workers’ compensation rules advisory committee agenda

Workers’ Compensation Rules Advisory Committee Agenda

August 3, 2021 – noon-1:30 p.m. EST

Zoom Link

Meeting ID: 971 0278 8509 Dial by your location

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I. Call to Order & Orientation, Chair Wendy S. Loquasto

A. Welcome to New Members, Returning Members, & Guests

B. Deputy Chief Judge David Langham

C. Orientation Memo from Chair Wendy Loquasto (Page 6)

D. Committee List – Introduce Officers (0)

E. Subcommittee List – Introduce Subcommittee Chairs (Page 13)

F. IOPs (Page 14)

G. A Primer on Florida’s Administrative Procedure Act (Page 20)(Sans Chapter 120 appendix)

H. Section 120.54, Florida Statutes (2020)( Rulemaking) (Page 37)

II. Chair’s Report, Wendy Loquasto

A. Approval of Minutes April 21, 2021 (Page 47)

B. Pending Recommendations Chart (Page 52)

WCRAC August 2021 Agenda Page1

https://zoom.us/j/97102788509

https://zoom.us/j/97102788509

III. Committee & Liaison Reports

A. Ad Hoc Rules Committee, Chair Jodi Middleton, Jim Fee & Neil Ambekar

1. Notice of Development of Rulemaking (Page 55)2. Summary of the Proposed Amendment (Green versus

Yellow) (Page 81)3. Notes from July 8, 2021 Meeting

a. Notes by Neil Ambekar (Page 87)b. Notes by Wendy Loquasto (Page 89)

4. Notes from July 13, 2021 Workshop (Page 106)Jim Fee 106 Wendy Loquasto 107

B. Watch or Listen to the Meetings

1. Deputy Chief Judge Langham’s 7/16/21 News Blast provides:

Two Rule Development Workshops were held recently. There is a Notice of Proposed Rule on the OJCC website as well as a video recording of the Zoom workshop held on July 8, 2021 - Use passcode: n7gTb$p@ If you are interested in the rules or procedure, please avail yourself of these resources. You may contact Judge Langham ([email protected]) if you have questions, suggestions, criticisms, or other comments regarding the rules. We are appreciative of everyone that has worked so hard on various rules independently, through the Section, or through The Florida Bar Rules Advisor Committee.

2. July 13 – July 13 Recording is posted on the OJCCWebsite

C. Appellate Court Rules Committee Liaison Report, ChairWendy Loquasto

Report on Workers’ Comp Immunity Rule 9.130. See In re: Amendments to Florida Rule of Appellate Procedure 9.130, SC20-1871 (Fla. July 12, 2021) (declining to amend Rule 9.130 in regard to workers’ compensation immunity nonfinal order review) (Page 110).


A. Workers Compensation Executive Council Liaison Report, Barbi Feldman

B. Conference of Judges of Compensation Claims Liaison Report, Judge Jacobs

C. Rules of Judicial Administration Liaison Report

Need a volunteer to be Liaison

IV. Drafting Subcommittee Reports

1. Drafting Subcommittee #1 (60Q-6.101-6.109)Presenter: Kim Syfrett, Subcommittee Chair Page 113

A. At the April 21, 2021, meeting Chair Jim Fee assignedrecommendations made by Michael Tempkins & JudgeWeiss regarding the Q Rules use of “F.S.” and “F.A.C.”,as opposed to “Florida Statutes” and “FloridaAdministrative Code,” with consideration of the citationforms in Florida Rule of Appellate Practice 9.800(citation rule), Florida Administrative Code, and FloridaStatutes.

B. At the April 21, 2021, meeting, Chair Jim Feerecommended that the Committee consider whether60Q-6.108(3) be amended to change the time for servicefrom 5:00 p.m. to 11:59 p.m., consistent with the priorrecommendation to amend 60Q-6.108(1)(e) to change5:00 to 11:59 p.m. for the filing deadline. The suggestedlanguage appearing in the April 21 agenda is:

Ready for vote: 60Q-6.108(3) Service by delivery, facsimile, or electronic mail after 5:00 p.m11:59 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday or legal holiday.

2. Drafting Subcommittee #2 (60Q-6.110-6.118)Presenter: Dale Albright, Subcommittee Chair

A. No pending business


3. Drafting Subcommittee #3 (60Q-6.119-6.128)Presenter: Neil Ambekar, Subcommittee Chair

A. Rule 60Q-6.124(4) – Disputed Appellate Attorney FeesSee Drafting Subcommittee #3 Meeting

Minutes from May 6, 2021 Page 115

Ready for vote:

60Q-6.124(4) Payment of Disputed Attorney’s Fees and Costs – Appellate. Upon issuance of mandate by the appellate court in a matter awarding attorney’s fees, tThe awarded party shall serve and file a verified petition to determine the amount of appellate attorney’s fees and costs in accordance with the appellate court’s order, or within 15 days from the date of the mandate or when the appellate court’s decision is final, whichever is laterorder entered by the court The opposing party’s verified response, if any, shall be served and filed in accordance with the appellate court’s order, and the proceedings shall be conducted in accordance with the appellate order and Florida Rule of Appellate Procedure 9.180(h)(3).

B. 60Q-6.120 – Summary Final Order (adding a timingelement for movant’s evidence) Page 117Subcommittee recommended that the Committee take noaction.

V. Old Business

VI. New Business

VII. Next Meeting Dates, Chair Wendy Loquasto

A. Second Meeting Date TBD – We will meet during theWorkers’ Compensation Educational Conference to beheld December 12 – 15, 2021, at the Orlando WorldCenter Marriott. Please make your hotel reservationsnow. I am currently considering a Wednesday morning(8:00-9:00 start time), December 15, as this is the best


time for our JCC members, who will be attending a conference for the entire Conference. Other alternatives are Sunday evening, December 12, or Monday morning at 8:00 or 9:00 A.M.

B. Third Meeting Date TBD – We will meet during theWorkers’ Compensation Forum, which will be heldApril 7-8, 2022, at the Omni Orlando Resort atChampionsGate. Our meeting is generally held after theCLEs are completed on Thursday, during the cocktailreception, since that is when a room can be madeavailable to us for free.

VIII. Closing Remarks and Adjournment


Wendy S. LoquastoFOX & LOQUASTO, LLC

(850) 591-4984

M E M O R A N D U M

TO: Workers’ Compensation Rules Advisory Committee MembersFROM: Wendy Loquasto, WCRAC ChairRE: Orientation for 2020-2021DATE: July 22, 2021

Welcome, everyone, to our 2021-2022 year!

This memo will provide some information to help orient everyone to theCommittee and its workings.

Attachments in August 3 Agenda:

1. Committee Membership List,2. Subcommittee Membership List,3. Internal Operating Procedures (approved 4/11/19), and4. A Primer on Florida’s Administrative Procedure Act, which explains

about the rule-making process beginning on its page 3 (sans the Chapter 120appendix).

Bar Liaison & Website:

Bar Liaison: Mikalla Davis ([email protected]) – (850) 561-5663

Website: https://www.floridabar.org/about/cmtes/cmte-cm255/

Leadership & Membership:

Wendy S. Loquasto (appellate/claimant) – ChairJodi K. Middleton (defense) – Vice ChairFrank Taddeo (claimant) – SecretaryNeil Ambekar (defense) – ParliamentarianSubcommittee #1 Chair Kim Syfrett (claimant)

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Subcommittee #2 Chair Dale Albright (claimant)Subcommittee #3 Chair Neil Ambekar (defense)Liaison to the Executive Council of the Workers’ Compensation Section

– Barbi Feldman (defense)Liaison to the Appellate Court Rules Committee – Wendy Loquasto

(appellate)Liaison to the Conference of Judges of Compensation Claims – Judge

Jeffrey JacobsLiaison to the Rules of Judicial Administration – Need a VolunteerAd Hoc Committee on Proposed Rules – Jodi Middleton (defense),

Chair, with Jim Fee (claimant) & Neil Ambekar (defense)Law & Ethics Subcommittee (provided for in IOPs but not formed)Rule Challenge Subcommittee (provided for in IOPs but not formed)

Members are appointed to the WCRAC for a three-year term. They maybe reappointed to a second consecutive three-year term, but after serving sixconsecutive years, they are “termed-off” the Committee and must sit out atleast one year before rejoining the WCRAC.

If you have not posted your photograph to your member profile on theBar’s directory, please send a headshot to Mikalla so she can get it posted tothe WCRAC’s website. Thanks.

Rules Committee with a Difference: The WCRAC’s goal is to provideassistant to Division of Administrative Hearings (DOAH) and the Office ofJudges of Compensation Claims (OJCC) in drafting workers’ compensationprocedural rules. The Committee is composed of a mixture of experiencedworkers’ compensation practitioners from both the defense and claimant sidesof the practice, as well as JCCs.

The WCRAC does not perform the same role as the Bar’s other rulescommittees, because we are charged with reviewing and evaluating the Rulesof Procedure for Workers’ Compensation Adjudications, which arepromulgated by the DOAH, not the Florida Supreme Court. Thus, our processin recommending rules amendments does not follow Florida Rule of GeneralPractice & Judicial Administration 2.140, but instead works through the OJCCand DOAH under Chapter 120, Florida Statutes (the Administrative ProcedureAct), and particularly section 120.54, Florida Statutes.

We currently have several rule proposals pending before DOAH, and

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there were two workshops held on July 8 and 13, 2021.

Meetings: We have three meetings a year, which are roughly set forthese times:

1. Tuesday, August 3, 2021, from 12:00-1:30 PM on ZoomThis meeting will include a new member orientation.

2. TBA December 12-15, 2021, during the Workers’ CompensationEducational Conference at the Orlando World Center Marriott.

This meeting will be LIVE and we will determine a good time to meet atour August 3 meeting. Please study your schedule for the conference andmake your hotel reservation for December now.

3. TBA April 7-8, 2022 during, the Workers’ Compensation Forum,which will be held at the Omni Orlando Resort at ChampionsGate.

This meeting will be LIVE.

Attendance: Members are expected to attend all meetings, preferablyin-person because telephone conferencing equipment is often expensive toarrange at the meeting sites (the WCRAC has no budget) and has provenunsatisfactory in the past. If you are unable to attend, you should contact theChair to attempt to obtain an excused absence. Attendance and participationin meetings are noted in the minutes and will be reviewed by Florida BarPresidents-elect when they appoint members and officers.

Agendas: The Chair or Bar Liaison will send meeting agenda ten daysbefore the meeting. The agenda will be posted on the WCRAC’s website. Please be sure to download the agenda to your computer since internet cansometimes be spotty at the meeting sites.

Proposing Rules Amendments & Voting: The process for proposingrules amendments and voting are explained in the IOPs. Please reviewthose.

Anyone (members and nonmembers) may propose a rule amendment. Please tell those you work with that you are on the Committee and ask if theyhave ideas for rules proposals.

In a nutshell, rule amendment proposals should be submitted to the

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Chair or Bar Liaison. The Committee will make an initial determinationwhether the proposal is accepted in concept. If the concept is not acceptable,the proposal will terminate. If the concept is acceptable, then it be assignedto the appropriate Drafting Committee, and once drafting is completed, theproposal will be submitted to the Committee for vote.

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July 22, 2021

WORKERS' COMPENSATION RULES ADVISORY COMMITTEE (CM255)

763195 Ms. Wendy S. Loquasto, Chair (2022) 1402 Shuffield Dr. Tallahassee, FL 32308-5155 (850) 591-4984 Email: [email protected] 174580 Ms. Jodi Kay Middleton, Vice Chair (2023) 315 E. Robinson St., Ste. 600 Orlando, FL 32801-4341 (407) 425-7010 Fax: (407) 425-2747 Email: [email protected] 703419 Ms. Lorna E. Brown-Burton, Board Liaison (2022) Museum Plaza 200 S. Andrews Ave., Ste 900 Fort Lauderdale, FL 33301 (954) 463-8322 Fax: (954) 514-9001 Email: [email protected] 959316 Ms. Catherine Frances Agacinski (2023) Silver & Agacinski 1325 W. Cass St. Tampa, FL 33606-1205 (813) 259-9863 Fax: (813) 259-9864 Email: [email protected] 587125 Mr. Roger Dale Albright II (2022) 10717 Oak Glen Cir. Orlando, FL 32817-3811 (407) 765-3108 Email: [email protected]

113648 Mr. Neil A. Ambekar (2022) 1900 Summit Tower Blvd., Ste. 400 Orlando, FL 32810-5912 (321) 972-0000 Fax: (321) 972-0099 Email: [email protected] 162442 Ms. Teri Ann Bussey (2023) 2707 E. Jefferson St. Orlando, FL 32803-6116 (407) 897-5150 Fax: (407) 897-3332 Email: [email protected] 802794 Mr. James Francis Fee, Jr. (2022) Concorde Office Tower - Ste 320 66 W. Flagler St., Ste. 320 Miami, FL 33130-1876 (305) 374-7750 Fax: (305) 374-7751 Email: [email protected] 180378 Ms. Barbi L. Feldman (2023) 3308 Cleveland Heights Blvd. Lakeland, FL 33803-4717 (863) 701-2100 Fax: (863) 701-2101 Email: [email protected] 96345 Ms. Hayley Lewis Folmar (2022) McConnaughhay, Coonrod, Pope, Weaver & Stern 4500 Salisbury Rd., Ste. 340 Jacksonville, FL 32216-8057 (904) 363-1950 Fax: (904) 363-1510 Email: [email protected]


July 22, 2021 Workers' Compensation Rules Advisory Committee (CM255)

93576 Ms. Rebecca G. Gardiner-Bess (2023) 6500 All American Blvd. Orlando, FL 32810-4350 (407) 292-8580 Fax: (407) 292-0141 Email: [email protected] 1002468 Ms. Elaura Hodgetts (2022) 610 Cherry St. Panama City, FL 32401-3814 (850) 784-2599 Email: [email protected] 602681 Honorable Jeffrey Ira Jacobs (2023) 401 N.W. 2nd Ave., Ste. N918 Miami, FL 33128-1713 (305) 377-5413 Email: [email protected] 814660 Mr. Roberto Mendez (2024) 903 N.W. 65th St., Ste. 300 Boca Raton, FL 33487-2864 (561) 571-3357 Email: [email protected] 22834 Ms. Kort Parde (2024) 2035 Forbes St. Jacksonville, FL 32204-3801 (904) 402-7754 Email: [email protected] 64031 Ms. Joanna Noriega Pino (2024) 9155 S. Dadeland Blvd., Ste. 1600 Miami, FL 33156-2741 (305) 428-2470 Fax: (305) 428-2471 Email: [email protected]

798908 Ms. Maureen Campbell Proctor (2024) 229 Pinewood Dr. Tallahassee, FL 32303-4837 (850) 422-0880 Fax: (850) 422-3588 Email: [email protected] 466743 Ms. Irene Maria Rodriguez (2022) P.O. Box 18566 Tampa, FL 33679-8566 (813) 221-4111 Fax: (813) 228-9416 Email: [email protected] 853941 Ms. Anne Manners Santomaggio (2023) 4801 W. Dryad St. Tampa, FL 33629-6422 (813) 956-4085 Email: [email protected] 306304 Mr. Barry A. Stein (2023) 25 S.E. 2nd Ave., Ste. 425 Miami, FL 33131-1511 (305) 377-1505 Fax: (305) 358-4296 Email: [email protected] 366961 Mr. Robert Charles Swain (2024) 12 S.E. 1st St., Fl. 2 Gainesville, FL 32601-6826 (352) 374-5218 Fax: (352) 374-5216 Email: [email protected]


July 22, 2021 Workers' Compensation Rules Advisory Committee (CM255)

89966 Ms. Kimberly J. Syfrett (2022) 2633 Martin Luther King, Jr. Blvd. Panama City, FL 32405-4406 (850) 785-4442 Fax: (850) 785-4256 Email: [email protected] 729388 Mr. Frank Joseph Taddeo (2024) 7390 N.W. 5th St., Ste. 10 Plantation, FL 33317-1610 (305) 892-7122 Fax: (954) 791-4480 Email: [email protected] 22073 Mr. Michael David Tempkins (2023) 1947 Lee Rd. Winter Park, FL 32789-1834 (407) 262-8400 Fax: (407) 262-8402 Email: [email protected] 78001 Ms. Dawn Renee Traverso (2024) 2875 N.E. 191st St., Ste. 802 Aventura, FL 33180-2803 (305) 466-4401 Fax: (305) 466-4404 Email: [email protected] 880612 Honorable Jack Adam Weiss (2022) 4379 Colonial Blvd., Ste. 200 Fort Myers, FL 33966-1145 (239) 938-1159 Fax: (239) 938-1169 Email: [email protected]


Subcommittee #11. Kim Syfrett, Chair C 2022**2. Joanna Pino D 2024*3. Jodi Middleton D 2023**4. Barbi Feldman D 2023*5. Barry Stein C 2023*6. James Fee C 2022**7. Roberto Mendez D 2024*8. Rebecca Gardiner-Bess D 2023*

Subcommittee #21. R. Dale Albright, Chair C 2022*2. Dawn Traverso D 2024*3. Teri Bussey D 2023*4. Robert Swain D 2024*5. JCC Jeffrey Jacobs JCC 2023*6. Maureen Proctor C 2024*7. Anne Santomaggio D 2023*8. Catherine Agacinski C 2023*

Subcommittee #31. Neil Ambekar, Chair D 2022*2. Michael Tempkins D 2023*3. Tracey Kort Parde D 2024*4. Hayley Folmar D 2022*5. Irene Rodriguez C 2022*6. Frank Taddeo C 2024**7. JCC Jack Weiss JCC 2022*8. Elaura Hodgetts D 2022*

Wendy Loquasto App/C 2022**


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THE WORKERS’ COMPENSATION RULES ADVISORY COMMITTEE

INTERNAL OPERATING PROCEDURES

I. NATURE AND PURPOSE OF COMMITTEE

The Workers’ Compensation Rules Committee (Committee) is charged with the duties of regular review and evaluation of the Rules of Procedure for Workers’ Compensation Adjudications promulgated by the Division of Administrative Hearings (DOAH) and Office of Judges of Compensation Claims (OJCC) and assisting the DOAH and OJCC in the drafting of rules of workers’ compensation procedure “to advance orderly and inexpensive procedures in the administration of justice.” Fla. R. Jud. Admin. 2.140(a)(5).

The Committee does not perform the same role as other standing rules committees of the Florida Bar. The Florida Supreme Court has determined that it lacks jurisdiction to promulgate Rules of Workers’ Compensation Procedure. See Amdmts. to Fla. R. of Workers’ Comp. P., 891 So. 2d 474 (Fla. 2004). Therefore, the Committee does not follow the procedure for amending rules as set forth in Florida Rule of Judicial Administration 2.140. Instead, the Committee's primary focus is the workers’ compensation procedural rules adopted and proposed by the DOAH and OJCC.

The Committee's goal is to provide assistance to the DOAH and OJCC in drafting workers’ compensation procedural rules. The Committee is composed of experienced workers’ compensation practitioners and judges.

The Committee is responsible for monitoring rule changes proposed by the DOAH and OJCC and advising the DOAH and OJCC whether the Committee is in favor of or against the rules. The Committee also has authority to propose rules.

The Committee's duties with regard to rules are outlined below under “Adoption of Rules.”

II. COMMITTEE ORGANIZATION AND MEETINGS

In accordance with Chapter 2 of the Rules Regulating The Florida Bar (the Bylaws of the Florida Bar), the Florida Bar President-elect shall appoint all Committee members before June 1 of each year, including the Chair and Vice Chair(s). Committee members shall serve three-year terms.

A. Chair. The Chair shall govern the Committee during that term and have the powers set forth herein. Once appointed, the Chair-elect immediately shall have the power to make any appointment authorized herein for that Chair-elect’s upcoming term of office as Chair. In the absence of an appointment by the Florida Bar President-elect, the Chair shall appoint one or more Vice Chairs to serve for a one-year term to coincide with the Chair’s term of office. The Chair-elect shall appoint a Secretary, Subcommittee Chairs, and Liaisons to other bar groups.


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B. Vice Chair. The Florida Bar President-elect typically appoints the Committee Vice Chair(s) to serve for a one-year term to coincide with the term of the Chair. A Vice Chair shall serve in the Chair’s absence. The Vice Chair(s) shall otherwise assist the Chair as needed. A Vice Chair shall be the logical successor to the Chair.

C. Secretary. The Chair shall appoint a Secretary to serve during the Chair’s term of office. The Secretary shall keep minutes of the Committee’s activities pursuant to rule Florida Rule of Judicial Administration 2.140(a)(5). Consistent with the rule, the minutes shall reflect the action taken on each proposal. For each proposed rule and amendment, the Secretary shall clearly set forth the proposal with sufficient context from the existing rule (if any) to allow meaningful review of the effect of the proposal and its interaction with other provisions of the rule. Proposed amendments shall be indicated through the use of underlining (for additions) and strike-throughs (for deletions). Copies of the minutes as drafted by the Secretary shall first be furnished for review and correction by the Chair and the Florida Bar Liaison to the Committee. Copies of the minutes as corrected shall then be furnished to the Chair or the Chair's designee no later than 30 days after the Committee meeting. The minutes shall be included in the materials for the next regular Committee meeting for a vote of approval by the Committee. The Secretary shall maintain copies of all Committee minutes.

D. Committees. The Chair shall create subcommittees, and members for each should be appointed by the new Chair yearly to serve on an annual basis. Those subcommittees may include:

1. The Drafting Subcommittee, or multiple Drafting Subcommittees, will be responsible for drafting proposed rules and amendments to the current the DOAH and OJCC rules.

2. The Law and Ethics Subcommittee is designed to bring to the attention of the full Committee any developments in the case law pertaining to procedural issues and to identify ethical issues that fall within the scope of the Committee's areas of responsibility.

3. The function of the Rule Challenge Subcommittee is to research and consider

challenging rules promulgated by the DOAH under Chapter 120.

E. Special Committees and Task Forces. The Chair may appoint a special subcommittee to further study specific rules proposed by the DOAH and OJCC. Alternatively, the Chair may appoint an individual or task force to further study an issue and report back to the full Committee.

F. Liaisons. The Chair should annually appoint one Liaison to the Judicial Administration Rules Committee, to confer with that committee to better facilitate joint consideration of particular matters. The Chair should annually appoint one Liaison each to the Executive Council of the Workers’ Compensation Section of the Florida Bar and to the Conference of Judges of Compensation Claims, for the same reasons. The Chair may appoint any other Liaisons to confer with other Bar committees and/or sections as deemed appropriate.


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E. Meetings. The Committee shall meet at such times and places as may be designated by the Chair or Vice-chair. See Rules Reg. The Fla. Bar Bylaw 2-8.2. Meetings generally are held three times per year, once during the Workers’ Compensation Educational Conference (typically held in August), once during the Workers' Compensation Forum (typically held in April), and once by telephonic conference call. The Chair may determine that there is no need for the Committee to meet. The Committee members shall have notice of each meeting.

III. GENERAL RULES FOR CONDUCTING BUSINESS

A. Governing Rules. Robert’s Rules of Order shall govern in all matters in which they are not inconsistent with these Internal Operating Procedures.

B. Quorum. No business shall be conducted unless a quorum is present at the meeting. For purposes of these Internal Operating Procedures, a quorum is defined as 40 percent of the Committee.

C. Attendance. Members unable to attend a meeting should contact the Chair in an attempt to obtain an excused absence. Attendance and participation at meetings are noted in the minutes and may be reviewed by Bar Presidents-elect when they appoint new members and officers for the following years. Appointments are not effective until July 1 of the year of appointment. Newly appointed members who attend a meeting before the effective date of their appointment are not allowed to vote on Committee business, and they may not be appointed to subcommittees until their appointments are effective.

D. Agendas. The Chair shall send meeting agendas with any attachments to the Committee members. The Committee shall file with the Florida Bar President and Executive Director all minutes, annual reports, procedures, and recommendations. “No action, report, or recommendation of any committee shall be binding upon the Florida Bar unless adopted and approved by the board of governors.” Rules Reg. The Fla. Bar Bylaw 2-8.2.

IV. ADOPTION OF RULE AMENDMENTS

The Committee is authorized by the Florida Bar Board of Governors to propose rule amendments to the DOAH and OJCC. The Committee seeks to offer a balanced, non-partisan view to those who would consider the adoption of workers’ compensation rules of procedure. The Committee shall abide by the following Internal Operating Procedures for drafting and proposing rule amendments.

A. Introduction of Rule Amendments: Issues may come before the Committee by the following means:

1. The Committee may receive notice of proposed rule amendments from the DOAH and OJCC.

2. The Committee may advance proposed rule amendments of its own to the DOAH and OJCC. Committee members are encouraged to bring to the attention of the Chair any cases or matters deemed to be of interest to the Committee for its discussion. With respect to


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Committee-initiated proposals, the Committee will proceed carefully, actively requesting input and comments from interested entities within and outside the Florida Bar, before the Committee finally determines whether a particular proposal merits the Committee's efforts to formally request its adoption.

3. The Committee may entertain a non-member's request to adopt a proposed rule amendment.

B. Processing of Amendment Proposals:

1. Any proposal for a new rule or for an amendment to an existing rule shall be submitted in writing to the Chair. The Chair shall also have the authority to initiate proposals on the Chair’s own motion.

2. Upon initiation of a proposal, the Chair shall have the discretion to take one or more of the following actions:

a. Bring the matter before the Committee to consider whether to approve, study, or reject the proposal.

b. Refer the matter to a subcommittee to consider the proposal and to report back to the Committee with a written recommendation.

c. Determine that the matter is beyond the scope of the Committee’s authority. This determination must be reported to the Committee and is subject to override by a two-thirds vote of those present. If the Chair determines that the proposal should be considered by some other body, such as another rules committees of the Florida Bar, the Chair shall refer the proposal to that body.

d. Determine that a portion of a proposal is beyond the scope of the Committee’s authority, in which case the Chair shall report that fact to the Committee and shall take one of the actions set forth in the above subsections with regard to the remainder of the proposal.

C. Notice. A copy of the agenda for each Committee meeting, including each proposal and subcommittee report, will be posted to the Committee’s website and notice thereof furnished by electronic mail, or other means if designated by a member, to the members of the Committee at least 10 days prior to the Committee meeting at which the Committee will vote on the proposal. In the absence of such notice, no final vote may be taken on any proposal unless a vote is required due to an extraordinary or emergency request from the Supreme Court of Florida, Board of Governors of the Florida Bar, or Chair. The Chair’s determination that a matter is of an extraordinary or emergency nature may be overridden by a two-thirds vote of those present. This notice requirement shall not apply to floor amendments or substitute language suggested at a meeting; however, the Chair may declare a proposed floor amendment or substitute language a major change, which requires prior circulation and/or referral to a subcommittee for consideration. Such a determination may be overridden by a two-thirds vote of those present.


