In 2009, Martin Leibowitz and I composed an article that The Florida Bar Workers' Compensation Section was gracious to publish in its quarterly News and 440 Report. It is an overview of the complex challenges that can occur when an administrative judge finds her/himself with no further tools to deploy as regards the proceedings. Unfortunately, the Section website no longer includes that issue. A copy of "Enforcement of the Compensation Judge's Order, Certification of Contempt, and Rule Nisi, a Practitioner's Roadmap" does still persist elsewhere on the Internet however.
The article notes that "JCCs have no inherent judicial authority." Thus, the tools at a JCC's disposal are those afforded by statute. The Florida courts have been quick to remind judges of that over the decades, as noted in cases such as Millinger v. Broward County Mental Health & Risk Mgmt., 672 So. 2d 24 (Fla. 1996); Pace v. Miami-Dade County Sch. Bd., 868 So. 2d 1286, 1287 (Fla. 1st DCA 2004); Pruden v. Herbert Contrs., Inc., 988 So. 2d 135 (Fla. 1st DCA 2008). Judges of Compensation Claims have only the authority that the statute conveys.
Perhaps the most discussed power that JCCs lack is contempt. Contempt is a frequent Hollywood trope in which a judge penalizes some participant in a proceeding. Across the country, I have heard many discussions about the enforcement of order in workers' compensation proceedings and the near-universal absence of contempt powers. The article cited above provides an overview of "direct" and "indirect" contempt. Suffice it here to say that contempt proceedings do not generally proceed as we have all become accustomed to seeing on television. Each type requires notice to the party against whom contempt action is sought and is more involved than Hollywood might have us believe.
The article notes that in either instance occurring within a workers' compensation proceeding, the conclusions and memorialization of action or inaction leading to those conclusions should be written in a "Certification Order." This order describes "what is so." This is the description of what has or has not occurred, its relevance, and/or implications. The purpose of the order is to inform the reader, including the Circuit Court, of the action or inaction. The article advises that "the assigned JCC should submit a copy of that 'Certification Order' to the Chief Judge of the Circuit in which the JCC's district office is located."
This is a "should," in a journal article. That sentence has caused some consternation over the years. Of note, the Judge of Compensation Claims' authority to enforce order in proceedings comes from section 440.33(1). That says that the JCC "may preserve and enforce order during any such proceeding." It further empowers the issuance of subpoenas, administration of oaths, compelling attendance of witnesses, and more. The second paragraph of section 440.33 provides the "certification" authority discussed above.
That language is more compulsory, using "shall" not "may." This section says that when there is obstruction, neglect, failure to comply with an order or subpoena, or refusal to appear or testify, then "the judge of compensation claims shall certify the facts to the court having jurisdiction in the place in which it is sitting." (Emphasis added). There is no "or else" accompanying this "shall," and so it may be a more strong direction from the statute. But, it is similarly still perhaps discretionary with the Judge. What does certify mean? Is the issuance of the Order the end of that responsibility, or must it be transmitted by the judge to the Court?
For more on mandatory or directory use of "shall," see Allied Fid. Ins. Co. v. State, 415 So. 2d 109 (Fla. 3rd DCA 1982); Shands Teaching Hosp. & Clinics, Inc. v. Sidky, 936 So. 2d 715 (Fla. 4th DCA 2006). In workers' compensation, "shall" has been interpreted as both only "directory" and as "mandatory," depending on context. Izaguirre v. Beach Walk Resort/Travelers Ins., 272 So. 3d 819, 820 (Fla. 1st DCA 2019)("where the use of the word 'shall' is accompanied by a penalty for failure to comply, a reading of the statute 'leads inevitably to the conclusion that the provision is not amenable to an exercise of discretion.'"); but see Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla. 1976)("hearing shall be conducted by a judge of industrial claims, who shall within thirty days unless otherwise agreed to by the parties after such hearing determine the dispute in a summary manner.").
The distinction appears clear as regards consequence or penalty, but it is more subtle perhaps. Without any such penalty, the Court has interpreted the provisions of section 440.13(9)(c), Fla. Stat. regarding the appointment of an Expert Medical Advisor nonetheless mandatory. See Palm Springs General Hosp. v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997). It is the context of the "shall," and that may be subtle. Thus, to some, the "shall" in section 440.33(2) might seem "mandatory" in context, and to others appears merely "directory." However, even if "mandatory" the question of whether that mandates entry of an order or something more remains a valid inquiry.
Once a Judge enters the "Certification Order," what is the next step in the process? In the few years I have been in this system, I can recall only considering contempt once. As I remember it, I entered the "Certification Order" and served it on the parties. I am fairly certain that I also mailed a copy to the Circuit Court, though my recollection is that the Clerk was the addressee. However, it seemingly remains up to the party seeking relief to either convince the assigned JCC to send that copy to the courts, or to send it themselves.
Is there an obligation for this Office to proceed further, beyond the issuance of the "Certification Order?" Some read section 440.33(2) as perhaps somehow making this Office prosecutor of that drive to "punish such person" in the Circuit Court. And yet, the statute does not necessarily explicitly say this. There is no suggestion that this Office would or should file an action in Circuit Court or otherwise pursue the charges of contempt beyond the plain directive "shall certify the facts to the court having jurisdiction in the place in which it is sitting." Thus, whether the "shall" refers merely to the entry of the order or to its transmittal to the Court, the "shall" seems to stop there.
As a side note, any party can seek appellate court action to require the performance of a ministerial act. The process for such a request is the extraordinary writ of mandamus. This is described in City of Coral Gables v. State ex. rel. Worley, 44 So. 2d 298 (Fla. 1950). But, that appellate process would perhaps be a time-consuming and expensive methodology to seek to require the trial judge to send a copy of the "Certification Order" to the Circuit Court (this presumes the appellate court would agree that the "shall" extends beyond the entry of the order itself; a good argument can be made that "shall" only means an order will be entered). A party might find it far less burdensome to transmit or file that order with the Court, rather than seek such an extraordinary requirement.
Who ultimately decides what process or procedure is employed in effectuating section 440.33(2)? The answer is the same as with all other decisions. The parties to a case, or an objecting non-party perhaps, have the duty to bring their dispute or request before the assigned judge. The burden lies upon the party or parties to persuade the judge to action that it/he/she/they seek(s). Whether to take such action, be it mailing the order to the Circuit Court or more, is up to the assigned judge. It is her/his function to hear the arguments, consider the facts and law, and render a decision as to how to proceed.
Ultimately, when one is dissatisfied with the Judge's decision, the only paths to changing it are through a motion for rehearing or clarification, Rule 60Q6.122, or through seeking relief in the appellate court. That does not mean there are not other paths to the enforcement of the trial judge's "Certification Order." In the event that the trial judge will not send such an order to the Circuit Court, the party seeking contempt may certainly transmit that order to the Court, or even file a civil action in the Circuit Court to seek enforcement. The subject is challenging, as are many in the law. The path may be different in various circumstances and with various judges.
