Procedural changes for adjudication of workers' compensation claims were implemented in 2003, pursuant to the mandate in section 440.45, Florida Statutes, that the Division of Administrative Hearings adopt procedural rules. ....

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Administrative Hearings

RULE NO.: RULE TITLE:

60Q-6.102: DEFINITIONS

60Q-6.106: CONSOLIDATION AND VENUE

60Q-6.110: MEDIATION, GENERALLY

60Q-6.111: AUTHORITY AND DUTIES OF MEDIATOR

60Q-6.116: PROSECUTION OF CLAIMS AND PETITIONS FOR BENEFITS

PURPOSE AND EFFECT: Procedural changes for adjudication of workers' compensation claims were implemented in 2003, pursuant to the mandate in section 440.45, Florida Statutes, that the Division of Administrative Hearings adopt procedural rules. It is necessary to amend the existing rules to incorporate changes that will improve the adjudicatory process based upon experience in utilizing the existing rules.

SUMMARY: The rules are primarily changed to accommodate the reality of virtual attendance at state mediation, and clarity for the term “venue” in a digital world.

Details include process for rescheduling mediations, transfer to alternative personnel for in-person proceedings as necessary, and use of digital signature software.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 440.45(1)(a), (4)

LAW IMPLEMENTED: 440.192(1), 440.25(1)-(4), 440.29(2), 440.33(1) 440.45(1)(a), (4)

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Loretta Sloan, Deputy Executive Director, at 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; [phone]; or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

60Q-6.102 DEFINITIONS

(1) through (12) No Change.

(13) “Venue” means the geographic district where the parties would gather for a non-virtual hearing or mediation. “Verified” is defined in accordance with section 92.525, F.S.

(14) “Verified” is defined in accordance with section 92.525, F.S.

(15) “Virtual” means any real-time interaction through a video and/or audio system. 

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, 02-14-22, ________.

 

60Q-6.106 CONSOLIDATION AND VENUE

(1) No Change.

(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, unless another number is ordered by the assigned judge, and shall be assigned to the judge then assigned to that lowest case number.

(3) Proceedings in any venue may be conducted virtually, in the discretion of the assigned judge.

(4) (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.

(5) (4) When a judge assigned to a case determines that the case is proceeding in an improper incorrect venue, the judge may transfer the case to the proper venue, and the Deputy Chief Judge, upon request by that judge, shall reassign to a judge in the district where venue is proper. Alternatively, the assigned judge transferring the case may retain jurisdiction and conduct proceedings virtually or live in the proper venue. When transfer of venue occurs, the Deputy Chief Judge shall assign the case.

(6) (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-6.110 MEDIATION, GENERALLY

(1) All petitions and claims pending at the time a mediation conference is held are deemed consolidated and shall will be mediated at that conference.

(2) No Change.

(a) The Deputy Chief Judge shall assign a mediator and mediation date for each petition filed. The state mediation conference may be rescheduled, within the 130-day statutory period, upon mutual request of the parties and agreement of the assigned mediator. The parties shall jointly review the mediator’s calendar online to identify potential alternative dates and times before contacting the mediator with a request to reschedule. 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 rescheduling re-scheduling and not a continuance of the mediation. Upon agreement of the parties, and approval by an alternate state mediator, mediation for the case may be transferred to the alternate state mediator provided any pending mediation is held within the 130-day statutory period. Permission of the mediator from whom it is transferred is not necessary. The alternate state mediator shall be responsible for placing the mediation on the alternate state mediator’s calendar.

(b) After the state mediation has been noticed on the 40th day following the filing of the earliest petition for benefits awaiting mediation, Tthe state mediation shall not be continued, or transferred by the parties to an alternate state mediator, for a mediation beyond the 130-day statutory period, 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 demonstrating that the basis for the continuance, or transfer, 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, unless the mediation notice is sent to the parties less than 30 days prior to the noticed mediation.

