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Langham: Final or Not?

  • State: Florida

There is a recurring challenge in Florida workers' compensation: the finality of a "final" order. The topic seemingly frustrates the most seasoned attorneys periodically, and the challenge relates to the nature of workers' compensation.

Judge David Langham

Judge David Langham

There are statutory provisions that will close a workers' compensation case forever. However, workers' compensation is different from many other types of civil cases in Florida because they may proceed over long periods of time in a serial nature. 

The Florida First District Court has reminded periodically that "workers' compensation proceedings are, of necessity, often serial in nature." There may be issues tried in a particular hearing while other issues or benefits are not ready for adjudication. This may present questions regarding such issues as "'res judicata,' prevailing party costs," and more.

The lack of finality might be caused by doubt regarding what issues are or are not ripe for a particular trial. The court has cautioned that because "workers' compensation matters can result in numerous hearings relating to a single accident and injury, the parties cannot simply ignore outstanding issues when they attend final hearings." The law may result in an issue being "waived" if it is ripe for hearing and yet not raised at that trial. 

The Rules of Appellate Procedure acknowledge there are similarities and differences. Rule 9.180 (a) says "Appellate review of proceedings in workers’ compensation cases shall be as in civil cases except as specifically modified in this rule." Thus, workers' compensation cases are similar to "civil cases," but warrant specific rules. 

That rule, sub-paragraph (b) defines the jurisdiction (authority) of the court. This is limited to a (1) "final order" or "any nonfinal order of a lower tribunal that adjudicates": (A) "jurisdiction" or (B) "venue."

Thus, an order concluding the lower tribunal (Office of Judges of Compensation Claims) does or does not have jurisdiction (authority), or an order determining the place where trial will occur (venue) are subject to appeal. 

The appropriate venue for trial of a case is of particular interest. The court has concluded that if a trial is conducted in the wrong venue, the judge there "lacked jurisdiction to hear the claim." Thus, the decision in that case was reversed and a new trial was ordered.

Additionally, there is a third non-final order that may be reviewed by the court, despite being non-final. These are orders that determine compensability. However, this is a more narrow exception to the general requirement that orders must be final. For a non-final order that adjudicates compensability to be reviewable, the order must: 

"[E]xpressly find an injury occurred within the scope and course of employment and that claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time." 

That must be an "express" conclusion of the judge of compensation claims. In Cadco Builders, Inc. v. Roberts, the court said that the judge noted he "gave consideration to the substantial amount and variety of benefits in dispute." Thus, the judge made a reasonably clear acknowledgement that the issues were somewhat complex.

The court concluded though that "he did not, however, expressly certify that determination of those benefits will require substantial expense and time." 

The court explained that review of non-final ("interlocutory") orders are seen as a "waste (of) court resources," and a cause of delay. Therefore, they are not viewed favorably (by that, the court implies they will be examined critically). Because of those concerns, the court there held that the order must contain "a certification which clearly conforms to the prerequisites of the rule."

The absence of that clear and precise certification, rendered the order non-final. As it was not final and not within the rule's exceptions for specific non-final orders, the order was not appealable. It was therefore dismissed. 

This arises sometimes when the parties seek to have the judge of compensation claims "bifurcate" the issues in a case. The suggestion is sometimes that if some threshold claim or defense is adjudicated, then the remaining issues may become clearer to the parties. For example, if the question of whether the worker was or was not an employee of the particular employer, or, if the employee was in the course and scope of employment when the injury occurred. 

That the parties may agree to such a bifurcation, or that a judge may order it, may present tacit or implied recognition that the other issues are complex and "will require substantial expense and time." But the judge's decision to bifurcate is not the same as the judge actually saying in the order, "determination of those benefits will require substantial expense and time." 

The time to know whether an issue is ripe for appellate review is before the appeal is filed, before the record is prepared and paid for, before the briefs are written about the alleged error in the lower tribunal. It is unfortunate for the time and effort to be invested only to result in "we ... dismiss this appeal for lack of jurisdiction" because the required certification is not included.

This certification is an issue for the judge in preparing the trial order. However, it is likewise one for the parties to raise when proceeding to try only the "compensability" of an injury or accident.

If the certification is not included, that does not bar or prevent seeking appellate review. Certainly, review remains a right. The absence of that certification merely delays review until after the parties have returned to another trial for determination of "the exact nature and amount of benefits due." And because that might "require substantial expense and time," such a second trial might be specifically what the parties sought to avoid when trying the case in the first instance.

Though this limitation on the appeal of non-final orders may confuse and confound periodically, it is reasonably straightforward in many instances. It is one of the subjects that merits attention and consideration when trial proceeds on less than the full spectrum of issues and benefits that may be ripe, due and owing at that time.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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