IN RE AMENDMENTS TO THE FLORIDA RULES OF WORKERS' COMPENSATION PROCEDURE

WELLS, Justice.

This matter is before the Court upon a report filed by the Workers’ Compensation Rules Committee of The Florida Bar recommending emergency amendments to the Florida Rules of Workers’ Compensation Procedure. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution.

A synopsis of the proposed amended rules was published for comment in The Florida Bar News. Upon the request of the chief judge of the First District Court of Appeal, we approved part B of the Florida Rules of Workers’ Compensation Procedure relating to appellate procedure. See In re Amendments to the Fla. Rules of Workers’ Comp. Pro., 664 So. 2d 945 (Fla.1995).

The Court has received comments concerning the remaining proposed amended rules and has held oral arguments on these proposed rules. After oral arguments, we directed the Workers’ Compensation Rules Committee to consider several of the submitted comments. The committee thereafter submitted a supplemental report addressing these comments. Additionally, we received comments from a subcommittee of the Mediation and Arbitration Rules Committee. In response to the submitted comments and oral arguments, we have made the following substantive changes to the proposed rules.¹

Proposed rule 4.025(b) is amended to specifically exclude a claim for reimbursement from the Special Disability Trust Fund from being consolidated with other claims not contained in a petition.

Proposed rule 4.028(a)(5)(D) is amended to clarify that in cases in which an injured employee is required to exhaust all managed care grievance procedures before filing a petition for benefits under section 440.192(3), Florida Statutes (1995), any claims for benefits under section 440.13(2)(a) and (b), Florida Statutes (1995), brought after the grievance procedures required by section 440.134(15) are exhausted are to be determined by a judge of compensation claims and not by administrative appeal brought under chapter 120, Florida Statutes (1995).

Proposed rule 4.310(e) is revised to reflect that the mediator has ten days following the conclusion of the mediation conference to file a written report to the presiding judge as to the status of the case.

Proposed rule 4.361(a) is revised to reflect that the mediator shall have control of the mediation and not just the mediation conference.

Accordingly, we now approve and adopt the remainder of the committee’s proposed amendments as modified and reflected in the appendix to this opinion. New language is indicated by underscoring; deleted language is indicated by overstriking. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules. These amendments shall take effect upon the release of this opinion.

No motion for rehearing shall be entertained.

It is so ordered.

GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur. APPENDIX

FLORIDA RULES OF WORKERS’ COMPENSATION PROCEDURE

PART AL TRIAL PROCEEDINGS

RULE 4.010. SCOPE AND TITLEGEN-ERAL PROVISIONS

These rules, adopted and promulgated pur-saant-to-the legal authority of the Supreme Gourt of-Floridawith the authority of sections 440.271 and 440,29(3), Florida Statutes, shall govern all workers’ compensation proceedings in and before the judges of compensation claims and in the District Court of Appeal, First District.

These rules shall be cited as Florida Rules of Workers’ Compensation Procedure? and may be abbreviated Fla.R.Work.Comp.P.

1979 Adoption. This replaces rule 1, W.C.R.P. There is no substantive change except to the changed title of trial forum from “judge of industrial claims” to “deputy commissioner,” and “industrial relations commission” to “District Court of Appeal, First District.”

1992 Amendment. The rules are amended throughout to reflect the change in the title “deputy ' commissioner” to “judge of compensation claims.”

1995 Amendment. Editorial changes only.

RULE 4.020. DEFINITIONS

Throughout these rules, unless the context or subject-matter-otherwise requires^

(a) “district — court” - means — the—District Court-of-Appeal, First-District;

(b) “clerié’ means the clerk of-the district court?

(c) “division” means-the-Division of Workers’ Compensation-of — the-Florida Department of Labor and Employment Security;-

(d) “department” means the -Florida Department-of-Labor-and Employment Securi-⅛⅞

(e) “judge” means judge of compensation claims pursuant to-chapter 440, Florida Stat-

(f) “chief judge” means the-chief judge of compensation claims appointed by the Governor, serving in the Department-of-Labor-and Employment Security?- pursuant to chapter 440, Florida Statutes;

(g) in construing these rules, when — the context indicates, the-singular includes the plural and vice versa;

(h) filing-shall-be accomplished-by placement with-the division, the judge of compensation claims, or the-clerk of — the district court as the context of chapter 440, Florida Statutes, or these rules-requires?

(i) “carrier” means-any licensed insurance carrier, self-insured employer, self-insurance fund or pool proriding workers’ compensation insurance coverage pursuant-to chapter 440, Florida Statutes, -and includes the -servicing agents of self-insureds;-

(j) “claimant” meane-any-person making a claim for workers’ compensation-benefits-or payments as permitted-by chapter 440, Florida Statutes^ A “claimant” is a party within the meaning of these rules; (⅛) — pleading—means-an-y-paper-or document filed under these rules invoking the jurisdiction of or seeking relief from — the judge-of-compensation-claims-or any- -court under chapter 440, Florida Statutes.

The following definitions apply to all workers’ compensation proceedings.

(a) “Carrier” means any licensed insurance carrier, self-insured employer, self-insurance fund, or pool providing workers’ compensation insurance coverage under chapter 440, Florida Statutes, and includes the servicing agents of self-insureds.

(b) “Chief judge” means the chief judge of compensation claims appointed by the Governor, serving in the Department of Labor and Employment Security under chapter 440, Florida Statutes.

(c) “Claim” means any element of a petition for benefits or other entitlement for which judicial relief is sought. A claim not contained in a petition for benefits may be made only under rule 4.025.

(d) “Clerk” means the clerk of the District Court of Appeal, First District.

(e) “Department” means the Florida Department of Labor and Employment Securi-' ⅛

(f) “District Court” means the District Court of Appeal, First District.

(g) “Division” means the Division of Workers’ Compensation of the Florida Department of Labor and Employment Security.

(h) “Docketing judge” means one or more judges designated by the chief judge pursuant to section 440.45(3), Florida Statutes.

(i) “EAO” means the Employee Assistance and Ombudsman Office created by section 440.191, Florida Statutes.

(j) “Facsimile” means the electronic transmission of documents by electronic signal that, when received, can be transformed by electronic means and stored on paper, microfilm, magnetic storage device, optical disk, or other storage media.

(k) “Filing” means delivery to the division, the judge, or the clerk of the district court as the context of chapter 440, Florida Statutes, or these rules requires.

(l) “Forms” means forms incorporated in these rules and promulgated pursuant to chapter 440, Florida Statutes.

(m) “Impasse” means the parties’ inability to reach a mutually acceptable and voluntary agreement as to any matter at the mediation conference.

(n) “Informal dispute resolution” means the procedure established by section 440,191, Florida Statutes.

