A Primer on Workers’ Compensation Appeals
For the appellate practitioner who only occasionally has a workers’ compensation case land on his or her desk, the handling of an appeal from a judge of compensation claims (JCC) can seem daunting. The Rules of Appellate Procedure apply as they normally do in appeals of civil cases, except as specifically modified in Rule 9.180.1 This article will provide the practitioner unfamiliar with the intricacies of a workers’ compensation appeal with assistance in undertaking such an endeavor. It will also provide insight to experienced workers’ compensation appellate practitioner.
The Workers’ Compensation Law in Florida was established in 1935.2 At that time, the Florida Legislature created the Florida Industrial Commission (FIC), a three-member body that was originally designed to serve as the appellate tribunal for workers’ compensation cases.3 However, until deputy commissioners were hired to serve as trial judges in 1939, the FIC actually heard all the cases. After 1939, the FIC served for the next 30 years as the appellate tribunal in workers’ compensation matters.4 Initially, review of FIC decisions was by the circuit court and the Florida Supreme Court. From 1953 to 1956, review of FIC decisions was presented to the supreme court by a writ of certiorari. For a brief period between 1956 and 1959, certiorari review of FIC decisions was shifted to the district courts of appeal. But in 1959, the legislature returned jurisdiction to the supreme court to review FIC decisions by writ of certiorari.5
In 1969, the FIC was replaced by the Industrial Relations Commission (IRC). The deputy commissioners were renamed “judges of industrial claims.”6 The supreme court adopted the first workers’ compensation rules of procedure in 1973.7 Then, in 1979, the judges of industrial claims were renamed “deputy commissioners,” though no commission was reestablished (they would become judges again, renamed judges of compensation claims, in 1989).8 The IRC was abolished, and decisions by deputy commissioners were now to be reviewed by direct appeal to the First District Court of Appeal, without any administrative review process. This remains the procedure today.9
You have been asked to appeal an order from a judge of compensation claims. The appeal will be heard by the First DCA, which has statewide jurisdiction over workers’ compensation claims.10 Prior to January 1, 1997, a practitioner would have had to review both the Florida Rules of Appellate Procedure and Rules 4.160 to 4.280 of the Florida Rules of Workers’ Compensation Procedure to know how to proceed. Since January 1, 1997, the Florida Rules of Appellate Procedure apply in workers’ compensation appeals, except as modified by Rule 9.180.11
The First DCA shall review by appeal any final order issued by a JCC.12 The First DCA also has jurisdiction over appeals of all nonfinal orders of JCCs that adjudicate jurisdiction or venue. Finally, the First DCA has jurisdiction to review a nonfinal order on compensability, but only if the JCC certifies that the determination of the exact nature and amount of benefits due to the injured worker will require substantial expense and time.13
To begin the process, the appellant must file two copies of a notice of appeal with the JCC that issued the order within 30 days of the date the order was mailed,14 accompanied by the filing fee. The filing fee may be waived if the notice of appeal is accompanied by a verified petition for relief from payment of the fee or a motion of indigency under F.S. §57.081(1) (2005).15 In addition, an employer who has not secured the payment of workers’ compensation in accordance with F.S. §440.38 (2005)16 is required to file a bond, as provided under F.S. §59.13 (2005), sufficient to pay the amount of the demand and any interest and costs payable under the terms of the order if the appeal is dismissed or if the First DCA affirms the award.17 If the employer fails to file such a bond with the notice of appeal, the First DCA shall dismiss the notice of appeal.18
The notice of appeal must be filed within 30 days of the date the order was mailed by the JCC, even if a motion for rehearing has been filed. The filing of a motion for rehearing does not toll the time within which an appeal must be filed.19 If the JCC has entered an abbreviated final order — one that does not contain separate findings of fact and conclusions of law — then a timely filed request for the JCC to issue separate findings of fact and conclusions of law will toll the time within which an appeal may be filed.20 Otherwise, the abbreviated final order will stand, and any appeal of that order will be deemed waived.21
Assuming you have an appealable order, and you are going to file a notice of appeal, the notice must be substantially as prescribed by Florida Rules of Appellate Procedure Form 9.900(a), and substantially include the following:
I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment:
1. Compensation for … (TTD, TPD, wage loss, impairment benefits, PTD, funeral benefits, or death benefits)… from…(date)…to…(date)….
