Discovery Procedure Public Records And Contribution

Workers’ Compensation
Discovery, Procedure Including Public
Records Issues

Brian Bolton
Florida Bar Board Certified in Workers’ Compensation Law,
“AV” Rated by Martindale-Hubbell and a Member of the
Florida Bar Association Workers’ Compensation Section and
City, County and Local Government Section

What Is Discovery?
Discovery-Part of the pre-trial litigation process
during which each party requests relevant
information and documents from the other side
in an attempt to "discover" pertinent facts.
Generally discovery devices include
depositions, interrogatories, requests for
admissions, document production requests and
requests for inspection.

Workers’ Compensation
Discovery – Q Rules

60Q-6.114. DISCOVERY
(1) Any party may commence with discovery
methods specifically authorized by
statute, including depositions, issuance of
subpoenas and requests for production, prior to
invoking the jurisdiction of the judge.

Depositions

(2) Depositions.
(a) Depositions of witnesses or parties may be taken and
used in the same manner and for the same purposes as
provided in the Florida Rules of Civil Procedure.
(b) Approval of the judge is not necessary to take a
deposition by telephone. If a deposition is taken by
telephone, the oath shall be administered in the physical
presence of the witness by a notary public or other
person authorized by law to administer oaths.

Production and Entry on Land

(3) Production and entry on land. Any party
may seek production of documents or other
tangible things from other parties or non-
parties and may seek entry onto land or other
property as provided in the Florida Rules of
Civil Procedure.

What Is A Public Records
Request?
It is generally a request made by a
person, business entity, attorney, group, etc., to
a public
entity, person, committee, agency, etc., for
information obtained or generated by the public
entity made to perpetuate, communicate and
formalize knowledge of public business. The
request may be made in writing or orally.

What Is An Advantage Of A
Public Records Request For
Discovery Purposes?

Note, a Public Records request is not a form of
formal discovery! It may however be a tool to
obtain the same type of information that may
otherwise be obtained through formal
discovery.

What Is The Advantage Of A
Public Records Request For
Discovery Purposes? (Continued)
There are advantages to requesting public
records from the government employer instead
of issuing a request to produce. Ordinarily, a
claimant’s attorney does not have to wait thirty
(30) days to receive the documents from the
governmental entity via a Public Records
Request.

Distinctions Between A Public
Records Request And A
Request To Produce
One is a pleading, the other is not.
One goes to the attorney, the other to the
Records Clerk with the consent of the local
government’s attorney.
They are distinctive writings, one will not
serve to trigger the other.

Public Records-Strong Public
Policy!
Florida has a strong public policy in favor of the
right to access to governmental records and
meetings of collegial bodies of governmental
entities. Article I, Section 24, Florida
Constitution, provides that every person has the
right to inspect or copy any public record made
or received in connection with the official
business of any public body, officer, or
employee, except if the public record is deemed
by the legislature to be exempt or confidential.

Public Records-Strong Public
Policy! (Continued)
Chapter 119, Florida Statutes, the Public
Records Act, contains the majority of the
laws relating to public records, including
laws pertaining to records which are
exempt or confidential from public
inspection. However, many other laws
relating to public records are scattered
throughout the Florida Statutes.

Does A Carrier Have A Duty To
Provide Its Records When
Presented With A Public Records
Request?
The question is whether the Carrier is an
agency acting on behalf of the public entity.
Chapter 119 defines “agency” to include
private entities “acting on behalf of any
public agency.” F.S.119.011(2). The answer
is, probably, yes.

Provide Its Records When
Presented With A Public Records
Request? (Continued-public
function)
“When the agreement transfers the actual
public function, public access follows.” See
B & S Utilities, Inc., v Baskerville-
Dononvan, Inc., 988 So.2d 17, 21 (Fla. 1st
DCA 2008).

Provide Its Records When Presented
With A Public Records Request?
(Continued-contact counsel)
The attorney for the governmental entity
should be contacted and advised of the
request. And, when litigation
commenced, defense counsel should be
made aware. In fact, there is an ethical
issue if the request is made in the presence
of litigation and defense is not contacted in

Provide Its Records When Presented
With A Public Records Request?
(Continued-Negotiations Exemption)
F.S.624.311(3) states that “records of
insurance claims negotiations of any state
agency or political subdivision are
confidential and exempt from…the public
records law until termination of all
litigation and settlement of all claims…”

Public Records-Remedy
Compliance with the Public Records Act-Remedy is to file a civil
lawsuit, for which § 119.11(1), Fla. Stat., requires an expedited
hearing. Petition for writ of mandamus is also a possible remedy.
In either case the requestee can ask for an in camera inspection if
it believes that the records include confidential or exempt
material. § 119.07(1)(g), Fla. Stat. If the requestor presents a
prima facie claim for relief in the petition for writ of mandamus,
the court will issue an order to show cause so that it can receive
further consideration on the merits. Staton v. McMillan, 597 So.
2d 940 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v.
Austin, 605 So. 2d 1266 (Fla. 1992). Personnel records commonly
have a plethora of exempt material, such as social security,
ridesharing information, medical information, etc., and may be
redacted.