(c) Any party that moves for, or stipulates to, reassignment to an alternate mediator for the purpose of effectuating a live mediation shall attend that mediation live or the party’s attorney shall attend live. No mediator shall allow telephonic attendance for any lawyer or party that has stipulated or moved for reassignment on the basis of facilitating a live mediation.

(c) The state mediation conference may be re-scheduled, within the 130-day statutory period, upon mutual request of the parties and agreement of the assigned mediator.

(d) Digital signature software may be used to execute mediation documents, including mediation conference reports and settlement agreements.

(e) (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) No Change.

(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. The preparation and filing of this pleading are not the responsibility of the mediator.

(5) State mediations shall presumptively be conducted virtually on a video platform. The assigned mediator shall appear by video for video mediations. Unless the notice of mediation includes the login or call in information for the mediation, the assigned mediator is responsible for providing that information to all parties or counsel. The assigned mediator may allow telephonic appearance at any video mediation. 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 video or live attendance of the party. No party shall appear at the mediation conference by telephone, whether mediation is live or virtual, 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 live or virtual mediation by phone unless an objection is filed with the mediator on the basis of good cause. The parties may agree, in writing, that any party may appear telephonically. In the absence of such agreement, the The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the live or virtual mediation conference by telephone, except as provided in (2)(c). The party requesting an appearance by telephone must furnish a 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. Each party and attorney attending a virtual mediation is responsible to have adequate computer hardware, signal strength, internet bandwidth, and premises with/from which to attend mediation.

(b) Any person attending mediation telephonically virtually 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, except when the outcome is an impasse, attended telephonically is not concluded until the signed agreement report is returned to the mediator. The signed agreement report shall be returned within 72 hours by the end of the business day unless excused by the mediator.

(c) Any party appearing virtually has stipulated to be bound by that party’s attorney of record’s signature on the mediation report. The parties may not object to the enforceability of a mediation agreement on the ground that communication technology was used for participation in the mediation.

(6) No Change.

(7) Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a mediation agreement report stating which issues or claims in dispute are resolved and which remain unresolved. The mediation agreement report shall identify by filing date each petition mediated. In the case of private mediation, the claimant shall file with the judge within five business days of the mediation conference the mediator’s mediation agreement report and mediation settlement agreement, if any. Signatures of the parties on the signed mediation report may be an original, electronic signature by means approved by the Deputy Chief Judge, or facsimile and signatures may be on different copies of the agreement report.

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, 02-14-22, __________.

 

60Q-6.111 AUTHORITY AND DUTIES OF MEDIATOR

(1) Authority of Mediator.

(a) No Change.

(b) The mediation shall be virtual unless the parties have received approval for a live mediation.  Any party seeking a live mediation in a district office may request same from the assigned mediator no later than 30 days before the date of the scheduled state mediation. The mediator’s decision to hold a live mediation may result in reassignment to a different mediator. Any request for non-virtual mediation in a location other than a district office shall be by motion directed to the Deputy Chief Judge.

(c) (b) The mediator may meet and consult privately with any party or parties or their counsel during the mediation.

(d) (c) Upon written request of any mediator, or upon a motion filed in the case and directed to the Deputy Chief Judge, 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) through (4) No Change.

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-6.116 PROSECUTION OF CLAIMS AND PETITIONS FOR BENEFITS

(1) through (3) No Change.

(4) The judge may conduct any proceedings using video teleconference equipment, platforms, or applications approved by the Deputy Chief Judge 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 an in-person hearing or mediation, instead of a video teleconference proceeding, may be granted upon a showing of good cause.

(5) No Change.

(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. In the event such a change to “inactive” is erroneous, the assigned judge may issue an order vacating the prior order and restoring the case to “active.”

(7) through (12) No Change.

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, 02-14-22, __________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: David Langham, Deputy Chief Judge of Compensation Claims.

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Brian Newman, Acting Director and Chief Judge.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 28, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 29, 2022; September 30, 2022.