2. Medical benefits.
4. Reimbursement from the SDTF for benefits paid from…(date)…to…(date)….
5. Contribution for benefits paid from…(date)…to…(date)….22
It is important to specify with care the benefits that are affected by the appeal, especially if you represent the employer and carrier, because only those benefits specifically referenced in the notice of appeal may be withheld from the injured worker pending the outcome of the appeal.23 Other benefits must be paid as required by law, even during the pendency of the appeal.24 If during the appeal the appellant or cross-appellant fails to argue entitlement to benefits that were listed in the notice of appeal, the challenge to those benefits is considered abandoned, and the benefits must be paid within 30 days of the service of the brief, plus interest from the date of the JCC’s order.25
If the appeal involves a final order, after the notice of appeal is filed, the JCC oversees the preparation of the record on appeal. The record must contain the claim(s) or petition(s) for benefits, notice(s) of denial, pretrial stipulation, pretrial order, depositions or exhibits admitted into evidence, transcripts of any hearings before the JCC, and the order appealed.26 The parties may designate other items to include or exclude from the record on appeal, in accordance with Florida Rule of Appellate Procedure 9.200.27 The JCC or deputy chief judge of compensation claims selects the reporter to transcribe the record, though any party may object within 15 days of the selection, and the selecting judge shall hold a hearing within five days after the objection is filed.28 The appellant must pay the estimated costs of the record on appeal within 15 days of the judge’s serving notice of those costs.29 However, an appellant may file a verified petition of insolvency to be relieved in whole or in part of the responsibility for paying for the costs of the record.30 If the JCC grants the petition of insolvency, the Workers’ Compensation Administration Trust Fund may be ordered to pay the initial cost for preparing the record, but that cost will be taxed to the appellee if the appellant succeeds on appeal.31
The JCC has 60 days after the notice of appeal is filed to transmit the record on appeal to the First DCA.32 If a petition of insolvency is filed, the 60-day deadline does not run until after the JCC has decided the petition on its merits.33 Moreover, for good cause, the JCC may extend by no more than 30 days the time for filing the record on appeal with the First DCA, and the First DCA itself may grant additional time for filing the record.34
Once the JCC has certified the record on appeal to the First DCA, the appellant has 30 days to serve the initial brief.35 All additional briefs are served pursuant to Florida Rule of Appellate Procedure 9.210. If the order on appeal is a nonfinal order, then the initial brief, along with an appendix per Florida Rule of Appellate Procedure 9.220 (in lieu of a formal record), is served within 15 days of the notice of appeal.36 The First DCA will not entertain any motions to strike a brief or portions of a brief. Instead, a party may, in its own brief, call to the First DCA’s attention a breach of the appellate rules. If that party is not authorized to serve any additional responsive briefs, the party may file a suggestion of noncompliance.37
Attorneys’ fees may be awarded for the successful prosecution of an appeal if a motion for attorneys’ fees stating the grounds upon which the recovery of fees is sought is served no later than the time for service of the reply brief.38 F.S. §440.34(5) (2005) allows the attorney for an injured worker to be paid a fee by the employer or carrier for any proceedings in review of any claim, award, or compensation order before any court, as that court may direct. For injuries on or after October 1, 2003, a JCC may only award a claimant attorneys’ fee based on the value of the benefits secured, pursuant to a sliding fee scale, and not based on the hours the attorney expended in pursuing the claim.39 It appears, however, that hourly fees for appellate work are still available, because while Florida Rule of Appellate Procedure 9.180(i)(3) provides the JCC with jurisdiction to conduct hearings and consider evidence regarding the amount of the appellate fee to be awarded after the mandate issues, the appellate fee is paid as the First DCA directs. Review of the amount of an appellate fee is by motion filed with the First DCA.40
Under current law, the First DCA is the sole arbiter of workers’ compensation appeals, except for rare supreme court review, and the procedures are well established in the Rules of Appellate Procedure. In the last two decades, however, there have been numerous revisions to the Workers’ Compensation Law. Though never enacted, there have been proposals to recreate the IRC, to establish a Workers’ Compensation Appeals Commission, or even to assign a nonrotating panel of judges within the First DCA to hear workers’ compensation appeals.41 Will it be “back to the future” for workers’ compensation appeals? Or is there a better way to improve the system while furthering consistency in the appellate process?