Public Records-Attorney Fees
If the court determines that the requestee unlawfully refused to
give access to any of the public records, it shall assess costs and
reasonable attorneys fees to the requestor. § 119.12, Fla. Stat.
Attorney fees may be recoverable even if the requestee denied
access on a good faith but reasonable belief that the documents
were exempt. In addition, a non-criminal infraction with a fine
of up to $500 may be imposed. If the requestee knowingly
violated the Public Records Act, it may be found guilty of a first
degree misdemeanor. § 119.07(10), Fla. Stat. E.g., News and
Sun-Sentinel Company v. Palm Beach County, 517 So. 2d 743
(Fla. 4th DCA 1987). Cf., Alston v. City of Riviera Beach, 882
So. 2d 436 (Fla. 4th DCA 2004).

Public Records-Cost To Copy

F.S. § 119.07(4)(a)1, Fla. Stat., limits fees for production to fifteen cents for
letter-sized copies and an additional five cents for two-sided copies. However,
the requestee may impose a special service fee if extensive time for clerical or
supervisory assistance, or both, must be spent inspecting or copying and
excising/redacting exempt or confidential portions of public records. §
119.07(4)(d), Fla. Stat. Florida Institutional Legal Services, Inc. v. Florida
Dep’t of Corrections, 579 So. 2d at 269 (Fla. 1st DCA 1991)(Agency can
charge a reasonable special fee for supervisory personnel necessary to review
records for possible exemptions.) A governmental entity can charge only for
the actual cost by a clerk and/or supervisor in retrieving, inspecting and
copying records. Courts have deemed that the agency can charge for clerical
or supervisory time if it is more than 15 minutes. E.g., Board of County
Comm’rs of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).

Public Records-Confidentiality
The Public Records Act must be liberally construed in favor of
open government, and exemptions from disclosure are to be
narrowly construed. The access to public records which might
otherwise be required under § 119.07(1)(a) is subject to
hundreds of exemptions as described in various sections of
Chapter 119 and many other chapters of the Florida Statutes.
However, some records in the possession of a governmental
entity or official, such as the notes taken by the city
commissioners during the closed meeting, do not rise to the level
of being a public record if they do not perpetuate, communicate,
or formalize knowledge. E.g., Seminole County v. Wood, 512 So.
2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla.
1988).

Public Records-Personnel
Records
Generally, the Public Records Act does not exempt
personnel records. Personnel records are subject to
public inspection and copying, with the exception of
information contained therein which is specifically
exempt or confidential under the Public Records Act
or other statute. All disciplinary records are open to
inspection and copying because they are not exempt
from the Public Records Act.

Public Records-Personnel
Records-Exemptions
However, the right of access to personnel files is not the right to
rummage free into public employees’ personal lives. All medical
records and medical claims records are confidential and exempt
from the Public Records Act. Written permission must be
obtained. Michael v. Douglas, 464 So. 2d 545, 546 (Fla. 1985).
The confidentiality of medical records applies even if the
records are not retained solely in conjunction with an
employee’s participation in a group insurance plan. News-Press
Publishing Company, Inc. v. Kaune, 511 So. 2d 1023 (Fla. 2d
DCA 1987).

Public Records-Medical Records-Exemptions
Continued
Medical records and medical claims of county or city
employees are confidential and exempt from public
access but may be given to the employee or the
employee’s representative or to another person upon
the written authorization of the employee. § 112.08(7),
Fla. Stat. See also, § 440.125(1), Fla, Stat. (medical
records and medical reports of injured employees are
confidential). Personal identifying information of
dependent children of current and former employees
who are or were insured under the group health
insurance plan, are exempt from the Public Records
Act

Public Records-Medical
Records-Exemptions
Continued
Medical records and medical claims of county or city
employees are confidential and exempt from public
access but may be given to the employee or the
employee’s representative or to another person upon
the written authorization of the employee. § 112.08(7),
Fla. Stat. See also, § 440.125(1), Fla, Stat. (medical
records and medical reports of injured employees are
confidential).

Public Records-Direct Deposit-Exemptions
Continued
Direct deposit records are exempt and
confidential pursuant to § 70.076(5), Fla.
Stat. As in all records requests when there
are exemptions, the city clerk will state the
basis for the exemption and will cite to the
applicable statute authorizing the
exemption.

Public Records-Drug Free Workplace-
Exemption Continued

Results of drug testing under
F.S.440.102 (Florida Workers’
Compensation Drug Free
Workplace Program) are exempt
from the Public Records Law. See
F.S.440.102(8)(a).

Public Records-Direct Deposit-Confidential
Versus Exempt
It is worth noting that, when a record is confidential, the record
may not be inspected by the public. WFTV, Inc. v. School
Board of Seminole, 874 So. 2d 48 (Fla.5th DCA 2004).
However, when a statute makes a record merely exempt, the
governmental entity is not prohibited from disclosing the
record. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th
DCA 1991). The statutory exemptions do not apply if the
information has been made public. See Downs v. Austin, 522 So.
2d 931 (Fla. 1st DCA 1988); Bludworth v. Palm Beach
Newspapers, Inc., 476 So. 2d 775 (Fla. 4th DCA 1985), review
denied, 488 So. 2d 67 (Fla. 1986); Satz v. Blankenship, 407 So.
2d 396 (Fla. 4th DCA 1981); § 119.07(1)(e), Fla. Stat.

