Tuesday, June 20, 2017

The Opportunity to be Heard is Important

The Florida First District Court of Appeal rendered a decision in Jiminez v. United Parcel Services, Case no., 1D16-4959 on June 19, 2017. The case is interesting, and reminded me of a case I decided several years ago. 

The Claimant, Mr. Jiminez filed a petition for benefits, which was dismissed for lack of jurisdiction. As I have written before, jurisdiction is another way of saying "authority," and thus the Judge in this case concluded that he did not have the authority to hear the claim because it challenged the constitutionality of section 440.12(2), Fla. Stat., which provides:
(2) Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week. However, if the employee’s wages at the time of injury are less than $20 per week, he or she shall receive his or her full weekly wages. If the employee’s wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is:
(a) Equal to 100 percent of the statewide average weekly wage, determined as hereinafter provided for the year in which the injury occurred; however, the increase to 100 percent from 662/3percent of the statewide average weekly wage shall apply only to injuries occurring on or after August 1, 1979; and
(b) Adjusted to the nearest dollar.
This is commonly referred to as the "maximum compensation rate." It is based on a calculation of the "statewide average weekly wage." A similar cap on benefits is part of multiple workers' compensation statutes in the United States. Several years ago I witnessed someone ask why states rely on these "maximum rates." That is interesting, and I have addressed it some in What is the Max Rate Payable? and What is Comp Worth? There is plenty to debate and discuss regarding both the existence and extent of maximum rates. 

But, procedurally Jiminez is also an interesting decision. The Court's opinion reminded me of a case I heard over a decade ago, Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005). The trial order is here (see if you can find my egregious typographical error; spell check leaves you hanging sometime), and the appellate decision is here. I concluded in Anderson that the discovery sought in that case was "of little relevance to the issues before me." However, I recognized that the discovery "may or may not be relevant to the Court of Appeal in this matter."

The parties in Anderson conceded that I had no authority to make any determination of constitutionality regarding the statute. That is a power and authority that is beyond Florida Judges of Compensation Claims. For more on that distinction, and the way in which some other states may differ regarding judicial authority, see Another OK Court Challenge. As the issue the parties in Anderson were disputing was a constitutional decision, I agreed with their consensus that I had no authority to decide the issue. 

However, I concluded that it was appropriate for such issues to "be raised in this proceeding, for preservation of the record." I therefore concluded that whether the documents sought in discover were or were not relevant to the issues before me, they might be relevant to a decision for "the tribunal which will decide"; the constitutional issue, before the First District Court. 

The issue before me was not whether the statute was constitutional or not, nor whether the documents sought in discovery were relevant in that question or not. The issue before me was whether those documents should be produced in discovery. Discovery is not governed by whether requested documents are "relevant," but (back in 2005) whether that discovery was "reasonably calculated to lead to the discovery of admissible evidence." In other words, was it likely that the documents sought would contribute to the understanding of the matter by either being admissible or helping the parties find evidence that was admissible. 

I ordered that the documents be produced. The Employer/Carrier sought relief or protection from the Florida First District Court of Appeal. The Court agreed with my order. Essentially, the Court concluded that it is appropriate for parties to make arguments, to make a record, before a Judge of Compensation Claims on issues that the Judge cannot decide. This record then is the foundation for the Court, exercising its broader jurisdiction as a constitutional court, to decide those issues which are not within the Judge of Compensation Claims' jurisdiction or authority. 

Anderson Columbia has been periodically relied upon by the Court since that time. In Punsky v. Clay County Bd. of County Com'rs, 60 So.3d 1088 (Fla 1st DCA 2011), the Court said "That does not mean, however, that claimant was prohibited from creating a record in support of his constitutional challenge." In Russ v. Brooksville Health Care, Ctr., 109 So.3d 1266 (Fla. 1st DCA 2013) the Court reiterated "A JCC's inability to rule on constitutional issues does not preclude a claimant's right to build an evidentiary record in preparation for a constitutional challenge." In Govea v. Starboard Cruise Service, Inc., 212 So.3d 456 (Fla 1st DCA 2017) the Court reminded the "Claimant was not prohibited from creating a supporting record below." 

The Court has concluded that a party seeking to build such a record is entitled to "an evidentiary hearing." That hearing opportunity is the procedural path by which the party can mount a constitutional challenge. The opportunity to be heard, which includes the opportunity to conduct discovery in some instances and to submit evidence, is a constitutional right of immeasurable value and effect. It is discussed in recent posts like Notice and Opportunity to be Heard and Wondering Whether to Object.

That does not mean that the maximum rate statute is or is not constitutional, or that it is or is not appropriate public policy. The real point at this stage is that if someone makes such a challenge to a statute, it makes sense for them to have an opportunity to discover and submit their evidence (build a record) so that a court with the appropriate authority (jurisdiction) of the constitutional question can decide that issue. 

Jiminez v. United Parcel Services just reminds us of that process.