For a brief period, 1956 to 1959, the district courts of appeal had certiorari jurisdiction to review the decisions of the FIC. Perhaps there would be benefits in again allowing the other four district courts of appeal to become involved in the review of workers’ compensation cases. After all, the First DCA does not have exclusive jurisdiction over Ch. 120 of the Administrative Procedure Act. Instead, appellate jurisdiction in an administrative action is generally premised on the location of the agency office or where a party resides.42
Similarly, workers’ compensation jurisdiction could be based on the location of the 17 district offices. Though there would not necessarily be the same quantity of district offices assigned to each DCA, the resulting caseloads may well be comparable. If not, the appellate jurisdiction of the individual DCAs could certainly be adjusted; for example, appeals from the Ft. Myers district could be directed to the Third DCA instead of the Second DCA. allowing all DCAs to hear workers’ compensation cases, the workers’ compensation jurisprudence will undoubtedly be enhanced through the diversity of viewpoints in the central and southern regions of the state, where the vast majority of Florida’s population resides. Also, permitting a DCA to review the cases arising within its boundaries would improve both the workers’ and employers’ access to the appellate process, lessening the costs that may be required to appear before the First DCA in Tallahassee when the parties are located in a distant district.43 In an era of increasing specialization among legal practitioners, the DCA judges remain generalists, hearing cases in every field, with the exception of workers’ compensation. Perhaps it is time to change this system, to allow the talents of all of our DCA judges to contribute to the body of workers’ compensation law.
1 Fla. R. App. P. 9.180(a).
2 Fla. Laws, Ch. 17481, §1 (1935) created the “Workmen’s Compensation Law.” The title was changed to “Workers’ Compensation Law” by Fla. Laws, Ch. 79-40, §1. The law is currently codified at Fla. Stat., Ch. 440 (2005).
3 Creston Nelson-Morrill, Workers’ Compensation in Florida 1935-1995: The History, People & Politics 175-76(1995).
4 Id. at 176, 178-79.
5 Id. at 177.
6 Id. at 178-79.
7 In re Florida Workmen’s Compensation Rules of Procedure, 285 So. 2d 601 (Fla. 1973). The Florida Supreme Court has since repealed the Workers’ Compensation Rules of Procedure, holding that JCCs constitute an executive branch agency and, thus, the supreme court does not have jurisdiction to promulgate rules for the JCCs. Amendments to the Florida Rules of Workers’ Compensation Procedure, 891 So. 2d 474 (Fla. 2004).
8 See Nelson-Morrill at 183-84.
9 Fla. Laws, Ch. 79-312, §1, p. 1646 (1979); Fla. Stat. §440.271 (2005).
10 Fla. Stat. §440.271 (2005).
11 Amendments to Florida Rules of Appellate Procedure, 685 So. 2d 773, 776-77 (Fla. 1996).
12 Fla. R. App. P. 9.180(b)(1).
14 Fla. R. App. P. 9.180(b)(3). But note that in Thompson v. Park Place of Venice, Inc., 888 So. 2d 47 (Fla. 1st D.C.A. 2003), the appellate court did not dismiss an appeal where the notice of appeal was timely filed with the wrong JCC and not transferred to the correct JCC until after the time to file an appeal had run.
