Case Law Update – August 2015

Limits On Discovery

Edwin Vazquez v Carlos Romero, Fla 1st DCA Case No. 1D15-0623 (August 19, 2015)

In this case, the claimant initially filed Petitions for Benefits (PFB’s) against three different alleged employers and their carriers. Subsequent to the filing of the PFB’s, the claimant’s attorney voluntarily dismissed all of the Petitions without prejudice, and instead sued all three alleged employers in Circuit Court.

After the dismissal of the PFB’s, one of the E/C’s filed a Notice of Production from Non-Party seeking to issue a subpoena for the claimant’s medical records from Jackson Memorial Hospital. (The filing of the Notice of Production from Non-Party is a prerequisite to actually issuing a subpoena). The claimant’s attorney filed an Objection to the Notice of Production and argued that because the PFB’s had been dismissed, and no claims were pending, the E/C did not have the right to conduct any discovery in the Workers’ Compensation arena. JCC Mark Massey entered an Order overruling the claimant’s objection to the Notice of Production indicating that he had jurisdiction over the E/C’s discovery efforts which paved the way for the issuance of a subpoena for the medical records. However, the claimant’s attorney filed a Petition for Writ of Prohibition with the First DCA, seeking to prohibit the E/C from issuing the subpoena for medical records since the PFB’s had all been dismissed.

The First DCA granted the claimant’s Petition for Writ of Prohibition which effectively nullified JCC Massey’s Order granting the objection which means that the E/C was stripped of the ability to issue the subpoena for medical records. The basis for the Appellate Court’s ruling was that dismissal of a PFB divests a JCC of jurisdiction. The First DCA held that when all claims asserted through a Petition for Benefits are dismissed, the JCC loses jurisdiction to address those claims, and can no longer take any further action in the workers’ compensation case. The same result would presumably apply in cases where a PFB was never filed in the first place.

Practical Effect:

This case severely limits the ability of the E/C, through its defense attorney, to seek and obtain important discovery that could be useful in defending the Workers’ Compensation claim. For example, in cases where no PFB is pending, the ruling in Vazquez will prevent an E/C from issuing a subpoena for records from hospitals, doctors, insurance companies, fire rescue, police reports, and other entities regarding prior accidents which could be highly relevant to the defense of the claim. The Vazquez case renders the subpoena power of your defense attorney essentially useless unless there is a pending Petition for Benefits.

It is noteworthy, that the Office of Judge of Compensation Claims in Tallahassee (OJCC) was represented in this important case in its efforts to preserve the “judicial power” of the JCC. However, the arguments of the attorneys for the E/C’s and the attorney for the OJCC were rejected by the First DCA.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss this case and its application to your claims. You may reach us at the telephone numbers or e- mail addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

Robert M. Potter, III, Partner – ext. 222

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 306