(o) “Joint petition” means a pleading filed jointly by the parties seeking approval of the stipulation in which the claimant receives a lump-sum payment of past or future benefits, or a combination of both, or a release of a lien against a third party, in exchange for releasing the carrier from liability for certain benefits as allowed under section 440.20(11), Florida Statutes.

(p) “Judge” means judge of compensation claims pursuant to chapter 440, Florida Statutes.

(q) “Mediation agreement,” also known as a “mediation settlement agreement,” means a mutually acceptable and voluntary written or recorded agreement reached by the parties at a mediation conference, with the assistance of a mediator, resolving completely or partially a workers’ compensation dispute or claim,

(r) “Mediation conference” means an informal, nonadversarial negotiation or settlement conference attended by the interested parties and supervised and conducted by a mediator. (s) “Mediator” means the person who conducts a mediation conference.

(t) “Parties” include the employee, claimant, employer, carrier, health care provider, and division.

(u) “Petition for benefits” means a pleading meeting, specifically but not limited to, the requirements of sections 440.192(1)-(4), Florida Statutes, that invokes the jurisdiction of the judge.

(v) “Petitioner” or “claimant” means any person making a claim. A “petitioner” or “claimant” is a party within the meaning of these rules.

(w) “Pleading” means any paper or document filed under these rules invoking the jurisdiction of or seeking relief from the judge or any court under chapter 440, Florida Statutes. The request for assistance or other contact with the EAO is not a pleading that invokes the jurisdiction of the judge.

(x) “Procedural motion” means a motion relating to procedure or discovery that does not seek adjudication of entitlement to benefits. Motions that do not seek adjudication of entitlement to benefits and are based upon stipulated facts requiring no other evidence also shall be treated as procedural motions.

(y) “Request for assistance” means the initiation of the informal dispute resolution procedure established by section 440.191, Florida Statutes.

(z) “Verified pleading” means a pleading the facts of which are attested to under oath.

1979 Adoption. These definitions adapt to the 1979 legislation by which, for instance, the Bureau of Workmen’s Compensation was upgraded to a Division [of Workers’ Compensation], This replaces rule 2, 1977 W.C.R.P. 1988 Amendment. This rule is revised to include definitions of “carrier” (to include self-insured and servicing agents) and “claimant” (to include any party with standing to bring a claim under chapter 440, Florida Statutes).

1995 Amendment. Many new definitions were added and the list was alphabetized.

RULE 4.022. FORMS OF PLEADINGS AND PROPOSED ORDERS (a) Generally. All Ppleadings in proceedings before the-judge of-eempensation claims under-these- rules shall substantially conform to these rules unless otherwise ordered by the judge of compensation-elaims. All pleadings (andincluding notices or subpoenas, if originated by a party or an attorney-) shall (1)be typewritten or printed on 8½" by 11" bond paper;

(2) be signed by the .party in interest and/or the party’s attorney of record-; and (3) All pleadings shall contain the mailing address and telephone number of the party or attorney filing the pleading. Attorneys shall include their Florida Bar number. Pleadings shall be typewritten-or-^printed on 8½" by 11" bond paper. (b) Proposed Orders. Proposed orders, except-as otherwise provided-in-these-rules unless otherwise directed by the judge, shall be accompanied by an original, and one copy for the use-of the judge of compensation claims together with, and enough copies and preaddressed postage-paid envelopes to permit service on all parties and counsel of record. A copy of any proposed order shall be sent to opposing counsel and any party not represented.

1988 Adoption. This rule is intended to standardize the form of pleadings and the preparation of documents by counsel for the use of the deputy commissioner. 1995 Amendment. Aligns pleadings in workers’ compensation matters with those in the court system.

Section 440.32(3), Florida Statutes, requires that every pleading be signed by the attorney of record regardless of whether the claimant or petitioner executes the pleading.

RULE 4.023. CONTRACT OF REPRESENTATION (a) Approval of Contract.

(1) The claimant and the attorney for the claimant may jointly apply to the judge having jurisdiction of the industrial accident to approve the contract of representation and enforce its provisions.

(2) The judge may approve the contract of representation without a formal hearing if it appears to be in substantial compliance with these rules and the provisions of chapter 440, Florida Statutes.

(3) Upon approval of the contract of representation without a formal hearing, the judge shall enter an order and serve a copy of the order on the attorney for the claimant. (4) The attorney for the claimant shall promptly serve a copy of the order on all parties and counsel of record using the certificate of service provided in form 4.902,

(b) Motion to Modify or Vacate Order Approving Contract.

(1) Any party, for good cause, may object to and move to modify or vacate any order approving a contract of representation at any time.

(2) The filing and service of a motion to modify or vacate an order approving a contract of representation shall suspend the operation and effect of the order until the motion is heard and decided.

(3) The judge shall hear such motions promptly.

(c) Modification or Disapproval. Nothing in this rule shall preclude the .judge from modifying or disapproving any contract of representation for good cause or to avoid undue hardship to any party.

1995 Adoption. From former rule 4.061(a). Approval of any contract of representation by the .judge of compensation claims is discretionary and not mandatory.

RULE 4,024. REPRESENTATION AND APPEARANCE OF COUNSEL (a) Appearance of Counsel. An attorney who undertakes representation of a party in a workers’ compensation matter shall file promptly a notice of appearance and serve copies to all parties including counsel of record. The notice of appearance shall be one page in length, bear the style and caption provided in form 4.901, and include the name, address, telephone number, and Florida Bar number of counsel.

The following shall suffice as notice of appearance:

(1) the service by the claimant’s attorney of the order approving the contract of representation under rule 4.023;

(2) the filing of a notice of appearance with the division if no claim, application for hearing, request for assistance, or petition has been filed; and (3)the filing of a notice of appearance with the presiding judge aftér a claim, application for hearing, request for assistance, or petition has been filed;

(b) Substitution of Counsel. Co-counsel or any successor attorney shall file a notice of appearance in accordance with the rules. Substitution of counsel may be made:

(1) by the filing and service of a stipulation, which does not require the approval of the judge;

(2) by motion, which requires approval of the judge.

(c) Withdrawal of Counsel. An attorney of record shall remain attorney of record and not be permitted to withdraw unless:

(1) the attorney files a written motion for withdrawal setting forth the reasons for the motion;

(2) the motion is served on the client and counsel for all parties; and (3) an order is entered granting the motion of withdrawal.

(d) Hearing. If requested by any party, or on the .judge’s own motion, a hearing may be held to protect the rights of all parties.

(e) Order. The judge may, without a hearing, enter an order substantially the same as form 4.907.

1995 Adoption. This replaces rule 4.060 and further clarifies existing procedure as to appearance and substitution of counsel.