Public Records-Attorney Client Privilege

The attorney-client privilege established under
the Evidence Code under § 90.502 does not
apply to written communications between the
government and its attorney. However, §
119.071(1)(d), Fla. Stat., gives a limited
statutory work product exemption.

Public Records-Limited Work Product
Exemption
A public record prepared by the agency attorney, or at
the attorney’s express direction, that is prepared
exclusively for litigation or for adversarial
administrative proceedings, or that was prepared in
anticipation of imminent civil or criminal litigation or
imminent adversarial administrative proceedings, is
exempt from public records. However, the exemption
applies only to that portion of an attorney
communication that reflects a mental
impression, conclusion, litigation strategy, or legal
theory of the attorney.

Exemption (Continued)
The communications of defense attorney such
as status memos and deposition summaries, will
have to be inspected by the city and excised of
any mental impressions, conclusion, litigation
strategy, or legal theory of the attorney. Any
facts or other information obtained from
witnesses, the claimant, or others which do not
reflect mental
impressions, conclusions, litigation strategy, or
legal theory of the attorney are not exempt.

Exemption (Continued)

Discussion of Adjusters
notes, emails, notes of medical case
manager, notes of conversations with
supervisors, surveillance.

Exemption Temporary

The limited statutory work product exemption
is temporary. At the conclusion of the litigation,
the limited statutory work product exemption
ends, and it is accessible by the public with the
exception of other exemptions or confidential
information such as medical information, social
security numbers and the like.

Public Records-Limited Work
Product Exemption Temporary
(Continued)

is temporary. At the conclusion of the
litigation, the limited statutory work product
exemption ends, and it is accessible by the
public with the exception of other exemptions
or confidential information such as medical
information, social security numbers and the
like. §119.071(5), Fla. Stat.

Public Records-Exemptions
Temporary (Continued)

is temporary. At the conclusion of the
litigation, the limited statutory work product
exemption ends, and it is accessible by the
public with the exception of other exemptions
or confidential information such as medical
information, social security numbers and the
like. §119.071(5), Fla. Stat.

Claimant’s Burden Of Proof –
Preponderance of the Evidence

The Concurrence in Stokes v. Schindler
Elevator Corp, 36 Fla. L. Weekly D982c (1st
DCA, 5/9/11), explained that the
Preponderance of the evidence standard
applies. See Alston v. Etcetera Janitorial
Services., 634 So. 2d 1133, 1134 (Fla. 1st DCA 1994)

Claimant’s Burden Of Proof –
Preponderance of the Evidence
(Continued)
The Concurrence in Stokes v. Schindler Elevator Corp, 36 Fla.
L. Weekly D982c (1st DCA, 5/9/11), explained the legislature, by
eliminating the presumptions in favor of claimants in effect
prior to 1990, and requiring that a claimant prove his or her
case “on the merits,” intended to require claimants to prove
entitlement to relief by a preponderance of the evidence, or a
greater weight of the evidence, a standard which represents the
lowest burden of persuasion in the law. See Allstate Ins. Co. v.
Vanater, 297 So. 2d 293, 295 (Fla. 1974) (describing three basic
standards of proof).

Claimant’s Burden Of Proof – Preponderance
of the Evidence (Continued)

The Concurrence in Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly
D982c (1st DCA, 5/9/11), further explained that Black's Law Dictionary 196-
97 (6th ed. 1990) is instructive and defines burden of proof, and states
“burden of establishing” a fact means burden of persuading the trier of fact
that existence of the fact is more probable than its non-existence. See State v.
Edwards, 536 So. 2d 288, 292-93 (Fla. 1988) (explaining that substantial
evidence standard is used for preliminary rulings on admissibility of
evidence, not for adjudication of ultimate facts). The Fla. Std. Jury Instr.
(Civ.) 401.3 explains "Greater weight of the evidence” as meaning more
persuasive and convincing force and effect of entire evidence in case. See Fla.
Std. Jury Instr. (Civ.) 601.1 (explaining jury may use reason and common
sense to make factual findings and may draw reasonable inferences from the
evidence in determining facts).

Responses

(4) Responses and objections to
depositions, production, or entry shall be made
as provided in the Florida Rules of Civil
Procedure.

JCC’s Authority

(5) The judge may enter orders to effectuate
discovery, including orders compelling
discovery, protective orders, and orders
imposing sanctions for failure to comply with
or for using discovery methods not specifically
authorized by statute. For good cause
shown, the judge may enlarge or shorten
applicable timeframes for complying with
discovery.

General Rule - Discovery

In considering whether to permit discovery, a
judge should consider whether the
information sought is relevant or reasonably
calculated to lead to the discovery of
admissible evidence. Spry v. Gallagher
Bassett, 985 So.2d 1187 (Fla. 1st DCA 2008).