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D. Voting Procedures. The Committee must vote on the action to be taken by the Committee; for example, to support or oppose a rule, suggest amended language, or take no present position on the issue. The following procedures apply:

1. The procedures for approval of a Committee-initiated and non-member-initiated proposal are as follows:

a. By a two-thirds vote of those present, the Committee will make an initial determination whether the proposal is acceptable in concept and in form. If the concept is not acceptable, the proposal will terminate. If the concept is acceptable, but the form is unacceptable, then the proposal will be referred to a drafting subcommittee. If both the concept and form is acceptable, the proposal will be voted upon.

b. Upon approval of both content and form of a proposal by a two-thirds vote of those present, the Committee approves a proposed amendment.

c. After a proposed amendment has been approved by the Committee, it shall be presented to the OJCC and DOAH for their consideration and determination as to whether rule-making will be undertaken pursuant to section 120.54, Florida Statutes.

2. The procedures for OJCC- and DOAH-initiated proposals are as follows:

a. By a two-thirds vote of those present, the Committee will approve or disapprove an OJCC- or DOAH-initiated proposal.

b. If the Committee disapproves an OJCC- or DOAH-initiated proposal, it will provide an explanation of the majority’s and minority’s reasoning for their votes.

c. After the vote taken by the Committee, it shall be presented to the OJCC and DOAH, together with the explanation of the majority and minority reasoning if the proposal is disapproved.

d. If the Committee disapproves an OJCC- or DOAH-initiated proposal, it will consider whether to make a formal rule challenge and file a petition challenging the validity of a rule and request a hearing, as provided in Section 120.54, Florida Statutes. Alternatively, the Committee may circulate the proposal to the bench and bar for suggestions and comments, and those suggestions and comments shall be considered by the Committee and may be presented to the OJCC and DOAH.

E. Reconsideration of Adopted Proposals. The Committee may reconsider any proposal it passed at a previous meeting so long as the proposal has not yet been submitted to the OJCC and DOAH. Upon receiving comments on cycle report amendments, the Committee shall use this subdivision to reconsider the previously adopted amendments.

F. Transmission of Committee Recommendations. All recommendations approved by a majority vote shall be sent to the OJCC and DOAH. This Committee does not operate a triennial


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reporting cycle like the other rules committees, but it anticipates presenting proposed rule amendments to the OJCC and DOAH on a biennial basis.

Approved 04/11/19


A Primer on Florida’s Administrative Procedure Act


Table of Contents

What is the APA? ........................................................................................................................................ 1

Why does Florida need an APA? .............................................................................................................. 1

What is an agency under the APA? ..........................................................................................................2

What is an agency action? ..........................................................................................................................2

What is a rule? ..............................................................................................................................................2

How does the rulemaking process work? ................................................................................................3

What is included in an FAR notice of rulemaking? ................................................................................4

What is legislative ratification?...................................................................................................................5

What is a statement of estimated regulatory costs? ................................................................................5

What is the role of the Administrative Code and Register Section? ....................................................6

What is JAPC’s role in the APA? ..............................................................................................................7

What types of problems does JAPC find? ...............................................................................................8

What is the role of the Division of Administrative Hearings? .............................................................9

What is unadopted agency policy? .......................................................................................................... 10

Is licensing subject to the APA? .............................................................................................................. 10

What is a variance or waiver to the APA? ............................................................................................. 11

What is a petition to initiate rulemaking? ............................................................................................... 11

What is a declaratory statement? ............................................................................................................. 12

Are exemptions to the APA permitted?................................................................................................. 12

Where does a citizen go for help? ........................................................................................................... 13

Contact Information ................................................................................................................................. 14

The Administrative Procedure Act - Chapter 120, Florida Statutes .................................................. 15


While the Florida Legislature establishes public policy, the

executive branch has the power to issue rules having the force and

effect of law. Rules provide a way of informing the regulated public

of how agencies intend to apply laws and deter the improper

implementation of policies, thereby helping to protect the people of

Florida from administrative agencies’ noncompliance with

legislative mandates or case-by-case decision making without

regard to published policy. The average Florida citizen is as

affected, if not more affected, by these agency rules than by court

rulings, and administrative agencies regulate everything from

healthcare facilities to local government expansion to electric

utilities.

In Chapter 120, Florida Statutes, the Administrative Procedure Act

outlines a comprehensive administrative process by which agencies

exercise the authority granted by the Legislature while offering

opportunities for citizen involvement. This process subjects state

agencies to a uniform procedure in enacting rules and issuing orders

and allows citizens to challenge an agency’s decision. The

Administrative Procedure Act serves to protect the citizens of

Florida from thousands of unauthorized rules that would otherwise

be in effect.


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What is the APA? The Administrative Procedure Act (APA) is found in Chapter 120, Florida Statutes. Florida followed the example of the federal government and other states by adopting its first extensive APA in 1961 in an effort to provide comprehensive and standardized administrative procedures pertaining to executive branch agency actions. The Act provides a “check and balance” function by increasing administrative agency accountability to the Legislature and Florida’s citizens. The modern version of Florida’s APA was enacted in 1974 and has been amended almost every year since, while maintaining its basic components.

Why does Florida need an APA? Constitutionally, it is the role of the legislative branch to write the law and the role of the executive branch to carry out those laws. But at the time of the 1974 revisions to the APA, legislative members had become increasingly concerned that Florida was being run by a “phantom government,” meaning that unelected bureaucrats were running the state through the use of largely unknown or inconsistently applied unauthorized rules or uncirculated memoranda hidden away in bureaucrats’ desk drawers. Florida citizens found that they were subjected to rules which were not even written down, much less published. Legislators who worked for the defeat of a certain provision in the law often went home only to find the identical provision enacted as an administrative rule or agency memorandum a few months later. Furthermore, concerns arose about the impartiality of hearings conducted by agency employees when a citizen was accused of a rule violation. Legislators believed that a few agency administrators had in many ways usurped the authority of Florida’s elected representatives, arguably giving these administrators more direct impact on the people of Florida than the officials these citizens had elected for representation. The APA directed agencies to not only adopt in rule form its policy statements of general applicability but also issue final orders explaining its exercise of discretion, subject to judicial review. The Act also provided for citizen input, broadening the public’s access to information regarding the activities of agencies. The new APA provided a means for the public to become involved in the rulemaking process and propose policy change as well as challenge agency decisions and rules before independent hearing officers and ultimately in the courts. It gave citizens the opportunity to obtain declaratory statements and to petition an agency to initiate rulemaking. The APA also established uniform procedures for issuing and suspending or revoking licenses. The procedural requirements of the APA serve to ensure that agencies adopt certain rules disclosing their methods of operation through following a model established by the Administration Commission.


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The Act also created the Joint Administrative Procedures Committee (JAPC) to provide for legislative oversight of agency actions. It became the responsibility of the committee to operate as “the eyes and ears” of the full Legislature and to ensure that the APA was operating as intended.

What is an agency under the APA? Each state department and each of its subunits is an agency. Regional planning agencies, local school boards, and entities specified in enumerated chapters of the Florida Statutes are also included in the definition of “agency,” as are state commissions that exercise powers derived from statute. Counties and municipalities are not agencies for the purposes of the APA unless they are specifically made subject to it by law or existing judicial decision. The APA is not applicable to the Legislature or the courts. State officers are included in the definition of an agency. This includes cabinet officers and the Lieutenant Governor, but does not include every state official who might technically be referred to as a state officer. The Governor is considered an “agency,” but only when exercising non-constitutional powers.

What is an agency action? “Agency action” is broadly and flexibly defined to include a rule or its equivalent, an order or its equivalent, the denial of a petition to adopt a rule or to issue an order, and the denial of a request for the minimum public information required to be available by Chapter 120, F.S. Agency action in the form of an order does not have the effect of a rule and becomes final only after a hearing has been held or a hearing has been offered and waived by the affected person. Once final, agency actions are subject to judicial review. Each agency must make all rules, orders, a subject-matter index of orders issued before July 1, 2015, and a list of orders not required to be indexed available for public inspection. Rules must be indexed within 90 days after filing, and orders must be electronically submitted to a centralized database within 90 days.

What is a rule? “Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy or agency statements describing the procedure or practice requirements of the agency. The effect of an agency statement, not the agency’s characterization of its actions, determines if an agency statement is a rule. Certain agency statements, such as internal management memoranda not affecting private


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interests or having any application outside of the agency, are statutorily exempt from the definition of a rule. The term “rule” also includes the amendment or repeal of a rule. Criteria not disclosed by an agency while enforcing statutory requirements are considered rules. Additionally, agency forms which impose any requirement or solicit any information not specifically required by statute or by an existing rule are also rules.

How does the rulemaking process work? Administrative agencies have no inherent rulemaking authority, unless created in the constitution. Agencies cannot promulgate rules unless that power has been specifically delegated to them by the Legislature through a statutory grant of rulemaking authority. An agency rule may not enlarge, modify, or contravene the provisions of law that it implements. Rules that add additional criteria to the issuance of permits and licenses beyond those found in the governing statute are held invalid on the same basis. An agency rule that is arbitrary or capricious (meaning that it is subjective and variable), vague, does not establish adequate standards, or vests unbridled discretion in an agency is also invalid. An agency is not, however, bound by its original interpretation of statutory language and may adopt changes to its rules, within acceptable limits, that reflect a different analysis of its enabling statutes. Subsection 120.536(1), F.S., was enacted to require the agency to pinpoint the particular statute that was being implemented. The “map-tack” provision was drafted to overturn a line of court cases that had allowed rules to be adopted based only upon a broad grant of rulemaking authority even in the absence of a statutory power or duty that could be identified in the statute. Subsection 120.536(1), F.S., is called the “map-tack” provision because it states that a grant of rulemaking authority alone is not sufficient authorization for an agency to adopt a rule and authorizes an agency to adopt only those rules that implement or interpret the specific powers and duties granted by the enabling statute.

The APA establishes specific procedures in §120.54, F.S., for the adoption of rules. A proposed rule typically follows these steps:

The agency drafts the rule and receives approval by the agency head. Unless the agency is repealing a rule, a notice of rule development must be

published online in the Florida Administrative Register (FAR), the official compilation of agency notices published each day.

The agency publishes a notice of proposed rulemaking in the FAR. The agency submits a copy of the rule and supporting materials to JAPC at least

21 days prior to adoption. JAPC reviews the rule for technical and substantive errors and consults with the

agency.


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The agency must hold a hearing if requested within 21 days after publication of the notice.

A substantially affected person may file a petition challenging the validity of a rule and request a hearing by an administrative law judge of the Division of Administrative Hearings.

Based on comments received from JAPC or as the result of a public hearing, the agency may publish a notice of change in the FAR at least 21 days prior to adoption and file the changes with JAPC or the agency may publish a notice of withdrawal.

The agency must notify JAPC at least 7 days prior to adoption if there are no changes to the rule or if there are only technical changes.

Prior to the agency filing the rule for adoption, JAPC certifies to the Department of State whether the agency has responded to all of the committee’s written comments and inquiries.

The agency files the rule for adoption with the Department of State. The rule becomes effective 20 days after filing, on a later date as specified in the rule, or as provided by law.

Administrative rules are published in the Florida Administrative Code (FAC), the official compilation of the administrative rules of the state of Florida.

If authorized, an agency may notice emergency rules. Most general rulemaking requirements do not apply to emergency rules. Emergency rules are effective for a maximum of 90 days and are not renewable, except when the agency has proposed rules addressing the subject of the emergency rule and either a challenge to the proposed rules is pending or the proposed rules require legislative ratification.

What is included in an FAR notice of rulemaking? When an agency publishes a notice of proposed rulemaking in the FAR, the notice must include:

a short, plain explanation of the purpose and effect of the proposed action. the full text of the proposed rule or amendment and a summary thereof. a reference to the grant of rulemaking authority. a reference to the Florida Statutes or Laws of Florida being implemented,

interpreted, or made specific. a summary of the agency’s statement of the estimated regulatory costs, if

prepared. a statement that any person may provide the agency with information regarding

the statement of estimated regulatory costs or a proposal for a lower cost regulatory alternative within 21 days after publication of the notice.


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a statement as to whether the proposed rule is expected to require legislative ratification.

the procedure for requesting a public hearing on the proposed rule.

What is legislative ratification? If an agency rule is likely to have an adverse impact on economic growth in excess of $1 million within 5 years, is likely to have an adverse impact on business competitiveness in excess of $1 million within 5 years, or is likely to increase regulatory costs in excess of $1 million within 5 years, the rule must be ratified, or approved, by the Legislature before it can take effect. Emergency rules, rules adopting federal standards, and other rules specifically exempted by law do not require ratification.

What is a statement of estimated regulatory costs? Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency must prepare a statement of estimated regulatory costs (SERC) if the proposed rule will have a negative impact on small business or if the proposed rule is likely to directly or indirectly increase total regulatory costs in excess of $200,000 within one year after implementation of the rule. Within 21 days after the notice of proposed rulemaking is published, a substantially affected person may submit to an agency a good faith written proposal for a lower cost regulatory alternative to a proposed rule. Upon the submission of a lower cost regulatory alternative, the agency must prepare a SERC or revise its previously prepared SERC, and either adopt the alternative or provide a statement of the reasons for rejecting the alternative in favor of the proposed rule. The agency must also revise a SERC if any change to the rule increases the regulatory costs of the rule. A SERC must include:

An economic analysis showing whether the rule directly or indirectly: o Is likely to have a negative impact on economic growth, private-sector job

creation or employment, or private-sector investment totaling in excess of $1 million within 5 years after implementation of the rule;

o Is likely to have a negative impact on business competitiveness, productivity, or innovation totaling in excess of $1 million within 5 years after the implementation of the rule; or

o Is likely to increase the regulatory costs totaling in excess of $1 million within 5 years after the implementation of the rule.


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A good faith estimate of the number of individuals and entities likely to be required to comply with the rule, including a general description of the types of individuals likely to be affected by the rule.

A good faith estimate of the cost to the agency or other state and local government entities of implementing and enforcing the proposed rule, including any anticipated effect on state or local revenues.

A good faith estimate of the direct costs (such as filing fees, license fees, equipment costs, reporting expenses, or other easily determined costs) likely to be incurred by individuals and entities required to comply with the requirements of the rule.

An analysis of the impact on small counties and cities as well as small businesses, including the basis for the agency’s decision not to implement alternatives that would reduce the negative impact on small businesses.

A description of any regulatory alternatives submitted and a statement adopting the alternative or a statement of the reasons for rejecting the alternative in favor of the proposed rule.

Any additional information that the agency determines may be useful. What is the role of the Administrative Code and Register Section? The Administrative Code and Register Section of the Department of State, Division of Library and Information Services, publishes the FAR. The FAR is on-line at www.flrules.org. The FAR serves to notify the public of:

proposed rule development. proposed rulemaking, including the text of proposed rules. changes and corrections to proposed rules. withdrawal of proposed rules. scheduled meetings, hearings (including rulemaking hearings), and workshops. rules adopted during the preceding week. disposition of petitions for administrative determination of the validity of

proposed and effective rules, challenges of unadopted policy, and petitions for declaratory statements.

Aside from a very few exceptions, the APA requires that rules be published and made available in a single source for public inspection. Section 120.55(1)(a), F.S., directs the Department of State to publish in the FAC all rules adopted by agencies, an index to rules contained in the FAC, and history notes regarding JAPC objections as authorized

in §120.545(8), F.S.


http://www.flrules.org/

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What is JAPC’s role in the APA? JAPC is composed of five Senators appointed by the President of the Senate and five Representatives appointed by the Speaker of the House. The primary function of JAPC is to generally review agency action pursuant to the operation of the Administrative Procedure Act, particularly as these actions relate to the rulemaking process. It is JAPC’s responsibility to ensure that rules adopted by the executive branch agencies do not create new law, but rather stay within the authority specifically delegated by the Legislature. Joint Rule 4 of the Florida Legislature charges JAPC with maintaining a continuous review of agency rules and the statutory authority upon which they are based. JAPC reviews all proposed rules and may review existing rules to determine whether they are within delegated legislative authority. Another of JAPC’s duties is the continual review of the rulemaking process, including a review of agency procedure and of complaints based on such procedure. Additionally, the committee also performs other duties relating to the adoption and promulgation of rules as prescribed by Chapter 120, F.S. When JAPC began its review of rules in 1975, it became clear that nearly all agency rules had some type of error. While the vast majority of these deficiencies were technical in nature, there were also a great number of substantive problems which involved the legal authority for the rule. Initially JAPC objections were nothing more than comments since the committee had no legislative veto power over agency rules, and agencies felt little or no compulsion to change their conduct. Today, Joint Rule 4 grants JAPC standing to seek judicial review, on behalf of the citizens of Florida, of the validity or invalidity of rules to which the committee has objected but the agency refuses to withdraw, repeal, or modify. Section 120.545, F.S., provides additional authority for the review of rules and sets out the procedures in the event of a JAPC objection to a rule. If JAPC notifies an agency that an objection to a rule is being considered, the agency may postpone the adoption of the rule to accommodate review of the rule by the committee. When an agency postpones adoption for this purpose, the normal 90-day period for filing the rule is tolled until JAPC notifies the agency that it has completed its review. If difficulties cannot be resolved at the staff level, JAPC prepares a recommendation for formal objection to be presented to the members of the committee in a public forum. The agency is advised of the recommended objection and is invited to appear before the committee to defend the rule and present arguments that the rule is authorized. If the committee concludes that there is no authority for the rule, it votes an objection. The agency then has the option of either agreeing or refusing to amend or repeal the rule.


8

Sometimes members will suggest, and often offer to sponsor, legislation to amend the statutes to allow the rule. If an agency refuses to amend or repeal its rule, a footnote to the rule referencing the JAPC objection is published in the FAC. A suspension process may be initiated should an agency refuse to amend or repeal its rule in response to a voted objection. The committee may recommend to the President of the Senate and the Speaker of the House of Representatives that a bill to modify or suspend the adoption of a proposed rule, or amend or repeal an existing rule, be introduced in the event that the agency fails to initiate administrative action to meet the committee’s objection within 60 days of the objection, or then fails to proceed in good faith to complete the action. JAPC may request that the agency temporarily suspend the rule or the adoption of a proposed rule, pending consideration of proposed legislation during the next regular legislative session. If the agency refuses to suspend the rule, JAPC is required to prepare a general bill, which must be passed by both houses and be signed, or allowed to become law, by the Governor in order to modify or suspend the adoption of a proposed rule or amend or repeal an existing rule. The rule suspension provisions have thus far never been utilized. Agencies usually agree that changes need to be made and correct their rules when contacted by JAPC without bringing the issues before the full committee. Only a handful of rules have been brought before the full committee in formal public hearing in recent years, and even fewer have resulted in a refusal to modify. As a direct result of JAPC’s efforts, many corrections are made to rules before they are ever adopted.

What types of problems does JAPC find? JAPC is required to examine each proposed rule and its accompanying material, and each emergency rule, and may examine any existing rule to determine whether:

the rule is an invalid exercise of delegated legislative authority pursuant to

§120.52(8), F.S. (A proposed or existing rule may be considered an invalid exercise of delegated authority if there is a failure to follow rulemaking

procedures as required by §120.54, F.S.; the action exceeds statutory rulemaking authority; the rule is vague, does not establish adequate standards, or vests unbridled discretion in the agency; the rule is arbitrary or capricious; the rule enlarges, modifies, or contravenes the provisions of law it implements; or the rule imposes regulatory costs which could be reduced by less costly alternatives.)

the statutory authority for the rule has been repealed. the rule reiterates or paraphrases statutory material. the rule is in proper form.


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the notice given prior to adoption was sufficient to give adequate notice of the purpose and effect of the rule.

the rule is necessary to accomplish the objectives of the law implemented. the rule is consistent with expressed legislative intent pertaining to the specific

provisions of law which the rule implements. the rule could be made more easily comprehensible to the general public. the rule is a reasonable implementation of the law as it affects the convenience

of the general public or persons affected by the rule. the rule imposes regulatory costs on the regulated person, county, or city which

could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

the rule will require additional appropriations. if an emergency rule, there exists an emergency justifying the rule, the agency has

exceeded the scope of its statutory authority, and the rule was promulgated in

compliance with §120.54(4), F.S.

What is the role of the Division of Administrative Hearings? The purpose of the APA is to allow broad citizen involvement in agency decision making as well as unbiased resolution of disputes with an administrative agency. The Act allows persons substantially affected by the decisions of administrative agencies to challenge those decisions. The opportunity for citizen challenge increases the likelihood that an agency will consider all sides of an issue and choose the most effective resolution. Any person substantially affected by an existing or proposed rule may seek an administrative determination of its invalidity. In the case of an existing rule, the challenger has the burden of proof. When a proposed rule is challenged, the agency must prove that the rule is not an invalid exercise of delegated legislative authority, meaning that the agency has acted beyond the “powers, functions, and duties delegated

by the Legislature.” (§120.52(8), F.S.) Rule challenge petitions are filed with the Division of Administrative Hearings (DOAH). It is DOAH’s responsibility to resolve administrative disputes referred by agencies or initiated by the filing of a petition. The division is housed under the Department of Management Services strictly for organizational and budgetary purposes, and the department exercises no control or supervision over the division. DOAH is comprised of a group of independent law judges headed by a director who is appointed by the Governor and Cabinet and confirmed by the Senate. Administrative law judges hear challenges to the validity of proposed and existing rules. An agency may not adopt a proposed rule until the administrative law judge has entered a final order. An order issued by an administrative law judge may be appealed to a district


10

court of appeal. The proposed rule, or any portion thereof, must be withdrawn if declared invalid by the administrative law judge. Furthermore, the agency must give notice of such invalidity in the first available issue of the FAR. DOAH is required to forward to JAPC a copy of each petition seeking an administrative determination of the validity of a proposed or existing rule. The division also is required to provide a copy of the administrative law judge’s final order to JAPC. Additionally, DOAH maintains a centralized database of specified agency orders rendered on or after July 1, 2015.

What is unadopted agency policy? When the Legislature created a detailed rulemaking process for agencies in 1974, it did not expressly require agencies to use this process for formalizing all policy positions into rules. The APA was later amended to provide that rulemaking is not a matter of agency discretion, thus requiring an agency to adopt its policies that meet the definition

of a rule through formal rulemaking (see (§120.54(1)(a), F.S.) in order that all Florida citizens are subject to an agency’s policies at the same time and in the same manner. Any person substantially affected by an agency statement that he or she believes should have been adopted as a rule in accordance with formal rulemaking requirements may file a petition with DOAH, seeking an administrative determination as to whether the agency statement constitutes a rule and whether the agency has violated the rulemaking

directives of §120.54(1)(a), F.S. The APA imposes a significant burden on an agency to prove that its unadopted policy is not an invalid exercise of delegated legislative authority. If an administrative law judge finds that an agency statement violates

§120.54(1)(a), F.S., the agency may no longer rely on the statement as a basis for agency action. DOAH is required to provide a copy to JAPC of each petition challenging the validity of an agency statement not adopted as a rule as well as the final order of the administrative law judge.

Is licensing subject to the APA? The APA establishes a timeframe in which an agency must act on an application for licensure. The failure of the agency to respond to the application for licensure within the prescribed time results in default licensure, so long as the applicant successfully completes any examination required and satisfies other statutory requirements. Upon receipt of an application for licensure, an agency has 30 days in which to examine the application and notify the applicant of any errors or omissions as well as request any additional information as permitted by law. If the agency takes such action within 30


11

days, an application may be denied if an applicant fails to correct errors or omissions or supply additional information as requested. Under the APA, license applications must be approved or denied within 90 days of the original application or the agency’s request for additional information. This period may

be tolled as a result of the initiation of administrative proceedings under §120.57, F.S., with the time resuming after the administrative law judge issues a recommended order. An agency must provide to the applicant written notice of its proposed action, as well as information regarding administrative and judicial review options and the applicable time limits and procedures to be followed. Before an agency may revoke, suspend, amend, or withdraw a license, it must notify the licensee by personal service or certified mail of the circumstances justifying the agency’s pending action. In this event, the licensee has the right to request a hearing under

§120.57, F.S. An agency may summarily suspend, restrict, or limit a license if it finds that an immediate serious danger to the public health, safety, or welfare requires an emergency suspension.

What is a variance or waiver to the APA? Revisions to the APA in 1996 include a provision allowing agencies to grant variances and waivers from requirements of their rules in order to avoid unreasonable, unfair, and unintended results. If a citizen subject to a rule can demonstrate that a rule would

“create a substantial hardship or would violate principles of fairness” (§120.542(2), F.S.), an agency must grant a variance or waiver if the person can meet the purpose of the underlying statute through other means. An agency may not grant a variance or waiver to statutes. A copy of both the petition and the agency’s order granting or denying the petition, containing a statement of the relevant facts and reasons supporting the agency’s action, must be filed with JAPC.

What is a petition to initiate rulemaking? Pursuant to §120.54(7), F.S., any person who is regulated by an agency or who has a substantial interest in an agency’s rule may petition the agency to adopt, amend, or repeal a rule. The agency must respond by either agreeing to initiate rulemaking or by denying the petition. This decision in the form of a written statement is considered a

final action that may be appealed pursuant to §120.68, F.S. If a petition to initiate rulemaking is directed to an existing rule which the agency has not adopted as a rule, and the agency, after holding a public hearing, does not initiate


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rulemaking or otherwise comply with the requested action, the agency must publish a statement of its reasons in the FAR. The agency is required to file the statement with JAPC, who then forwards a copy of the statement to the substantive committees of the Legislature with primary oversight jurisdiction of the agency. JAPC or a committee with oversight jurisdiction may hold a hearing directed to the agency statement and may recommend appropriate legislation.

What is a declaratory statement? The purpose of an agency declaratory statement is the clarification of an agency’s interpretation of a provision of law or of a rule or order of the agency. An agency must publish each petition for declaratory statement, as well as its disposition of the petition, in the FAR. In declaratory statements, an agency gives an opinion on the applicability of a specific statutory provision, agency rule, or order of the agency as it applies to the petitioner’s individual situation. A declaratory statement is a final agency action subject to judicial review. Are exemptions to the APA permitted? At the request of an agency, the Governor and Cabinet, sitting as the Administration Commission, may grant an exemption from any of the requirements in any process or proceeding governed by the APA under certain circumstances. An agency head might request an exemption based on the fact that specific requirements conflict with a federal law or rule with which the agency must comply. An exemption might also be granted because tax benefits or federal funds cannot be received otherwise. If the Administration Commission determines that compliance with certain requirements would be inconvenient or impractical enough to defeat the purpose of the APA, an exemption may be granted. The Commission may not grant an exemption until it establishes alternative procedures that achieve the agency’s purpose and are consistent with the intent of the APA. An order granting or denying an exemption and specifying any alternative procedures is provided to JAPC and published in the Florida Administrative Register. If granted, the exemption and the established alternative procedures terminate 90 days following adjournment sine die of either the current or next regular legislative session after the granting of the exemption, or on the effective date of any consequent legislation that addresses the exemption, whichever is earlier.