RULE 4.025. CLAIMS NOT CONTAINED IN PETITION (a) Generally. Claims not contained in a petition shall be filed with the division at its office in Tallahassee and served pursuant to rule 4.030. Claims shall be subject to adjudication by the .judge or reviewing court but shall not be subject To the informal dispute resolution process or review by the docketing .judge. Claims shall be limited to the following subjects:

(1) Modification of Prior Compensation Order. Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.192(2), Florida Statutes, and shall include a reo[uest for a hearing. Adjudication shall be in the manner provided in rules 4.045, 4.075, and 4.085.

(2) Claim for Reimbursement From Special Disability Trust Fund. A claim for reimbursement from the Special Disability Trust Fund filed under section 440.49(7), Florida Statutes, shall be made under the administrative rules promulgated by the division. Adjudication of such a claim shall be in the manner provided in rules 4.045, 4,075, and 4.085.

(3) Claims against Third Parties. The employer or its carrier may at any time file a claim seeking reimbursement, contribution, indemnification, or exoneration from any third party. Adjudication of such a claim shall be in the manner provided in rules 4.045, 4.075, and 4.085.

(4) Claims Limited to Attorney Fees and/or Taxable Costs. Claims limited to attorney fees and/or taxable costs when benefits have been paid previously and provided or awarded shall be handled under rule 4.144.

(b) Consolidation of Claims. On the judge’s own motion, or on the motion of any party, the judge may consolidate any of the aforementioned claims, except for a claim for reimbursement from the Special Disability Trust Fund referred to in subdivision (a)(2), with any pending petition for the purpose of a hearing or for any other purpose.

1995 Adoption. This rule defines the types of claims not included in a petition for benefits filed under section 440.192, Florida Statutes, that bypass the request-for-assistance process in section 440.191(2)(a), Florida Statutes, and the docketing judge’s review under section 440,45(3), Florida Statutes.

RULE 4.026. EXEMPTIONS FOR COLLECTIVE BARGAINING AGREEMENTS

If authorized by a collective bargaining agreement filed with the division under section 440,211, Florida Statutes, the informal dispute resolution process, review by the docketing judge, or adjudication by a judge may be replaced by an alternative dispute resolution system that may supplement, modify, or replace the provisions of chapter 440, Florida Statutes.

1995 Adoption. This rule recognizes an alternative dispute process other than that expressed in chapter 440, Florida Statutes.

RULE 4.027. VENUE (a) Generally. Venue shall be governed by section 440.25(4)(d), Florida Statutes.

(b) Consolidated Petitions. If a party’s entitlement to benefits arises or may arise from two or more accidents in different venues against one or more employer/carriers, the party may file a consolidated petition or claim against both or all employer/carriers. Venue shall be determined by order of the chief judge or by agreement of the parties.

(c) Motion. A motion for consolidation shall be made to a presiding judge who shall forward the motion to the chief judge for determination.

1995 Adoption. This rule intends to avoid the confusion as to the proper venue when there are two or more accidents in different venues involving the same or different employer/carriers.

RULE 4.028. PETITION FOR BENEFITS (a) Generally.

(1) Service. A petition under chapter 440, Florida Statutes, shall be served by certified mail upon the employer, carrier, and the division in Tallahassee. Counsel for each party and any unrepresented party shall be served under rule 4.030. Upon receipt of the petition, the division shall forward it immediately to the docketing judge pursuant to section 440.192(2), Florida Statutes.

(2) Form. A petition shall meet the specificity requirements of sections 440.192(2) and (3), Florida Statutes, shall include a request for a hearing, and shall be in substantial compliance with the forms of these rules. The judge may request the EAO to assist unrepresented employees in filing a petition, as provided in section 440.192(2), Florida Statutes. (3) Notice. A petition shall contain the fraud notice contained in section 440.105(7), Florida Statutes, and shall personally be signed and attested to by the petitioner. (4) Certificate of Good-Faith Effort. A petition must include a certificate by the claimant or, if the claimant is represented by counsel, by the claimant’s attorney stating the claimant or attorney has made a good-faith effort to resolve the dispute and the claimant or attorney was unable to resolve the dispute with the carrier. (5) Certificate of Completion of Informal Administrative Remedies. A petition shall also include a certifícate that one of the following has occurred:

(A) The informal dispute resolution process required by section 440.191, Florida Statutes, has been concluded.

(B) The EAO has declined to consider the matter. (C) The parties were unable to resolve the dispute within 30 days after a request for assistance was made to the EAO.

(D) If medical care is being provided to the employee through managed care and the petition includes a claim for medical care under section 440.13(2)(a) and (b), Florida Statutes, the certificate must indicate that the grievance procedures required by section 440.134(15), Florida Statutes, were exhausted before Sling the petition under section 440.192(3), Florida Statutes.

(b) Amended Petition for Benefits. A petition cannot be amended except by stipulation of the parties and approval by the judge. Such an amended petition shall not be subject to the informal dispute process or review by the docketing judge.

(c) Employer/Carrier Petition for Benefits. The employer or carrier may file a petition seeking an adjudication of any issue.

(d) Consolidation. Successive petitions may be consolidated by the judge on his or her own motion or on the motion of any party for purposes of any proceeding under chapter 440, Florida Statutes.

1995 Adoption. Replaces rules 4.050 and 4.070. This rule is intended to standardize the form for a petition for benefits and the preparation of such forms by counsel resulting from the 1993 amendments to chapter 440, Florida Statutes. The request or application for hearing is now incorporated in the petition and no longer a separate pleading.

The grievance procedures referred to in subdivision (a)(5)(D) are the procedures required by section 440.134(15), Florida Statutes, and not chapter 120, Florida Statutes.

RULE 4.029. REVIEW BY DOCKETING JUDGE (a) Generally. After receiving the petition, the division shall forward the petition immediately and all attachments filed with or received by the division to the docketing judge-lb) Review. After receiving the petition from the division, the docketing judge shall promptly review the petition and attachments to determine if the requirements of sections 440.192 and 440,32(3), Florida Statutes, have been met and the matters in dispute have been acted on by the EAO.

(c) Dismissal of Petitions Without Prejudice. If the issues raised in the petition do not meet the requirements of sections 440.192(2)-(4), Florida Statutes, or the petitioner did not exhaust the EAO administrative remedies, the docketing judge shall summarily dismiss the petition without prejudice with leave to amend within 30 days.

(d) Dismissal of Petitions With Prejudice. If the petition does not meet the requirements of sections 440.192(2)-(4), Florida Statutes, and these rules, and the judge intends to dismiss the petition with prejudice, the judge may do so only after first giving the parties a reasonable opportunity to be heard.

(e) Extension of Mediation, Pretrial, and Final Hearing Deadlines. If the judge intends to dismiss the petition with prejudice, the judge must conduct a hearing on the matter after giving the parties 5 days’ written notice. The parties may appear by telephone at any such hearing in accordance with procedures established under these rules for telephone hearings. Statutorily mandated mediation, pretrial, and final hearing deadlines shall be extended if a hearing under this subdivision is required.