Adjuster’s Records Discovery-
Claims File
In GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d
DCA 2006), the 2nd DCA held that requiring the disclosure of
claim file materials during the litigation of coverage issues
would result in irreparable harm and denied plaintiff’s access
to any materials in the adjuster’s file in an auto accident case
wherein coverage was denied on the basis of misrepresentation
in the application process. Coverage issue included
circumstances when a claimant was seeking additional benefits
even after some money had been paid. See Am. Bankers Ins.
Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA
1998)

Adjuster’s Records Discovery-
Claims File (Continued)
Coverage Resolved

In GEICO General Ins. Co. v. Hoy, 927 So.2d 122
(Fla. 2d DCA 2006), the appellate court stated that a
claim’s file is not discoverable until after the coverage
issue has been resolved.

Adjuster’s Records Discovery
(Continued) – Theory: “Cat
Out Of The Bag”
The Florida Supreme Court discussed the theory
behind disclosure of materials in Allstate Ins. Co. v.
Langston, 655 So.2d 91, 94 (Fla.1995). Disclosure of
“cat out of the bag material” such as material that
constitutes work product, trade secrets, or is
otherwise protected by privilege may cause
irreparable injury if disclosed.

Adjuster’s Records Discovery
(Continued) –Accident
Investigation Not Discoverable

Generally speaking, “the contents of an insurer's
accident investigation file constitute work product.”
W. Am. Ins. Co. v. Neva Prods., Inc., 490 So.2d
117, 118 (Fla. 2d DCA 1986).

Financial Records Discovery

The Florida Constitution protects the financial
information of individuals if there is no
relevant or compelling reason to compel
disclosure. See Spry v. Gallagher Bassett, 985
So.2d 1187 (Fla. 1st DCA 2008); See also Article
I, section 23, of the Florida Constitution (Right
to Privacy)(Case law interpretations address
financial privacy).

Financial Records Discovery
Procedure – Evidentiary
Hearing

The party seeking discovery of financial
records must provide evidence to show that
the information is relevant. Spry v. Gallagher
Bassett, 985 So. 2d 1187 (Fla. 1st DCA 2008)

Discovery
IME and EMA reports

Are fully discoverable irrespective of who
requests the evaluation.

Work Product Privilege

Non-Witness Experts

Reports of other experts hired in a non-witness
capacity are not discoverable. See Nevin v.
Palm Beach County School Bd., --- So.2d ----,
2007 WL 1518269 (Fla. 1st DCA, May 25, 2007).
See also, Metric Engineering, Inc. v. Small, 861
So.2d 1248, 1250 (Fla. 1st DCA 2003).

Exception to Non-Witness Rule
Rule 60Q-6.114(2)(a) provides that depositions shall be governed
in all respects by the Florida Rules of Civil Procedure. Rule
1.280(b)(4)(B) permits a party to depose an expert not listed as a
witness only “upon a showing of exceptional circumstances under
which it is impracticable for the party seeking discovery to
obtain facts or opinions on the same subject by other means.”

To demonstrate a “need,” sufficient to compel discovery of work-
product materials, “a party must present testimony or evidence
demonstrating that the material requested is critical to the
theory of the requestor's case, or to some significant aspect of the
case. See Metric Engineering, Inc. v. Small, 861 So.2d 1248, 1250
(Fla. 1st DCA 2003).

Work Product Privilege

Attorneys, Investigators, Adjusters
Information from attorneys, investigators and
adjusters obtained in anticipation of litigation
or in connection therewith is also not
discoverable. See Seaboard Air Line R. Co. v.
Timmons, 61 So.2d 426 (Fla.1952); Federal
Express Corp. v. Cantway, 778 So.2d 1052
(Fla. 4th DCA 2001).

Third Party Attendance At
IME
Florida Law In General
…case law provides that parties in civil cases are
generally entitled to have their attorneys and
court reporters or videographers attend both
physical and mental examinations unless there
are good reasons for excluding them. See, U.S.
Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla.
2000).

Third Party Attendance At
Psychiatric IME
…it is a clearly established principle of Florida law
that a person who is required to submit to a mental
examination in an adversarial proceeding or setting is
entitled to have the examination attended by her
attorney and a court reporter or videographer, subject
to the court's authority to limit attendance for good
cause. See, Cimino at 701; Maramanv. State, -- So.2d--
, 2008 WL 199878 (2nd DCA, January 25, 2008).

Discovery Of Non-Privileged
Attorney-Client Communications

Attorneys can be compelled to disclose
communications with claimant concerning
whether claimant was advised of statutory
statute of limitations language. See, Waffle
House v. Scharmen, 2008 LEXIS 7191 (Fla. 1st
DCA, May 21, 2008)(Refers to old wage loss
cases for knowledge of performing a job
search or concerning trial dates).

Waffle House v. Scharmen

In Waffle House v. Scharmen, the JCC
abused her discretion by denying E/C the
opportunity to depose Claimant's counsel to
determine whether counsel informed
Claimant of the applicable statute of
limitations, thereby providing Claimant
with actual knowledge of the same.