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Where does a citizen go for help? A citizen with concerns about an agency action may contact the offices of their elected state legislators for assistance. A list of legislators, the specific districts they represent, and information on how to contact them is available on the House and Senate pages of Online Sunshine at http://www.leg.state.fl.us. A citizen with a special interest in an agency’s rule or unadopted policy may also contact JAPC for assistance. Although the staff cannot represent any person, it can look into matters related to the committee’s statutory responsibility to generally review agency action pursuant to the Administrative Procedure Act. If it appears that an agency is not fulfilling the requirements of the Act, the committee will contact the agency to seek compliance and may take other action authorized by Chapter 120, F.S.


http://www.leg.state.fl.us/

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Contact Information Joint Administrative Procedures Committee Room 680, Pepper Building 111 W. Madison Street Tallahassee, Florida 32399-1400 Phone: (850) 488-9110 Email: [email protected] http://www.japc.state.fl.us Administrative Code and Register Section Room 101, R.A. Gray Building 500 S. Bronough Street Tallahassee, Florida 32399-0250 Phone: (850) 245-6270 Email: [email protected] https://www.flrules.org Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Phone: (850) 488-9675 Email: [email protected] https://www.doah.state.fl.us/ALJ/searchDOAH/

Find your elected legislators at Online Sunshine http://www.leg.state.fl.us


mailto:[email protected]


http://www.japc.state.fl.us/

http://www.japc.state.fl.us/

https://www.flrules.org/


https://www.flrules.org/default.asp

https://www.flrules.org/default.asp

https://www.doah.state.fl.us/ALJ/searchDOAH/

mailto:[email protected]?subject=DOAH%20Clerk%20-%20&[email protected]

https://www.doah.state.fl.us/ALJ/searchDOAH/




7/22/2021 Statutes & Constitution :View Statutes : Online Sunshine

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Select Year: 2020 Go

The 2020 Florida Statutes

Title XPUBLIC OFFICERS, EMPLOYEES, AND

RECORDS

Chapter 120 ADMINISTRATIVE PROCEDURE

ACT

View EntireChapter

120.54 Rulemaking.—(1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN EMERGENCY RULES.—(a) Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall

be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.1. Rulemaking shall be presumed feasible unless the agency proves that:a. The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to

address a statement by rulemaking; orb. Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking.2. Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons

of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless theagency proves that:

a. Detail or precision in the establishment of principles, criteria, or standards for agency decisions is notreasonable under the circumstances; or

b. The particular questions addressed are of such a narrow scope that more specific resolution of the matter isimpractical outside of an adjudication to determine the substantial interests of a party based on individualcircumstances.

(b) Whenever an act of the Legislature is enacted which requires implementation of the act by rules of anagency within the executive branch of state government, such rules shall be drafted and formally proposed asprovided in this section within the times provided in s. 120.74(4) and (5).

(c) No statutory provision shall be delayed in its implementation pending an agency’s adoption of implementingrules unless there is an express statutory provision prohibiting its application until the adoption of implementingrules.

(d) In adopting rules, all agencies must, among the alternative approaches to any regulatory objective and tothe extent allowed by law, choose the alternative that does not impose regulatory costs on the regulated person,county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish thestatutory objectives.

(e) No agency has inherent rulemaking authority, nor has any agency authority to establish penalties forviolation of a rule unless the Legislature, when establishing a penalty, specifically provides that the penalty appliesto rules.

(f) An agency may adopt rules authorized by law and necessary to the proper implementation of a statute priorto the effective date of the statute, but the rules may not be effective until the statute upon which they are basedis effective. An agency may not adopt retroactive rules, including retroactive rules intended to clarify existing law,unless that power is expressly authorized by statute.

(g) Each rule adopted shall contain only one subject.(h) In rulemaking proceedings, the agency may recognize any material which may be judicially noticed, and it

may provide that materials so recognized be incorporated into the record of the proceeding. Before the record of


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any proceeding is completed, all parties shall be provided a list of these materials and given a reasonableopportunity to examine them and offer written comments or written rebuttal.

(i)1. A rule may incorporate material by reference but only as the material exists on the date the rule isadopted. For purposes of the rule, changes in the material are not effective unless the rule is amended toincorporate the changes.

2. An agency rule that incorporates by specific reference another rule of that agency automaticallyincorporates subsequent amendments to the referenced rule unless a contrary intent is clearly indicated in thereferencing rule. A notice of amendments to a rule that has been incorporated by specific reference in other rulesof that agency must explain the effect of those amendments on the referencing rules.

3. In rules adopted after December 31, 2010, material may not be incorporated by reference unless:a. The material has been submitted in the prescribed electronic format to the Department of State and the full

text of the material can be made available for free public access through an electronic hyperlink from the rulemaking the reference in the Florida Administrative Code; or

b. The agency has determined that posting the material on the Internet for purposes of public examination andinspection would constitute a violation of federal copyright law, in which case a statement to that effect, alongwith the address of locations at the Department of State and the agency at which the material is available forpublic inspection and examination, must be included in the notice required by subparagraph (3)(a)1.

4. A rule may not be amended by reference only. Amendments must set out the amended rule in full in thesame manner as required by the State Constitution for laws.

5. Notwithstanding any contrary provision in this section, when an adopted rule of the Department ofEnvironmental Protection or a water management district is incorporated by reference in the other agency’s rule toimplement a provision of part IV of chapter 373, subsequent amendments to the rule are not effective as to theincorporating rule unless the agency incorporating by reference notifies the committee and the Department ofState of its intent to adopt the subsequent amendment, publishes notice of such intent in the FloridaAdministrative Register, and files with the Department of State a copy of the amended rule incorporated byreference. Changes in the rule incorporated by reference are effective as to the other agency 20 days after thedate of the published notice and filing with the Department of State. The Department of State shall amend thehistory note of the incorporating rule to show the effective date of such change. Any substantially affected personmay, within 14 days after the date of publication of the notice of intent in the Florida Administrative Register, filean objection to rulemaking with the agency. The objection shall specify the portions of the rule incorporated byreference to which the person objects and the reasons for the objection. The agency shall not have the authorityunder this subparagraph to adopt those portions of the rule specified in such objection. The agency shall publishnotice of the objection and of its action in response in the next available issue of the Florida AdministrativeRegister.

6. The Department of State may adopt by rule requirements for incorporating materials pursuant to thisparagraph.

(j) A rule published in the Florida Administrative Code must be indexed by the Department of State within 90days after the rule is filed. The Department of State shall by rule establish procedures for indexing rules.

(k) An agency head may delegate the authority to initiate rule development under subsection (2); however,rulemaking responsibilities of an agency head under subparagraph (3)(a)1., subparagraph (3)(e)1., or subparagraph(3)(e)6. may not be delegated or transferred.

(2) RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.—(a) Except when the intended action is the repeal of a rule, agencies shall provide notice of the development

of proposed rules by publication of a notice of rule development in the Florida Administrative Register beforeproviding notice of a proposed rule as required by paragraph (3)(a). The notice of rule development shall indicatethe subject area to be addressed by rule development, provide a short, plain explanation of the purpose and effectof the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of theproposed rules, if available, or a statement of how a person may promptly obtain, without cost, a copy of anypreliminary draft, if available. WCRAC August 2021 Agenda Page38



(b) All rules should be drafted in readable language. The language is readable if:1. It avoids the use of obscure words and unnecessarily long or complicated constructions; and2. It avoids the use of unnecessary technical or specialized language that is understood only by members of

particular trades or professions.(c) An agency may hold public workshops for purposes of rule development. An agency must hold public

workshops, including workshops in various regions of the state or the agency’s service area, for purposes of ruledevelopment if requested in writing by any affected person, unless the agency head explains in writing why aworkshop is unnecessary. The explanation is not final agency action subject to review pursuant to ss. 120.569 and120.57. The failure to provide the explanation when required may be a material error in procedure pursuant to s.120.56(1)(c). When a workshop or public hearing is held, the agency must ensure that the persons responsible forpreparing the proposed rule are available to explain the agency’s proposal and to respond to questions orcomments regarding the rule being developed. The workshop may be facilitated or mediated by a neutral thirdperson, or the agency may employ other types of dispute resolution alternatives for the workshop that areappropriate for rule development. Notice of a rule development workshop shall be by publication in the FloridaAdministrative Register not less than 14 days prior to the date on which the workshop is scheduled to be held andshall indicate the subject area which will be addressed; the agency contact person; and the place, date, and timeof the workshop.

(d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should considerthe use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules isanticipated. The agency should consider, but is not limited to considering, whether a balanced committee ofinterested persons who will negotiate in good faith can be assembled, whether the agency is willing to support thework of the negotiating committee, and whether the agency can use the group consensus as the basis for itsproposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutuallyacceptable proposed rule.

2. An agency that chooses to use the negotiated rulemaking process described in this paragraph shall publish inthe Florida Administrative Register a notice of negotiated rulemaking that includes a listing of the representativegroups that will be invited to participate in the negotiated rulemaking process. Any person who believes that his orher interest is not adequately represented may apply to participate within 30 days after publication of the notice.All meetings of the negotiating committee shall be noticed and open to the public pursuant to the provisions of thischapter. The negotiating committee shall be chaired by a neutral facilitator or mediator.

3. The agency’s decision to use negotiated rulemaking, its selection of the representative groups, and approvalor denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing inthis subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developedunder this paragraph in accordance with s. 120.56(2).

(3) ADOPTION PROCEDURES.—(a) Notices.—1. Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency, upon

approval of the agency head, shall give notice of its intended action, setting forth a short, plain explanation of thepurpose and effect of the proposed action; the full text of the proposed rule or amendment and a summarythereof; a reference to the grant of rulemaking authority pursuant to which the rule is adopted; and a reference tothe section or subsection of the Florida Statutes or the Laws of Florida being implemented or interpreted. Thenotice must include a summary of the agency’s statement of the estimated regulatory costs, if one has beenprepared, based on the factors set forth in s. 120.541(2); a statement that any person who wishes to provide theagency with information regarding the statement of estimated regulatory costs, or to provide a proposal for alower cost regulatory alternative as provided by s. 120.541(1), must do so in writing within 21 days afterpublication of the notice; and a statement as to whether, based on the statement of the estimated regulatory costsor other information expressly relied upon and described by the agency if no statement of regulatory costs isrequired, the proposed rule is expected to require legislative ratification pursuant to s. 120.541(3). The noticemust state the procedure for requesting a public hearing on the proposed rule. Except when the intended action isWCRAC August 2021 Agenda Page39










the repeal of a rule, the notice must include a reference both to the date on which and to the place where thenotice of rule development that is required by subsection (2) appeared.

2. The notice shall be published in the Florida Administrative Register not less than 28 days prior to theintended action. The proposed rule shall be available for inspection and copying by the public at the time of thepublication of notice.

3. The notice shall be mailed to all persons named in the proposed rule and to all persons who, at least 14 daysprior to such mailing, have made requests of the agency for advance notice of its proceedings. The agency shallalso give such notice as is prescribed by rule to those particular classes of persons to whom the intended action isdirected.

4. The adopting agency shall file with the committee, at least 21 days prior to the proposed adoption date, acopy of each rule it proposes to adopt; a copy of any material incorporated by reference in the rule; a detailedwritten statement of the facts and circumstances justifying the proposed rule; a copy of any statement ofestimated regulatory costs that has been prepared pursuant to s. 120.541; a statement of the extent to which theproposed rule relates to federal standards or rules on the same subject; and the notice required by subparagraph1.

(b) Special matters to be considered in rule adoption.—1. Statement of estimated regulatory costs.—Before the adoption, amendment, or repeal of any rule other than

an emergency rule, an agency is encouraged to prepare a statement of estimated regulatory costs of the proposedrule, as provided by s. 120.541. However, an agency must prepare a statement of estimated regulatory costs of theproposed rule, as provided by s. 120.541, if:

a. The proposed rule will have an adverse impact on small business; orb. The proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the

aggregate in this state within 1 year after the implementation of the rule.2. Small businesses, small counties, and small cities.—a. Each agency, before the adoption, amendment, or repeal of a rule, shall consider the impact of the rule on

small businesses as defined by s. 288.703 and the impact of the rule on small counties or small cities as defined bys. 120.52. Whenever practicable, an agency shall tier its rules to reduce disproportionate impacts on smallbusinesses, small counties, or small cities to avoid regulating small businesses, small counties, or small cities thatdo not contribute significantly to the problem the rule is designed to address. An agency may define “smallbusiness” to include businesses employing more than 200 persons, may define “small county” to include those withpopulations of more than 75,000, and may define “small city” to include those with populations of more than10,000, if it finds that such a definition is necessary to adapt a rule to the needs and problems of small businesses,small counties, or small cities. The agency shall consider each of the following methods for reducing the impact ofthe proposed rule on small businesses, small counties, and small cities, or any combination of these entities:

(I) Establishing less stringent compliance or reporting requirements in the rule.(II) Establishing less stringent schedules or deadlines in the rule for compliance or reporting requirements.(III) Consolidating or simplifying the rule’s compliance or reporting requirements.(IV) Establishing performance standards or best management practices to replace design or operational

standards in the rule.(V) Exempting small businesses, small counties, or small cities from any or all requirements of the rule.b.(I) If the agency determines that the proposed action will affect small businesses as defined by the agency as

provided in sub-subparagraph a., the agency shall send written notice of the rule to the rules ombudsman in theExecutive Office of the Governor at least 28 days before the intended action.

(II) Each agency shall adopt those regulatory alternatives offered by the rules ombudsman in the ExecutiveOffice of the Governor and provided to the agency no later than 21 days after the rules ombudsman’s receipt ofthe written notice of the rule which it finds are feasible and consistent with the stated objectives of the proposedrule and which would reduce the impact on small businesses. When regulatory alternatives are offered by the rulesombudsman in the Executive Office of the Governor, the 90-day period for filing the rule in subparagraph (e)2. isextended for a period of 21 days. WCRAC August 2021 Agenda Page40








(III) If an agency does not adopt all alternatives offered pursuant to this sub-subparagraph, it shall, before ruleadoption or amendment and pursuant to subparagraph (d)1., file a detailed written statement with the committeeexplaining the reasons for failure to adopt such alternatives. Within 3 working days after the filing of such notice,the agency shall send a copy of such notice to the rules ombudsman in the Executive Office of the Governor.

(c) Hearings.—1. If the intended action concerns any rule other than one relating exclusively to procedure or practice, the

agency shall, on the request of any affected person received within 21 days after the date of publication of thenotice of intended agency action, give affected persons an opportunity to present evidence and argument on allissues under consideration. The agency may schedule a public hearing on the rule and, if requested by any affectedperson, shall schedule a public hearing on the rule. When a public hearing is held, the agency must ensure thatstaff are available to explain the agency’s proposal and to respond to questions or comments regarding the rule. Ifthe agency head is a board or other collegial body created under s. 20.165(4) or s. 20.43(3)(g), and one or morerequested public hearings is scheduled, the board or other collegial body shall conduct at least one of the publichearings itself and may not delegate this responsibility without the consent of those persons requesting the publichearing. Any material pertinent to the issues under consideration submitted to the agency within 21 days after thedate of publication of the notice or submitted to the agency between the date of publication of the notice and theend of the final public hearing shall be considered by the agency and made a part of the record of the rulemakingproceeding.

2. Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timelyasserts that the person’s substantial interests will be affected in the proceeding and affirmatively demonstrates tothe agency that the proceeding does not provide adequate opportunity to protect those interests. If the agencydetermines that the rulemaking proceeding is not adequate to protect the person’s interests, it shall suspend therulemaking proceeding and convene a separate proceeding under the provisions of ss. 120.569 and 120.57. Similarlysituated persons may be requested to join and participate in the separate proceeding. Upon conclusion of theseparate proceeding, the rulemaking proceeding shall be resumed.

(d) Modification or withdrawal of proposed rules.—1. After the final public hearing on the proposed rule, or after the time for requesting a hearing has expired, if

the rule has not been changed from the rule as previously filed with the committee, or contains only technicalchanges, the adopting agency shall file a notice to that effect with the committee at least 7 days prior to filing therule for adoption. Any change, other than a technical change that does not affect the substance of the rule, mustbe supported by the record of public hearings held on the rule, must be in response to written material submittedto the agency within 21 days after the date of publication of the notice of intended agency action or submitted tothe agency between the date of publication of the notice and the end of the final public hearing, or must be inresponse to a proposed objection by the committee. In addition, when any change is made in a proposed rule,other than a technical change, the adopting agency shall provide a copy of a notice of change by certified mail oractual delivery to any person who requests it in writing no later than 21 days after the notice required in paragraph(a). The agency shall file the notice of change with the committee, along with the reasons for the change, andprovide the notice of change to persons requesting it, at least 21 days prior to filing the rule for adoption. Thenotice of change shall be published in the Florida Administrative Register at least 21 days prior to filing the rule foradoption. This subparagraph does not apply to emergency rules adopted pursuant to subsection (4).

2. After the notice required by paragraph (a) and prior to adoption, the agency may withdraw the rule in wholeor in part.

3. After adoption and before the rule becomes effective, a rule may be modified or withdrawn only in thefollowing circumstances:

a. When the committee objects to the rule;b. When a final order, which is not subject to further appeal, is entered in a rule challenge brought pursuant to

s. 120.56 after the date of adoption but before the rule becomes effective pursuant to subparagraph (e)6.;c. If the rule requires ratification, when more than 90 days have passed since the rule was filed for adoption

without the Legislature ratifying the rule, in which case the rule may be withdrawn but may not be modified; orWCRAC August 2021 Agenda Page41








d. When the committee notifies the agency that an objection to the rule is being considered, in which case therule may be modified to extend the effective date by not more than 60 days.

4. The agency shall give notice of its decision to withdraw or modify a rule in the first available issue of thepublication in which the original notice of rulemaking was published, shall notify those persons described insubparagraph (a)3. in accordance with the requirements of that subparagraph, and shall notify the Department ofState if the rule is required to be filed with the Department of State.

5. After a rule has become effective, it may be repealed or amended only through the rulemaking proceduresspecified in this chapter.

(e) Filing for final adoption; effective date.—1. If the adopting agency is required to publish its rules in the Florida Administrative Code, the agency, upon

approval of the agency head, shall file with the Department of State three certified copies of the rule it proposesto adopt; one copy of any material incorporated by reference in the rule, certified by the agency; a summary ofthe rule; a summary of any hearings held on the rule; and a detailed written statement of the facts andcircumstances justifying the rule. Agencies not required to publish their rules in the Florida Administrative Codeshall file one certified copy of the proposed rule, and the other material required by this subparagraph, in theoffice of the agency head, and such rules shall be open to the public.

2. A rule may not be filed for adoption less than 28 days or more than 90 days after the notice required byparagraph (a), until 21 days after the notice of change required by paragraph (d), until 14 days after the finalpublic hearing, until 21 days after a statement of estimated regulatory costs required under s. 120.541 has beenprovided to all persons who submitted a lower cost regulatory alternative and made available to the public, oruntil the administrative law judge has rendered a decision under s. 120.56(2), whichever applies. When a requirednotice of change is published prior to the expiration of the time to file the rule for adoption, the period duringwhich a rule must be filed for adoption is extended to 45 days after the date of publication. If notice of a publichearing is published prior to the expiration of the time to file the rule for adoption, the period during which a rulemust be filed for adoption is extended to 45 days after adjournment of the final hearing on the rule, 21 days afterreceipt of all material authorized to be submitted at the hearing, or 21 days after receipt of the transcript, if oneis made, whichever is latest. The term “public hearing” includes any public meeting held by any agency at whichthe rule is considered. If a petition for an administrative determination under s. 120.56(2) is filed, the periodduring which a rule must be filed for adoption is extended to 60 days after the administrative law judge files thefinal order with the clerk or until 60 days after subsequent judicial review is complete.

3. At the time a rule is filed, the agency shall certify that the time limitations prescribed by this paragraphhave been complied with, that all statutory rulemaking requirements have been met, and that there is noadministrative determination pending on the rule.

4. At the time a rule is filed, the committee shall certify whether the agency has responded in writing to allmaterial and timely written comments or written inquiries made on behalf of the committee. The department shallreject any rule that is not filed within the prescribed time limits; that does not comply with all statutoryrulemaking requirements and rules of the department; upon which an agency has not responded in writing to allmaterial and timely written inquiries or written comments; upon which an administrative determination is pending;or which does not include a statement of estimated regulatory costs, if required.

5. If a rule has not been adopted within the time limits imposed by this paragraph or has not been adopted incompliance with all statutory rulemaking requirements, the agency proposing the rule shall withdraw the rule andgive notice of its action in the next available issue of the Florida Administrative Register.

6. The proposed rule shall be adopted on being filed with the Department of State and become effective 20days after being filed, on a later date specified in the notice required by subparagraph (a)1., on a date required bystatute, or upon ratification by the Legislature pursuant to s. 120.541(3). Rules not required to be filed with theDepartment of State shall become effective when adopted by the agency head, on a later date specified by rule orstatute, or upon ratification by the Legislature pursuant to s. 120.541(3). If the committee notifies an agency thatan objection to a rule is being considered, the agency may postpone the adoption of the rule to accommodatereview of the rule by the committee. When an agency postpones adoption of a rule to accommodate review by theWCRAC August 2021 Agenda Page42








committee, the 90-day period for filing the rule is tolled until the committee notifies the agency that it hascompleted its review of the rule.

For the purposes of this paragraph, the term “administrative determination” does not include subsequent judicialreview.

(4) EMERGENCY RULES.—(a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency

action, the agency may adopt any rule necessitated by the immediate danger. The agency may adopt a rule by anyprocedure which is fair under the circumstances if:

1. The procedure provides at least the procedural protection given by other statutes, the State Constitution, orthe United States Constitution.

2. The agency takes only that action necessary to protect the public interest under the emergency procedure.3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for

finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that theprocedure used is fair under the circumstances. In any event, notice of emergency rules, other than those ofeducational units or units of government with jurisdiction in only one or a part of one county, including the fulltext of the rules, shall be published in the first available issue of the Florida Administrative Register and providedto the committee along with any material incorporated by reference in the rules. The agency’s findings ofimmediate danger, necessity, and procedural fairness shall be judicially reviewable.

(b) Rules pertaining to the public health, safety, or welfare shall include rules pertaining to perishableagricultural commodities or rules pertaining to the interpretation and implementation of the requirements ofchapters 97-102 and chapter 105 of the Election Code.

(c) An emergency rule adopted under this subsection shall not be effective for a period longer than 90 days andshall not be renewable, except when the agency has initiated rulemaking to adopt rules addressing the subject ofthe emergency rule and either:

1. A challenge to the proposed rules has been filed and remains pending; or2. The proposed rules are awaiting ratification by the Legislature pursuant to s. 120.541(3).

Nothing in this paragraph prohibits the agency from adopting a rule or rules identical to the emergency rulethrough the rulemaking procedures specified in subsection (3).

(d) Subject to applicable constitutional and statutory provisions, an emergency rule becomes effectiveimmediately on filing, or on a date less than 20 days thereafter if specified in the rule, if the adopting agency findsthat such effective date is necessary because of immediate danger to the public health, safety, or welfare.

(5) UNIFORM RULES.—(a)1. By July 1, 1997, the Administration Commission shall adopt one or more sets of uniform rules of

procedure which shall be reviewed by the committee and filed with the Department of State. Agencies mustcomply with the uniform rules by July 1, 1998. The uniform rules shall establish procedures that comply with therequirements of this chapter. On filing with the department, the uniform rules shall be the rules of procedure foreach agency subject to this chapter unless the Administration Commission grants an exception to the agency underthis subsection.

2. An agency may seek exceptions to the uniform rules of procedure by filing a petition with the AdministrationCommission. The Administration Commission shall approve exceptions to the extent necessary to implement otherstatutes, to the extent necessary to conform to any requirement imposed as a condition precedent to receipt offederal funds or to permit persons in this state to receive tax benefits under federal law, or as required for themost efficient operation of the agency as determined by the Administration Commission. The reasons for theexceptions shall be published in the Florida Administrative Register.

3. Agency rules that provide exceptions to the uniform rules shall not be filed with the department unless theAdministration Commission has approved the exceptions. Each agency that adopts rules that provide exceptions tothe uniform rules shall publish a separate chapter in the Florida Administrative Code that delineates clearly the





provisions of the agency’s rules that provide exceptions to the uniform rules and specifies each alternative chosenfrom among those authorized by the uniform rules. Each chapter shall be organized in the same manner as theuniform rules.

(b) The uniform rules of procedure adopted by the commission pursuant to this subsection shall include, butare not limited to:

1. Uniform rules for the scheduling of public meetings, hearings, and workshops.2. Uniform rules for use by each state agency that provide procedures for conducting public meetings,

hearings, and workshops, and for taking evidence, testimony, and argument at such public meetings, hearings, andworkshops, in person and by means of communications media technology. The rules shall provide that all evidence,testimony, and argument presented shall be afforded equal consideration, regardless of the method ofcommunication. If a public meeting, hearing, or workshop is to be conducted by means of communications mediatechnology, or if attendance may be provided by such means, the notice shall so state. The notice for publicmeetings, hearings, and workshops utilizing communications media technology shall state how persons interestedin attending may do so and shall name locations, if any, where communications media technology facilities will beavailable. Nothing in this paragraph shall be construed to diminish the right to inspect public records under chapter119. Limiting points of access to public meetings, hearings, and workshops subject to the provisions of s. 286.011to places not normally open to the public shall be presumed to violate the right of access of the public, and anyofficial action taken under such circumstances is void and of no effect. Other laws relating to public meetings,hearings, and workshops, including penal and remedial provisions, shall apply to public meetings, hearings, andworkshops conducted by means of communications media technology, and shall be liberally construed in theirapplication to such public meetings, hearings, and workshops. As used in this subparagraph, “communicationsmedia technology” means the electronic transmission of printed matter, audio, full-motion video, freeze-framevideo, compressed video, and digital video by any method available.

3. Uniform rules of procedure for the filing of notice of protests and formal written protests. TheAdministration Commission may prescribe the form and substantive provisions of a required bond.