(f) Petition that Meets Statutory Requirements. If the docketing judge determines the petition meets all statutory requirements, the .judge shall so indicate and immediately forward the petition to the appropriate district.

1995 Adoption. The docketing judge’s ruling on specificity under section 440.192, Florida Statutes, or on the issue of whether the allegations contained in the petition were well grounded as required under section 440.32(3), Florida Statutes, is not a final determination on either issue. Subject to the time limitations of section 440.192(5), Florida Statutes, a motion to dismiss for lack of specificity or for failure to exhaust EAO remedies may be filed with the presiding judge. The same is true for a motion to strike or dismiss the petition for lack of an appropriate signature or for a motion to impose a sanction under section 440.32(3), Florida Statutes.

RULE 4.030. FILING AND SERVICE (a) Filing. Unless otherwise ordered or otherwise provided by these rules or chapter 440, Florida Statutes, any pleading or other papers filed in proceedings shall be served on each party.

(b) Method and Proof of Service.

(1)Same; How Service Is Made. When service is required or-permitted to be made on a party represented by an attorney-r-se-r-vice shall be made on the attorney unless sendee on the party4s ordered by the court. Service -on-the-attorney or party shall be made by delivering a-copy-to the attorney’s or party’s' last known-address^ Delivery of a copy within this rule shall mean (aA) handing it to the attorney or party,; or (bB) leaving it at the attorney’s office with a clerk or other person in charge thereof, or (e) if there is no one in charge, leaving it in a conspicuous place therein,-; or (dC) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with a member of the person’s family above 15 years of age and informing such person of the contents,; or (eD) by placing it in the United States mail, postage prepaid, to-the last-known address-of the party or attorney. — Service-by mail — shall be — complete upon mailing.; or (E) transmitting it by facsimile.

Service by delivery or by facsimile after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

The use -of-facsimile machines also is permitted -when available-. — When a facsimile machine is-u-sed, a cover sheet providing the sender’s name-and telephone number shall-be included and-a copy-of-the document-shaft be sent simultaneously — to the recipient by mail The sending party-shall retai-mproo-f-of tran-smissiom — Delivery shall be complete on-transmission-of-a complete facsimile of the document.

(2) Service by Mail.

(A) When service is made by mail, the copy shall be mailed by United States mail, postage prepaid, to the last known address of the party or attorney. Petitions must be sent by certified mail.

(B) Service by mail shall be complete upon mailing.

(C) Except for a petition, when service is made by mail, 5 days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. This does not apply to filing requirements for institution of appellate proceedings or notices of hearings.

(3) Service by Facsimile Device.

(A) When a facsimile device is used, a cover sheet or its equivalent providing the sender’s name and telephone number shall be included and a copy of the document shall be sent simultaneously to the recipient by mail.

(B) The sending party shall retain proof of the transmission. (C) Delivery shall be complete on transmission of a complete facsimile of the document.

(2c) Certificate of Service. When required, any attorney or unrepresented party shall certify in substance:

“I certify that a copy hereof has been furnished to . (name or names and address or addresses) . by . (method of delivery).this.day of.,19.

Attorney (or unrepresented party)”

The certificate shall be taken as prima facie proof of such service in compliance with these rules.

(e)-Service-by Mail. — When service is effectuated-by-maily 5-days-shall be.added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. (This subdivision-does-not-appl-y-to-the-filing-requirements for institution of appellate pro-eeedings-or-notices-of-hear-mg-) (d) Subpoenas. Issuance, service, and proof of service of subpoenas of the judge of compensation claims shall be in the form and manner provided by the Florida Statutes and the Florida Rules of Civil Procedure.

1979 Adoption. This replaces rule 2(h), 1977 W.C.R.P., which merely provided “ ‘Service’ shall be as provided in the Florida Rules of Civil Procedure.”

Subdivision (c) replaces rule 3(b), 1977 W.C.R.P. The caveat to the filing of appellate proceedings is to warn of the jurisdictional nature of section 440.25(4)(f), Florida Statutes (1979), which provides:

Beginning on October 1, 1979, procedures with respect to appeals from orders of deputy commissioners shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules. The provisions of paragraphs (a)(e) shall apply only until September 30, 1979.

1984 Amendment. Clarifies rules 3(e) and 8(a) by specifically excluding 15-day hearing notice from operation of rule 3(c).

1988 Amendment. This rule is not intended to confer standing to sue on any person not accorded such standing by Florida Statutes.

1995 Amendment. Further clarifies method of service of pleadings and specifically includes service by facsimile device.

RULE 4.045. PRETRIAL PROCEDURE (a) Generally. The judge shall, on a motion by any party, hold a pretrial hearing. If no pretrial hearing has been noticed previously, the judge shall schedule a pretrial hearing after receiving a notice of impasse from the mediator-lb) Notice of Pretrial. The judge shall give parties at least 7 days notice of a pretrial hearing and may combine the notice of the pretrial hearing with the other notices. Unless the judge indicates otherwise, pretrial hearings will be held in the county where the judge’s office is located.

(c) Continuance. Pretrial hearings may be continued or extended with prior approval of the judge.

(d) Appearance of Counsel. Counsel for the parties shall appear at the pretrial conference. If attendance is not waived by the judge following proper notice, nonlocal attorneys, as defined in the pretrial order, may appear by phone.

(e) Telephone Hearing. The judge may conduct the pretrial hearing by telephone at the request of any party or on the judge’s own motion, provided all parties are represented by counsel.

(f) Waiver of Hearing. If all parties are represented by counsel, the judge may waive attendance or cancel the pretrial hearing if a written pretrial stipulation is filed with the judge before the date of the pretrial hearing. In such cases, all parties will be presumed to have a full and complete understanding of all issues involving benefits claimed, the defenses asserted, the witnesses to be presented, and the exhibits to be introduced into evidence. (g) Attendance. If a party or a party’s attorney fails to attend the hearing without good cause, the .judge may dismiss the petition or claim, strike defenses, or take such other action as may be authorized by law or rule 4,150.

(h) Purpose of Pretrial. At the pretrial conference, the parties shall:

(1) state and simplify the claims, defenses, and issues;

(2) stipulate and admit to such facts and documents as will avoid unnecessary proof;

(8) present, examine, and mark all exhibits for identification, including all impeachment and rebuttal exhibits;

(4) furnish the opposing party the names and addresses of all witnesses, including impeachment and rebuttal witnesses. A party may be required to provide a statement of subject matter of the expected testimony of one or more 'witnesses;

(5) exchange all available written reports of experts when expert opinion is to be offered at trial. The reports should clearly disclose the expert opinion and its basis on all subjects on which the expert will testify. If stipulated into evidence, the reports shall be presented to the judge to be so marked. The parties shall consider and determine a limitation of the number of expert witnesses;

(6) estimate trial time and schedule the final hearing; and (7) consider and determine such other matters as may aid in the disposition of the case, including referral to additional mediation.

