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Langham: Discovery in Workers' Compensation

By David Langham

Wednesday, October 2, 2019 | 348 | 0 | min read

The process of litigation is instigated with a document that seeks something — in criminal law, a civil complaint and in a workers' compensation claim or petition.

Judge David Langham

Judge David Langham

Those all tend to be primarily informational, meaning they are to put the other party on notice of the dispute. However, the states impose various requirements as to the volume and quality of information (specificity) that must be included.

After this initial pleading, the other side of the case likely files an answer or response. Regardless of how much must be, or is, included in those initial pleadings, the third step is most likely to be discovery.

Discovery is the process through which the parties gather information to better understand each other's positions, the claims and defenses. The claims and defenses having placed each other on notice, this third stage is where the details are discerned.

Generally speaking, discovery comes in various forms, including requests for production of documents, depositions, interrogatories, requests for admissions and examination of persons. In Florida, these are all set forth in the Florida Rules of Civil Procedure. Those rules are promulgated by, adopted by, the Florida Supreme Court and apply therefore in any court proceeding.

Critical to this is the word "court."

There is a tendency among lawyers and even judges to refer to Florida workers' compensation adjudication processes as "court." As I persistently remind, the judges of compensation claims are not a court (Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004). Therefore, the court cannot make rules for this office.

When this topic came up at a recent conference, an attorney with a flair for vernacular asked me, "Is it ignorance or obstinance that drives the persistence?" An intriguing question. Perhaps it is merely force of habit.

Because the Supreme Court concluded that it cannot make rules for this office, the Rules of Civil Procedure do not apply by their terms to proceedings here. Make no mistake: Some of those rules do in fact apply, but not through their own force. They apply to Florida workers' compensation proceedings through the force of the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications.

The process and procedure in Florida workers' compensation proceedings are defined and delineated by these administrative rules required by the Florida Legislature in section 440.45(4): "The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section."

The first rules promulgated under that authority were published in 2004. Each of the iterations of those rules remain available on the OJCC website.

The Florida Rules of Civil Procedure control workers' compensation discovery disputes because they incorporate (adopt) those civil procedure rules specifically. Rule 60Q6.114 for workers' compensation specifies what discovery is permissible. This includes depositions, production of documents and entry onto land (inspection of premises).

The rules do not incorporate or include other discovery tools that may be familiar to those engaged in civil practice generally. There is no authority for engaging interrogatories or requests for admission in workers' compensation. These two discovery tools were not incorporated in the rules and are therefore not available in preparing a workers' compensation case for adjudication or other resolution.

Often, the answer to a "why" question is that "because the rules say so." But as to why there are no interrogatories in workers' compensation discovery, the better answer might be "because the rules do not say so."

Rule 60Q6.114 also incorporates tools for enforcement of discovery. It specifically adopts the process for responding or objecting to discovery requests. And the authority of a judge of compensation claims to compel discovery, protect parties from discovery and impose sanctions are "as provided in the Florida Rules of Civil Procedure."

Generally, the enforcement provisions are not resorted to as often as one might think. The discovery process tends to usually proceed of its own accord without judicial involvement. There are exceptions, and the periodic motion to compel discovery or motion for protective order is necessary.

However, those instances appear to be the exception and not the rule. When such motions are required, the situations may range from the mundane to the extraordinary, but that is a topic for another day. 

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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