4. Uniform rules of procedure for the filing of petitions for administrative hearings pursuant to s. 120.569 or s.120.57. Such rules shall require the petition to include:

a. The identification of the petitioner, including the petitioner’s e-mail address, if any, for the transmittal ofsubsequent documents by electronic means.

b. A statement of when and how the petitioner received notice of the agency’s action or proposed action.c. An explanation of how the petitioner’s substantial interests are or will be affected by the action or proposed

action.d. A statement of all material facts disputed by the petitioner or a statement that there are no disputed facts.e. A statement of the ultimate facts alleged, including a statement of the specific facts the petitioner

contends warrant reversal or modification of the agency’s proposed action.f. A statement of the specific rules or statutes that the petitioner contends require reversal or modification of

the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules orstatutes.

g. A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agencyto take with respect to the proposed action.

5. Uniform rules for the filing of request for administrative hearing by a respondent in agency enforcement anddisciplinary actions. Such rules shall require a request to include:

a. The name, address, e-mail address, and telephone number of the party making the request and the name,address, and telephone number of the party’s counsel or qualified representative upon whom service of pleadingsand other papers shall be made;

b. A statement that the respondent is requesting an administrative hearing and disputes the material factsalleged by the petitioner, in which case the respondent shall identify those material facts that are in dispute, orthat the respondent is requesting an administrative hearing and does not dispute the material facts alleged by thepetitioner; and WCRAC August 2021 Agenda Page44






c. A reference by file number to the administrative complaint that the party has received from the agency andthe date on which the agency pleading was received.

The agency may provide an election-of-rights form for the respondent’s use in requesting a hearing, so long as anyform provided by the agency calls for the information in sub-subparagraphs a. through c. and does not impose anyadditional requirements on a respondent in order to request a hearing, unless such requirements are specificallyauthorized by law.

6. Uniform rules of procedure for the filing and prompt disposition of petitions for declaratory statements. Therules shall also describe the contents of the notices that must be published in the Florida Administrative Registerunder s. 120.565, including any applicable time limit for the filing of petitions to intervene or petitions foradministrative hearing by persons whose substantial interests may be affected.

7. Provision of a method by which each agency head shall provide a description of the agency’s organizationand general course of its operations. The rules shall require that the statement concerning the agency’sorganization and operations be published on the agency’s website.

8. Uniform rules establishing procedures for granting or denying petitions for variances and waivers pursuant tos. 120.542.

(6) ADOPTION OF FEDERAL STANDARDS.—Notwithstanding any contrary provision of this section, in thepursuance of state implementation, operation, or enforcement of federal programs, an agency is empowered toadopt rules substantively identical to regulations adopted pursuant to federal law, in accordance with the followingprocedures:

(a) The agency shall publish notice of intent to adopt a rule pursuant to this subsection in the FloridaAdministrative Register at least 21 days prior to filing the rule with the Department of State. The agency shallprovide a copy of the notice of intent to adopt a rule to the committee at least 21 days prior to the date of filingwith the Department of State. Prior to filing the rule with the Department of State, the agency shall consider anywritten comments received within 14 days after the date of publication of the notice of intent to adopt a rule. Therule shall be adopted upon filing with the Department of State. Substantive changes from the rules as noticed shallrequire republishing of notice as required in this subsection.

(b) Any rule adopted pursuant to this subsection shall become effective upon the date designated by theagency in the notice of intent to adopt a rule; however, no such rule shall become effective earlier than theeffective date of the substantively identical federal regulation.

(c) Any substantially affected person may, within 14 days after the date of publication of the notice of intentto adopt a rule, file an objection to rulemaking with the agency. The objection shall specify the portions of theproposed rule to which the person objects and the specific reasons for the objection. The agency shall not proceedpursuant to this subsection to adopt those portions of the proposed rule specified in an objection, unless theagency deems the objection to be frivolous, but may proceed pursuant to subsection (3). An objection to aproposed rule, which rule in no material respect differs from the requirements of the federal regulation uponwhich it is based, is deemed to be frivolous.

(d) Whenever any federal regulation adopted as an agency rule pursuant to this subsection is declared invalidor is withdrawn, revoked, repealed, remanded, or suspended, the agency shall, within 60 days thereafter, publish anotice of repeal of the substantively identical agency rule in the Florida Administrative Register. Such repeal iseffective upon publication of the notice. Whenever any federal regulation adopted as an agency rule pursuant tothis subsection is substantially amended, the agency may adopt the amended regulation as a rule. If the amendedregulation is not adopted as a rule within 180 days after the effective date of the amended regulation, the originalrule is deemed repealed and the agency shall publish a notice of repeal of the original agency rule in the nextavailable Florida Administrative Register.

(e) Whenever all or part of any rule proposed for adoption by the agency is substantively identical to aregulation adopted pursuant to federal law, such rule shall be written in a manner so that the rule specificallyreferences the regulation whenever possible.

(7) PETITION TO INITIATE RULEMAKING.—WCRAC August 2021 Agenda Page45





(a) Any person regulated by an agency or having substantial interest in an agency rule may petition an agencyto adopt, amend, or repeal a rule or to provide the minimum public information required by this chapter. Thepetition shall specify the proposed rule and action requested. Not later than 30 calendar days following the date offiling a petition, the agency shall initiate rulemaking proceedings under this chapter, otherwise comply with therequested action, or deny the petition with a written statement of its reasons for the denial.

(b) If the petition filed under this subsection is directed to an unadopted rule, the agency shall, not later than30 days following the date of filing a petition, initiate rulemaking, or provide notice in the Florida AdministrativeRegister that the agency will hold a public hearing on the petition within 30 days after publication of the notice.The purpose of the public hearing is to consider the comments of the public directed to the agency rule which hasnot been adopted by the rulemaking procedures or requirements of this chapter, its scope and application, and toconsider whether the public interest is served adequately by the application of the rule on a case-by-case basis, ascontrasted with its adoption by the rulemaking procedures or requirements set forth in this chapter.

(c) If the agency does not initiate rulemaking or otherwise comply with the requested action within 30 daysafter the public hearing provided for in paragraph (b), the agency shall publish in the Florida AdministrativeRegister a statement of its reasons for not initiating rulemaking or otherwise complying with the requested actionand of any changes it will make in the scope or application of the unadopted rule. The agency shall file thestatement with the committee. The committee shall forward a copy of the statement to the substantivecommittee with primary oversight jurisdiction of the agency in each house of the Legislature. The committee orthe committee with primary oversight jurisdiction may hold a hearing directed to the statement of the agency. Thecommittee holding the hearing may recommend to the Legislature the introduction of legislation making the rule astatutory standard or limiting or otherwise modifying the authority of the agency.

(d) If the agency initiates rulemaking after the public hearing provided for in paragraph (b), the agency shallpublish a notice of rule development within 30 days after the hearing and file a notice of proposed rule within 180days after the notice of rule development unless, before the 180th day, the agency publishes in the FloridaAdministrative Register a statement explaining its reasons for not having filed the notice. If rulemaking is initiatedunder this paragraph, the agency may not rely on the unadopted rule unless the agency publishes in the FloridaAdministrative Register a statement explaining why rulemaking under paragraph (1)(a) is not feasible or practicableuntil the conclusion of the rulemaking proceeding.

(8) RULEMAKING RECORD.—In all rulemaking proceedings the agency shall compile a rulemaking record. Therecord shall include, if applicable, copies of:

(a) All notices given for the proposed rule.(b) Any statement of estimated regulatory costs for the rule.(c) A written summary of hearings on the proposed rule.(d) The written comments and responses to written comments as required by this section and s. 120.541.(e) All notices and findings made under subsection (4).(f) All materials filed by the agency with the committee under subsection (3).(g) All materials filed with the Department of State under subsection (3).(h) All written inquiries from standing committees of the Legislature concerning the rule.

Each state agency shall retain the record of rulemaking as long as the rule is in effect. When a rule is no longer ineffect, the record may be destroyed pursuant to the records-retention schedule developed under s. 257.36(6).

History.—s. 1, ch. 74-310; s. 3, ch. 75-191; s. 3, ch. 76-131; ss. 1, 2, ch. 76-276; s. 1, ch. 77-174; s. 13, ch. 77-290; s. 3, ch. 77-453; s.2, ch. 78-28; s. 2, ch. 78-425; s. 7, ch. 79-3; s. 3, ch. 79-299; s. 69, ch. 79-400; s. 5, ch. 80-391; s. 1, ch. 81-309; s. 2, ch. 83-351; s. 1, ch.84-173; s. 2, ch. 84-203; s. 7, ch. 85-104; s. 1, ch. 86-30; s. 3, ch. 87-385; s. 36, ch. 90-302; ss. 2, 4, 7, ch. 92-166; s. 63, ch. 93-187; s.758, ch. 95-147; s. 6, ch. 95-295; s. 10, ch. 96-159; s. 6, ch. 96-320; s. 9, ch. 96-370; s. 3, ch. 97-176; s. 3, ch. 98-200; s. 4, ch. 99-379; s.9, ch. 2001-75; s. 2, ch. 2003-94; s. 50, ch. 2005-278; s. 3, ch. 2006-82; ss. 5, 6, ch. 2008-104; s. 7, ch. 2008-149; s. 4, ch. 2009-187; ss. 1,5, ch. 2010-279; HJR 9-A, 2010 Special Session A; s. 49, ch. 2011-142; s. 8, ch. 2011-208; s. 1, ch. 2011-225; s. 2, ch. 2012-27; s. 1, ch.2012-63; s. 4, ch. 2013-14; s. 13, ch. 2013-15; s. 1, ch. 2015-162; s. 1, ch. 2016-116.

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WORKERS COMPENSATION RULES ADVISORY COMMITTEE MINUTES FROM APRIL 21, 2021 MEETING

Meeting was held via Zoom. Members in attendance (18) Members Absent (6): James Fee, Chair Catherine Agacinski Wendy Loquasto, Vice Chair Paul Anderson Michele Bachoon, Secretary Hayley Folmar Neil Ambekar, Parliamentarian Rebecca Gardiner-Bess Lorna Brown Burton, BOG Liaison L. Gray Sanders Roger Dale Albright Terri Bussey Barbi Feldman Elaura Hodgetts Judge Jeffrey Jacobs Jodi Middleton Irene Rodriguez Anne Santomaggio Kellye Shoemaker Barry Stein Kim Syfrett Frank Taddeo Michael Tempkins Judge Jack Weiss Others Present (2): Chief Judge David Langham Mikalla Davis, Bar Liaison

I. Chair’s Report by Chair James Fee, Jr.

A. Jim Fee opened advising if you want to speak use the Zoom feature to raise your hand.

B. Minutes from 5/15/20 meeting on page 4 of agenda – motion to approve minutes- Wendy, seconded. No objections to minutes as proposed. Minutes approved at 12:08.

C. Jim advised members to please review IOPs.

D. Jim advised members to review the current subcommittee list.

E. Jim advised that the Committee made recommendations for rule amendments and we have an updated recommendation chart on page 10 of the agenda.


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F. Jim announced that we have a new DOAH Chief Judge, Peter Antonacci, and indicated that hopefully the recommendations we have made can now be addressed via DOAH.

G. Jim introduced guest speaker Deputy Chief Judge David Langham- 12:10

Judge Langham commented that he is frequently asked and somewhat surprised by repeatedly being asked how the rules committee works. Since the rules committees started in 1973, they have evolved to now being done as executive branch rules. He explained that any member of the public can write a proposed amendment. He personally keeps track of things that people ask him about. He’s is not permitted to make informal comments, but rather tells of the general rules process. He puts proposals in a single document and discusses with Chief Judge. He intends to put together all proposals and sit down with the Chief Judge to go over them. He commented that there remains confusion over who can make rules and he provided an umbrella-view of how the process works. Anyone can propose rule at any time, and they will try to address as best they can.

H. Report from Vice Chair Wendy Loquasto – update on immunity issue pending with

Florida Supreme Court that we were asked to comment on -- 12:15 (Page 13 of agenda) Wendy summarized that orders granting workers’ compensation immunity are often non-final orders and are listed in Florida Rule of Appellate Procedure 9.130 along with other immunity orders, such as sovereign and governmental immunity. The Supreme Court had sua sponte proposed changes to Rule 9.130 concerning the other immunities removing the requirement that the orders deny immunity as a matter of law and instructed the Appellate Court Rules Committee to consider the issue to determine if the same change be applied to orders denying workers’ compensation immunity. Wendy reported that the issue had also been considered by the ACRC after its Workers’ Compensation Practice Subcommittee had made recommendations, and the ACRC had approved the recommendations to keep the “as a matter of law” requirement but move the rule to a new subsection consistent with the Supreme Court’s reorganization of the rule for the other immunities. The rule recommendation is currently pending before the Florida Supreme Court in In re: Amendment to Fla. Rule of Appellate Procedure 9.130, Case No. SC20-1871. Wendy reported that until the Court rules, parties will continue to need an order denying workers compensation immunity as a matter of law for nonfinal order review. She also reported that the Supreme Court ended the three-year cycles for rules submissions and now issues opinions on rule amendments at any time. You can view the docket and documents on the Supreme Court’s website.

12:20


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II. Old Business

1. Subcommittee 1-- 6.104(2) – Subcommittee Chair Michele Bachoon gave a report from the agenda on the attorney withdrawal suggestion (Page 30). Michele reported that the Subcommittee unanimously agreed that this issue should not be addressed by the Committee.

12:21

2. Subcommittee 2 – 60Q-6.113 – Subcommittee Chair Kim Syfrett reported from the agenda on the affirmative defense recommendation (Page 32 of the agenda). They were asked to look at the affirmative defenses that were raised in paper Judge Anderson had done. The discussion had to do with a number of defenses the 1st DCA has opined are affirmative defenses. Some attorneys were unaware that they need to list affirmative defenses in the pretrial. Compare 60Q-6.113 Pre-trial to Florida Rule of Civ. Pro, which lists out particular affirmative defenses that are required to be pled. Should our rules also list out affirmative defenses as identified as necessary to be pled in the pre-trial? Kim reported that the Subcommittee came to consensus that we take no action on this as this is something Legislature would need to address. Neil Ambekar- discussed what defenses were affirmative defenses per Judge Anderson, report. Committee decided to go with what the Judges tell us, no rules committee action needed. Wendy Loquasto asked if there is anything the OJCC does to suggest the Legislature address issues. How do we get the Legislature to look at it?. It was discussed that Judge Langham would write a letter to the House Speaker and President of the Senate. Legislature does not appear to be interested in workers compensation. Anyone can write a letter to them addressing issues.

12:28

3. Subcommittee 3 – 60Q-6.120 -- Subcommittee Chair Wendy Loquasto provided background information for the proposal to the appellate attorney-fee rule (Page 38). A proposal from Judge Weiss was originally made to do away with section of the rule that deals with appellate attorney fees as the procedure is controlled by the 1st DCA order. Wendy had questioned whether the Q rule should be amended to conform with DCA practice, as opposed to eliminated. After meeting, the Subcommittee recommended that appellate fees rule should be according to the DCA Order and the recommended language is on Page 40 of the agenda.

Wendy reported that the proposed wording references the DCA Order. E/Cs are sometimes unsure when the response to appellate attorney fee petition is due, as the rules for trial court give 30 days, whereas the order gives only 20 days to respond. Attorneys should always look to DCA Order for timing.


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Wendy also reported that Florida Rule of Appellate Procedure does not answer the issue since it simply provides the OJCC has jurisdiction. The rule says nothing about mediation. Thus, the issue for the Committee is whether we want to amend the rule to track the First DCA order or eliminate the rule on appellate fees because there is a First DCA order. Judge Weiss asked if there was a recommendation from Subcommittee on which proposal they approve? Wendy reported there was no Subcommittee recommendation for one of the two. She offered that the rule proposals had gotten delayed when comment from appellate practitioners was sought. Consequently, it was agreed that these proposals need to go back to Subcommittee to decide if they like one of the recommendations over the other. Neil Ambekar asked if George Kagan specified whether he was talking about the DCA order or the OJCC order when he mentioned mediation? Wendy responded that George sent an email on August 4 (page 54 of agenda). Neil offered that section 440.25 provides that mediation cannot be used for mediating attorney fees. Wendy concluded that the Subcommittee needs to make a recommendation - they will meet to discuss.

III. New Business B. Open Discussion (out of order):

Michael Tempkins stated that he had looked at the Q rules and they refer to Florida Statutes as “F.S.,” but the Bluebook uses “Fla. Stat.” Jim said he would assign this to Subcommittee 1 to work on and discuss. Judge Weiss commented that the same might apply to “FAC” - Florida Administrative Code. We should check the Bluebook to be consistent. Jim will also send this to Subcommittee 1 to look at. Wendy offered that Florida Rule of Appellate Procedure 9.800 is the citation rule for all attorneys. Wendy says 9.800 is what is to be used in Florida first and Bluebook is second. Jim agrees that Subcommittee 1 should also consider Rule 9.800. Neil Ambekar offered that the Florida Administrative Code has its own format. It uses “F.S.” Subcommittee 1 should also take a look at administrative rules and statutes to see what is used most often.

12:45


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A. Chair’s Motion to Amend 60Q-6.108(1)(e). Jim reported we were suggesting a change from 5:00 p.m. to 11:59 p.m cut off time for filing. He noted, however, that in subsection 3 the 5:00 p.m. time pertains to service, which was not addressed when with the filing portion. He questioned whether 6-108(3) needs to be amended as to the service time as well. He will assign this to Subcommittee 1.

IV. Next Meeting Dates:

Jim commented that hopefully our next meeting will be live. Wendy Loquasto, the incoming Chair, will decide if it will be. The Workers’ Comp Convention in December 12-15, 2021.

V. Closing Remarks & Adjournment: Jim thanked everyone for their service throughout this year, which was unusual because of COVID and the inability to have live meetings. He asked all outgoing Subcommittees to review issues and make recommendations for Chairs of Subcommittee. Jim commented that Wendy needs to appoint Secretary (Michele is terming-off), Liaison to WC Section, Parliamentarian (Neil has done this in the past) Vice Chair will be Jodi Middleton. Jim asked the Subcommittees to meet prior to end of June. Get a meeting set up and coordinate with Mikalla to set up conference line. Have everything tightened up for Wendy to take over. Wendy commented that Mikalla had said that the Bar Meeting for Sections and Committees is in October and virtual, but Midyear in 2022 is to be live. We usually meet in August at the Comp Convention, so we may need to meet in December. Mikalla offered that we usually meet live in April and every four months, so August and December fit the typical schedule. Judge Weiss suggested we consider having another meeting in August and December meeting would be live. We need to meet virtually in August. Jim Fee agrees with schedule. Adjourned 12:59 Respectfully submitted, Michele Bachoon, Secretary Wendy Loquasto, Vice Chair


Current Rule Amendment Proposal of the Workers’ Compensation Advisory Committee Updated 04/21

Pending Rule Status Description Sent to Langham Sent to Workers’ Compensation Section and Florida Advocates

60Q.-6.102 (Definitions)

Post WCRAC Final Vote Final Vote on Deleting (12) was December 2019 by 7-6

Specifies that efiling is the same as electronic filing. Adds definition of verified Deletes definition of personally conferred

Yes 4/2021. Yes 4/2021

60Q-6.108 (Filing and Service)

Post WCRAC Final Vote Final Vote on 6.108 1(g) took place in December 2017. Final Vote on 6.108 (b) was in April 2019 16-0-0 Final Vote on 6.108(1)(e) 11-0 in December 2019. Final Vote on 6.108(2)(e) 11-3 in December 2019

Eliminates second to las sentence in 60Q-6.108 (1)(g) to make identifying exhibits easier on the docket. And clarifies service in 6.108(b) 6.108(1)(e) adding 11:59 as timeframe for when service is docket the next day. 6.108(2)(e) clarifies facsimile filing

Yes 4/2021. Yes 4/2021

60Q-6.110 (4) and (7)

Post WCRAC Final Vote 14-0-1 in April 2019 to subdivision (7). Post WCRAC Final Vote 14-0-0 in May 2020 to subdivision (4)

Solve conflict between pre-trial stipulations and mediation. Eliminate need to state the manner it which it was resolved.

Yes 4/2021. Yes 4/2021



60Q-6.113 (Pretrial Procedure)

Post WCRAC Final Vote as to 2nd Sentence in (h) in August 2017. Post WCRAC Final Vote in August 2019 11-1 phrase added to end of (h).

Amendment making it mandatory that all lack of specificity defenses be raised within 14 days of pretrial. Eliminates the 30-day deadline for filing pretrial when mediation is waived. Amendment making that objections in the pretrial stipulation or no later than 15 days after the filing of the affirmative offense

Yes 4/2021. Yes 4/2021

60Q-6.115 (Motion Practice)

Post WCRAC Final Vote as to 60Q- 6.115(2) in July 2017. Post WCRAC Final Vote as to 60Q-6.115 (4) 14-1-1 in August 2018 Final Vote on deleting 6.115(2) was December 2019 by vote 7-6

Eliminates need to confer on motions to withdraw as counsel as to 60Q- 6.115(2) Allow Hearings on motions at the discretion of the judge; eliminates exceptional circumstances standard as to 60Q-6.115 (4). Deleting 6.115(2) personally conferred

Yes 4/2021. Yes 4/2021

60Q-6.116 (Prosecution of Claims and Petitions for Benefits) (4) and (6)

Post WCRAC Final Vote 14-1-1 in August 2018 as to (4). Post WCRAC Final Vote 14-0-0 in May

Allows a party to request a live trial Eliminate need to state the manner it which it was resolved.

Yes 4/2021. Yes 4/2021



2020 to subdivision (6).

60Q-6.123 (Settlements Under Section 440.20 (11), Florida Statutes)

Post WCRAC Final Vote

Deletes subsection regarding disclosure of costs.

Wor Yes 4/2021

60Q-6.125 (Sanctions)

Post WCRAC Final Vote Final Vote on amendments to (3) and (4) on December 2019 by a vote of 11-0-0.

Emphasizes that 21-day safe harbor provision apply to motions for sanctions under 440.32, Florida Statute as well as motions under 60Q-6.125. Changes made to (3) and (4) in light of the Phillips case. Previous changes sent in April 2018 modified as they did not make sense with Phillips case.

Yes 4/2021. Yes 4/2021


Notice of Development of Rulemaking DEPARTMENT OF MANAGEMENT SERVICES Division of Administrative Hearings RULE NO.: RULE TITLE:

60Q-6.101: Scope 60Q-6.102: Definitions 60Q-6.103: Pleadings and Proposed Orders 60Q-6.104: Representation and Appearance of Counsel 60Q-6.105: Commencing a Case; Subsequent Petitions 60Q-6.106: Consolidation and Venue 60Q-6.107: Amendment and Dismissal of Petition for Benefits 60Q-6.108: Filing and Service 60Q-6.109: Computation of Time 60Q-6.110: Mediation, Generally 60Q-6.111: Authority and Duties of Mediator 60Q-6.112: Disqualification of Mediator 60Q-6.113: Pretrial Procedure 60Q-6.114: Discovery 60Q-6.115: Motion Practice 60Q-6.116: Prosecution of Claims and Petitions for Benefits 60Q-6.117: Emergency Conferences 60Q-6.118: Expedited Hearings 60Q-6.119: Abbreviated Final Orders 60Q-6.120: Summary Final Order 60Q-6.121: Evidence 60Q-6.122: Motion for Re-hearing and Amending or Vacating Order 60Q-6.123: Settlements Under Section 440.20(11), Florida Statutes 60Q-6.124: Payment of Attorney's Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes 60Q-6.125: Sanctions 60Q-6.126: Disqualification or Recusal of Judges 60Q-6.127: Procedure for Relief from Appellate Filing Fee and Costs 60Q-6.128: Destruction of Obsolete Records 60Q-6.129: Statewide Judicial Nominating Commission Procedures PURPOSE AND EFFECT: To amend the procedural rules applicable to workers' compensation adjudications as necessary to improve the adjudicatory process. SUBJECT AREA TO BE ADDRESSED: The procedural rules applicable to workers' compensation adjudications before the judges of compensation claims. RULEMAKING AUTHORITY: 61.14(8)(a), 440.25(4)(h), 440.25(4)(i), 440.44(7), 440.45(1)(a), (4) FS. LAW IMPLEMENTED: 61.14(8)(a), 440.105(3)(c), 440.192,(1),(2)(a), 440.20(11), 440.25(1),(2)-(4)(a)-(e),(g)-(i), 440.292, 440.271, 440.29(2), 440.32, 440.33(1), 440.34, 440.34(2), 440.345, 440.442, 440.44(7), 440.442, 440.45(1)(a), (4), (5) A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: July 8, 2021, 9:00-10:30 a.m. EST. PLACE: Zoom Video Conference, Meeting ID: 892 7243 8832, Passcode: 374650. (Voice only, Call (888)585-9008; Conference room number: 510-432-870) Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Destiny Hattaway, ADA Coordinator, (850)488-9872. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).


DATE AND TIME: July 13, 2021, 9:00-10:30 a.m. EST PLACE: 201 SE 6th Street, 20th Floor, Ft. Lauderdale, FL 33301(Please take note of any local ordinance regarding precautions). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Hon. David Langham, Deputy Chief Judge, (850)595-6310. Preliminary draft is also available at https://www.jcc.state.fl.us/JCC/rules/Proposed2021/Chapter_60Q-20210506.pdf THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS AVAILABLE AT NO CHARGE FROM THE CONTACT PERSON LISTED ABOVE.


Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications * 60Q-6.101. Scope * 60Q-6.102. Definitions * 60Q-6.103. Pleadings and Proposed Orders * 60Q-6.104. Representation and Appearance of Counsel * 60Q-6.105. Commencing a Case; Subsequent Petitions * 60Q-6.106. Consolidation and Venue * 60Q-6.107. Amendment and Dismissal of Petition for Benefits * 60Q-6.108. Filing and Service * 60Q-6.109. Computation of Time * 60Q-6.110. Mediation, Generally * 60Q-6.111. Authority and Duties of Mediator * 60Q-6.112. Disqualification of Mediator * 60Q-6.113. Pretrial Procedure * 60Q-6.114. Discovery * 60Q-6.115. Motion Practice * 60Q-6.116. Prosecution of Claims and Petitions for Benefits * 60Q-6.117. Emergency Conferences * 60Q-6.118. Expedited Hearings * 60Q-6.119. Abbreviated Final Orders * 60Q-6.120. Summary Final Order * 60Q-6.121. Evidence * 60Q-6.122. Motion for Re-hearing and Amending or Vacating Order * 60Q-6.123. Settlements under Section 440.20(11), Florida Statutes * 60Q-6.124. Payment of Attorney's Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes * 60Q-6.125. Sanctions * 60Q-6.126. Disqualification or Recusal of Judges * 60Q-6.127. Procedure for Relief from Appellate Filing Fee and Costs * 60Q-6.128. Destruction of Obsolete Records 60Q-6.101. SCOPE These rules of procedure apply in all workers’ compensation proceedings before the judges of compensation claims. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History--New 2-23-03, Amended 11-1-06. 60Q-6.102. Definitions. DEFINITIONS (1) “Claim” means each assertion of a legal right or benefit under Chapter 440, F.S. (2) “Claimant” means the person asserting a claim. (3) “Division” means the Division of Workers’ Compensation, Department of Financial Services. (4) “Office of the Judges of Compensation Claims” (OJCC) means the office within the Department of Management Services, Division of Administrative Hearings, where the Deputy Chief Judge and judges of compensation claims preside. (5) “Electronic filing” (efiling) means uploaded to the appropriate case docket using the electronic judges of compensation claims’ e-filing system (e-JCC) accessed through a link on the OJCC website at www.jcc.state.fl.us. (6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is


deemed to be the legal equivalent of the e-JCC user’s handwritten signature. (7)“Filed” means received by the clerk of the OJCC in Tallahassee. (8) “Judge” means a judge of compensation claims appointed pursuant to Chapter 440, F.S. (9) “Parties” may include the petitioner, claimant, employer, carrier, servicing agent, health care provider, and division. (10) “Petition for benefits” means a pleading invoking the jurisdiction of the OJCC and subject to the requirements of Section 440.192(1) through (4), F.S. (11) “Pleading” means a petition for benefits or an amended petition, a motion, a response to a petition or a motion, a voluntary dismissal, a voluntary agreement to provide benefits, a pretrial stipulation, a stipulation changing the issues pending in a case, or a notice. (12) “Personally conferred” means communications in person, by telephone, e-mail, text messaging, or some other communication mechanism that permits an immediate, contemporaneous response. (12) “Verified” is defined in accordance with 92.525, F.S. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.192(1), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.103. Pleadings and Proposed Orders. PLEADINGS AND PROPOSED ORDERS (1) Pleadings. All documents filed with the OJCC shall: (a) Be typewritten or printed on 81/2" by 11" white paper, unless electronically filed; (b) Be unstapled; (c) Contain the signature, or the electronic signature if filed electronically, of the party in interest or, if represented, the party’s attorney of record; (d) Contain the style of the proceeding; the case number, if any; the date of accident; the party on whose behalf the document is filed; the subject matter of the document; and the name, mailing address, e-mail address, and telephone number of the party or, if represented, the party’s attorney of record (including the attorney’s Florida Bar number) filing the document; (e) Contain a certificate of service representing that copies have been served on all parties or, if represented, their attorneys of record. The certificate shall be dated and include the name, address, and method of service used as to each party and/or attorney served; and (f) Not be accompanied by separate cover letter or correspondence. (2) Exempt information. Except for the employee’s social security number or equivalent on petitions for benefits and responses thereto, no pleading shall contain information exempt from public records disclosure. Exempt information shall be supplied in connection with a pleading only to the extent it is necessary for the judge’s determination of disputed matters or required by Florida Statutes and shall be appended to a pleading in a separate document conspicuously marked “Exempt Information.” (3) All pleadings filed in paper form shall contain in the bottom 1 1/2 inches of each page only the following: “OJCC Case #” followed by the case number and “page #” followed by the page number.


(4) Proposed Orders. Except as provided in subsection 60Q-6.115(3), F.A.C., proposed orders shall not be submitted unless requested by the judge. They shall be clearly indexed in the docket as “proposed orders” and shall be sent to all other parties or, if represented, their attorneys of record prior to being submitted to the judge. Proposed orders shall be a separate document and not be included as a part of a motion. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.192(1), (2)(a), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.104. REPRESENTATION AND APPEARANCE OF COUNSEL (1) Appearance of Counsel. An attorney who files a petition or claim on behalf of a party has entered an appearance and shall be deemed the party's attorney of record. All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties' attorneys of record. The notice of appearance shall include the style of the proceeding; the case number; the name of the party on whose behalf the attorney is appearing; and the name, mailing address, e-mail address, telephone number, and Florida Bar number of the attorney. Attorneys shall keep their e-JCC profile current by logging into e-JCC and updating their mailing addresses, e-mail addresses, and telephone numbers when such information changes. (2) Substitution or Withdrawal of Counsel. During the pendency of any issues before the judge, an attorney of record remains the attorney of record until: (a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or (b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12. 60Q-6.105. Commencing a Case; Subsequent Petitions. COMMENCING A CASE; SUBSEQUENT PETITIONS (1) An employee or claimant seeking an award of benefits commences a new case by filing a petition for benefits pursuant to Section 440.192, F.S., when there is not an existing case pertaining to the same employee and date of accident. (2) When the employee and date of accident are the same as in an existing case, any subsequent petition for benefits or claim relating to that employee and date of accident shall be filed in the existing case. (3) For any claim or dispute within the jurisdiction of the OJCC but not subject to a petition for benefits, the claimant or moving party shall file with the clerk of the OJCC a request for assignment of case number. (4) An employee or claimant who asserts he or she cannot provide a social security number or who asserts a legal basis for refusing to provide one shall file a verified motion for assignment of substitute identification


number along with the initial petition or request for assignment of case number. (5)(4) A claim for reimbursement from the Special Disability Trust Fund shall be made under the administrative rules promulgated by the division. (6)(5) Where a party is represented, a petition for benefits shall be served on counsel for the party in addition to any service otherwise required by this rule. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.192, 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 11-10-14. 60Q-6.106. Consolidation and Venue. CONSOLIDATION AND VENUE (1) The judge, on the judge’s own initiative or on the motion of any party, may consolidate any claims or petitions pending before the judge for the purpose of a hearing or for any other purpose, except for a claim for reimbursement from the Special Disability Trust Fund. (2) Any motion to consolidate cases shall be filed in only the lowest-numbered case sought to be consolidated and shall be resolved by the judge to whom that case is assigned. Any consolidation of two or more cases shall thereafter be designated as consolidated under the lowest case number of those consolidated, and shall be assigned to the judge then assigned to that lowest case number. (3) A motion to change venue shall be filed with the judge and shall contain the signature of the moving party, or, if represented, the party’s attorney of record. (4) When a judge assigned to a case determines that the case is proceeding in an incorrect venue, the judge may transfer the case to the proper venue. When transfer of venue occurs, the Deputy Chief Judge shall assign the case. (5) For accidents occurring outside of the state, the Deputy Chief Judge’s initial determination of venue may be changed by order of the assigned judge. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(d), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.107. Amendment and Dismissal of Petition for Benefits. AMENDMENT AND DISMISSAL OF PETITION FOR BENEFITS (1) A petition that does not contain the information required by Section 440.192(2) through (4), F.S., shall be dismissed. (2) A petition or request for assignment of case number may only be amended by written stipulation of the parties or by order of the judge., except that cChanges of addresses, e-mail addresses, or phone numbers of parties or, if represented, their attorneys of record can be accomplished by filing a notice of change in a particular case or changing registration information pursuant to 60Q6.108(11). Changes of address, e-mail address, or phone numbers of attorneys shall be made by the attorney in their individual OJCC efiling profile.


(3) An amendment only modifying a company name may be accomplished by a stipulation or motion. An amendment as to party identity must be by motion and order. (3)(4)Prior to dismissing any petition for failure to prosecute, the judge shall issue an order to show cause and allow 10 days for a response to the order. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.192, 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.108. Filing and Service. FILING AND SERVICE (1) Filing. (a) All documents filed with the OJCC, except documents filed by parties who are not represented by an attorney, shall be filed by electronic means through the OJCC website. Any document filed in paper form by U.S. mail, facsimile, or delivery shall be filed only with the OJCC clerk in Tallahassee. Documents shall be filed by only one method, e-filing, facsimile, or U.S. mail, and shall not be filed multiple times. Duplicate filings will not be docketed and will be destroyed. (b) Any pleading or other paper filed in a proceeding shall be served on all other parties or, if represented, their attorneys of record at the time the document is filed. Petitions for benefits shall be served on the parties as provided in Section 440.192(1), F.S., and copies of the petitions shall be served on counsel for the opposing parties, if known, at the time the petition is filed as provided in this rule. Service made by a represented party’s attorney to another represented party’s attorney shall be by electronic mail, facsimile, or U.S. mail. The use of electronic mail by parties or attorneys is approved only when the serving party or attorney uses the opposing party’s or attorney’s e-mail address with the serving party using the electronic mail address the opposing party or attorney, or their designated representative has registered with the OJCC, as listed in e-JCC. absent good cause. If an attorney has not registered their electronic mail address with the OJCC, documents may be served on that attorney at the e-mail address on record with The Florida Bar. Service by or to an unrepresented party shall be by electronic mail, if available, or by U.S. mail or facsimile. Electronic mail sent by the OJCC on behalf of the serving party through the e-JCC program shall be the only approved alternative to electronic mail certified U.S. mail for service of petitions for benefits and responses to petitions for benefits. absent good cause. When a represented party e-files a pleading or other paper with the OJCC, that party must serve the other party or parties, or their designated representative, with a copy of that pleading or paper simultaneously by electronic mail, if available. In the event a represented party files a pleading or other paper with the OJCC by electronic means, that party shall be required to serve the other party or parties, or their designated representative, with a copy of that pleading or paper simultaneously by electronic means, if available. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by facsimile or certified U.S mail.


(c) The following documents shall not be filed with the OJCC unless relevant to an issue to be heard and not more than 10 days but at least two days before the scheduled hearing: requests or notices to produce and objections or responses thereto, deposition transcripts, correspondence between counsel or parties, correspondence to the judge or the judge’s staff, subpoenas and returns of service. (d) Except for filing using e-JCC, electronic mail or facsimile of documents to the judge shall be used only when the judge authorizes such use for that document; otherwise, the document will not be considered. (e) Any document, whether filed by electronic or other means, received by the OJCC after 5:00 11:59 p.m. shall be deemed filed as of 8:00 a.m. on the next regular business day. (f) Any attorney, party, or other person who electronically files any document shall be responsible for any delay, disruption, interruption of the electronic signals, and readability of the document, and accepts the full risk that the document may not be properly filed as a result. (g) If the employer/carrier/servicing agent is not represented by counsel, no prior petition for benefits has been filed, and the e-mail address for the claims representative of the carrier/servicing agent is unknown, the good faith effort contemplated by 440.192(4), F.S., may be effectuated by service of a written request for benefits sent to the e-mail address of the carrier registered with the OJCC and to the employer. The written request shall contain the name of the employee or claimant, employer, date of injury, and if known, the claim number. If service is effectuated in this manner the claimant or counsel for the claimant, if represented, bears the burden of proof that a good faith effort was made. Proof of transmission may be in the form of a copy of the email sent to the carrier and the employer, which shows the email addresses to which the good faith effort was sent, and the date and time of transmittal.

(g)(h) Any document filed electronically shall be uploaded individually, except that exhibits, supporting documents, and proposed orders for any motion may be filed along with the motion. In naming uploaded motions, counsel shall specifically identify the type of motion by naming the relief sought. In naming depositions filed electronically, counsel shall include the deponent’s name and the date of the deposition. If an uploaded document is specifically intended as a hearing exhibit at the time of filing, the name shall also include “proposed hearing exhibit” and the date of the scheduled hearing. All uploaded documents shall include sufficient specificity in naming to allow identification of the document from the docket remark. (h) (i) If a document is filed in error using e-JCC, the filing party shall file the document in the correct case docket and separately file a notice of the error in the case that contains the erroneously-filed document. (i)(j) The clerk of the OJCC shall, upon order of the assigned judge, place a document under seal and render it thereby viewable only upon further order of the assigned judge. (2) Service. Service is effectuated by: (a) Handing the document to the party or, if represented, the party’s attorney of record; (b) Leaving the document at the attorney’s office with a clerk or other person in charge or leaving it in a conspicuous place in the office;


(c) If the office is closed or the person to be served has no office, leaving the document at the person’s residence with a member of the person’s family above 15 years of age and informing that person of the contents; (d) Placing the document in the U.S. mail, except when the original pleading or paper was filed with the OJCC by electronic means, in which case simultaneous electronic service on the other party or parties must be made, as referenced in paragraph (1)(b) above; or (e) Transmitting the document by facsimile or electronic mail. Service by electronic mail on a party or attorney is only effective if the serving party or attorney uses the opposing party’s or attorney’s e-mail address registered with the OJCC, as listed in e-JCC. Service of a petition for benefits or response to a petition for benefits sent by electronic mail shall be effectuated, and deemed received by the opposing party at the same time that service is effectuated, upon electronic mailing if sent by the OJCC on behalf of the serving party through the e-JCC program to the registered e-mail address of the opposing party as listed in e-JCC. Service shall not be effective via facsimile unless the serving party, attorney or designated representative does not have access to electronic mail or for good cause shown. (f) All documents served by e-mail must be attached to an e-mail message containing the subject line beginning with the words “SERVICE OF OJCC DOCUMENT” in all capital letters followed by the name of the injured worker, employer, and OJCC number, if any. (3) Service by delivery, facsimile, or electronic mail after 11:59 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday. (4) When service is made by U.S. mail, the copy shall be mailed postage prepaid, to the last known address of the party or, if represented, the party’s attorney of record. (5) Service by U.S. mail shall be complete upon mailing. (6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added. (7) All orders shall be electronically filed with the OJCC in Tallahassee on the same day that the order is transmitted to the parties by electronic mail or U.S. mail. (8) All attorneys filing documents in workers’ compensation proceedings before the OJCC shall register to use the e-JCC electronic filing system. Each such attorney shall register an e-mail address and thereby consent to receive documents from other counsel and the OJCC at that address. Each attorney shall be responsible for amending that e-mail address as necessary for it to remain current. (9) Only attorneys, mediators, adjusters, and parties are permitted to register with the e-JCC system. (10) The OJCC will maintain a list of all e-JCC registrants and their e-mail addresses. (11) All employers, self-insurers, third-party administrators, and carriers shall register a single, general delivery, e-mail address with the OJCC for receipt of all electronically served documents, including petitions for benefits. All employers, self-insurers, third-party administrators, and carriers shall register a single, general delivery


U.S. Mail address and a single telephone number with the OJCC. The e-JCC system will maintain a list of all registered companies, and their e-mail addresses. Each such self-insurers, third-party administrators, and carrier shall be responsible for amending that name, e-mail address, physical address, and telephone number as necessary for it to remain current. Original registrations and amendments to information shall be submitted by company representative via e-mail. (12) Any other party may register an e-mail address with the OJCC. (13) The OJCC will maintain a list of all registered parties and counsel and their respective e-mail addresses. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.192, 440.25(1), (4)(a), (4)(c), (4)(e), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.109. COMPUTATION OF TIME In computing any period of time prescribed or allowed by these rules, by order, or by applicable statute, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If any act required to be done, or allowed to be done, falls on a Saturday, Sunday, or legal holiday, performance of that act shall be required on the next regular working day. When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation. As used in this rule, legal holiday means those days designated in Section 110.117, Florida Statutes. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History--New 2-23-03. 60Q-6.110. Mediation, Generally. MEDIATION, GENERALLY (1) All petitions and claims pending at the time a mediation conference is held are deemed consolidated and will be mediated at that conference. (2) Parties who have agreed to private mediation or to re-schedule private mediation shall file with the judge at least 30 days prior to any scheduled mediation a notice substituting private mediation for state mediation or re-scheduling private mediation. If such notice is filed less than 30 days prior, it shall be treated as a motion, and attendance and participation at the scheduled state mediation shall not be excused, absent an order finding good cause to excuse this time requirement. The notice shall include the name of the private mediator, along with the date and time of the private mediation and shall state that the private mediation meets the statutory deadline, unless the deadline is waived by all parties. (a) The Deputy Chief Judge shall assign a mediation date for each petition filed. Within 40 days after the filing of the earliest petition for benefits awaiting mediation, the parties may agree to coordinate with the assigned judge an alternate state mediation date which meets the 130-day statutory deadline. Any such change in date shall be considered a re-scheduling and not a continuance of the mediation. (b) After the state mediation has been noticed on the 40th day following the filing of the earliest petition for benefits awaiting mediation, the


state mediation shall not be continued, meaning moved to a date beyond the 130 day statutory period, unless first granted by the judge upon agreement of the parties or upon proper motion filed no later than 30 days before the date of the scheduled state mediation absent an emergency, unless the mediation notice is sent to the parties less than 30 days prior to the noticed mediation. (c) The state mediation conference may not be re-scheduled, meaning moved to a different appointment time and date within the 130 day statutory period, upon mutual request of the parties and agreement of the assigned mediator. The state mediation conference may not be or continued, meaning moved to a date beyond the 130 day statutory period, to occur after the 130-day statutory deadline unless first granted by the judge upon proper motion demonstrating that the basis for the continuance arises from circumstances beyond the movant’s control or for other good cause shown. The motion shall be filed no later than 30 days before the date of the scheduled state mediation absent an emergency. (d) Parties to a workers’ compensation claim may jointly request voluntary mediation services from the OJCC. Such requests will be considered as individual state mediator calendars permit. Any voluntary mediation will be conducted only if all parties so stipulate. Any voluntary mediation will be governed by these rules. Failure to appear at a voluntary mediation shall not be a basis for the imposition of sanctions. (3) The parties and private mediator shall be bound by the rules and statutes applicable to state mediation. If a notice and order regarding state mediation has been entered in the cause, the terms and requirements of the notice and order shall remain in full force and effect as to the substituted private mediation. (4) If the parties resolve all issues, or all issues except for attorney’s fees, prior to the scheduled mediation conference, the attorney or unrepresented claimant who has filed a petition for benefits shall file a pleading in order to cancel the corresponding mediation. The pleading must be filed prior to the scheduled mediation and shall indicate the manner in which each issue was resolved (5) The following persons shall attend the mediation conference: the claimant; the claims representative of the carrier/servicing agent, which representative must have full authority to resolve all the issues and/or settle the case; the employer, if uninsured; the insured or self-insured employer, if the employer/servicing agent does not have full authority to settle the issues; and the attorneys for the parties. The appearance of an attorney for a party does not dispense with the required attendance of the party. No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report. (a) The adjuster, if represented by counsel, may attend the mediation by phone unless an objection is filed with the mediator on the basis of good cause. The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request furnished to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. The expense of telephonic attendance shall be borne by the person or party attending by telephone.


(b) Any person attending mediation telephonically shall provide an e-mail address for use in exchanging documents during the mediation unless good cause is shown to the mediator at least five days prior to the mediation. Any mediation attended telephonically is not concluded until the signed report is returned to the mediator. The signed report shall be returned by the end of the business day unless excused by the mediator. (6) Failure to attend the mediation conference without a showing of good cause, or the failure to appear at the mediation conference with full authority to resolve the issues, shall subject the party or the attorney to sanctions. (7) Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a report stating which issues or claims in dispute are resolved and which remain unresolved, and whether the parties completed a pretrial stipulation. The report shall identify by filing date each petition mediated. In the case of private mediation, the The claimant shall file with the judge within five business days of the mediation conference the mediator’s report and mediation settlement agreement, if any., together with any pretrial stipulation executed by the parties. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(1)-(4), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.111. Authority and Duties of Mediator. AUTHORITY AND DUTIES OF MEDIATOR (1) Authority of Mediator. (a) The mediator shall at all times be in control of the mediation and the procedures to be followed, subject to the direction of the judge. (b) The mediator may meet and consult privately with any party or parties or their counsel during the mediation. (c) Upon written request of any mediator, the Deputy Chief Judge may reassign any mediation to accommodate conflict of interest or potential appearance of impropriety. Any party may also seek such reassignment through motion. (2) Duties of Mediator. The mediator shall inform the parties at the beginning of the mediation conference: (a) Of the process of mediation; (b) That the mediator is an impartial facilitator and is there to assist the parties in reaching, not to force them to reach, a voluntary settlement; (c) Of the differences between mediation and a final hearing before the presiding judge; (d) If applicable, of the costs of the mediation; (e) That the mediation process is consensual in nature, and the parties retain their right to a final hearing if they do not reach agreement; (f) Of the privileged and confidential nature of communications made during the mediation; (g) That any agreement reached at the mediation conference will be by mutual consent of the parties reduced to writing and may be subject to the approval of the presiding judge; and (h) That the mediator will timely determine when mediation should end.


(3) Disclosure. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on possible bias, prejudice, or partiality. (4) Matters Beyond Mediator’s Competence. A mediator shall decline appointment or withdraw when the mediator decides that a matter is beyond the mediator’s competence. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(1)-(4), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 11-10-14. 60Q-6.112. DISQUALIFICATION OF MEDIATOR Any party may, by motion, for good cause shown, request the judge to disqualify a mediator. The request must state with particularity the basis for disqualification. Any order disqualifying a mediator shall name a substitute mediator. Nothing in this rule shall preclude mediators from disqualifying themselves or refusing any assignment. A mediator disqualifying themselves or refusing an assignment shall do so informally by electronic mail to the deputy chief judge. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History--New 2-23-03. 60Q-6.113. Pretrial Procedure. PRETRIAL PROCEDURE (1) A judge, on the judge’s own initiative or on the motion of any party, may conduct status conferences or pre-hearing conferences. (2) The parties or, if represented, their attorneys of record shall confer and complete a written pretrial stipulation. The claimant or claimant’s counsel shall forward the pretrial stipulation to the employer/carrier or their counsel, if represented, no later than 14 calendar days prior to the pretrial hearing. The employer/carrier or their counsel shall complete their portion and return the pretrial stipulation to the claimant or claimant’s counsel, if represented, no later than seven calendar days prior to the pretrial hearing. The judge may excuse any party who has complied with filing their completed and signed portion of the pretrial stipulation from live or telephonic attendance at the pretrial hearing. The judge may cancel the pretrial hearing if the stipulation is timely filed. In pretrial stipulations and at any pretrial hearing, the parties shall: (a) State the claims, defenses, and the date of filing of each petition for benefits to be adjudicated at the final hearing. Any claims that are ripe, due, and owing, and all available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown. Any amendment, supplement, or other filing shall only be accepted if it clarifies the claims and/or defenses pled. Absent an agreement of the parties, 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, unless permitted by the judge for good cause shown. The failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense;


(b) State each party’s position regarding the date of accident, jurisdiction over the subject matter and over the parties, the injuries alleged; venue, and timely notice of the pretrial hearing and of the final hearing; (c) Stipulate to such facts and the admissibility of documentary evidence as will avoid unnecessary proof; (d) Identify all exhibits, including impeachment and rebuttal exhibits; (e) Identify the names, addresses, and telephone numbers of all witnesses, including impeachment and rebuttal witnesses, and state whether the witnesses will testify in person, by telephone, or by deposition; (f) Exchange all available written reports of experts to be offered at trial; (g) Consider and determine such other matters as may aid in the disposition of the case; and (h) Any defense raised pursuant to Sections 440.09(4)(a) and 440.105, F.S., and any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days. Objections based upon lack of specificity shall be raised in a motion within 14 days of the filing of the completed pretrial, or any amendments to the pretrial, and are waived if not timely raised. Failure to plead with specificity shall result in the striking of the defense. Any objections/responses to the affirmative defenses must be pled with specificity in the pretrial stipulation or no later than 10 days after the filing of the pretrial stipulation. (3) If for any reason the written pretrial stipulation is not completed by all parties or their counsel, if represented, as provided in subsection 60Q-6.113(2), F.A.C., each party shall file and serve separate proposed typewritten pretrial statements no later than two business days prior to the pretrial hearing. (4) Unless good cause is shown, a party’s failure to cooperate in the preparation and filing of their portion of the joint pretrial stipulation shall result in the imposition of appropriate sanctions, including but not limited to the striking of claims and/or defenses. (5) Where mediation has been waived by the Deputy Chief Judge, the parties shall file a pretrial stipulation that conforms to the requirements of subsection (2). of this rule no later than 30 days following the waiver order. (6) Witness lists, exhibit lists, supplements, and amendments served, and exhibits exchanged less than 30 days before the final hearing must be approved by the judge or stipulated to by the parties. Any amendments and supplements to the pretrial stipulation must relate to claims and defenses pled in the initial pretrial stipulation. 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, unless permitted by the judge upon motion for good cause shown. The failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense. (7) The judge shall record the pretrial hearing by stenographic or electronic means at the request of any party. (8) No discovery shall be permitted within 10 calendar days of the final hearing absent prior approval by the judge for good cause shown or by agreement of the parties.


Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(2)-(4), 440.29(2), 440.33(1), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.114. Discovery. DISCOVERY (1) Any party may commence with discovery methods specifically authorized by statute, including depositions, issuance of subpoenas and requests for production, prior to or after invoking the jurisdiction of the judge. (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, unless the parties stipulate to administration of the oath telephonically. (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. Documents shall be delivered in electronic form if so requested unless the judge determines good cause has been shown to produce paper copies. (4) Responses and objections to depositions, production, or entry shall be made as provided in the Florida Rules of Civil Procedure. (5) The judge may enter orders to effectuate discovery, including orders compelling discovery, protective orders, and orders imposing sanctions as provided in the Florida Rules of Civil Procedure 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. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.30, 440.33(1), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.115. MOTION PRACTICE (1) Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the relief requested and the grounds relied upon. Any document referenced in any motion shall either have been filed prior to the motion or be attached to the motion. (2) Except for motions to dismiss for lack of prosecution, or motions to withdraw as counsel of record, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of


record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied. (3) (2) A motion which is unopposed shall state why an order is necessary to execute the parties’ agreement and shall be accompanied by a proposed order which has a title describing the action to be taken. The motion and proposed order shall specify the relief being requested or ordered in reasonable detail and not merely by reference to any other document. (4) (3)If the motion has not been amicably resolved, the movant shall file the motion. When time allows, the other parties may, within 15 days of service of the written motion, file a response in opposition. Written motions may be ruled on by the judge before the expiration of the response period and provide for filing an objection to the order within 10 days of the order, or the judge shall rule after the response is filed or after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The judge may shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response. in his or her discretion. Any party seeking an evidentiary hearing on a motion may plainly state so in the title of the motion. (5) (4) Motions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall specifically describe the good cause for the request. (6) (5) Motions to expedite discovery or the final hearing shall set forth good cause and shall be served by electronic mail, facsimile, hand delivery, or overnight delivery. Any opposition to the motion must be filed within four days from the date the motion is served. Rulemaking Authority 440.25(4)(h), 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(h), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12. 60Q-6.116. Prosecution of Claims and Petitions for Benefits. PROSECUTION OF CLAIMS AND PETITIONS FOR BENEFITS (1) All parties shall diligently prosecute or defend the claim or petition, including but not limited to timely conducting all necessary discovery. A request for a continuance shall be made by motion, shall specify the reason that the continuance is necessary, and shall demonstrate due diligence by describing the specific actions the moving party has taken to correct the circumstances alleged to be beyond the party’s control. (2) A claim or petition may be dismissed by the claimant or petitioner without an order by filing, or announcing on the record, a voluntary dismissal at any time before the conclusion of the final hearing. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal. (3) The judge may conduct any proceedings by telephone conference. Testimony may be taken by telephone with the written agreement of all parties or approval by the judge. In such event, the oath shall be administered in the physical presence of the witness by a notary public or officer authorized to administer oaths, unless the parties stipulate to administration of the oath telephonically by the judge or the judge


determines good cause exists for the judge to administer the oath telephonically. (4) The judge may conduct any proceedings using video teleconference equipment approved by the OJCC. In the event that testimony is taken by video teleconference, administration of the oath by the judge during the proceeding is as binding as if the judge and witness were physically present in the same room. A motion for a video teleconference proceeding to be held live before the OJCC in the venue of the claim shall be granted upon a showing of good cause. (5) Upon proper motion of any party, the judge may enter an order reflecting the terms of any written stipulation or agreement between the parties. (6) Any attorney or unrepresented claimant who has filed a petition for benefits must file a pleading with the judge in order to cancel the corresponding final hearing. The pleading must be filed prior to the scheduled final hearing and shall indicate the manner in which each issue was resolved. Upon receipt of such cancellation pleading, the judge shall change the status of the affected petition or petitions in the OJCC database. Cases with no currently pending issues scheduled for mediation or hearing shall be reflected in the OJCC database as “inactive.” Upon changing a case status from active to inactive, the OJCC central clerk shall issue an order documenting such status change. (7) No more than 10 days but no less than two business days prior to the final hearing, each party is required to file a brief memorandum consisting of a statement of relevant facts and written argument, which shall include filing dates or docket ID for any evidentiary documents which will be relied upon at trial. All depositions and documentary evidence, including known impeachment and rebuttal evidence a party intends to offer into evidence, shall be filed with the memorandum. Any evidence which is not capable of electronic filing, including but not limited to diagnostic films or audio or audiovisual recordings shall be filed contemporaneously with the memorandum and served on all parties by the same method, U.S. mail, delivery, etc., as delivered to the judge’s office. In the event of a re-scheduling or continuance, documents timely filed pursuant to this rule need not be re-filed prior to the re-scheduled or continued hearing. Documentary evidence not timely filed may be excluded from evidence, absent a written stipulation of the parties or an order extending the deadline for filing for good cause shown. (8) Any party calling a witness in need of translation services shall be responsible to provide therefor. The OJCC will not provide translation services except in exceptional circumstances and upon written request filed with the Deputy Chief Judge at least 10 days prior to the mediation or hearing for which such services are sought and for good cause shown. (9) Appointment of an expert medical advisor, except during the final hearing, shall be sought by written motion. The motion shall specifically state the conflict in medical opinions, identify the providers who rendered those opinions, their medical specialties, and attach the documentation that memorializes those opinions. (10) The order appointing an expert medical advisor shall identify the appointed advisor and the conflict to be resolved. (11) Unless otherwise ordered by the judge, within 10 days of the order appointing an expert medical advisor, the parties shall jointly submit to the appointed advisor a composite of all documents and records which the


parties agree the advisor will review. Any party may move for an order to permit submission of additional or non-stipulated records. (12) The report of an expert medical advisor is admissible in evidence at the final hearing unless excluded by the judge for good cause shown. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(4), 440.29(2), 440.33(1), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.117. EMERGENCY CONFERENCES (1) A written request for an emergency conference shall be filed and served by electronic transmission or facsimile on all other parties or, if represented, their attorneys of record. It shall set forth in detail the facts giving rise to the request, its legal basis, the factual or medical basis for the claim that there is a bona fide emergency involving the health, safety, or welfare of an employee, and the specific relief sought. Any documents relied upon should be specifically referenced or attached. (2) After reviewing the merits of the request, the judge may summarily enter an order denying the request for an emergency conference or, after proper notice, conduct an evidentiary hearing to consider the emergency. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(g), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12. 60Q-6.118. Expedited Hearings. EXPEDITED HEARINGS (1) Scope. This rule applies in those cases deemed by the judge appropriate for expedited hearing pursuant to statute or by agreement of the parties. (2) Discovery. The parties shall have at least 30 days to conduct discovery, which shall be completed 15 days before the hearing. The parties shall respond to requests for production within 10 days. (3) No mediation conference and pretrial hearing shall be held unless requested in writing by a party within 10 days of service of the notice of expedited hearing. (4) Stipulated Pretrial Outline. The content of the pretrial outline will be as described in paragraphs 60Q-6.113(2)(a)-(g), F.A.C. The judge may modify the timeframes delineated in Rule 60Q-6.113, F.A.C. (5) The trial memoranda process shall be as described in subsection 60Q-6.116(7), F.A.C. Rulemaking Authority 440.25(4)(i), 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(i), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.119. ABBREVIATED FINAL ORDERS Any party may request that an abbreviated final order be vacated and that a final compensation order containing separate findings of fact and conclusions of law be entered. The request shall be made by motion and


shall be filed within 10 days of the date of the abbreviated final order sought to be vacated. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(d), 440.45(1)(a), (4) FS. History--New 2-23-03, Amended 11-1-06. 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. Issues that would be dispositive include, but are not limited to, whether there is coverage, whether the statute of limitations has run, whether the accident or occupational disease is compensable, whether the claim is barred by res judicata or a prior settlement, whether the judge has jurisdiction over the subject matter, whether the benefit sought has been paid, and whether the alleged employee is an independent contractor. (2) Any party may file a motion for a summary final order when there is no genuine issue as to any material fact and the granting of the motion would be dispositive of the issues raised by the subject petition. A summary final order shall be rendered if the judge determines from the pleadings and depositions, together with affidavits, if any, that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order. A summary final order may be rendered on the issue of entitlement to a benefit alone although there is a genuine issue as to the amount of the benefits. No motion for summary final order may be filed less than 45 days prior to a scheduled final hearing. (3) The opposing party shall file a response to a motion for summary final order together with supporting depositions, affidavits, and/or other documents within 30 days after service of the motion for summary final order. The judge shall grant an extension for good cause shown. (4) When a motion for summary final order is denied, the judge shall impose sanctions pursuant to subsections 60Q-6.125(5) and (6), F.A.C., if the judge determines that the motion violates subsection 60Q-6.125(2), F.A.C. (5) The motion is deemed denied if the judge has not ruled upon the motion by the commencement of the final hearing. (6) The summary final order standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(4)(h), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12. 60Q-6.121. EVIDENCE (1) Evidence which has been offered but ruled inadmissible may be proffered but shall be clearly identified as such by the judge. (2) An objection to the admissibility of evidence not ruled on by the judge is deemed adverse to the party making the objection. (3) Legible copies may be substituted for original documents. (4) Voluminous or cumbersome exhibits shall not be received in evidence unless their use is unavoidable. (5) The judge may consider post-hearing evidence for good cause shown.


Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History--New 2-23-03, Amended 11-1-06. 60Q-6.122. Motion for Re-hearing and Amending or Vacating Order. MOTION FOR RE-HEARING AND AMENDING OR VACATING ORDER (1) A motion for re-hearing shall state specifically the grounds on which it is based and should not be used to re-argue issues already determined. A motion for re-hearing shall be filed and served within 10 days from the date of the order sought to be reviewed. The judge shall rule on the motion within 10 days of service. Any response to the motion shall be filed within five days of service of the motion. If the judge has not ruled by the close of business 10 days after service, the motion shall be deemed denied. (2) The motion shall be limited to the following reasons: (a)To challenge rulings that were outside the scope of the issues presented; or (b) To seek clarification in matters of law or fact that the judge may have overlooked or misapprehended. (3) A motion for re-hearing does not toll the time within which an order becomes final or an appeal may be filed. (4) Abbreviated final orders are not subject to a motion for re-hearing. (5) A judge, on the judge’s own initiative or on the motion of any party, may vacate or amend an order not yet final to correct clerical or technical errors, or where due consideration of a motion for re-hearing cannot be made before the order becomes final. (6) Notwithstanding subsection 60Q-6.115(4), F.A.C., if the motion for re-hearing is directed to an appealable order, the moving party may request a hearing on the motion which the judge may schedule if there are exceptional circumstances or good cause shown in the motion. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.123. Settlements Under Section 440.20(11), Florida Statutes. SETTLEMENTS UNDER SECTION 440.20(11), FLORIDA STATUTES (1) Settlements under Section 440.20(11)(a) or (b), F.S., involving unrepresented claimants. (a) When a joint petition signed by the parties is filed pursuant to Section 440.20(11)(a) or (b), F.S., it shall be accompanied by: 1. The settlement stipulation executed by any attorneys of record and the employee or claimant; 2. A copy of any prior joint petition and order if indemnity benefits were previously settled, or, if unavailable, an affidavit from the claimant that indemnity was previously settled; 3. A summary or payout sheet indicating total indemnity and medical benefits previously paid, including impairment income benefits; 4. The employee’s current work status and other sources of income, if not addressed in the joint stipulation;


5. A status statement from the OJCC or such other source as designated by the Deputy Chief Judge regarding any child support arrearage balance according to Department of Revenue records, and a status statement regarding any child support arrearage balance according to the Florida Clerks of the Circuit and County Courts, as to whether the claimant has or owes any child support arrearage and, if so, the amount thereof; 6. If the claimant is not a Florida resident, or was not a Florida resident on the date of accident, the judge may require the substantial equivalent of the status statements in subparagraph (1)(a)5. from the equivalent authorities in the state or county of residence at either the time of settlement or on the date of accident; 7. A sworn statement by the employee that all existing child support obligations have been disclosed in the joint petition; 8. A letter or statement in the settlement stipulation from counsel stating that the carrier will issue a check in the amount of the arrearage or such other amount to be approved by the judge and that the check will be sent to the Department of Revenue or the Florida Clerks of the Circuit and County Courts, Central Depository; 9. Any other documents in the possession of the parties or their attorneys, including any prior attorney’s fee lien, that is material to the disposition of the settlement; 10. For settlements under Section 440.20(11)(a), F.S., the notice(s) of denial; and 11. For settlements under Section 440.20(11)(b), F.S., the required notice to the employer, a maximum medical improvement report establishing the date of overall physical maximum medical improvement and psychiatric maximum medical improvement if the latter applies, permanent impairment rating, information concerning the need for future medical care and an estimate of the cost of future medical care, or an explanation as to why an estimate cannot be reasonably obtained, and other essential medical information. (b) The date and description of all accidents/injuries included in the settlement must be specified. (c) Language regarding a general release of all liability or claims shall not be included, and no such general release or separate releases shall be attached. (d) For settlements under Section 440.20(11)(a), F.S., and when a hearing is deemed necessary by the judge for settlements under Section 440.20(11)(b), F.S., the attorney for the employer/carrier shall contact the judge to schedule a hearing date and shall promptly notify the claimant of the hearing date, time, and location. (2) Settlements under Section 440.20(11)(c), (d), and (e), F.S. (a) When a motion for approval of attorney’s fees and child support allocation is filed pursuant to Section 440.20(11)(c), (d), or (e), F.S., it shall be signed by the claimant and the claimant’s attorney, furnished to all other parties, and contain: 1. A statement that the parties have reached a total settlement of the case; 2. The total monetary amount of the settlement payable by the employer/carrier; 3. The amount of attorney’s fees and costs agreed to and payable by the claimant pursuant to the contract of representation and the net settlement proceeds to be disbursed to the claimant;


4. The amount of child support arrearages, if any, owed by the claimant, together with the amount of child support allocation the claimant requests be deducted from the settlement proceeds, after fees and costs, and the attorney responsible to remit the same to the appropriate child support repository; 5.An attorney’s fee data sheet setting forth the benefits obtained by claimant’s counsel and the value of those benefits, and, depending upon the date of accident and the type of benefit involved, should the claimant’s attorney seek a fee in excess of the statutory percentage, an affidavit specifying the particular statutory criteria forming the basis for the variance; 6.A status statement from the OJCC or such other source as designated by the Deputy Chief Judge regarding any child support arrearage balance according to the Department of Revenue records, and a status statement regarding any child support arrearage balance according to the Florida Clerks of the Circuit and County Courts, as to whether the claimant has an arrearage or owes past due child support and, if so, the amount thereof; a sworn statement by the employee that all existing child support obligations have been disclosed in the joint petition; and a letter from counsel stating that the carrier will issue a check in the amount of the arrearage and/or past due child support or such other amount to be approved by the judge or that claimant’s counsel will deposit the settlement proceeds in a trust account and will issue a check in the amount of the arrearage and/or past due child support or such other amount to be approved by the judge and that the check will be sent to the Department of Revenue or the Clerk of the Circuit and County Courts, Central Depository; 7. If the claimant is not a Florida resident, or was not a Florida resident on the date of accident, the judge may require the substantial equivalent of the status statements in subparagraph (2)(a)6. from the equivalent authorities in the state or county of residence at either the time of settlement or on the date of accident; and 8. The OJCC may obtain child support arrearage data from the Florida Department of Revenue and the Clerk of the various Circuit and County Courts. The OJCC shall list the counties for which such information is available to the OJCC on the internet. For those agencies/counties listed, parties may obtain child support arrearage information through written inquiry to the OJCC. (3) No hearing shall be held except as deemed necessary by the judge. (4) Settlement approval when more than one current support order exists. When more than one current support order exists, the judge may approve a proposed settlement only if: (a) It provides for an equitable share of settlement proceeds; and (b) The allocation shall be prorated in accord with Section 61.1301(4)(c), F.S. (5) The judge shall consider the disclosed costs to the extent necessary to determine they do not include the attorney’s overhead or other fees. A claim for cost reimbursement in the amount of $250 or less shall not be set forth with specificity or detail. Rulemaking Authority 61.14(8)(a), 440.45(1)(a), (4) FS. Law Implemented 61.14(8)(a), 440.105(3)(c), 440.20(11), 440.34, 440.345, 440.45(1)(a), (4), (5) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 2-28-13, 11-10-14.


60Q-6.124. Payment of Attorney’s Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes. PAYMENT OF ATTORNEY’S FEES AND COSTS OTHER THAN PURSUANT TO SECTION 440.20(11), FLORIDA STATUTES (1) Payment of Undisputed Attorney’s Fees and Costs by Claimant. The claimant and his or her attorney may jointly move for the judge to approve the payment of an attorney’s fee and reimbursement of costs. The motion shall be served on all parties and include a statement that claimant’s counsel has not previously secured or received a fee on the benefits for which a fee is now being sought, the claimant’s signature, and an attorney’s fee data sheet setting forth the benefits secured by claimant’s counsel and the value of the benefits. (2) Payment of Undisputed Attorney’s Fees and Costs by Employer/Carrier/Servicing Agent. The employee and the employer/ carrier/servicing agent may stipulate to the payment of attorney’s fees and costs. The stipulation submitted for the judge’s approval shall be accompanied by an attorney’s fee data sheet. If claimant’s counsel is seeking payment of a fee from the employer/carrier which exceeds the statutory fee, counsel must submit an affidavit establishing the basis for approval of the fee. The claimant must be provided with notice of any stipulation providing for an employer/carrier-paid attorney’s fee. (3) Payment of Disputed Attorney’s Fees and Costs. (a) Any motion for attorney’s fees and/or for costs shall be verified and filed, and shall include:: 1. A statement of the facts relied on in support of the motion; 2. The statutory and legal basis relied upon; 3. A recitation of all benefits secured for the claimant through the attorney’s efforts, including projected future benefits reduced to present value; 4. The statutory fee based on the benefit secured; 5. A detailed chronological listing of all time devoted to the claim, if applicable; and 6. A detailed list of all taxable costs advanced or incurred. (b) Within 30 days after the motion is served, the opposing party or parties shall file a verified response to the motion, which includes a detailed recitation of all matters which are disputed in the form outlined in subparagraphs (3)(a)1.-6. Failure to file a timely and specific response to a motion for attorney’s fees and costs detailing matters that are disputed shall, absent good cause, result in acceptance of the allegations in the motion as true. (c) If both entitlement and the amount of the fee are contested, the hearing may be bifurcated at the request of a party. (d) Unless the judge orders otherwise, the parties shall exchange exhibits and written witness lists no later than 10 days before the date of the attorney’s fee and/or cost hearing. (e) The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions shall be considered by the judge in determining the reasonableness of an award of cost reimbursement. (4) Payment of Disputed Attorney’s Fees and Costs – Appellate. Upon issuance of mandate by the appellate court in a matter awarding attorney’s fees, the awarded party shall serve and file a verified petition to determine the amount of appellate attorney’s fee and costs within 15 days from the date of the order entered by the court.


(5) Upon motion by any party: (a) The judge shall require the filing of a verified motion for attorney’s fees and costs as to any petition for benefits which has no pending claims other than entitlement to attorney’s fees and costs. (b) The judge may require the party or attorney entitled to attorney’s fees and costs to file a verified motion for attorney’s fees and costs as to amount. (6) No later than September 1 of each year, all self-insurers, third-party administrators, and carriers shall report by e-JCC to the OJCC the amount of all attorney’s fees paid to their defense attorneys in connection with workers’ compensation claims during the prior July 1 through June 30 fiscal year. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.32, 440.34, 440.345, 440.45(1)(a), (4), (5) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. 60Q-6.125. SANCTIONS (1) Generally. Failure to comply with the provisions of these rules or any order of the judge may subject a party or attorney to one or more of the following sanctions: striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate. (2) Representations to the Judge. By filing a pleading or other document or presenting argument before the judge at hearing, an attorney or unrepresented party is certifying to the best of that person’s knowledge, information, and belief, formed after inquiry reasonable under the circumstances, that: (a) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (b) The claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law; (c) The allegations and other factual contentions are true and have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; (d) The denials of factual contentions are true and warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (3) Determination of Violation. If, after notice and a reasonable opportunity to respond, the judge determines that subsection (2) has been violated, the judge may shall impose an appropriate sanction. (4) How Initiated. (a) A motion for sanctions under this rule or under the provisions of section 440.32, F.S., shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection (2) or the provisions of section 440.32, F.S. It shall be served but shall not be filed unless the challenged paper, claim, defense, allegation, or denial is not withdrawn or appropriately corrected within 21 days after service of the motion. If warranted, the judge may award to the party prevailing on the motion the cost of the


proceeding and attorney's fees incurred in presenting or opposing the motion. (b) On his or her own initiative, the judge may enter an order describing the specific conduct that appears to violate subsection (2) and directing an attorney or party to show cause why sanctions should not be imposed. (5) Nature of Sanctions. (a) A sanction imposed for violation of these rules shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Penalties, fees, and costs awarded under this provision may not be recouped from the party unless the party has committed the violation. (b) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2)(b). (6) Order. Any order imposing sanctions shall describe the conduct determined to constitute a violation of the rule and explain the basis for the sanction imposed. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.32, 440.33(1), (2), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12. 60Q-6.126. DISQUALIFICATION OR RECUSAL OF JUDGES (1) Any motion for disqualification of a judge shall be made and determined pursuant to Fla. R. Jud. Admin. Fla. R. Gen. Prac. & Jud. Admin. 2.330. (2) Upon entry of an order of disqualification or after the voluntary recusal of a judge, the deputy chief judge shall re-assign the case to another judge. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.442, 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 10-31-12. 60Q-6.127. PROCEDURE FOR RELIEF FROM APPELLATE FILING FEE AND COSTS The procedure for relief from payment of the appellate filing fee and from the costs of the preparation of the record on appeal for the review of any order of a judge on the ground of indigency shall be in accordance with Fla. R. App. P. 9.180. Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.271 FS. History–New 11-1-06, Amended 10-31-12. 60Q-6.128. DESTRUCTION OF OBSOLETE RECORDS (1) All case files that have been closed and inactive for a period of two years are declared to be obsolete and may be destroyed. Designated personnel of the OJCC shall be responsible for the destruction of obsolete records and reports in accordance with applicable statutes and administrative rules. (2) Recordings of hearings held before a judge shall be destroyed two years subsequent to the date of the close of the hearing.


(3) Any forms, documents, reports, duplicate-filed pleadings, or other records filed where this rule chapter specifically provides that filing is not required or requested shall be destroyed upon filing. Rulemaking Authority 440.44(7), 440.45(1)(a), (4) FS. Law Implemented 440.44(7) FS. History--New 11-1-06, Amended 10-31-10. 60Q6.130 EMERGENCY OFFICE CLOSURE (1) The Office of Judges of Compensation Claims is subject to closure pursuant to Gubernatorial instructions or declarations pursuant to Article IV, Section 1(a) of the Florida Constitution and the Florida Emergency Management Act. (2) Whenever the Circuit Courts in the particular county in which an OJCC office is located close, due to a weather or other disaster emergency, the district office of the Office of Judges of Compensation Claims in that county shall likewise close for the duration of the emergency closure ordered by that Circuit Court. (3) Any unscheduled closure of an OJCC office will be published on the OJCC website, and through such other means deemed necessary by the deputy chief judge. Rulemaking Authority 440.45(4) FS. Law Implemented 440.25(1), (4)(a)-(e), 440.45(1)(a), (4) FS. History–New ____________.


Summary of Proposed Amendments in Notice of Development of Rulemaking for 60Q Rules

Prepared by Wendy Loquasto

6-102Green: Title capitalizedYellow: 102(5) – Insert “efiling” after “Electronic filingYellow: 102(12) – Delete entire subsection that defines “personally

conferred”Yellow: 102(12) – New section (12) defines “verified” in accordance

with section 92.525.

6-1.03Green: Title capitalized

6-104No changes

6-105Green: Title capitalizedGreen: 105(4) – Deletes subsection, which concerned a C who cannot

provide a SS# with the initial PFB filing.Green: 105(5) & (6) – Renumbered as (4) & (5) based on above

deletion.

6-106Green: Title capitalized

6-107Green: Title capitalizedGreen: 107(2) – The rule currently states that the PFB or request for

assignment of case number may only be amended by stipulation or order. The proposed amendment creates an exception to changes of addresses,emails, phone numbers to allow them to be changed by filing a notice ofchange or by registration information per 6.108(11). It also provides changesof atty addresses, etc., shall be made by the atty in their individual efilingprofile.

Green: 107(3) – Adds a new provision that an amendment only

1


modifying a company name may be accomplished by stipulation or motion,but an amendment to party identity must be made by motion and order.

107(3) – Renumbers the current (3) as (4) based upon the aboveaddition.

6.108Green: Capitalizes titleYellow: 108(1)(b) – addresses electronic service and requires use of

the email address that has been registered with the OJCC absent goodcause. Allows alternative use of Florida Bar email address if unregistered, orU.S. mail or fax. Adds a provision that if an attorney has no email and lacksaccess to the Internet, the “court” may excuse the attorney from therequirement of email service and allow service by fax or U.S. mail. [NOTE: WE MAY WANT TO SUGGEST SUBSTITUTING JCC OR OJCC FORCOURT.]

Yellow: 108(1)(e) – Changes the cutoff time for service from 5:00 until11:59 p.m.

Yellow: 108(1)(g) – This seems to be a new subsection, but not all ofit is underlined. It adds language stating that if there is no prior PFB filed andthe email for the claims rep of the carrier/SA is unknown, the good faith effortcontemplated by 440.192(4) may be effectuated by service of a writtenrequest for benefits sent to the email of the carrier registered with the OJCCand to the employer. The addition also requires that the written request “shallcontain the name of the employee or claimant, employer, date of injury . . ..” This section already states that if service is effectuated this way, claimantor claimant’s counsel bears the burden of proof that a good faith effort wasmade and it states proof of transmission may be in the form of a copy of theemail sent to the carrier and the employer. The amendment adds that theproof show the email address to which it was sent and the date and time oftransmittal.

Yellow: 108(1)(h) – Current subsection (g) is renumbered as (h) and itdeletes the requirement that uploaded hearing exhibits include the words“proposed hearing exhibit and the date of the hearing.

Uncolored: 108(h) & (i) are renumbered to (i) & (j) based on the abovechanges to (g).

Yellow: 108(2)(e) – Adds language that service via fax is not effectiveunless the attorney or designated rep does not have access to email or forgood cause.

2


Yellow: 108(3) – Changes the time for service from 5:00 to 11:59 p.m.to be effective that day. [NOTE: I BELIEVE THIS IS THE CHANGE THAT ISON THE AGENDA FOR AUGUST 3, BUT IT APPEARS ALREADY DONE.]

Green: 108(11) – This rule apparently already requires employers,carriers, etc., to register a single, general delivery email address with theOJCC, as well as a U.S. mail address and telephone number, and it requiresEr, carriers, etc., to be responsible for amending the name and email, asnecessary to remain current. Added language provides that Er, carriers alsoare responsible for updating physical addresses and phone numbers to becurrent and requires original registrations and amendments shall be submittedby the company representative by email.

6-109No changes

6-110Green: Capitalizes titleGreen: 110(1)(b), which addresses continuing state mediation, adds

language describing “continued,” as meaning moved to a date beyond the 130day statutory period.

Green: 110(1)(c), which addresses rescheduling state mediation, addslanguage describing “rescheduled” as meaning moved to a differentappointment time and date within the 130-day period, and adds this can bedone upon mutual request of the parties and the agreement of the mediator.

Yellow: 110(7) – Deletes the requirement that the mediator indicate inthe mediation report whether the parties had completed a pretrial. Deleteslanguage for private mediations, requiring the claimant to file the pretrialstipulation with the mediator’s report.

6.111Green: Capitalizes title

6.112Green: Adds language that a mediator disqualifying themselves or

refusing an assignment do so informally by email to the Deputy CJ.

6-113Green: Capitalizes title.

3


Yellow: 113(g) – Adds language that objections based on lack ofspecificity shall be raised in a motion within 14 days of filing the completedpretrial or any amendments to the pretrial and that they are waived if nottimely raised. Also adds language that any objections/responses toaffirmative defenses must be pled in the pretrial stipulation or no later than 10days after filing the pretrial stip.

Yellow: 113(5) – Deletes references to the waiver order for the time forfiling the pretrial.

6-114Green: Capitalizes title

6.115Yellow: 115(2) – Deletes current section (2). Not sure about the yellow

in this section.Yellow: 115(3) – Renumbered as (2)Yellow: 115(4) – Renumbered as (3). Also tinkers with language about

when the JCC may hold a motion hearing, deleting the requirements ofexceptional circumstances and good cause. It adds language that a partyseeking an evidentiary hearing plainly state so in the motion title.

Yellow: 115(5) – Renumbered as (4)Yellow: 115(6) – Renumbered as (5)

6.116Green: Capitalizes titleYellow: 116(4) – Adds a sentence that a motion for a video

teleconference to be held live shall be granted upon a showing of good cause.