(i) Forms of Stipulations. The appropriate pretrial stipulation and pretrial compliance questionnaire shall be used. Final witness and exhibit lists, and any supplements to the pretrial stipulation, shall be filed at the pretrial hearing or 30 days before the final hearing. Exhibits shall be attached to the pretrial stipulation. Witness lists, exhibit lists, and supplements served after the pretrial hearing must first be approved by the judge. A motion seeking such approval is a procedural motion.

(j) Motion Hearings at Time of Pretrial. At the discretion of the judge and on filing and service of motion and notice of hearing not less than 5 days before the date of the pretrial hearing, procedural motions may also be heard at the time of the pretrial hearing.

(k) Pretrial of Penalty Hearings.

(l) When an employer or carrier has protested an assessment by the division of penalties, fines, or interest under sections 440.185 or 440.20, Florida Statutes, the judge shall cancel and waive attendance at a pretrial hearing regarding a hearing on such penalties, fines, or interest if a written pretrial stipulation is filed with the judge before the date of any scheduled pretrial hearing.

(2) Pretrial stipulations regarding penalties, fines, or interest assessed against an employer or carrier shall be substantially the same as form 4.916.

(3) The division shall complete its portion of the pretrial stipulation and mail or otherwise deliver the original and one copy to the employer or carrier. The division shall file a notice of filing with the judge indicating the stipulation has been delivered to the employer or carrier for completion. The employer or carrier shall complete its portion of the pretrial stipulation and file the original with the judge and simultaneously mail or otherwise deliver a copy to the division and to the general counsel of the department.

Cl) Record. The judge shall record the pretrial hearing by stenographic or electronic means at the request of any party or by a written stipulation signed by the parties.

(m) Pretrial Order. (1) At the request of any party or by his or her own motion, the judge promptly shall enter an order reciting the actions taken at the pretrial hearing and the agreements made by the parties about any of the matters considered and limiting the issues for trial to those not disposed of by admissions or stipulations of parties.

(2) The order shall control the subsequent course of the action unless the judge modifies it to prevent injustice. (3) The judge shall serve the order on the attorneys for the parties and on any party not represented by counsel.

(4) Unless otherwise specified in the notice of hearing, the .judge may consider and determine all issues pending as of the date of the pretrial hearing.

(n) Setting and Noticing Final Hearing. If the date is not already set, the judge shall set the date of the final hearing at the pretrial hearing. The notice of the final hearing may be set forth in the pretrial order accompanying the pretrial stipulation or may be mailed separately by the judge to all interested parties.

1995 Adoption. Replaces rule 4.100, but includes many of the provisions of the previous rule. Requires a .judge of compensation claims to schedule a pretrial hearing after receipt of a mediator’s report declaring an impasse as per section 440.25(4)(a), Florida Statutes.

Provides for pretrial of protested penalty assessment orders and the method thereof. Clarifies when personal appearances may be waived and prescribes the form of the pretrial stipulation. Requires furnishing names and addresses of all witnesses to be used at trial, including; impeachment and rebuttal witnesses.

RULE 4.050, CLAIMS

Claims-and notices to controvert shall be filed -with the division at its office in Tallahassee, — Claims shall-be-subject to adjudication by the judge of compensation claims or reviewing court.

-197-9-Adoption. --This replaces rule 4,1977 W-.C.R.P. -It-appears-to-be the view of the Division of Workers’ — Compensation—(hereafter—“Division”) that the filing of a claim, the-for-m-of that-claim-,- and all massaging of that claim prior to the same being assigned-to-a-deputy commissioner [for judicial function] -pursuant to an application for hearing, is solely and totally within the purview of the division and ought not be addressed by-these Workers’ Compensation — Rules-of-Procedure, or any other-rules-except those of the division-,- — Section 440.19(2)(d)> Florida Statutes (1979), provides that:

Such claim shall be filed-with the division-at its office in Tallahassee and shall contain the name and address of the employee, the name and address of the employer, and a statement of the time-place, nature, and cause-of the injury, of such fairly equivalent information-as will put the division-and-the-employer on notice-with-respect to the identity of the parties and the specific compensation benefit whieR-is due but has not been paid-or is not being provided. — Any claim, or portion-thereof, not-in-compliance with this-subsec-tion-shall be--subject to dismissal upon-motion-of -any interested party, the division7-or the deputy commissioners.

C£-M40^5(-l-)-Fla.Stat.-(1979⅜ § 440.20(10)(b), Fla.Stat. (1979).

This differs radic-a-Ily-from-the traditional source of creating and disciplining-the plead-i-ng-by-which civil actions are initiated.

-1984-Amendment. — Derived from section 440.271, F-lorida-StatuteSj-and rule 20, Florida -Workers’ Compensation Rules of-Rroce-dure. — Providing for exclusive adjudicatory-powers- -in - workers’ compensation matters with-the-deputy-commissioner or reviewing court-rather than the Division of Workers’ Compensation.

RULE-4-95-1. — CONSOLIDATION-OF CLAIMS

Judges of compensation claims -may-, — on their-own - motion or on the motion of any party, consolidate olaims-for-the--purpose of hearings or for any other purpose.

1988 Adoption. This rule formalizes exist-iug^proeedure-for-consolidation-of claims,

RULE — 4,052,—T-HIRD-BART¥—PRAC-TICE

The employer or its carrier (or servicing agent) may at any -time file a claim seeking reimbursement, contribution, indemnification, or exoneration from any third party.

1988 Adoption, — This-rule-is intended-lo provide for the joinder-of additional parties defendant by-tfae employer or its-carrier by the filing of a claim rather than motion or other pleading-RULE 4.055. DISCOVERY (a) Jurisdiction. The judge shall have .jurisdiction to take appropriate action to .compel discovery, including the imposition of sanctions and, as circumstances warrant, may enlarge or shorten the applicable time for complying with discovery.

(b) When Discovery May Be Had. Discovery under this rule may be had before or after the filing of a claim or petition, in the same manner and for the same purpose as provided in the Florida Rules of Civil Procedure or section 440.30, Florida Statutes. At the pretrial hearing, the judge shall set a date for the final hearing that allows the parties at least 30 days to conduct discovery unless the parties consent to an earlier hearing date,

(c) Types of Discovery Not Permitted. Interrogatories, requests for admission, and other forms of discovery not authorized by these rules shall not be permitted or used in workers’ compensation proceedings.

(d) Depositions.

