MILTON BLUE, APPELLANT,
v.
MALONE & HYDE AND GAB BUSINESS SERVICE, INC., APPELLEES

Fla. 1st DCA | 1991-02-26
No. 89-00160
BOOTH, NIMMONS and ZEHMER, JJ., concur.
575 So. 2d 292 Florida District Court of Appeal, First District (1991) Positive Treatment
Cited by 6 cases

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Synopsis

The court affirmed the dismissal of a workers' compensation claim for lack of record activity within one year, finding that the current rule governing dismissal for lack of prosecution applied.


Holding

The court held that the judge of compensation claims correctly applied the current one-year rule for dismissal due to lack of prosecution, as it was in effect when the motion to dismiss was filed.


Headnotes

[1] Workers' compensation rules of procedure, absent express language to the contrary, have prospective effect only.

[2] A workers' compensation claim filed under a rule providing a two-year period of inactivity before dismissal for lack of prosecution is governed by that rule, even if a su…

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Facts & Procedural History

A workers' compensation claim was filed, and later a new rule shortened the inactivity period for dismissal from two years to one year. Despite some a…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This cause is before us on appeal from a final order dismissing a workers’ compen sation claim for lack of record activity for one year. Appellant contends that the judge of compensation claims (JCC) erred in dismissing the claim based on his finding that there had been no record activity within one year prior to filing of the motion to dismiss.

Appellant was killed in the course of his employment on October 22, 1982. On August 13, 1984, an attorney, acting on behalf of appellant’s father, filed a claim for dependency benefits, death benefits, funeral expenses, medical expenses, costs, interest, penalties, and attorney fees. On January 1, 1985, former Florida Workers' Compensation Rule of Procedure 11, providing for a two-year period of inactivity before dismissal for lack of prosecution, was replaced by Florida Workers’ Compensation Rule of Procedure 4.110. The new rule is similar to the old rule but shortens the period of tolerable inactivity to one year. On November 30, 1987, the E/C filed a motion to dismiss for lack of prosecution. Although record activity took place during the two-year period preceding the motion, no record activity took place during the one-year period preceding the motion. Appellant, however, did request medical records from one of appellant’s treating physicians during January 1987.

The JCC found that Rule 4.110(b) should govern the motion to dismiss because the rule was in effect at the time the E/C filed the motion. The JCC interpreted the rule as requiring record activity in order to preclude dismissal, and found no record activity during the one-year period preceding the motion. The JCC dismissed the claim with prejudice.

Former Workers’ Compensation Rule of Procedure 11(b) and current Rule 4.110(b), governing dismissal for failure to prosecute, differ significantly from Florida Rule of Civil Procedure 1.420(e), which governs dismissal for failure to prosecute. Florida Workers’ Compensation Rule of Procedure 11(b), which was in effect at the time the claim was filed, provides:

Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Deputy Commissioner before whom the action is pending, the file shall be forwarded to the appropriate Deputy Commissioner who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending.

The present rule, Rule 4.110(b), contains similar provisions but shortens the critical period to one year. In comparison, Florida Rule of Civil Procedure 1.420(e) provides:

Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

The workers’ compensation rule requires dismissal if no action has been taken through record activity, payment of compensation, provision of medical care, or otherwise during the critical period. Thus, the rule contemplates record and nonrecord activity as sufficient. In comparison, the rule of civil procedure requires dismissal if no record activity takes place for a period of one year. Accordingly, the JCC’s consideration should not have been limited to record activity during the nondismissal period. The only activity which took place during the one-year period preceding the motion was claimant’s January 1987 request for medical records. We need not decide, however, whether the request for medical records alone was sufficient to avoid dismissal, because former Rule 11(b), providing a two-year period of tolerable inactivity, was in effect at the time the claim was filed and governs this case.1 Record activity did take place during the two-year period preceding the motion. The order dismissing the claim with prejudice is therefore reversed, and this cause is remanded for proceedings consistent herewith.

BOOTH, NIMMONS and ZEHMER, JJ., concur. . Florida rules of court have prospective effect only, absent an express statement to the contrary. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649, 650 (Fla.1896); State v. Green, 473 So. 2d 823, 824 (Fla. 2d DCA 1985); Arnold v. State, 429 So. 2d 819, 820 (Fla. 2d DCA 1983); Jackson v. Green, 402 So. 2d 553, 554 (Fla. 1st DCA 1981). The Florida Supreme Court's opinion adopting Rule 4.110 contains no language suggesting retrospective effect. Florida Bar re Workers' Compensation Rules of Procedure, 460 So. 2d 898 (Fla.1984).


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Citator

Cited By

  • …e record before us, compel the conclusion that the claim and application must be construed as including the issue of attorneys’ fees arising out of the past benefits, the rule in Kinsey is decisive of the issue on appeal. E.g. Blue v. Malone & Hyde, 575 So. 2d 292 (Fla. 1st DCA 1991). The deputy commissioner erred in relying on Jerry Chapman, Inc. v. Ivey, 448 So. 2d 11 (Fla. 1st DCA 1984). In that case, no activity apart from the routine payment of compensation benefits had taken place for the specified per…
  • Maria E. Mendez-Perez, M.D. v. Jorge H. Perez-Perez, M.D., 632 So. 2d 1047 (Fla. 3d DCA 1993)
    …ocedure, 604 So. 2d 1110 (Fla.1992). Rules of procedure have prospective effect only, unless specifically provided otherwise. Pearlstein v. King, 610 So. 2d 445 (Fla. 1992); Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896); Blue v. Malone & Hyde, 575 So. 2d 292 (Fla. 1st DCA 1991). In 1992, the supreme court, prompted by a problem which required a remedy, amended Rule 1.540(b), whereby there is no time limit for motions based on fraudulent financial affidavits in marital cases. When the supreme court cre…
  • …ly, the finding of the JCC is entitled to deference. We also note the JCC’s view of the rule, at least with regard to the sufficiency of certain nonrecord activity, is in accord with recent observations made by this court. See Blue v. Malone & Hyde, 575 So. 2d 292, 293 (Fla. 1st DCA 1991) (“[T]he rule (4.110) contemplates record and nonrecord activity as sufficient ... Accordingly, the JCC’s consideration should not have been limited to record activity during the nondismissal period.); see also, Gilman v. Sou…

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