Changes to Florida Workers' Comp Rules of Procedure on the Horizon

The Florida Rules of Professional Conduct by Attorneys, Rule 4-1.2 provides in part: "A lawyer shall abide by a client's decision whether to make or accept an offer of settlement of a matter." Attorneys have only the authority to act as directed by their clients; requiring an adjuster to be bound by the signature of his attorney is redundant and seems to imply that attorneys currently agree in writing to a mediation report that has not been authorized by their clients.

The mediator allows the appearance of the adjuster by telephone. To resolve this alleged issue is simply a matter of the mediator confirming the statements in the Mediation Report with all parties before the report is executed by counsels.

2. Disallowing Discovery Within 15 Days of Final Hearing

Another proposed rule that affects the claims handling process is the addition of Rule 6.113(7), disallowing any discovery within 15 days of the final hearing absent prior approval of the judge or by agreement of the parties. This may require doctor depositions to be scheduled earlier in the process of defending a claim than is done currently so as to avoid the necessity of obtaining the judge's approval, especially if the claimant's lawyer objects and will not cooperate in the scheduling of the discovery.

3. Requiring Impeachment and Rebuttal Witness on Pretrial Stipulation

A topic of considerable discussion concerns the proposed change to Rule 6.113, Pretrial Procedure, to require the identification of all witnesses and exhibits, to include impeachment and rebuttal evidence. The current rules explicitly exempt impeachment and rebuttal evidence from having to be disclosed. The claimants' lawyers, including Florida Workers' Advocates, strongly favor this change. According to Deputy Chief Judge Langham, so too does the Florida Bar's Workers' Compensation Rules Advisory Committee.

Defense lawyers object to the proposed change, asking specifically what authority allows it. We are unaware of any case law decision after these rules were adopted on Nov. 1, 2006, that requires any change, nor has there been any change in the statute to warrant a 180 degree reversal to mandate the disclosure of impeachment and rebuttal witnesses.

4. Any Claim or Defense Not Listed on Pretrial Stipulation May be Waived

The final area of significant concern for employers/carriers is Rule 6.113 (2)(a), which proposes that any claim or defense not listed on the pretrial stipulation is waived unless thereafter amended by the judge for good cause shown. This provision appears to conflict with Rule 6.113(5) (formerly 4), which allows witness lists, exhibit lists, supplements, and amendments to the pretrial stipulation to be served greater than 30 days before the final hearing without requiring judicial approval or stipulation of the parties.

The primary objection by the employer/carrier lawyers is that oftentimes the pretrial stipulation is completed at or shortly after the mediation, which occurs shortly after the file is received by defense counsel. Defenses therefore may not develop until later on during the course of discovery. As the rules exist currently, so long as the defense is discovered at least 30 days before final hearing an amendment to the pretrial stipulation may be served without necessity of judicial intervention. Under the proposed rule change, however, an additional defense may only be added by judicial discretion if the judge believes good cause is shown. This appears to be an unnecessary requirement.

5. Written Responses to All Motions May be Required

Also under discussion are proposed changes to Rule 6.115 on motion practice, which if adopted will require a written response to a motion to be served within 15 days. The current rule allows, but does not require, a written response within 10 days of service of the motion. The proposed change would also state that the failure to file a written response shall be construed as a waiver of any objections to the motion. Those objecting to the rule change do not like mandating a written response, and strongly object to having the failure to file a written response considered a waiver of objections without, presumably, the ability to be heard at a live motion hearing.

A copy of the final proposed rules at the time of publication will be made available at www.doah.state.fl.us or www.jcc.state.fl.us.

Mary Ann Stiles, Esquire, is with the law firm of Stiles, Taylor & Grace, P. A. in Tampa. Jack Weiss, Esquire, of the firm contributed to this article. www.stileslawfirm.com.