(1) Depositions of witnesses or parties may be taken and used in proceedings under chapter 440, Florida Statutes, in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure or as otherwise provided by law.

(2) For good cause shown, the judge may require taking a deposition by telephone.

(3) If a deposition is taken by telephone, the oath shall be administered in the physical presence of the witness by a notary public or officer authorized to administer oaths. A certificate of the notary public or officer, substantially the same as form 4.9105, shall be filed by the party offering the witness’s deposition within 15 days.

(e) Production of Documents and Entry on Land.

(1) The parties shall be subject to discovery procedures seeking the production of records or other tangible things, including, but not limited to, all hospital and medical records pertaining to the industrial accident, all rehabilitation reports, all records pertaining to the claimant’s average weekly wage at the time of the accident or earnings made subsequent to the industrial accident, and a transcript of any recorded statements of a Party-

(2) The parties shall be subject to discovery procedures seeking entry on land or other property for inspection or other purposes within the scope of discovery.

(3) The parties shall have 30 days to serve a written response after service of any request under this rule.

(f) Production of Documents from Non-parties. The parties may seek the production of documents and other tangible things within the scope of discovery for inspection and copying from a person who is not a party pursuant to applicable Florida Rules of Civil Procedure, except that the time for objection to production of documents under this rule is reduced to 5 days.

(g) Surveillance. The evidence of any investigator, adjuster, or other witness in the nature of surveillance shall be subject to discovery when such evidence will be used at trial, provided the party intending to use such evidence is first given a reasonable opportunity to depose the party or witness who is the subject of the surveillance.

1995 Adoption. Replaces rule 4.090. Provides for deponent’s oath when deposition taken by telephone. Limits objection to notice of production from nonparty to 5 days, rather than 10 days as required by Florida Rule of Civil Procedure 1.351.

RULE 4.05&- RIPENESS

At any time during any proceeding-on the motion of any party-or on-the judge’s-own motion, the judge of compensation claims may make a-determination of-the-ripeness for-adjud-ieation of any pending claim-or defense or element thereof- — The judges of compensation-claims may, in their discretion take such testimony-hear- such argument, and enter such orders as may be necessary to-determine the ripeness of an issue. — To protect the interests of any party -and — to advance the proceedings, the judge of compensation-claims may (a) sever any issue;

(b) continue a scheduled-hearing-as-to any or all issues;

(c) reserve jurisdiction of any issue; or (d-)~dismiss any issue without prejudice.

I-n -determining the ripeness of any-issue, the judge of compensation-claims shall consider-whether the opposing-party--has had adequate time within-wvhich-to prepare to litigate-the-issue, taking into account the due diligence of the parties.

-1988 Adoption, — This rule recognizes the serial nature of claims ancbdefenses as they arise under-chapter 440, Florida Statutes. It eedifies-existing-procedure to permit the-deputy commissioner to-adj-udicate-issues as they become ripe.

RULE 4.058, PETITION-F-OR MODIFICATION; PETITION FOR REIMBURSEMENT FROM — SPECIAL DISABILITY TRUST FUND

Petitions-for modification pursuant-to-seetion 440.28, Florida Statute^ — a-nd-petitions for-reimbursement from the Special Disability-Trust Fund pursuant to section 44&49(-2-)-,--Flo-rida-Statutes — shall be made substantially in the form of a claim. — Adjudication of a petition under this-rule-shall-be in the manner provided-i-n-these-rules for-the disposition of claims-and-defensesT

RULE 4,060, — REPRESENTATION AND APPEARANCE OF COUNSEL; SUBSTITUTION OF COUNSEL; WITHDRAWAL OF COUNSEL (a) Appearance of-Counsel. An attorney undertaking the representation of a-part-y-to a proceeding under these rules shall-promptly — fíle-with- -the-divlsion-a notice of appearance, not to exceed one page in length,--prior-te-the-fi-li-ng-of-an-application for hearing, or with-the-office-of-the judge of compensation claims having — jurisdiction-of-the industrial accident after the filing of -an-appl-ication- -for-hearing. The notice shall bear the style and caption provided in-form 4.901 and Include the address and telephone number of-coun-seh — A claim or application for hearing signed by counsel and-containing the address and telephone number-of counsel shall-suffice as a notice of appearance. — Notice of appearance-shall be filed by any successor, or associated-attorney, prior to or concurrently with the filing of any pleading -or presentation of oral argument to or — before a judge of-eom-pensation claims or-the district court.

(b) Substitution of Counsel, — Substitution of counsel maybe-effected by the filing and service of a stipulation, for which no approval-of-the-judge of compensation-claims is required;- or by motion.

(c) Withdrawal-of-Counsel, An attorney-who has filed a elaim-or-has otherwise become-an attorney of record-for--any-party to a workers^-compensation cause-shall-remain attorney of-record in said cause-and-shall-not be permitted-to withdraw from the-cau-se unless the attorney-first files with the judge of compensation claims-a-written motion for withdrawal setting — forth-the reasons therefor, serving a copy of said — motion - on the movant’s-clie-n-t-and-counsel for the adverse party, and then shall-obtain-from the judge of — compensation claims an order granting such motion for withdrawal, — If appellate proceedings -have been instituted in the cause, the motion — shall—be—filed--with - the appropriate court. — Upon-the-fillng-of -a motion to withdraw as counsel, the judge of compensation claims having — jurisdiction.of the industrial accident — may--conduct such hearings-as-may be requested by any party or-on -the-judge’s own motion to protect the rights of all partiesj-or-the-j-udge-of-compensation-claims-may enter an order substantial-⅛⅛-the-form-provided-in -form 4.907.

1979 Adoption, — This replaees-rule-6 — 19-7-7-

-1988-Amendment. — This rule clarifies existing procedure as to the appearance and substitutiom-of-counsel — and-provides for -an alternate procedure to approve the withdrawal of counsel without a hearing in the absence of-a timely objection. RULE 4.061, CONTRACTS OF REPRESENTATION; ATTORNEY FEES (a) Contracts of Representation, — The employee (or claimant)-and the attorney for the-employee (on-claimaat)-may-jointly-apply to-the-judge of compensation claims having jurisdiction of the industrial accident to approve their contract of-representation and enforce the provisions thereof. — The judge of compensation claims may approve the-contract of — representation-without a formal hearing if-it appears — to be — in substantial compliance with — these rules and the provisions of chapter-440, Florida Statutes. Upon approval of the-contract of-representation without a hearing,- the judge of-compensation claims shall enter an order and serve a copy of-the order on the attorney for the employee, — The—attorney for the employee-shall promptly serve a copy of the-order -on all parties and counsel of record using the-eertif-icate of-service-providedrin-form 4.902. Any party, for-good-cause-shown, may object to and move-to -modify-or vacate any — order approving a contract of representation at any time. — The judge of compensation claims shall promptly-hear-any-such motion. — The filing and-service-of a motion-to--modify-on vacate an order approving a contraet-of representation shall-suspend the-operation and effect of the order until the motion is-heard and decided. — Nothing in this rule shall preclude the-judge-of compensation-claims-from modifying-or-disapproving any-contract of representation for good cause or to-avoid undue hardship on any party,