15 Fla. R. App. P. 9.180(b)(3) and 9.180(g)(2)(A).
16 Fla. Stat. §440.38 (2005) provides that every employer shall secure the payment of compensation under Ch. 440 either by insuring and keeping insured the payment of workers’ compensation with any stock or mutual company or association or exchange authorized to conduct business in the state, or by furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association, Inc., that it has the financial strength necessary to ensure timely payment of all current and future workers’ compensation claims.
17 Fla. Stat. §440.25(5)(c) (2005).
19 Fla. Admin. Code R. 60Q-6.122(3).
20 To be timely, a party must file the motion to vacate an abbreviated final order within 10 days from the date the abbreviated final order was entered. Fla. Admin. Code R. 60Q-6.119.
21 Fla. Admin. Code R. 60Q-6.119 and Fla. R. App. P. 9.180(b)(2).
22 Fla. R. App. P. 9.180(b)(4).
23 Fla. R. App. P. 9.180(d).
25 Fla. R. App. P. 9.180(d)(1), (2).
26 Fla. R. App. P. 9.180(f).
27 Fla. R. App. P. 9.180(f)(1), (8).
28 Fla. R. App. 9.180(f)(6)(A), (B).
29 Fla. R. App. 9.180(f)(5)(A), (B).
30 Fla. R. App. P. 9.180(g)(3). Note that Rule 9.180(g)(3)(D) says the financial affidavit is to be in a form substantially the same as form 4.9125 of the Rules of Workers’ Compensation Procedure, which have been repealed. The practitioner is advised to consult the Office of the Judges of Compensation Claims Web site, where a current version of the form may be obtained.
31 Fla. R. App. P. 9.180(g)(3)(I), (J).
32 Fla. R. App. P. 9.180(f)(6)(D).
33 Fla. R. App. P. 9.180(g)(3)(G), (H).
34 Fla. R. App. P. 9.180(f)(7).
35 Fla. R. App. P. 9.180(h)(1).
36 Fla. R. App. P. 9.180(h)(2).
37 Fla. R. App. P. 9.180(h)(3).
38 Fla. R. App. P. 9.180(i)(2); Fla. R. App. P. 9.400(b). See also Joseph Land & Co. v. Green, 486 So. 2d 87 (Fla. 1st D.C.A. 1986) (prohibiting injured worker’s attorney from charging his client any fee for the appeal where the attorney negligently failed to protect the injured worker’s right to recover from the employer or carrier by timely filing a motion for attorneys’ fees).
39 Fla. Stat. §440.34(1) (2005). At the time of this writing, though, there is a case pending before the supreme court challenging the constitutionality of the attorney fee statute. See Lundy v. Four Seasons Ocean Grand Palm Beach, 31 Fla. L. Weekly D1663 (Fla. 1st D.C.A. June 20, 2006).
40 Fla. R. App. P. 9.180(i)(4).
41 See Nelson-Morrill at 83, 87, 99, 111, and 116.
42 Fla. Stat. §120.68(2)(a)(2005) (“Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”).
43 Though the First D.C.A. utilizes video teleconferencing equipment, see Fla. Stat. §440.2715 (2005), to allow practitioners to appear for oral argument from a remote location closer to their practice, as one who has handled oral arguments both before the First D.C.A. in person and via video teleconferencing, there really is no substitute for a live oral argument.
Jack A. Weiss is a shareholder in the St. Petersburg office of Fowler White Boggs Banker, P.A. He is board certified in workers’ compensation law, practicing in the areas of workers’ compensation defense and appellate law. He earned his B.A. in political science in 1987, J.D. with honors in 1990, and LL.M. in taxation in 1992 from the University of Florida. Following the completion of the LL.M. program, he clerked for Judge Bobby W. Gunther at the Fourth District Court of Appeal during the court’s 1992-1993 term.
This column is submitted on behalf of the Appellate Practice Section, Susan W. Fox, chair, and Tracy R. Gunn, Kristen A. Norse, and Heather M. Lammers, editors.