Medical Evaluation Records
Probably Admissible Under
F.S.440.29(4)
In Nunez v. Gallagher Bassett, the referral to a
neurosurgeon resulting in an examination which
included review of an MRI and a diagnosis was for
the purpose of determining if surgery was warranted
to treat claimant’s condition…and the 1st DCA held
that “evaluation and diagnosis constitutes
treatment”…33 Fla. L. Weekly D1707a (1st DCA, July
7, 2008); F.S.440.29(4)(Medical records of authorized
treaters are admissible upon filing).

Sanctions

Fla. Admin. Code R. 60Q-6.125(6) "Any
order imposing sanctions shall describe the
conduct determined to constitute a violation
of the rule and explain the basis for the
sanction imposed."

Hill v. ACE USA, 33 Fla. L. Weekly D2078c
(Fla. 1st DCA, August 29, 2008)

Sanction of dismissal of petitions with
prejudice for claimant’s divulging
information obtained at a mediation to a
doctor about the doctor’s opinions was too
harsh of a penalty.

Standard For Dismissal-Willful
Disregard Of The Judge’s
Authority
Where record lacks evidence of willful or
flagrant disregard for court's
authority, dismissing complaint without
prejudice for failure of counsel to appear is
too severe a sanction to impose upon a
litigant. See Martinez v. Collier County
Public Schools, 804 So. 2d 559 (1st DCA
2002).

Sanctions - Hadden v. Florida
Medical Center
In Hadden v. Florida Medical Center, 33 Fla. L.
Weekly D 1665 (1st DCA, June 27, 2008), claimant’s
Petition was stricken and she then re-filed within
days after the JCC granted the employer's and
servicing agent's motion to strike her then
timely, pending petitions as a sanction for her failure
twice to appear at previously scheduled depositions.
A summary final order was entered with prejudice
by the JCC based on the running of the Statute of
Limitations.

Hadden v. Florida Medical Center Holding

Reversed – The order striking claimant's petition for
benefits was improper, and it was remanded with
directions that the judge reconsider that order
pursuant to the principles expressed in Martinez, 804
So. 2d 559 (1st DCA 2002). “Should the judge again
decide to grant the motion to strike, an order must be
entered containing the requisite findings of willfulness
on claimant's part.” The Court explained that “in
light of our disposition of this point, we must also
reverse the summary final order, since the petition
upon which it was predicated was necessarily filed
because of the striking of claimant's earlier petitions.

Unripe Claims May Not Be
Adjudicated-Repetitive Trauma

In Farnam v. U. S. Sugar Corporation, 34 Fla. L. Weekly
D509c (Fla. 1st DCA, March 6, 2009), The 1st DCA
reversed a JCC’s findings concerning a repetitive trauma
claim stating that under Section 440.192(9), Florida
Statutes, only claims that have been listed in a petition for
benefits and mediated may be adjudicated by a JCC.
There, the claim for compensability of the back
condition, based on a repetitive trauma theory, was the
subject of a petition for benefits, but had not gone through
the mediation process.

Unripe Claims May Not Be
Adjudicated
See Also, Parodi v. Florida Contracting Company, Inc., 34
Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09), in which
claimant's counsel alerted the JCC to the fact that several
PFBs had been filed that had not yet been mediated. The
E/C would not agree to try the unmediated issues and, as a
result, the JCC reserved jurisdiction on these unmediated
PFBs for a subsequent hearing. When a claim is
ripe, absent some action on Claimant's part to bring this to
the attention of the JCC, res judicata will bar a subsequent
claim and by reserving jurisdiction on the claims, the JCC
did all that was required to preserve the issues for a
subsequent hearing.

Ripe Claims That Are Not
Adjudicated Are Considered To Have
Been Waived
In M.D. Transport v. Paschen, 996 So.2d 902 (Fla. 1st DCA
2008), the claimant’s treating doctor recommended
psychiatric care based on a 2002 letter. The claimant
testified in a 2002 deposition about the psychiatric problems.
A petition was filed for such care in 2004. A hearing took
place in 2005 but did not include the psychiatric claim. No
mediation was held on the 2004 petition before the 2005
hearing. At a subsequent hearing, E/C argued res judicata
but the JCC allowed the claim for psychiatric care and
awarded benefits. The 1st DCA reversed stating that the
claim was ripe and waived, and that failure to mediate made
no difference.

Claims Dismissed Are Considered To
Have Been Waived

In McLymont v. A Temporary Solution, 738
So.2d 447 (Fla. 1st DCA 1999) the claimant
voluntarily dismissed his petition for benefits
requesting authorization for dental care shortly
before the merits hearing, because the dentist's
deposition could not be taken in time. This court
held the claimant waived his claim because it was
ripe at the time of the hearing.

