Florida has a fairly stringent set of requirements for specificity in a workers' compensation petition. Those requirements are sometimes a complication in specific instances. Recently, a registered user voiced concerns about two seemingly conflicting statutory requirements, and the potential for effecting prejudice. This seems like a subject upon which more than this one inquirer might benefit from an explanation of both the law and the Florida Office of Judges of Compensation Claims' (OJCC) electronic filing process.
When an employee believes that she/he is entitled to a benefit "that is ripe, due, and owing," the employee may file a petition for benefits. Section 440.192 Fla. Stat. All such petitions shall be reviewed by the OJCC, and shall be dismissed if "such petition does not on its face specifically identify or itemize . . .." Then follows a significant list of information. First on the list is:
(a) Name, address, telephone number, and social security number of the employee.
This requirement seems simple enough. However, there is an apparent conflict with Chapter 119, Fla. Stat., which periodically is raised. Chapter 119 governs "public records." The specifics are spelled out in Section 119.071(4)(d) Fla. Stat. exempting "the home addresses, telephone numbers, dates of birth, and photographs" of certain individuals from disclosure through the public records law.
The list of those entitled to such protection is extensive. It includes "active or former" personnel in certain occupations. It also includes confidentiality for the "spouses and children of such personnel; and the names and locations of schools and daycare facilities attended by the children of such personnel." A summary of the extensive list of covered occupations and positions is at the end of this post.
All petitions for benefits filed by employees pursuant to Section 440.192 Fla. Stat. are displayed in the online OJCC docket related to that particular case. It would be inappropriate to display such a petition if it included the home address or telephone number of the employee protected pursuant to Section 119.071(4)(d) Fla. Stat. Therefore, the Office of Judges of Compensation Claims offers the filing employee the opportunity to submit the information required by Section 440.192 Fla. Stat. but to prevent its disclosure.
All petitions for benefits filed by employees pursuant to Section 440.192 Fla. Stat. are displayed in the online OJCC docket related to that particular case. It would be inappropriate to display such a petition if it included the home address or telephone number of the employee protected pursuant to Section 119.071(4)(d) Fla. Stat. Therefore, the Office of Judges of Compensation Claims offers the filing employee the opportunity to submit the information required by Section 440.192 Fla. Stat. but to prevent its disclosure.
The employee may check the box claiming entitlement to an exemption from disclosure, under Chapter 119, illustrated in the screenshot of the petition filing process of the OJCC electronic filing system ("e-JCC"). When an employee checks this box, the data regarding name, address, and phone number will still be gathered by the filing system and maintained in the records of the OJCC. However, the document that is created, the electronic petition for benefits ("e-PFB") will not display that information.
This is where the rub occasionally occurs. Periodically an attorney will file a motion (motions are the best way to seek relief, see Rule 60Q6.115(1)) seeking dismissal of the PFB. The grounds stated will be the absence of the address and telephone number on the face of the petition. The moving attorney will cite as authority Section 440.192 Fla. Stat. and Rule 60Q-6.107(1):
(1) A petition that does not contain the information required by Section 440.192(2) through (4), F.S., shall be dismissed.
And, of course, there are a variety of good reasons that an employee's address may be needed (such as mailing the employee a check for missed work, providing the legally required informational brochure, etc.). Thankfully, very few such motions are filed each year. The majority of attorneys, employers, and carriers, are cognizant of the Section 119.071(4)(d) Fla. Stat. requirements and do not file motions to dismiss on the grounds of a non-displayed address and telephone number.
Nonetheless, such motions are periodically filed. A judge, confronted with such a motion, would have to decide whether a petition should be dismissed in light of the broad requirement of specificity counterbalanced by the specific statutory protection regarding disclosure. Of course, this decision is up to the assigned judge, and is made on a case-by-case basis. The balance would likely include consideration of whether the absence of information on a particular petition in a particular case, in which Section 119 provides protection, results in some actual prejudice to the employer/carrier.