(b) Payment — of Undisputed — Attorney Pees, — The employee and the-attorney for-the-employee may jointly move for the judge of compensation claims-to approve the-payment of-an-attorney fee-and reimbursement of-costs-pursuant to a contract of representation by-a-stipulated motion substantially in the form provided by these rules. — The employee-and the employer and its carrier (or servicing -agent) — and/or-their counsel -may stipulate-to the-payment of an attorney fee and costs and submit their stipulation to the judge of compensation-claims for approval,

(c) Disputed-Attorney Fees or Costs, A claim for attorney fees-or costs broughh-by an — attorney or party shall-be in-the form provided for-a claim for compensation and shall-be treated as-a claim-for compensation for-ailpurposes. Any claim-for attorney-fees shall allege-ultimate-facts-which, if proven, would give rise to entitlement to the award-of an-attorney fee. — Prior to hearing-any issue as to-the amount of-disputed attorney fees or costSj-the attorney shall file a verified-petition-setting-forth-with specificity the amount of time expended — costs—advanced or incurred, and -the benefits-obtained together with all other allegations -of fact-pursuant to section 440.34, Florida Statutes. — At the request-of any party, or on the judge’s own motion, the -judge-of compensation claims shall determine the procedure for the hearing — and adjudication of any issues as to a disputed attorney fee and taxation of costs.

1988 Adoption, — This rule formalizes-and makes-substantially-nniform existing practice as -to-attorne-y-client contracts and attorney fees as these proceedings have evolved since the 1979 legislative-reforms. — Approval-of any-attorney-client agreement by the deputy commissioner is discretionary and-not mandatory.

RULE 4,062, PAYMENT OF ATTORNEY FEES BY EMPLOYEE

The-judge- of compensation claims shall hear any motion for attorney, fees in the manner provided-for a hearing on a claim for compensation, — With respect to-proceedings in which the -fee is to be paid by the employee, the employee may waive -a formal hearing before the judge of compensation claims and the judge of - compensation-claims-may -consider the motion ex-parte,-based-on verified pleadings. — No motion for-attor-ney-fees-shall be granted by the-judge-of compensation claims-unless it appears affirmatively that the-provisions of these rules and-of chapter 440 — Florida Statutes, have been substantially complied with and — that-the employee has beemadvised as to those provisions.

1988 Adoption, — It is intended that -all motions under this rule be-swor-n-to by-the employee and contain a notarial jurat. RULE 4.065. MOTION PRACTICE (a) Substantive Motions. A motion relating to the adjudication of entitlement to benefits, including, but not limited to, motions to vacate orders for lump-sum advances, motions for advances under sections 440.20(12)(c)2 and 440.20(12)(d), Florida Statutes, appeals of administrative fines or penalties under section 440,106, Florida Statutes, motions for appointment of guardians, motions to appoint expert medical advisors under section 440.13, Florida Statutes, requests for imposition of sanctions under these rules, motions to disqualify a .judge or a mediator, motions to recuse counsel, motions to correct the appellate record, and motions to appoint independent medical examiners under section 440,13, Florida Statutes, shall be handled in the manner as provided for a claim in rule 4.025.

(b) Procedural Motions.

(1) Procedural motions include, but are not limited to, motions to consolidate, motions related to discovery, motions to dismiss for lack of prosecution, motions to dismiss for lack of specificity, motions to amend pretrial stipulations, motions for a continuance, motions to compel, motions for protective orders, and motions in limine. Procedural motions shall be heard on not less than 5 days’ written notice. The .judge may require the moving party to serve written notice of the hearing on opposing counsel. No pretrial hearing shall be required.

(2) A procedural motion shall set forth in detail the facts giving rise to the motion, its legal basis, and the specific relief sought. Any documents relied on should be specifically referenced and attached.

(c) Contents.

(1) All motions shall contain the following certificate of counsel:

(A) The motion is made in good faith and not for the purpose of delay.

(B) The opposing counsel has been contacted in an effort to resolve the matter without a hearing, and despite those efforts, the opposing counsel objects to the motion.

(d) Emergency Motions. All emergency procedural motions shall be identified as such and shall identify the nature of the emergency including time constraints. Emergency procedural motions shall be heard promptly.

(e) Response to Motions. A written response to a contested motion is not required. If a written response is made, it shall specifically state the basis for the objection.

(f) Hearing Location. Unless the moving party obtains prior approval of the judge, all procedural motions shall be heard at the office of the .judge. If the judge allows telephone appearances, the party wishing to appear by telephone shall be responsible to coordinate the appearance of counsel and other necessary participants and to notify the .judge.

(g) Notice of Hearing. Notices of hearing shall be prepared and served on the parties pursuant to rule 4.030.

(h) Motion Hearing at Pretrial Hearing. Motions may be heard at pretrial hearing in accordance with rule 4.045.

(i) Motions Seeking Affirmative Relief. Judges, at their own discretion, may treat any motion seeking affirmative relief or the adjudication of entitlement to any benefits in the manner provided for a claim or petition under these rules.

(j) Motions to Dismiss.

(1) In addition to meeting the requirements of subdivision (a), all motions to dismiss must state with particularity the basis for the motion. The judge shall enter an order on such motions without a hearing, unless good cause for the hearing is shown.

(2) Notwithstanding the entry of a docketing order under rule 4.029, any motion to dismiss for lack of specificity must be filed pursuant to section 440.192(5), Florida Statutes, and comply with the requirements of subdivisions (a) and (b) of this rule. The motion must be filed within 30 days after receipt of the petition or it is waived.

(k) Motion to Receive Medical Records. All medical records of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence upon proper motion served on the opposing party at the time of the pretrial hearing or no later than 80 days before the final hearing. Such records shall be served with the motion.

1995 Adoption. This rule clarifies existing procedure in various districts and defines procedural versus substantive motions that may require an evidentiary hearing. Replaces rule 4.140.