Exception - Newly Discovered
Evidence

Where a claim is based on newly discovered
evidence, it cannot be barred for failure to raise it
at an earlier proceeding, because it was not mature
at the earlier proceeding. See Correa v. Miami
Airport Hilton, 813 So. 2d 1070-71 (Fla. 1st DCA
2002)(holding claim for TMJ not barred by res
judicata where MRI was obtained after merits
hearings, and prior to obtaining MRI, claimant was
advised she had no TMJ problem)

Exception – Lack Of Knowledge

In Thomas v. Ekerd Drugs, 987 So.2d 1262 (Fla. 1st DCA
2008), Claimant would have had no reason to continue the
case at the hearing time, or delay rendition of the final
order. Instead, from the evidence presented, it could be
reasonably inferred that she dismissed her lumbar claim
because she had no reason to litigate that claim.
Specifically, at the time of the hearing, she had been told by
two physicians that there was nothing wrong with her back
and her lumbar pain was due to fibromyalgia or chronic
fatigue syndrome, not her compensable accident.

2 Dismissals Rule
Mieses v. Applebee’s, 14 So. 3rd 1228, (Fla. 1st DCA, July
3, 2009), the 1st DCA held that “…a claim or petition may
be dismissed by the claimant or petitioner without an
order by filing a notice of voluntary dismissal . . . . [A]
second notice of voluntary dismissal shall operate as an
adjudication of denial of any claim or [PFB] previously
the subject of a voluntary dismissal.” Fla. Admin. Code
R. 60Q-6.116(2). However, subsequent claims not ripe at
the time of the second dismissal are not barred by the 2
Dismissal Rule.

Florida Evidence Code Applies
To Workers' Compensation
Proceedings
Amos v. Gartner, Inc., 34 Fla. L. Weekly D1721a
(Fla. 1st DCA, August 21, 2009)(JCC allowed an
FCE report into evidence over hearsay
objections, JCC reversed)
U.S. Sugar v. Henson, 823 So. 2d 104, 106 (Fla.
2002)
Martin Marietta Corp. v. Roop, 566 So. 2d 40, 42
(Fla. 1st DCA 1990)

Business Records Exception Applies To
Medical Records But All Elements Must Be
Proven
In German v. Ryta Food Corp., 36 Fla. L. Weekly D977c (1st
DCA, 5/9/11), the 1st DCA reversed a JCC’s admission of
medical records and bills where E/C interposed a timely
hearsay objection to the entry of medical records and bills
and where the custodian who testified could not testify as to
a key element of the Business Records Exception - that the
records were made contemporaneously with the event or by
a person with knowledge. Thus the records were
inadmissible even though they were made in the normal
course of business and that such a record is usually made in
the regular course of business.

Expert Reliance On Hearsay
In Amos v. Gartner, Inc., 34 Fla. L. Weekly D1721a
(Fla. 1st DCA, August 21, 2009), even though some
medical providers properly relied on an inadmissible
FCE report to various degrees (See Fla. Stat. 90.704)
for rendering opinion testimony, such reliance does
not make the report itself admissible. Allowing an
expert to act as a conduit for entry of an
inadmissible report defeats the purposes of the Rules
of Evidence. See Linn v. Fossum, 946 So. 2d
1032, 1037-38 (Fla. 2006).

Waiver Of Privilege
F.S. 90.507 Waiver of privilege by voluntary disclosure.
A person who has a privilege against the disclosure of a
confidential matter or communication waives the privilege if
the person, or the person's predecessor while holder of the
privilege, voluntarily discloses or makes the communication
when he or she does not have a reasonable expectation of
privacy, or consents to disclosure of, any significant part of
the matter or communication. This section is not applicable
when the disclosure is itself a privileged communication.

Disqualification Of An
Attorney
Attorney disqualification constitutes a
material injury. See, e.g., Bon Secours-
Maria Manor Nursing Care Ctr., Inc. v.
Seaman, 959 So. 2d 774, 775 (Fla. 2d DCA
2007); Akrey v. Kindred Nursing Ctrs. E.,
LLC, 837 So. 2d 1142, 1144 (Fla. 2d DCA
2003). Disqualification of counsel is an
extraordinary remedy and should be
avoided if possible as it deprives a party of
counsel of choice.

Recovery Of Attorney-Client
Materials
To recover documents, a party must prove:
1. The documents are privileged. See 90.507
2. The disclosure was unintentional.
3. The unintentional disclosure must be
plead timely.
See Also, Walker v. River City
Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA
2009).

Ethics Opinion 93-3 (2/1/94)
An attorney who receives documents that
appear to be privileged under the attorney-
client privilege and which are inadvertently
disclosed has an obligation to notify the
sender of the disclosure. See also Florida
Supreme Court Rule 4-4.4(b) and Opinion
74-7 (revised 10/6/08). This obligation
applies if the attorney knows or reasonably
should have known of an inadvertent
disclosure. It is a question of fact for the
Court.

IME: Evidentiary
Considerations
• “No medical opinion other than the opinion of
a medical advisor appointed by the JCC, an
independent medical examiner, or an
authorized treating provider is admissible in
proceedings before the JCC.” –F.S.440.13(5)(e)
• Each party is bound by his or her selection of
an IME and the opinions of the IME.

IME Before PFB?
Probably not - KARELL v. MIAMI AIRPORT
HILTON, 668 So. 2d 227 (Fla. 1st DCA 1996) held
that the JCC could not order an IME before a suit
was filed and the 1st DCA reversed the order
accordingly. Rule 60Q-6114(1) states that discovery
may be had if authorized by statute before
jurisdiction of the JCC is invoked. Since there is no
specific provision allowing for an IME before a
PFB as there is with the taking of a claimant’s
deposition, an IME would not be allowed before a
PFB is filed.

