjudication could be amended at any time. The question is no longer whether it is time to amend the rules. The question is whether the rules need to be amended. 

There are a variety of ways to suggest changes. The Florida Bar has a rules advisory committee made up of practitioners from around the state. Philip Augustine,, is the chair and Rosemary Eure,, is vice-chair. The Florida Workers' Advocates (FWA) is an attorney group that includes a committee on procedural rules. Kellye Shoemaker,, is the president of the FWA. The workers' compensation section of The Florida Bar also has a rules committee. The chair of the section is Michael Winer,

But ideas for amendment to the rules need not come through any organization. You can contact me directly with any thoughts or suggestions. Email me at

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