A Cautionary Note about Abbreviated Final Orders in Workers' Compensation Proceedings
By Tamara R. Wenzel
Effective February 23, 2003 , the Supreme Court of Florida adopted Chapter 60Q, Rules of Procedure for Workers' Compensation Adjudications, as the controlling rules of procedure for workers' compensation proceedings. Likewise, on February 3, 2005 , the Supreme Court of Florida adopted various amendments to the Florida Rules of Appellate Procedure, including Rule 9.180, pertaining to appeals from workers' compensation proceedings. More specifically, Rule 9.180(b)(2), Fla. R. App. P., was amended to provide that, if a timely request is not made for a Judge of Compensation Claims ("JCC") to vacate an abbreviated final order and enter a detailed order, which provides findings of fact and conclusions of law, review by appeal shall be deemed waived. Thus, these changes raise several issues pertaining to the interplay between the rules of procedure for workers' compensation proceedings and appellate review.
Rule 60Q-6.119, Rules of Procedure for Workers' Compensation Adjudications, provides that a party may request that an abbreviated final order be vacated, and a more detailed order be entered, within ten (10) days of the abbreviated final order. Accordingly, when read in conjunction with Rule 9.180(b)(2), Fla. R. App. P., does this mean that a party has only ten (10) days to preserve their right to appeal? Does the JCC have authority to vacate an abbreviated final order when a request is made after the ten (10) day period has expired? Is Rule 60Q-6.119 discretionary or mandatory? Does the five (5) day "mailing rule" apply to the ten (10) day time period? If a party's right to appeal is waived when a detailed order is not requested within ten (10) days, does this amount to an unconstitutional restriction on a party's right to appeal?
First, a party looking to avoid the waiver of appellate review may assert that, since an order does not become final and, thus, reviewable on appeal, until thirty (30) days have passed, the JCC has an implied authority to vacate an abbreviated order within the thirty (30) day period before the order becomes final. However, as part of an administrative agency, the JCC has quasi-judicial authority. See, Farrell v. Amica Mutual Insurance Company, 361 So. 2d 408, 411 ( Fla. 1978). Essentially, the JCC's authority is defined by legislation and supplemented only by rules of practice and procedure applicable to it and adopted by the Supreme Court. See, id. Thus, absent express authority granted to the JCC in statutes or rules, the JCC is without authority. Accordingly, a party can argue that, as the express language of Rule 60Q-6.119 limits the time for requesting that an abbreviated order be vacated, the JCC is bound by this express limitation.
A party may also assert that the use of the word "may" in Rule 60Q-6.119 connotes a discretionary rule. However, why then was the ten (10) day limitation included in the rule at all? Case law has established that use of words such as "may" or "shall" is not dispositive of whether a rule is advisory or mandatory. See e.g., Myles v. State, 602 So. 2d 1278 ( Fla. 1992). Rather, the critical issues to determine whether a provision is mandatory or advisory are legislative intent and the subject matter of the particular provision. See, Schneider v. Gustafson Industries, Inc., 139 So. 2d 423, 425 ( Fla. 1962). As a general rule, a statute that sets the time when a thing is to be done is regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which court jurisdiction depends. See, id. A party wishing to avoid waiver of appellate review can assert that Rule 60Q-6.119, when read alone, does not contain any provision prohibiting a party from seeking a more detailed final order after ten (10) days. Thus, under this argument, the provision would be discretionary or advisory only. However, when read in conjunction with Rule 9.180(b)(2), Fla. R. App. P., jurisdiction of the appellate court rests upon compliance with Rule 60Q-6.119. Accordingly, there is an argument that the provision is mandatory.
Next, a party looking to avoid a waiver of appellate review may raise an argument that the five (5) day mailing rule applies and, thus, when the order is mailed, the party seeking to vacate the abbreviated final order has an additional five (5) days. However, this argument will likely fail. Rule 60Q-6.108(6) reads as follows:
When service of any pleading other than a petition is made by
mail, 5 days shall be added to the time allowed for the performance
of any act required to be done, or allowed to be done, within a
certain time after service. [emphasis added]
This Court has held that an additional five (5) days is only added when performance is required to be done within a certain time of service, not if the act is directed to be completed after rendition or filing of an order or judgment, even though mailing of the order or judgment may have been involved. See, Ocala Geriatric Center v. Davis, 684 So. 2d 228, 229 (Fla. 1st DCA 1997)(citing Bouchard v. Department of Business Reg. 448 So. 2d 1126 (Fla. 2nd DCA 1984)). Accordingly, since Rule 60Q-6.119 limits the time for seeking a more detailed order to ten (10) days from "the date of an abbreviated final order," the time limitation is measured from the date of rendition of the order, not service of the order. Thus, the five (5) day mailing rule does not apply.
Finally, a party may challenge the constitutionality of Rule 60Q-6.119 on the basis that it unreasonably restricts a party's right to appeal. Essentially, a party can argue that the ten (10) day limitation to request a detailed order is an unreasonably short period of time, in light of the impact failing to do so may have on that party's right to appeal. On the other hand, it has been commonly held that procedures designed to establish the procedure or mechanisms for appellate review do not affect an individual's right to appeal. See, e.g., City of Miami v. Murphy, 137 So. 2d 825 (Fla. 1962)(holding statute requiring payment of costs as prerequisite to appeal is not violative of right to appeal as it does not deprive the litigant of right to appeal). Rather, such rules affect the means by which an appeal is handled. Such rules are generally considered to be designed to accomplish the purpose of the particular agency or party involved. Accordingly, it can be argued that the time limitation in Rule 60Q-6.119 is designed to comport with the intent of the workers' compensation system to expeditiously provide benefits to an injured worker.
It is not clear how the interplay of these two (2) provisions will play out. In the meantime, the practitioner should be cautious when dealing with abbreviated final orders. Any practitioner, who intends to appeal a final order, should be sure to timely request that an abbreviated final order be vacated and a more detailed order be entered or take the risk of waiving appellate review. A practitioner may want to consider requesting a detailed order at every final hearing. However, strategically, there may be occasions wherein a practitioner would not want to request a detailed order so that the practitioner can attempt to enforce the waiver argument against an adversary who does wish to appeal the final order, but fails to timely request a detailed order. Regardless, practitioners should be cognizant of the potentially detrimental impact of failing to quickly request that an abbreviated final order be vacated for entry of a detailed order.