The cascade of notices of unavailability persists.

Judge David Langham

I have written about them in the past. One of my earliest blog posts was The Notice of Unavailability (October 2013). That post explained the minimal value of this as a filing. It cited some judicial opinions critical of the practice. Those opinions acknowledged the courtesy they can represent and concluded that these filings "have no legal significance."

See I Am Not Available (October 2018). That explained that there is no basis in the Office of Judges of Compensation Claims rules for such a filing. The authority cited there concluded that such notices are a "creation of the bar" and may be helpful to the parties. They are not, however, helpful or useful to the bench.

I returned to the topic in Sarcasm — It's Irritation (July 2019). There, I reminded that there is no rule that authorizes or requires such a notice. Those that are filed never cite any legal authority for either requiring them or dictating their purpose or effect. I concluded that such a notice is, at best, "useful and courteous communication to others in your case."

Nonetheless, they come into the OJCC filing system daily. I spent a week reviewing these filings and found 120. The examination of one week cannot be considered statistically significant. Nonetheless, if that week was representative, then perhaps 6,240 of these are filed annually. That is a great many docket entries, daily filings to review and unnecessary work for the OJCC staff.

It is important that lawyers understand the "no legal significance." The notice of unavailability has no legal effect. It is a nicety, a courtesy, and professional. Nonetheless, it would be all of those things if it was sent to opposing parties and counsel (served) without being filed with the OJCC. What is the draw to filing it here?

Please remember:

• There is no provision in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications for such a filing.
• There is no statute supporting any legal requirement or efficacy of these filings.
• There is no decisional authority found that supports any efficacy of such a filing. Only in terms of avoiding a failure to prosecute might such a filing have any effect. (Mote Wellness & Rehab Inc. v. State Farm Mut. Auto. Ins. Co., 2021, and then only under Fla.R.Civ.P 1.420, which has no application in workers’ compensation proceedings.)
• Such a notice in no way alters scheduling by the OJCC. The OJCC will not expend limited resources in searching dockets for such notices. “It is impractical for the (office) to be required to search the docket of each case for notices of unavailability before setting hearings and response deadlines.” (Pump It Up Holdings LLC v. Anderson, Oct. 14, 2020.)
• The appropriate action for such filings is to strike. Counsel’s professionalism in notifying others in a case by service is appropriate and even laudable. Nonetheless, there is no reason or basis for filing with this Office. (TNT Software LLC v. G&G Biz Ctr. Bradenton Inc., March 16, 2017.)

For the sake of efficiency, just serve such notices on each other and avoid filing them with this office.

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.