6.117No changes

6.118Green: Capitalizes title

6.119No changes

6.120

4


Green: 120(6) – Adds new subsection that says the SFO standard shallbe construed in accordance with the federal summary judgment standard.

6-121No changes


6-123Green: Capitalizes titleYellow: 123(5) – Deletes this subsection which says the JCC shall

consider disclosed costs to the extent necessary to determine they do notinclude attorney overhead or other fees, and that a claim for costsreimbursement for $250 or less need not be set forth with specificity.


6-125Yellow: 125(3) – Changes “may” to “shall” regarding the JCC imposing

sanctions for violations of representations made to a JCC.Yellow: 125(4) – Adds to the motions under section 440.32 to motions

for sanctions and deletes the language stating that the motion shall not befiled until after the passage of the 21-day safe harbor.

6-126Green: 126(1) – Changes “Fla. R. Jud. Admin.” to “Fla. R. Gen. Prac.

& Jud. Admin.”

6-127No changes

6-128No changes

6-129NOTE: THIS RULE IS NOT INCLUDED IN THE LISTING,

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SUGGESTING THERE IS NO RULE 6-129, BUT THERE IS. IT ADDRESSSTATEWIDE JNC PROCEDURES.

6-130Green: Adds a new three-part rule on Emergency Office Closures,

stating in (1) that the OJCC is subject to closure pursuant to the Governor’sinstructions or a declaration under Article IV, Section 1(a) of the FloridaConstitution; in (2) that whenever the circuit courts are closed in a county dueto weather or disaster emergency, the OJCC office in that county will likewisebe closed; and in (3) that any unscheduled closure of an OJCC office will bepublished on the OJCC website and other means as directed by the DeputyCJ.

6


DOAH/OJCC Zoom Rules Workshop 7/8/21 – Judge Langham presiding

Approx. 60 attendees

everyone is opposed to removing good faith requirement for motion practice (60Q-6.115(2)) – NAA explained that Phillips v. Leon Cnty. is basis for rule change and provided citation to Judge Langham.

WC Section (Touby) and FWA (Chris Smith) support adding definition of verified

WC Sec. and FWA support capitalizing headings of rule sections

WC Sec. wanted to know why Division-assigned number rule is being changed (6.105) WCS and FWA support

WCS supports change to 6.107 allowing attorneys/registered parties to change contact information in eJCC. FWA also. Source of rule change proposal is unclear.

Someone can’t turn off their iPad mic

WCS supports change to 6.107(3) allowing change to company name by stipulation/motion. FWA too. Unclear how rule will affect day-to-day practice. Judge Langham declined to offer a position.

6.108 changes supported by WCS

FWA supports changes to 6.108(1) (b) and (e). WCS supports e as well.

Everyone dislikes new 6.108(1)(g) pre-petition good faith language. Jim Fee says he emails the adjuster if he wants to make a good faith effort. Judge Langham asked if Jim Fee would like proposal better if claim number, etc., were not included. He said yes. FJA deosn’t like proposal either.

6.108(1)(h) supported by WCS and FWA and JCCs

6.108(2)(e) not supported by WCS or FWA. Cristina Linares spoke in support. Chris Smith proposed requiring carrier to register a fax number. Jim Fee suggested it would conflict with (1)(b) language

6.108(3) supported by WCS and FWA

6.110(2)(b) and (c) supported by WCS and FWA

6.110(7) supported by WCS and FWA

6.112 supported by WCS and FWA

6.113(2)(h) not supported by WCS (“creates litigation” and “gotcha tactics”). FWA agrees. Brian Sutter talked for 10 minutes about how the system is slanted. Tracey Hyde spoke in support of rule change. NAA spoke in support. Chris Smith spoke against. Eric Christiansen spoke against.


WCS/FWA support 6.113(5) change

WCS/FWA still against removal of good faith requirement in 6.115(2)

W/F in favor of 6.115(3)

W/F wants 6.116(4) rewritten to allow live hearing by request

6.120(6) – not supported by WCS or FWA

6.123(5) – supported by WCS and FWA

6.126 – WCS supports

6.130 – WCS supports

6.125(3) – W/F does not support. As to (4), W/F doesn’t support either. NAA pointed out this is also required by Phillips v. Leon County.


July 8, 2021 Zoom Meeting Rule Development Workshop for Rules 60QNotes by Wendy Loquasto from Zoom recording

Deputy Chief Langham presided and opened the floor for comment.

Jim Fee: Q re procedures for today, rule by rule, or opening floor to all.Judge Langham: Not limited to proposals here. Will let people speak

to any concerns they have about any issue they wish.

Jim Fee: 60Q-6.102(12) deletes the definition of “personally conferred” andcompanion rule 60Q-6.115(2) deletes the requirement that attys personallyconfer before filing motion. Great concern to me as practitioner. Flies in faceof professionalism. No reason to make this change. By requiring personallyconferred, then attys will confer and lessen number of motions to be heard byJCCs. I was member of WCRAC when proposal was passed – close vote, 7to 6. No other rule that went through WCRAC that had this close a vote. Essentially 50/50 and perhaps partisan vote, so should not tinker w/ rule.

Chris Smith, on behalf of Florida Workers’ Advocates: Shares concernsarticulated by Jim Fee. Not sure of genesis of rule. Should promotepersonally conferring. We are required to make good faith effort beforepetition filed, so good faith to resolve issues with motion should be done too.

Eric Christiansen: As practitioner, he sees an elevated level ofprofessionalism in WC. When practicing in civil matters, he sees a flurry offilings that are not done in WC. Just yesterday, received proposed motionwith initial draft that was offensive, but with discussion with opposing counsel,it became an unopposed motion. Working out with limited number of motionsfor JCC. Hope is to work out motions or narrow issues. Dismayed bysuggestions to eliminate “personally conferred” because I valueprofessionalism and should limit proposals that undermine professionalism.

Mark Touby, Chair of Workers’ Compensation Section of the Florida Bar: TheSection has a Standing Rules Committee (equal number of defense andclaimant lawyers around state), which looked at this. He repeatsprofessionalism will suffer by the proposal, and litigation will increase, andW.C. Section against the amendment.

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Neil Ambekar: I was one of the people on the WCRAC who proposed thisamendment this proposal. Phillips v. Leon County Public Works, 277 So. 3d1076 (Fla. 1st DCA 2019), which strikes the 21-day safe harbor rule, supportsthat DOAH cannot impose this kind of rule, just like it cannot impose a 21-daysafe harbor. Nothing in statute that says DOAH can impose this requirement. Proposal was not because good faith effort was not good idea, but rather thatDOAH does not have authority to make this rule requirement.

Lorna Brown-Burton: 17th Circuit BOG member and practicing workers’compensation lawyer in tri-county area Miami, Palm Beach, Broward areas,and candidate for President-elect Designate of the Florida Bar. One ofprimary issues facing Bar is professionalism and lack of professionalism. Concurs to keep rule as is, because it enhances professionalism. Ruleenhances professionalism. To remove this requirement of personallyconferring would be a step backwards.

Mark Touby: Inclusion of “verified” definition in 6-102.(12) as defined insection 92.525. W.C. Section supports this amendment.

Chris Smith: FWA also supports.

Mark Touby: Headings changed to capitalized (60Q-6.103 and 60Q-6.105)is recommended. The Section fully supports.

Tracey Hyde: [Could not understand]

Chris Smith: FWA supports.

Mark Touby: 6.105: Deletion of (4): We don’t have information re basis forrule. Seems to streamline petition process. Did not come from WCRAC.Unable to discern reason but seems good.

Judge Langham: He thinks this rule predates eJCC 2010 or 2011 changesthat automatically assigns a Division assigned number. So today, if you filepetition, you put SS# or not, computer assigns a number. Now that computerdoes it automatically, so we don’t need it in the rules anymore.

Mark Touby: That is consistent w/ Section’s understanding. WC Section

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would support that.

Chris Smith: FWA supports as well.

Mark Touby: 6-107(2) – another rule in green, so did not have benefit of inputfrom WCRAC. Don’t have any explanation for proposed amendment.

Judge Langham: Apologizes, but he does not know the source of thisproposal.

Mark Touby: We believe effect is to make it easier to make small changesw/o intervention . . . . [Suzanne Leiderman iPad interruption.]

Mark Touby: It is our understanding that this will allow practitioners to ask forchanges, as opposed to intervention by DOAH, but we don’t know. It seemslike a favorable change assuming we understand it correctly.

Judge Langham: Unofficial interpretation is that E/Cs can change datathrough registration, just as you can do through profile. I think the first partof underline is directed to a change in registration, ex., change in address toin one case would allow change in all cases w/ carrier. 2d sentence changesfor individual attorneys would be made in profile, as opposed to filing adocument.

Mark Touby: Not sure how this fits into procedural changes, but in terms ofpractical aspect this seems to be a positive change.

Chris Smith: FWA thinks positive change.

Jim Fee: Mr. Touby had a question regarding the genesis of this rule. It doesnot appear that this came from WCRAC. Perhaps Ms. Hyde or Ambekar cancorrect. Possible it came from another source, but likely came from DOAH[Judge Langham has no recollection of the source], but I also support.

Neil Ambekar: Does not recall any discussion of this in WCRAC.

Tracey Hyde: Does not recall. When email came out, thinks green proposalscame from DOAH. Yellow from WCRAC.

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Judge Langham: Believes accurate yellow is from WCRAC and green maybe from anyone else, but would have to look at notes.

Mark Touby: 6.107(3) – Seems to be a rule that codifies practice of filingmotions and stipulations to change party’s identity. Section supports.

Chris Smith: FWA agrees.

Neil Ambekar: Has one question. As practitioner, curious, understandsOJCC clerk has to physically update info in system before an employer’scarrier’s name can be changed. Happens a lot when names don’t line up. Isthe JCC still going to have to rule on stipulation if rule change is adopted?

Judge Langham: How judge interprets rule is up to judge. Doesn’t think stipdo not require judicial approval to be effective.

Neil Ambekar: Will clerk be able to act without judge’s approval?

Judge Langham: Up to clerk or deputy clerk.

Mark Touby: 6.108(1)(b) – We have given this the friendly term of the FredFlintstone rule. Not sure if this is there to assist those who have not yetdetermined a computer is necessary for their life, and would ask for someexplanation. But if there to allow those who are not yet in the system toaccess to the system, then Section is in favor of it. Perhaps someone fromWCRAC could offer something.

Judge Langham: Anyone from WCRAC have anything to offer?

Jim Fee: Asks for rule section – change for time line for service?

Judge Langham: First line says service can be from atty to atty and dictatesby email, fax, or U.S.

Jim Fee: Apologizes for confusion on rule section.

Chris Smith: FWA supports (1)(b) and (1)(e).

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Judge Langham: Mr. Smith has led us to 6-108(1)(e). I live in an all WCworld. From the standpoint of the WCRAC, does this change make us morelike civil practice or less?

Jim Fee: Makes us more like civil practice.

Mark Touby: The Section supports change.

Mark Touby: 6-108(1)(g) – The Section does not support (1)(g). It appearsto create hurdles and unnecessary barriers and obstacles to unrepresentedclaimants and those trying to initiate a claim. Don’t see any statutory basisfor amendment and don’t see positive outcome to change, so Section standsagainst it.

Chris Smith: FWA also opposes. Our position is that if Carrier has generalemail, it’s carrier’s responsibility to get email to necessary adjuster.

Judge Langham: I understand.

Jim Fee: Agrees w/ Mr. Touby’s sentiments. Having 31 years experience inWC and has seen a tide moving in the direction of making this practicehypertechnical. Law is supposed to be self-executing, and perhaps claimantshould be able to navigate system on his or her own. This rule does nothingto help pro se. It makes it more complicated and more technical practice, andreally no reason except to create technicalities, so I oppose it as well.

Eric Christiansen: Agrees as well in the sense that this rule change wouldshift focus away from claims for benefits to whether separate hoops werejumped through appropriately. Believes it would also create complication bymaking attorneys be witnesses in their cases. Judge Keef Owens recentlyentered order where attorney was attempting to serve as a witness and wroteexhaustive order. Would have a lot of unintended consequences in terms ofattorney having to testify and offer evidence as to obeying procedures, whichdoes not support trying cases on the merits.

Jim Fee: Another comment on rule. I see the word “proof” twice in ruleamendment. Not aware “proof” appears in any other place in 60Q. Seemslike a substantive change to law, rather than procedural, and starts to make

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attys witnesses in cases. So, while good attempt, but ultimately a bad rule.

Judge Langham: Q to Jim Fee. Today, if you file PFB, what do you do forgood faith? Call adjuster, note in mail? What’s normal?

Jim Fee: What is normal is email. For quick, expeditious communication tothe adjuster. Either an email or possibly a fax. I want them to get it ASAP.

Judge Langham: Other than specificity, how is this rule different from whatyou are doing today? Jim Fee: Because it says proof, and who has the burden of proof and that’swhere it steps into the realm of substantive rather than procedural.


Brain Sutter: Also very concerned by “proof” and burden of proof. Becauseit makes it is almost jurisdictional. Have to prove you did that or you cannotgo forward with the claim, and that is not the current law. There are casessaying if representation that should be accepted and is good enough. Otherthings that can be done, like sanctions for lying or not doing something yousaid you did. I think concerns about there not being a statutory basis isconcerning, because it puts a roadblock that has nothing to do w/ case. Canbe dealt with in other ways. Changes focus from real issues.

Neil Ambekar: No position on this. This was originally proposed by now-JCCGrindal, and I think he proposed it as a way to make it easier for claimant’sattorneys to comply with kind-of vague requirements under statute. Don’tthink original proposal included language requiring claim numbers and otherinfo, thinks that was added as marked up by the committee. Don’t knowwhere that came from.

Amie DeGuzman: As claimant atty, sometimes service by fax, or my officewill call if claimant has adjuster’s phone number, we will call on good-faitheffort. Sometimes client will say injured on a Friday and we don’t have 1stReport of Injury and we are trying to obtain a copy as part of discovery, so aspart of good-faith effort, we don’t have date of injury and need to do discoveryon that. Concerned that requirement of having date of injury as part of goodfaith could delay or could cause problem for filing. Also, what’s the penalty

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if you did good faith but date of injury is one day off. If penalty is dismissal,that’s a pretty is severe sanction for something not merit-based and not yetdiscovered before PFB filed.

Daniel McKnight: A lot of time routine appts might be scheduled by claimantby calling the NCM or adjuster, and so good faith may occur there. The attymight never need to do a good-faith request. May have already been done.So imposing an email requirement is unnecessary. Beyond that, there’s norequirement of good-faith, only that you certify you did.


Eric Christiansen: Good faith in my practice, particularly early in the case,there’s not always a set way to do good faith, particularly if you are strugglingto determine Er or Carrier. I make a lot of initial phone calls trying to trackpeople down. Not always amenable to a specific format. Email format isworthless if you don’t have information. Easier if other side has counsel,because they will have email address. But particularly with controversialclaims, severe lack of information about proper parties. So rule does not fitw/ reality.

Judge Langham to Jim Fee: If you look at this, 6th line, a line begins with“registered w/ the OJCC.” See that? About 2/3's across – says “employer.” If we read just the first portion of that paragraph, it says if Carrier or SA is notrep’d by counsel, not prior PFB, and email for claims rep is unknown, thegood faith contemplated by section 440.192(4) may be effectuated by writtenrequests for benefits to Er registered . . . .” Would your perspective changeif proposal ended with that period and omitted the language afterwards (proof,etc.) and focusing on it saying “may” and doesn’t say “shall.”

Jim Fee: Agrees his position would change 180 if ended there because myconcern start after that with stuff about proof.

Judge Langham: Mr. Ambekar said original proposal by now-Judge Grindaldid not have that.

Neil Ambekar: Users usually can’t see EC’s service address until after PFBis filed, so can’t send to registered address until after PFB filed.

Page 7 of 17


Judge Langham: In your eJCC program, there’s a top ribbon for registeredemployer/registered carrier tab and you can look up any carrier you want to.

Mark Touby: Comment on rule suggesting limiting to ending w/ period afteremployer. Conjunction “and” between OJCC and to the employer would beconcerning because it would include both. “Or” would be more appropriate. But good faith to carrier, then employer should not be included.

Chris Smith: FWA supports position just taken by Mr. Touby.

Brian Sutter: Statutory authority. Statute does not mention ER beingmentioned in resolution at all. Concur w/ Mr. Touby Now having to deal w/two entities and statute does not require that you need to be involved withErs at all. Myself and FJA we oppose this change.

No other comments (1)(g)

Mark Touby: 108(1)(h): Section supports (h). This rule created before DOAHnumbered documents. Numbers are far better than proposed hearing exhib,date, and finally getting to the end of line to find out what document is. HappyJCC Weiss on this.

Judge Weiss: As a member of the WCRAC, that was my proposal for exactlywhat Mr. Touby said.

Chris Smith: FWA sees as positive change.

Mark Touby: 6-108(2)(e) – This rule purports to limit ability to transmit infoelectronically by fax. Section wants to increase access to system, notdecrease. Any rule that limits access is inappropriate and oppose removingfax as legitimate communicate.

Chris Smith: Agrees. Notes that fax always has contemporaneous proof ofservice. Against this.

Cristina Linares-Obeso: This was meant to be used as alternative when noaccess to email. Problem with fax, and why I support this, is that, as defensecounsel, we often see that fax used is not direct line to adjuster. Often goes

Page 8 of 17


to medical billing fax line in another state and could take days and days to getto the adjuster. If we moving toward being more efficient, fax not way to go. I know I’m jumping ahead to (11), where all employers and carriers are goingto have to register an email address, I think this rule is consistent w/ the wayrules are going.

Chris Smith: We would support a change that requires them in addition toregistering an email and physical address, to also register a single fax numberfor delivery of all correspondence. That would eliminate the problemmentioned of carriers saying faxes are going to an inactive fax line. Thisbenefits carrier by having single fax number to check and makes it easier tohold the claimant accountable by having to check the fax number registeredon DOAH.

Judge Langham: Trying to process that as best I can.

Chris Smith: We would support under (11), where there is proposal forregistering a single general email address, that it add a single general faxnumber. So this can be on DOAH and everyone will have access. A singlenumber that there can be no confusion that the was sent to a correct faxnumber.

Ms. Linares-Obeso : Going back and forth on fax is like a VCR. Everyoneshould have computer and access to an email. I don’t see supporting fax isnecessary given current state of technology.

Mr. Touby: Section thought fax inclusion in (11) would be more appropriate. Fax is permitted throughout the rules and limiting it in a particular area wouldbe adverse to access.

Jim Fee: To Mr. Touby’s point, other rules address faxes and this proposalwould conflict w/ language in 6-108(1)(c).

Judge Langham: Since we morphed into 6-108(11), any more comments? [None made.]

Judge Langham: Comments re 6-108(3)?

Page 9 of 17


Mark Touby: Section supports as we did earlier change.

Chris Smith: As does FWA.

Mark Touby: Into green land of 6-110(2)(b) and (c) on mediation. Weunderstand this is just clarification of when and by whom the informationneeds to be changed. We believe it did not come from WCRAC. Stand insupport unless we misunderstand meaning and request clarification.

Judge Langham: This looks like a differentiation between continued andrescheduled . . . and to clarify who the practitioners would look to make thatdecision. Within the 130, look to mediator, and outside of it look to judge witha motion.

Mark Touby: WCS stands in support.

Chris Smith: As does FWA.

Judge Weiss: Notices that (c) seems to conflict w/ (d) and perhaps thestatute. Part (b) correctly notes that continuance beyond 130 days may begranted on proper motion or agreement of parties, but (c) says beyond 130only if movant shows issues beyond control or other good cause shows, butstatute says you can go beyond 130 upon agreement of the parties.

Judge Langham: Only underlined is new. If not underlined, language iscurrently in the rule.

Judge Weiss: Rule may be in conflict w/out change.

Mark Touby: 6-110(7) and deletions and pretrial stipulation. WCS supports.

Chris Smith: FWA also supports changes.

Mark Touby: 6.112 – mediator disqualifying themselves or recusing shall doso electronically to CJ. WCS supports.

Chris Smith: FWA sees as positive change.

Page 10 of 17


Mark Touby: Into morass known as 6-113(2)(h). Section quite concernedabout adding additional litigation necessities and gotcha-tactics in the rulesin an attempt to allow procedure to dominant over substantive resolution. There is concern that the objection to specificity raised in pretrial wouldrequire additional action and if not taken, then objections are procedurallywaived without due process. Section does not support amendments in (2)(h).

Judge Langham: Would you please go back over the waiver and dueprocess?

Mark Touby: According to the additional language, objections to lack ofspecificity shall be raised in a motion w/in 14 days of filing a completed pretrialor any amendment to pretrial, and are waived if not timely raised. Currently,once pretrial completed, exchanged, and objections made. If obj made, thenleave to amend 10 days. This would create an additional burden on movingparty to file a separate motion within a time period to effectuate an objection,and if they fail to do so, then waiver of objection, which would take us into amore procedural realm and away from adjudicating things on the merits. Itwould violate the party’s due process in doing so.

Judge Langham: I understand better.

Chris Smith: FWA shares concern voiced by Section. We do not see need,any the basis for requiring extra motion activity to be filed beyond what’sreferenced in the pretrial. The pretrial sets forth the claimant’s and defense’sopportunity to raise objs to specificity, and we see no basis for requiring anadditional motion to be filed.


Brian Sutter: This really the reason I’m here. It’s a huge change. This rulehas to be considered in the context of all the things that may have occurredbefore the atty is involved. ECs have vast resources and should have goodidea why denying claim. Pick docs, meet w/ docs secretly. So C attys comein behind the 8-ball. Cs have to make good faith effort before PFB filed. Memorialize that before petition filed. Can be dismissed for lack of specificityeven before discovery. Have to attach medical records. So, claimants in darkwhen PFB filed. Response w/in 14 days, but that often does not happen.

Page 11 of 17


Responses often vague. No repercussion for EC not responding or tellingwhat defense is. Discovery not provided w/in 30 days as required by law. Never seen discovery done within time frame required by law. So still in dark. Try to make motion, more time for response. Can’t use Request forAdmissions or Interrogs in W.C. Have to rely on discovery throughdocuments. Info often shielded by work product. Little time for C beforepretrial to figure out what’s going on. EC has a lot of time. When pretrialhappens, we finally find out defenses at pretrial. Little time to deal with it.Trying to squeeze into 210 days is very difficult. When claim denied, underrule amendment, now we have to file another motion. Pretrial is first time Chave any right to know defenses. This change would allow EC to be as vagueas they want to be and go off on tangents at trial. If no objection for lack ofspecificity, claimant could get slaughtered at trial. System is supposed towork for both C and EC. This requires additional time and effort. EC can bevague and can cover everything. Ex. Benefits not due – covers anything. Soyou’d need a motion hearing on every case. This would open up everypretrial to attack, puts emphasis on C’s time to create additional time for EC’sattorney. Nightmare. Current procedure is not causing problems. Understands defense like this because it gives them a huge advantage, butthis does not promote justice. Promotes trial by ambush, surprise, and wasteof judicial resources. Myself and FJA – this rule ain’t broke, don’t fix. Urgerejection.

Tracey Hyde: This came up on her watch. Thinks the rule is broke. Biggestproblem in crafting solution is that underlying problem is not happening. There’s no uniform pretrial form. There’s a form on OJCC, but people use oldones in desk drawer. Not a gotcha on EC, it’s on C. Underlying point: Weneed a uniform pretrial or you have gotchas. Objs must be stated withspecificity on pretrial or waived. Reference to Haddaway case that iscurrently pending on appeal. There C’s atty waited until trial to object towitnesses on EC’s pretrial and JCC allowed at trial. How is that not a gotcha? That case is currently on appeal, but it files in the face of the Clarison case. But first step is a uniform pretrial form that everyone uses, and that is not thecase. Trying to craft fixes in rule is difficult. But if not required to state w/specificity on the pretrial, it does turn into gotcha.

Neil Ambekar: Interesting others are concerned about gotcha and trial byambush, but this rule is designed to prevent both of them, not promote them.

Page 12 of 17


The issue we have for both sides, now because of the TECO and other casessaying you have to list it or you waive affirmative defenses or responses todefense, is that a lot of claimant attorneys have preprinted pretrial forms witha list of 40 affirmative defenses – 120 day rule, waiver, fraud, etc., and lackof specificity in their pretrial forms. But those preprinted objections don’taddress defenses raised by EC are not specific, so the EC has no way ofknowing what lack of specificity is being asserted. Some C’s attys do itcorrectly and go back into form and note which thing they are objecting to aslacking specificity. The requirement for motion practice is intended to preventgotcha tactics where we aren’t at the final hearing and discovering for the firsttime that an lengthy argument by either side is not specific when it shouldhave been brought up before the hearing to allow more specificity as needed.

Chris Smith: Existing language in rule states any defense or affirmativedefense must be raised with w/ specificity, detailing conduct giving rise to thedefense, with leave to amend in 10 days. So it already contains languagerequiring specificity with regarding to defenses and affirmative defenses. So,with regard to Mr. Ambekar’s concerns, there is already a remedy in theexisting rule. So if obj to lack of specificity for a defense and then there’s tendays to amend. Not sure what added benefit to proposed rule that is notalready in rule.

Judge Langham: Mr. Sutter, we end in 14 minutes and you already spent 8minutes on this, so tell us.

Brian Sutter: In response to Tracey Hyde’s, this rule would not affectwitnesses – those can amend 30 days. That has nothing to do with this rule. If claimant did not say something about that witness that put everyone onnotice, then it should not have been granted and witness allowed to testify. It is ironic that they are talking about our objs to defenses need to be specific,but their defenses don’t need to be. Puts burden on claimant when really itis a deficiency of the EC’s defense that is the impetus. Should be across theboard. If we don’t have specificity on ours, then they should be able to obj. This rule doesn’t have anything to do with ours and them having to make amotion. This rule is one-sided. Unfair. As far as pretrial not being consistent,and defenses on our end, it’s not hard to create a system in which you pusha button that puts everything on there and be uniform. That argument does

Page 13 of 17


not make sense. Not a situation where you should throw out justice or thebaby with bath water and say we are not going to provide for justice andtimeliness and extend things because of extra motions and costs simplybecause we don’t like the pretrial.

Eric Christiansen: With pretrial, existing law requires both sides to usespecificity for claims, defenses, objs to defenses. I’ve seen JCCs sort that outroutinely already. Certainly it may start as unspecific PFB has already beendealt with long before the pretrial, but by pretrial we know what petition says. But when defenses come up, there may be defenses that lack specificity andthere may be objections that lack specificity. Both parties have responsibilitywhen completing pretrial to identify claims and defenses and obj w/ specificity. So pretrial allows parties to define what they are doing. Don’t need aseparate motions for that. I think a party that put boilerplate defenses andobjs in pretrial, they do so at their own risk. Rule as it currently exists givesJCCs flexibility to determine whether that’s been done. We are not enhancingthe process by requiring a flurry of motions to deal with that because judgescan weigh if defenses and objections are adequate at trial.