Can An FCE Be Compelled?

Probably not – In State of Florida v.
Wojick, 36 Fla. L. Weekly D2542a (Fla. 1st
DCA, 11/22/11), the court held that a JCC
does not have jurisdiction to order an FCE
because there was no pending petition, no
evidence it was medical necessary, could be a
violation of the Constitutional right to
privacy and there is no statutory authority
to order same.

Testimony of an “Unauthorized”
Provider
In Parodi v. Florida Contracting Company, Inc., 34 Fla. L. Weekly
D1713a (Fla. 1st DCA, 8/21/09), the First District Court of Appeals held
that when the E/C wrongfully denies medical care and the claimant is
required to utilize the self-help provisions of section 440.13(2)(c), the
JCC is not obliged to exclude the opinions of the doctors from whom
Claimant was forced to obtain medical treatment. In this case, the E/C
authorized medical care then denied the entire claim based on MCC
and fraud. The JCC excluded the opinions of the prior treaters as being
“unauthorized”. The appellate court reversed and held that the doctors
were authorized by operation of section 440.13(2)(c), as they provided
care during the E/C's wrongful denial of benefits, and the JCC should
not have excluded their medical opinions pursuant to section
440.13(5)(e).

Policy For Allowing Testimony of an
“Unauthorized” Provider

“We note that no fewer than nine legislative sessions have
commenced and recessed since our decision... (and)
although the Legislature has made substantial changes to
the Florida Workers' Compensation Law, it has not altered
the statute in any way that would lead this court to conclude
that our holding … (relative to the admissibility of the
opinions of doctors obtained through the self-help provision
of the statute) is not a correct interpretation of the statutory
scheme. Parodi v. Florida Contracting Company, Inc., 34
Fla. L. Weekly D1713a (Fla. 1st DCA, 8/21/09).

Policy For Allowing Testimony of an
“Unauthorized” Provider
…When an employer abandons its obligation to
provide appropriate care, however, it likewise
surrenders to the injured employee the right to
select a physician and obtain treatment…
…An essential piece of the workers' compensation
statute remains the availability of appropriate
treatment on a timely basis, so as to avoid public
responsibility for such…
Parodi v. Florida Contracting Company, Inc., 34 Fla. L.
Weekly D1713a (Fla. 1st DCA, 8/21/09).

Certiorari
Appeal-Basis
For a non-final workers' compensation order to be
reviewable by certiorari, a petitioner is required to
demonstrate that: 1. The order constitutes a
departure from essential requirements of law, and
2. Would cause material harm that cannot be
adequately remedied by appeal. See Taylor v. TGI
Friday’s Inc., 34 Fla. L. Weekly D1785a (Fla. 1st
DCA, 8/28/09). In Taylor, The JCC ordered the
claimant to undergo an EMA evaluation and the
appellate court held that the EMA, in this
instance, is subject to remedy on appeal and will
not cause irreparable harm as it was non-invasive.

Certiorari
Appeal-Basis
In Jackson v. Computer Science Raytheon, 36 So.3d 754
(Fla. 1st DCA 2010), the JCC’s order compelling production
of financial records was reversed. The appellate court
explained that the compulsion of private financial
information-if irrelevant to the legal issues in dispute-is the
kind of harm against which certiorari review guards. See
Spry v. Gallagher Bassett, 985 So. 2d 1187 (Fla. 1st DCA
2008). Thus, their analysis hinged on whether Claimant's
private financial information was relevant to the E/C's
attempt to recoup perceived overpayments based on an
allegedly miscalculated Social Security Disability offset.
They held it was not relevant to that issue.

Striking Witnesses, Depositions
Is Abuse Of Discretion Unless
Actual Prejudice Is Shown
JCC's exclusion of testimony from properly disclosed
witnesses, based on a per se application of his interpretation
of the administrative rules, is not only antithetical to the
analysis prescribed in Bingerv. King Pest Control, 401 So.2d
1310 (Fla.1981) but is also in direct conflict with the specific
legislative intent of the Florida Workers' Compensation
Law. See § 440.015, Fla. Stat. (2006) ( “It is the specific
intent of the Legislature that workers' compensation cases
shall be decided on their merits.”). “Excluding evidence is a
drastic remedy to be used only in the most compelling
circumstances.”

Conflict Of Laws
440.09(1)(d) If an accident happens while the
employee is employed elsewhere than in this
state,
which would entitle the employee or his or her
dependents to compensation if it had
happened in this state, the employee or his or
her dependents are entitled to compensation
if the contract of employment was made in this
state, or the employment was principally
localized in this state…

Windfall Protection

440.09(1)(d) …However, if an employee
receives compensation or damages
under
the laws of any other state, the total
compensation for the injury may not be
greater than is provided in this chapter.

Summary Final Orders

60Q-6.120. SUMMARY FINAL
ORDER
(1) The judge may enter a
summary final order when such an
order would be dispositive of the
issues raised by the subject petition.