Some contend that such "disclosure" issues are best addressed by applying the Florida Supreme Court's decision in Binger v. King Pest Control, 401 So.2d 1310 (1981). There a legal requirement of disclosure (of witnesses) was analyzed. Despite the requirement for disclosure, a trial court allowed a party to present an undisclosed witness. The opposing party objected, citing the law and that it was surprised and thus inappropriately prejudiced. The Court declined to delineate a bright-line test, holding it is best to leave such "disclosure problems to the broad discretion of the trial judge and focuses on prejudice."
That analysis recognizes that parties in litigation have conflicting interests and obligations. Disclosure may be generally necessary and appropriate, but there may be instances in which exceptions are appropriate. Thus, when the two statutes seemingly conflict the OJCC has defaulted to requiring the provision of the information, but has declined to publish it. And, then it is up to the parties to seek relief, explain their reasons, and convince the assigned judge whether disclosure is appropriate or not in that particular case.
Though there is reference here to Binger, it is the responsibility of the parties to define their legal disputes and provide the judge with authority (statutes, appellate cases, or even trial orders). In Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986), the court explained that pleading and proving issues is up to the parties. The parties are to bring their disputes and explain their legal authority, and the judge's responsibility is to decide them. It is not the judge's responsibility (nor this blog's) to do the parties' research or define their disputes.
Exempted positions from Section 119.071(4)(d) Fla. Stat.
Law enforcement personnel, correctional and probation officers, certain state agency investigators, firefighters, judges, state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors, general magistrates, special magistrates, judges of compensation claims, administrative law judges, human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district, code enforcement officers, guardians ad litem, juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superintendents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors, public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; county tax collectors; certain personnel of the Department of Health, impaired practitioner consultants emergency medical technicians or paramedics, employees of agency’s office of inspector general or internal audit department.
Nonetheless, such motions are periodically filed. A judge, confronted with such a motion, would have to decide whether a petition should be dismissed in light of the broad requirement of specificity counterbalanced by the specific statutory protection regarding disclosure. Of course, this decision is up to the assigned judge, and is made on a case-by-case basis. The balance would likely include consideration of whether the absence of information on a particular petition in a particular case, in which Section 119 provides protection, results in some actual prejudice to the employer/carrier.
Some contend that such "disclosure" issues are best addressed by applying the Florida Supreme Court's decision in Binger v. King Pest Control, 401 So.2d 1310 (1981). There a legal requirement of disclosure (of witnesses) was analyzed. Despite the requirement for disclosure, a trial court allowed a party to present an undisclosed witness. The opposing party objected, citing the law and that it was surprised and thus inappropriately prejudiced. The Court declined to delineate a bright-line test, holding it is best to leave such "disclosure problems to the broad discretion of the trial judge and focuses on prejudice."
That analysis recognizes that parties in litigation have conflicting interests and obligations. Disclosure may be generally necessary and appropriate, but there may be instances in which exceptions are appropriate. Thus, when the two statutes seemingly conflict the OJCC has defaulted to requiring the provision of the information, but has declined to publish it. And, then it is up to the parties to seek relief, explain their reasons, and convince the assigned judge whether disclosure is appropriate or not in that particular case.
Though there is reference here to Binger, it is the responsibility of the parties to define their legal disputes and provide the judge with authority (statutes, appellate cases, or even trial orders). In Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986), the court explained that pleading and proving issues is up to the parties. The parties are to bring their disputes and explain their legal authority, and the judge's responsibility is to decide them. It is not the judge's responsibility (nor this blog's) to do the parties' research or define their disputes.
Exempted positions from Section 119.071(4)(d) Fla. Stat.
Law enforcement personnel, correctional and probation officers, certain state agency investigators, firefighters, judges, state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors, general magistrates, special magistrates, judges of compensation claims, administrative law judges, human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district, code enforcement officers, guardians ad litem, juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superintendents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors, public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; county tax collectors; certain personnel of the Department of Health, impaired practitioner consultants emergency medical technicians or paramedics, employees of agency’s office of inspector general or internal audit department.