Mark Touby: 6-113(5) – eliminates 30 days following the waiver order – WCSsees no problem with the amendment.

Chris Smith: FWA sees no problem w/ amendment as well.

Mark Touby: 6-115(2) – removal of good faith. We sort of discussed earlierw/ personally conferred. WCS is strongly against removing this because itwould not foster the ideals of professionalism, as previously discussed.

Chris Smith: FWA shares that opinion.

Neil Ambekar: If rule requires it, it is not professionalism, it’s just following therule.

Mark Touby: The Florida Bar will take what it can get at this point.

Mark Touby: 6-115(3) – currently (4) and renumbered in proposed rules as(3). This rule seems to allow more judicial discretion in setting motionhearings and WCS supports judicial discretion and independence.

Page 14 of 17


Chris Smith: FWA shares that opinion.

Mark Touby: 6-116(4) – I was original author back when I was on theWCRAC back in 2012 or 13 of some rule that looked vaguely like this. I reallyhope I did not write this because I don’t understand it. The purpose of ruleback in the day was to allow for a claimant or EC who do not wish to haveclaim determined by live judge, if someone wanted a live judge, this wasintended to effectuate that. WCS supports rules that allow additional access. Support if rewritten to state what I said or if understood to be the explanationI just gave.

Chris Smith: FWA agrees with that position and is in support of proposedchange.

Mark Touby: 6-120(6): SFO apply in accordance with federal SFO standard. WCS concerned whether this should not be a rule (statutory authority). AwareFla SCt said Fal will use federal SF standard. If WC rules, then should reflectFla. law, not federal law. Distinctive differences. Your recent blog regardingdifferences in federal v. Fla. law. Ex. Federal minimum wage. 1. Should notbe a rule. 2. If a rule, tie to Fla, not federal. WCS against.

Chris Smith: FWA stands against for same reasons articulated by Mr. Touby.

Mark Touby: 6-123(5) – eliminate of $250 safe harbor w/ regard to costs. WCS supports. Eliminating rule brings rules into compliance w/ Miles case. Miles said 440.15(3)(c) is unconstitutional, and therefore it should not be aJCC rule to look at any costs. Elimination would effectuate that and also bein compliance with the fact no continuing statutory authority for rule. WCSsupports it.

Chris Smith: FWA supports this regulatory change.

Mark Touby: Two or three left. 6.126(1) – WCS supports that change. Welike things cited correctly.

Judge Langham: That’s just from the Supreme Court changing the name ofthe rules.

Page 15 of 17


Mark Touby: Yes.

Mark Touby: 6.130: WCS supports these amendments.

Chris Smith: FWA also supports proposed amendments to 130. Questions if we skipped over 125. [Mark Touby: I was going to cover

it last.]

Chris Smith: For the record, FWA supports changes to 6.126, if I did not saythat one.

Mark Touby: 6.125(3) & (4) – With regard to (3), the WCS does not supportchange from “may” to “shall.” WCS supports judicial discretion and thischange would curb judicial discretion.

Chris Smith: FWA supports same position – we do not support proposedchange.

Judge Langham: Encapsulated or do you wish to discuss (4)?

Mark Touby: 6.125(4)(a) – The Section, for same reason relating topersonally confer being removed, does not support removal of 21-day safeharbor. We the Phillips v. Leon County ruling, we understand that is likely thedriving force, but the WCS does not concur w/ removal. Having safe harborpromotes professionalism. Not clear that Leon County case addressed thisparticular rule, it simply addressed a portion of 440.32. Section is against thisamendment.

Chris Smith: FWA is against the amendment for same reasons.

Neil Ambekar: This also came to WCRAC by way of Leon County case andit does clearly address this address 21-day safe harbor and say it’sinconsistent with the statute. I’m agnostic as to whether the 21-day ruleshould be required. It is helpful, but if it is beyond the statutory authority, it iswhat it is.

Judge Langham: 59 on Zoom; bunch more on telephone. Good process andcredit you all with that.

Page 16 of 17


Remind that we be live in person on July 13 in Fort Lauderdale atcourthouse and we’ll see what other comments come up. We’ll be recordingthat. Let him know if you want a copy of recording. Let him know if you wanta copy of today’s recording, but big file because of Zoom, but will figure outa way to get it to you.

Tracey Hyde: After the second workshop, what’s next step?

Judge Langham: We’ll be sitting down in rule-making consideration anddiscuss whether to make changes, proposals, comments, and how toproceed.

Tracey Hyde: Who is “we”?

Judge Langham: DOAH.

Jim Fee: A lot of inquiries about Ft. Lauderdale meeting – no Zoom, so notelephone either? Just live?

Judge Langham: It is a live hearing. If someone wants to attend bytelephone, I’d be happy to attempt to do w/ my cell service. Not arranged forin advance for telephone and don’t know what technology will be available. Respond to them and tell them I’m happy to set up if he hears from people.

Thanks for patience w/ process.

1hr 33 minutes Adjourn.

Page 17 of 17


1

Davis, Mikalla

From: James Fee <[email protected]>

Sent: Wednesday, July 21, 2021 1:46 PM

To: Loquasto, Wendy S

Cc: Middleton, Jodi K; Ambekar, Neil A; Davis, Mikalla; Hyde, Tracey J; Weiss, Jack

Subject: Re: Ad Hoc Rules Committee -- August 3 agenda

Hi Wendy and Colleagues,

I attended the live meeting on 7/13/21. The only people in attendance were Chief Judge Antonacci, JCC Medina-Shore,

Mark Touby on behalf of the section, Rick Morales on behalf of FWA and myself. Everyone indicated that their positions

remained the same as what was stated at the 7/8 Zoom meeting. There was some brief discussion regarding removing

definition and requirement to personally confer prior to filing a motion. The Section, FWA and FJA are all against

removing the definition and requirement.

I am out of town but wanted to respond.

Best regards,

Jim Fee

Sent from my iPhone


Rule Development Workshop of July 13, 2021Held Live in Fort Lauderdale

Notes from Audio Recording by Wendy Loquastohttps://www.jcc.state.fl.us/JCC/rules/Proposed2021/Wrkshp/Rule60Q_202

10713.mp3

Chief Judge Peter Antonacci presiding; also present Judge of CompensationClaims Sylvia Medina-Shore.

CJ Antonacci: Purpose of hearing is to allow comment on draft rules thathave been published for some time. In the rule development world, this iscalled a Rule Development Workshop. Admit to attending many as arepresented party. In my experience, agency presents rules that have beenpublished in draft form and asks for comment. No feedback at the time. Purpose of hearing is to receive your comment and recommendations as towhat should happen next. Can’t say when rules will be published next. Hopefully in next 90 days we’ll have a result. This hearing is being recorded.Thanks Judge Tuter for allowing us to use this beautiful room.

Judge Medina-Shore: Thank you all for coming. Knows we had a hearing onJuly 8 that was very well attended and had a lot of comment. . . . Anycomments, Mr. Touby?

Mark Touby: Introduces himself as current Chair of Workers’ CompensationSection of the Florida Bar. I testified on behalf of the WCS at the Zoomhearing – at the meeting with the Rules Committee. The Executive Councilis made up of a diverse group claimant and defense attorneys from allgeographic portions of the state. I don’t have any additional comments to addtoday to the record, so I won’t take up any more time, but I wanted to beavailable in case anything else came up upon which I could add the WCS’sperspective.

James Fee, Jr.: Introduces himself. Here on behalf of Workers’Compensation Section of the Florida Justice Association, and I also occupiedrole of Chair of Workers’ Compensation Rules Advisory Committee for lastyear, and just came off my position as Chair. Similar to Mr. Touby, I was inattendance at the July 8 meeting, when we had 54 people in attendance and17 judges on the line. Similar to Mr. Touby, rather than reiterating my


comments from July 8 meeting, I will rely on those comments, unlesssomeone else has other comments we want to respond to.

Rick Morales: Introduces himself (practices in Miami). Here on behalf ofFlorida Workers’ Advocates and am past president of FWA. In years past, Iserved on Florida Bar rules committee and was chair like Mr. Fee and alsoparticipated when original 60Q Rules were being developed and DOAH rulesand I have testified in the several of these hearings in years past. Unfortunately, was not able to be part of Zoom meeting, but I have two hoursof testimony today. [Laughter and jokes.] Understands someone testified onbehalf of FWA at Zoom hearing. I came today in case any issues orquestions came up today that I could answer or address. FWA relies on priortestimony given during that Zoom hearing.

CJ Antonacci: That may be it. Unless you have something [a good joke totell].

Mark Touby: One comment that we had talked about, but don’t think it will beincluded in the rules because it is not a proposed rule. But one comments atZoom hearing was a question asked of Mr. Fee was whether a particular rulebrought us more in line with the civil rules, and his answer was yes. It strucka cord in my memory and in Mr. Fee’s, and we talked about this afterwards. Last time, I believe in 2014, that we did rules, there was a rule that mirroredthe civil rule on lack of prosecution. The civil rules had changed so that after10 months, the clerk generates a notice to the parties that there’s been norecord activity in 10 months and unless there is record activity in the next twomonths, the case will be dismissed for lack of prosecution. The 60Q Rulesis more of a gotcha-kind rule at this point. It is the only rule that is excludedfrom the “personally conferred upon prior to being filing” – it’s in . . . [Jim Feebriefly speaks in helping to locate rule] . . . Rule 60Q-6.106 –1161 [??? – SEE

1I heard both 106 and 116, but I am not of the reference. Rule 6-107(3)requires a JCC, before dismissing for lack of prosecution, to issue an orderto show cause and allow ten days for a response. Rule 6-115(2) includes theexception from the personally-conferred requirement for motions to dismissfor lack of prosecution. I don’t see anything in Rule 6-116 that provides fordismissal for lack of prosecution, although 116(1) requires the parties todiligently prosecute or defend a claim or petition. I assume motions todismiss for lack of prosecution are filed pursuant to Rule 116(1).


FOOTNOTE]. One of the proposals in the current proposals is to remove thesection entirely that addresses it, and I believe all three organizations presenttoday have spoken out against removing the personally conferred for anumber of reasons. The WCS of the Florida Bar is particularly interested incontinuing the professionalism that it promotes. It would seem that could befurthered by developing this particular rule into one that mirrors the civil rule,which after ten months would create an auto-generated notification of the lackof record activity followed by a grace period during which the parties could dowhat was appropriate to correct that, and then move into lack of prosecution. I don’t know that it is appropriate to bring this up during the late part of thisprocess here, particularly with the majority of attendance at the Zoom meetingas well as not having it published, but it would correlate to the one rule thatis being proposed to remove [personally conferred] that requirement. . . .

Jim Fee: If I could grab on to Mr. Touby’s coat tails, the personally conferredissue, which was discussed at the last meeting, and would I agree with himthat I am always in favor of personally conferred provisions in the law beforefiling motions. It promotes professionalism. It promotes communication. Itpreserves judicial economy and time. There’s a lot of us that have strongfeelings about. I went back and looked at the notes of the WCRAC andgenerally speaking all the rules that come through the WCRAC havebipartisan support – defense bar, claimant bar, and JCCs. This rule only gotby on narrowest votes – it was a 7-6 vote, and my recollection is that it wassort of along partisan lines based upon how many heads were in the room onboth sides of the equation. So in my experience, whenever we look atsomething and a lot of reasonable minds in room and it comes down to onevote, the best action is no action and that would leave the rule as is.

Rick Morales: I think they have explained it very well. When I looked at thisin preparing today and saw it eliminated the personally conferring, I havenever seen in any area of practice that you are not supposed to talk to theother side. In fact, in federal practice, you have to meet personally to docertain things. So, I [could not understand] . . .

CJ Antonacci: So noted. Thank you. Anything else? Having no othercomment, thank you for joining us. This Rule Development Workshop isconcluded.

Audio is 12:04 minutes in length.


FOX & LOQUASTO, LLCAttorneys & Counselors at Law

(850) 591-4984

M E M O R A N D U M

TO: Workers’ Compensation Rules Advisory CommitteeFROM: Wendy Loquasto, WRCAC Appellate Rules LiaisonDATE: 7/21/2021RE: Update on Appellate Court Rules Committee proposal to Amend Rule 9.130

Concerning Workers’ Community Immunity Nonfinal Orders

As you will recall, the Florida Supreme Court sua sponte amended Florida Rule of AppellateProcedure 9.130(a)(3)(C)(vii), (x), & (xi) in 2020 to remove the “as a matter of law” requirementto review nonfinal orders that determine absolute or qualified immunity in a civil rights claim arisingunder federal law, immunity under section 768.28(9), and sovereign immunity, and it tasked theAppellate Court Rules Committee with considering whether Rule 9.130(a)(3)(C)(v), dealing withnonfinal orders denying workers’ compensation immunity, should be likewise amended. See In re: Amdmts. to Fla. Rule of App. P. 9.130, 289 So. 3d 866 (Fla. Jan. 23, 2020); Fla. Hwy. Patrol v.Jackson, 288 So. 3d 1179 (Fla. Jan. 23, 2020). By removing this “as a matter of law” language fromthe other immunity orders, the Court expanded the instances when nonfinal orders could be reviewedto allow review when the lower tribunal’s decision rested on facts so as to allow an immunitydetermination as soon as possible in the litigation.

The WCRAC looked at this issue but determined it was outside its rules authority.

I participated in the Appellate Court Rules Committee’s proceedings, which, after debateabout whether workers’ compensation immunity differed from the other types of immunity so as tojustify keeping the “as a matter of law” language, eventually resulted in the ACRC filing a petitionto amend Rule 9.130 on December 23, 2020. See In re: Amdmts. Fla. R. App. P. 9.130, No. SC20-1871. The proposed amendment retained the “as a matter of law” language, but recommended therule provision be moved from subsection (C) to a new subsection (H), following the SupremeCourt’s sua sponte grouping of the three other immunities in subsection (F).

The ACRC’s petition was considered by the Supreme Court and on July 12, 2021, the Courtissued an order declining to amend the rule at this time. A copy of the July 12 order is attached.

What does this means to workers’ compensation practitioners? You still can only appeal anonfinal order that determines a party is not entitled to workers’ compensation immunity as a matterof law, so you will need to be sure the judge uses those magic words (“as a matter of law”) in theorder.


Supreme Court of Florida

MONDAY, JULY 12, 2021

CASE NO.: SC20-1871

IN RE: AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130

The Florida Bar’s Appellate Court Rules Committee has filed a report proposing amendments to Florida Rule of Appellate Procedure 9.130 (Proceedings to Review Nonfinal Orders and Specified Final Orders). The proposed amendments would create a new workers’ compensation immunity subdivision in rule 9.130. Having considered the Committee’s report and the proposed amendments, the Court declines to amend rule 9.130 at this time. The Court thanks the Committee for its hard work and its attention to this matter. Not final until time expires to file rehearing motion and, if filed, determined. CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. A True Copy Test:

Filing # 130447313 E-Filed 07/12/2021 12:33:07 PM


CASE NO.: SC20-1871 Page Two

so Served: JOSHUA E. DOYLE LAURA ANNE TRIPLETT ROE KRYS GODWIN


1

Davis, Mikalla

From: Davis, Mikalla

Sent: Tuesday, May 04, 2021 4:33 PM

To: Sanders, Lawrence; Taddeo, Frank; Hodgetts, Elaura; Albright, Roger; Catherine Frances

Agacinski; Tempkins,Michael; Bussey,Teri

Cc: Bachoon, Michele T

Subject: RE: WCRAC subcommittee #1

Subcommittee #1: Present at today's meeting Gray Sanders Teri Bussey Catherine Agacinski Michael Tempkins We discuss the change to 6.108(1)(3) to make it consistent with previous change to 6.108 (1)(e) changing 5:00 p.m. to 11:00 p.m. All subcommittee members present agreed with the change. The subcommittee also discussed citations throughout the rule specifically to the administrative code and Florida Statutes. The subcommittee was provide a history of the rule changes and concluded that the rules should have correct citations within the rule set, Fla. Stat and Fla. Admin Code R. Subcommittee members who were on the call, please feel free to supplement these notes with any comments. If you were not on the call, please let us know if you have any questions or concerns about these decisions made. Otherwise, it will be reported in august the above recommendations from the subcommittee. So I realized why Michele wasn't at this meeting... I forgot to put her on the calendar invite. So sorry Michele. Thank you, Mikalla Davis Rules Attorney The Florida Bar 850-561-5663 [email protected] -----Original Message----- From: Davis, Mikalla Sent: Tuesday, May 04, 2021 4:02 PM


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To: Sanders, Lawrence <[email protected]>; Taddeo, Frank <[email protected]>; Hodgetts, Elaura <[email protected]>; Albright, Roger <[email protected]>; Catherine Frances Agacinski <[email protected]>; Tempkins,Michael <[email protected]>; Bussey,Teri <[email protected]> Subject: RE: WCRAC subcommittee #1 Hi: If you are available please sign on. Thank you, Mikalla Davis Rules Attorney The Florida Bar 850-561-5663 [email protected] -----Original Appointment----- From: Davis, Mikalla <[email protected]> Sent: Thursday, April 29, 2021 9:02 AM To: Davis, Mikalla; Sanders, Lawrence; Taddeo, Frank; Hodgetts, Elaura; Albright, Roger; Catherine Frances Agacinski; Tempkins,Michael; Bussey,Teri Subject: WCRAC subcommittee #1 When: Tuesday, May 04, 2021 4:00 PM-5:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: ------------------------------- Video Conferencing: https://zoom.us/j/96288780055 +1 9294362866 (US toll) +1 2532158782 (US toll) +1 3017158592 (US toll) +1 3126266799 (US toll) +1 3462487799 (US toll) +1 6699006833 (US toll) Created with DOODLE


Drafting Subcommittee #3 Zoom MeetingMay 6, 2021 – 10:00 -11:00 AM

Members Present:Subcommittee Chair Wendy LoquastoJodi Middleton (phone)Barbi FeldmanJudge Jeffrey JacobsAnne SantomaggioMikalla Davis, Bar Liaison

Subcommittee Chair Wendy Loquasto called the meeting to order at approximately10:04 AM.

Wendy summarized that there were two items of business to address, both of whichwere outlined in her 4/26/21 memo to the Subcommittee.

1. Rule 60Q-6.124(4) – Disputed Appellate Attorney’s Fees:The first item is a proposed amendment Rule 60Q-6.124(4) addressing appellate

attorney’s fees. Wendy noted that the proposals erroneously stated rule 9.180(h)(3) andit should be (i)(3), so if any amendment is recommended, we need to make that correction.In 2019, Judge Weiss had suggested that subsection (4) be eliminated because theprocedure for determining disputed appellate attorney’s fees is provided in the FirstDistrict’s order granting attorney’s fees. Wendy reviewed the rule shortly thereafter andpersonally felt that the subdivision should not be eliminated, particularly since Florida Ruleof Appellate Procedure 9.180(i)(3) does not address the procedure other than to say theJudge of Compensation Claims (JCC) has jurisdiction after mandate. On 5/28/20 Wendyprovided a memo to then-Chair Tracey Hyde suggesting an amendment. The matter wasconsidered by Subcommittee #3 on 5/29/20, when Paul Anderson suggested the rule couldsimply say follow the First DCA’s order, but it was ultimately agreed to send a longerversion of Wendy’s amendment tracking the language in the First DCA order to fourappellate practitioners for their input. A longer version of the amendment was drafted byWendy on 6/3/20 and provided to Mike Winer, George Kagan, Bill Rogner, and RichardSicking, who were not in favor of that version, but this matter was never brought back tothe Subcommittee for a recommendation. Wendy withdrew the 6/3/20 longer version fromfurther consideration at the 4/21/21 WCRAC Meeting and reverted to her 5/28/20 version. The recommendation options are:

1. Judge Weiss’s suggestion to eliminate subsection 60Q-6.124(4);2. Wendy’s 5/28/20 amendment suggestion;3. Paul Anderson’s shorter version; or4. Take no action.

Option 2 – Wendy’s 5/28/20 version is:

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(4) Payment of Disputed Attorney’s Fees and Costs –Appellate. Upon issuance of mandate by the appellate court ina matter awarding attorney’s fees, tThe awarded party shallserve and file a verified petition to determine the amount ofappellate attorney’s fees and costs in accordance with theappellate court’s order, or within 15 days from the date of themandate or when the appellate court’s decision is final,whichever is laterorder entered by the court. The opposingparty’s verified response, if any, shall be served and filed inaccordance with the appellate court’s order, and theproceedings shall be conducted in accordance with theappellate order and Florida Rule of Appellate Procedure9.180(i)(3).

Option 3 – Paul Anderson’s shorter version is:

(4) Payment of Disputed Attorney’s Fees and Costs –Appellate. Upon issuance of mandate by the appellate court ina matter awarding attorney’s fees, tThe awarded party shallserve and file a verified petition to determine the amount ofappellate attorney’s fees and costs in accordance withwithin 15days from the date of the order entered by the court.

Discussion: Barbi Feldman indicated she liked Wendy’s version with the 15-daytime frame since that keeps the matter from lingering. Jodi Middleton agreed. AnneSantomaggio said that since she is in-house counsel, this type of proceeding would beundertaken by the attorney she contracted the appeal out to, such as Barbi. Judge Jacobsnoted that most appellate attorney-fee matters are settled and there are very few ordersissued each year, and he asked whether the First DCA order ever fails to provide timeframes. Wendy responded that the Florida Supreme Court orders in Castellanos did nothave any time frame or procedure, but those cases had to be remanded to the First DCAbefore they would be remanded to the OJCC, and the First DCA issued standard orderswith procedures. Wendy did note, however, that Richard Ervin had a case that wasdismissed soon after the initial brief was filed and when his motion for fees was grantedfor the work he had done on the not-yet-filed answer brief, the DCA issued an order thatdid not include time frames and procedure. Barbi indicated that her office has alsoreceived a few orders from the DCA that do not include time frames and procedures. Itseems that perhaps in 95% of the cases, the First DCA’s order will include time frames andprocedure, but there is a small percentage when that information will be lacking in theDCA’s order. Judge Jacobs suggested that a motion for rehearing could be filed in theDCA or a motion could be filed with the OJCC to ascertain the procedure. Wendyresponded that as a claimant attorney, all her time at this point cannot be billed since it isproving amount of the fee and she would not want to do extra work to simply ascertain the

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procedure for filing the petition. Wendy also stated that she likes the 60-day period in theFirst DCA order because she has worked the entire appeal without pay and there is noreason to delay payment of appellate fees, since they are based on hours expended, asopposed to benefits secured. Wendy offered that her proposed amendment might befurther amended to include the 60-day deadline, say at the end. There was alsodiscussion about whether the First DCA Clerk of Court might provide information aboutwhen the DCA issues orders that do not contain the time frames. Following discussion,the Subcommittee voted as follows:

1. No votes for Judge Weiss’s suggestion to eliminate subsection 60Q-6.124(4);2. Four votes (Anne, Barbi, Jodi, and Wendy) for Wendy’s 5/28/20 amendment

suggestion;3. One vote (Judge Jacobs) for Paul Anderson’s shorter version; or4. No votes for take no action.

In addition, no one voted to further amend Wendy’s 5/28/20 version to add the 60-day deadline.

Recommendation: The Subcommittee recommends that Wendy’s 5/28/20amendment be submitted to the Full Committee for consideration.

2. 60Q-6.120 – Summary Final Order

Wendy explained that this matter was outlined in her 3/10/20 memo to then-ChairTracey Hyde and questioned whether Rule 60Q-6.120 should be amended to include atime requirement for when the moving party must file evidence in support of its motion forsummary final order (SFO), consistent with the civil rules, particularly since there is a timeframe for the responding party. She noted this matter had come before Subcommittee #3at the 5/29/20 meeting and the consensus had been to take no action, but norecommendation had been officially made or submitted to the Full Committee.

Rule 60Q-6.120 currently provides:

(2) Any party may file a motion for a summary final orderwhen there is no genuine issue as to any material fact and thegranting of the motion would be dispositive of the issues raisedby the subject petition. A summary final order shall berendered if the judge determines from the pleadings anddepositions, together with affidavits, if any, that no genuineissue as to any material fact exists and that the moving partyis entitled as a matter of law to the entry of a final order. Asummary final order may be rendered on the issue ofentitlement to a benefit alone although there is a genuine issueas to the amount of the benefits. No motion for summary final

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order may be filed less than 45 days prior to a scheduled finalhearing.

(3) The opposing party shall file a response to a motionfor summary final order together with supporting depositions,affidavits, and/or other documents within 30 days after serviceof the motion for summary final order. The judge shall grant anextension for good cause shown.

Discussion: Barbi, who practices both in workers’ compensation and civil, said thatworkers’ comp is different and her understanding is that everything has to be filed with themotion, so she did not think any action was required. Wendy mentioned that when thismatter was first discussed, Judge Weiss had said that if the moving party presented noevidence in support of the motion, it would simply be denied. The consensus was 60Q-6.120 implies the moving party must file the evidence with the motion, particularly since themotion cannot be filed less than 45 days before the hearing. Judge Jacobs agreed noaction was required and he voiced his concern about whether the JCCs had jurisdictionover motions for SFO since he was unaware of the statutory authority. Judge Jacobs alsomentioned that the civil rule for summary judgment had recently been amended and hewould like to see how the trial courts handle the new civil rule. (It was noted that the FirstDCA typically looks to the civil rules to interpret similar workers’ compensation rules ofprocedure and it had done so with the SFO rule from the start.) Judge Jacobs also statedthat the majority of SFOs that come before him are managed care cases in which thegrievance procedure has not been exhausted and there is rarely a response filed. Someresponses are unsworn, which he rejects since its only in the pleadings – not evidence. Discussion was had about how 6-120 does not require verification and evidence like thecivil rule, but everyone assumes that evidence is required, like the civil rule. Barbi statedthat SFO has limited use in workers comp and is often an abused motion, and othersagreed. Anne thought the rule was fine as it was written, but was likewise curious aboutthe new civil rule would be interpreted. Judge Jacobs remarked that when he practiced infederal court, there were very few civil trials and most cases were decided by summaryjudgment. Everyone agreed they would be interested to see how the new civil rule isapplied, and it was suggested that this issue could be readdressed after there was moreinformation about how the new civil rule was being applied. As for the rule, the consensuswas “less is more” and no action should be taken.

Recommendation: Take no action to amended 60Q-6.120.

Wendy adjourned the meeting at approximately 10:56 AM.

Respectfully submitted,Wendy LoquastoSubcommittee #3 Chair & Scribe

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