Summary Final Orders –
Summary Judgment Standard
Applies

The courts evaluate the JCC's order for
summary final order using the summary
judgment standard. Thomas v. Ekerd Drugs
987 So.2d 1262 (Fla. 1st DCA 2008)

Summary Judgment Standard

When reviewing a lower court's summary judgment
ruling, an appellate court must draw all reasonable
inferences in favor of the party opposing summary
judgment. See Auto-Owners Ins. Co. v. Young, 978
So. 2d 850 (Fla. 1st DCA 2008). Summary judgment
should not be granted unless the facts are so
crystallized that nothing remains but questions of
law. See Spears v. Albertson’s, Inc., 848 So. 2d 1176
(Fla. 1st DCA 2003).

Conflicting Evidence

If the evidence is conflicting, will permit
different reasonable inferences, or tends to
prove the issues, it should be submitted to
the trier of fact and it is improper to enter a
final summary order. See Thomas v.
Eckerd Drugs, 987 So.2d 1262 (Fla. 1st DCA
2008)

Lack of Prosecution
In Airey v. Sedgwick, 35 Fla. L. Weekly D85a (Fla. 1st
DCA, 12/31/09), the JCC dismissed the PFB because it
was pending too long. The appellate court explained that
proper procedure would be to invoke section
440.25(4)(i), Florida Statutes (2008). That provision
permits a judge of compensation claims to “dismiss a
petition for lack of prosecution if a
petition, response, motion, order, request for hearing, or
notice of deposition has not been filed during the previous
12 months unless good cause is shown.” However, such
action may only be taken in response to a motion by a
party or the judge.

DFS Handles Claims By
Medical Providers Against E/C
In Bryan LGH Medical Center v. Florida Beauty
Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st
DCA held that a hospital, Bryan LGH, had
independent standing to bring a claim for payment for
medical services it alleges are due from the E/C under
the Workers' Compensation Law. See Rebich v.
Burdine's, 417 So.2d 284 (Fla. 1st DCA
1982)(interpreting 1974 amendment to section
440.10(1) as creating independent standing on behalf
of physician to bring an action against insurance
company for payment of bills).

Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st
DCA explained that under F.S. 440.13(14)(2006) “A
health care provider may not collect or receive a fee
from an injured employee within this state, except as
otherwise provided by the chapter. Such providers
have recourse against the employer or carrier for
services rendered in accordance with this chapter.”

Flora, Inc., the Court further explained that the
proper forum for disposition of this dispute is within
the Department of Financial Services (DFS). See F.S.
440.13(7)(a), Fla. Stat. (2009) (providing health care
provider's petition for payment of medical services
“must” be filed with DFS).

Flora, Inc., the Court identified F.S. 440.13(11)(c), Fla. Stat.
(2009) as providing that DFS has “exclusive jurisdiction to
decide any matters concerning reimbursement”); Avalon Ctr. v.
Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007)(holding JCC
does not have jurisdiction over reimbursement dispute because
jurisdiction is vested in another agency); see also Terners of
Miami Corp. v. Freshwater, 599 So.2d 674, 675 (Fla. 1st DCA
1992)(en banc) (explaining July 1, 1990 legislative amendments
vesting jurisdiction in Division of Workers' Compensation to
resolve reimbursement disputes are procedural changes that
divest JCC of jurisdiction to resolve such disputes.

Controversy Between
Carriers/Employers
Fla. Stat. 440.42(4) When there is any
controversy as to which of two or more
carriers is liable for the discharge of the
obligations and duties of one or more
employers with respect to a claim for
compensation, remedial treatment, or other
benefits under this chapter, the judge of
compensation claims shall have jurisdiction
to adjudicate such controversy;…

Controversy Between
Carriers/Employers
…and if one of the carriers voluntarily or in compliance with a
compensation order makes payments in discharge of such
liability and it is finally determined that another carrier is liable
for all or any part of such obligations and duties with respect to
such claim, the carrier which has made payments either
voluntarily or in compliance with a compensation order shall
be entitled to reimbursement from the carrier finally determined
liable, and the judge of compensation claims shall have
jurisdiction to order such reimbursement; however, if the carrier
finally determined liable can demonstrate that it has been
prejudiced by lack of knowledge or notice of its potential
liability, such reimbursement shall be only with respect to
payments made after it had knowledge or notice of its potential
liability.

4 year Statute of Limitations
for Contribution Claims
In City of Pembroke Pines v. Villasenor, the 1st
DCA explained that the Statute of Limitations for
a contribution claim is 4 years per Fla. Stat.
95.11(3)(f) as opposed to Fla. Stat. 440.19(1)
because the latter applies only to petitions filed by
claimants.

Expired Claims-Contribution
Payments made by a subsequent carrier on a
subsequent claim will not revive the statute
on a prior claim even though a portion of the
responsibility was due to a prior claim that
had already expired. Contribution to the
subsequent carrier in this instance was
reversed in Medpartners/Diagnostic Clinic
Medical Group, P.A. v. Zenith Ins. Co., 23
So. 3d 202 (Fla. 1st DCA 2009).

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