The motion to receive into evidence the medical records of authorized treating health care providers may be contained within the Uniform Pretrial Stipulation, Pretrial Compliance Questionnaire, and Order. RULE-4.070. APPLICATION-FOR HEARING

An application for -hearing — concerning' a claim, -made-pursuant to chapter 440, Florida Statutes, shall state concisely in separate numbered paragraphs the reasons for-requesting hearing, and the questions at issue or in dispute which the-applicant expects the judge to hear-and determine, with sufficient partieularity that the responding-er opposing parties-may be notified of the purpose of-the hearings including the issues to-be heard and determined and-specific benefit due and-not paid — Application for the first-diearing or trial in-a cause-shall be filed with the division at Tallahassee. — On receipt of an application for hearing, all-materials filed with or-received-by the division shall be incorporated in the-file for forwarding to the-appropriate judge of compensation claims who will cen-duct-the hearing. — All-subsequent materials received or filed also-shall be immediately forwarded to the judge of compensation claims. — Applications—for any subsequent hearings in that-cause shall be filed with-the judge to whom-the case has been assigned. A copy-of the application shall be served on counsel for each party — and a copy on any party not represented-by-counsel. Failure-to serve a copy of-the application as required shall-be-grounds-for a continuance or cancellation of the hearing.

1979 Adoption. This replaces rule 7, 1977 W.C.Rd?. — It is derived-substantially from section 440.25(3)(a), Florida-Statutes-(197-9)y which again emphasizes “the-specifio-benefit due and-not paidd? — This clearly-p'oints-up one of the-many differences between civil proceedings-generally, and workers-eompen-sa&on:— [that] from the ‘Notice of-Injury’ a file is begun and maintained by the division in Tallahassee. — As a deputy commissioner assumes supervision-for the-purpose-of pr-o-viding judicial-type services-, that administrative file [in the division] provides, in part, the foundation for the file pertinent to-the litiga-⅛⅜ — Even as the litigation proceeds, the administrative functions must be continued, hence a continuing-relationship between the dual nature [of that file as]administrative/judicial.

1-980 Amendment. — This-change-would keep the division, the agency whisk is -involved in various-stages of the management of-wrorkers’ compensation cases, apprised-of the-status-of the-case, and informed-of the reason for the deputy’s continued possession-of-the file.

1984 AmendmeHt, — Implements -section 440-.25(3)(a-)-Florida Statutes.

RULE 4.075. PROSECUTION OF CLAIM AND PETITION FOR BENEFITS BEFORE JUDGE (a) Generally. To protect the interest of any party and to advance the proceedings, the judge may:

(1) sever any issue;

(2) continue a scheduled hearing as to any or all issues;

(3) reserve jurisdiction of any issue;

(4) dismiss any issue without prejudice;

(5) refer any issue to the EAO in the event a petition filed by an unrepresented claimant is found to be nonspecific or a party has failed to exhaust the EAO administrative remedies; or (6) refer any issue to mediation.

(b) Prosecution of Claim or Petition. After a final hearing has been set, all parties shall diligently prosecute or defend the claim or petition.

(c) Continuances. (1) Continuances of hearings will not be freely granted and will be granted only upon a showing of good cause.

(2) The .judge may cancel or continue a trial on his or her own motion or on the motion of a party if the judge finds that the cancellation or continuance is for good cause and has not resulted from lack of diligence in the prosecution or defense of the petition or claim.

(3) A request for a continuance shall be made by motion or stipulation of the parties and shall specify the reason that the continuance is necessary.

(4) Unless otherwise ordered by the .judge, continuance of a trial or pretrial hearing shall automatically extend the time provided for the completion of any subsequent act.

(5) If there is a pretrial stipulation or pretrial order in place and the final hearing is continued, an additional pretrial hearing will not be set unless requested in writing by a party.

(d) Voluntary Dismissal. A claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice or stipulation of voluntary dismissal at any time before the final hearing begins, or during the final hearing before the claimant or petitioner rests by stating on the record such notice of voluntary dismissal Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal.

(e) Motion To Dismiss for Lack of Prosecution.

(1) A motion to dismiss for lack of prosecution may be filed if it appears that no action has been taken on any claim or petition by request for hearing, filing of pleading, order of the judge, payment of compensation, provision of medical care, or otherwise, for a period of one year. (2) The judge shall serve notice of hearing on the parties by regular mail at their last known address.

(3)The motion to dismiss shall be granted unless a party shows good cause why the claim or petition should remain pending.

(f)Proceedings by Telephone.

(1) The judge may conduct any proceedings permitted under these rules or under chapter 440, Florida Statutes, by telephone conference, provided a means of recording the proceedings is available, if requested by any party.

(2) No live testimony, other than that of an expert witness as defined by the applicable statutes, shall be taken by telephone without the agreement of all parties.

(3) In the event that trial testimony is taken by telephone, the oath shall be administered in the physical presence of the witness, by a notary public or officer authorized to administer oaths. A certificate of the notary public or officer, substantially the same as form 4.9105, shall be filed by the party offering the witness’s trial testimony within 15 days.

1995 Adoption. This rule replaces and expands rule 4.110. Subdivision (d) is in response to the First District Court of Appeal pronouncements in Eastern Airlines v. Gránese, 631 So. 2d 365 (Fla. 1st DCA 1994), and Judge C.J. Kahn’s suggestion in his concurring opinion in Perez v. Winn-Dixie, 639 So. 2d 109 (Fla. 1st DCA 1994), that the Committee examine this subdivision to accurately reflect its intent that voluntary dismissals in workers’ compensation matters conform to Florida Rule of Civil Procedure 1.420(a)(1), as the Committee stated in its 1984 Committee Note to prior rule 4.110.

RTJLE — 4.080,-—NOTICE—QF-—-HEARING^ ORDER — OF—JUDGE—OF—COMPENSATION CLAIMS pensation claims shall hold a hearing within 90 days after the filing of an application for hearim-g^nd-shall-serve-the-parties-and counsel-of-record-at-their-last-known-addressesy with at least 15 days’ notice by-regular-mai-k The notice shall state with particularity the questions at issue.or -in dispute — that—the judge will hear and determine. — Service -of-a notice of hearing shall be complete upon mailing. — Unless otherwise specified in — the notice-of hearing, the -judge-may [...]consider and determine all issues pending as of the date of the hearing.

(b) -Setting of Hearing, — Judges of-eem-pensation claims, in their discretion, may-set hearings singly-at a time certain, or in-the aggregate using dockets-in the-ferm -provided in forms 4.908 and 4.909.

(c) Order, The order-of the-judge-of compensation claims shall-set-forth findings-of fact, conclusions of law — and the judge’s determination of the claim-or other-ruling. The order shall be-signed by the judge of compensation claims and shall include a-certificate of-service to all parties and counsel of record-1979-Adoption, Thls^replaces rule 8,1977 W.C.RJP. It, too, is derived-sufestantially from section 440.25(3)(a), Flor-ida Statutes — (4979).-Note that the deputy shall give-the notice.

1989-Amendment, — &—(a) Suggestions have been made to remove the requirement that notice to the parties-of a hearing-be sent by certified mail. — The' Rules Committee of the Workers’ Compensation Section is of-the opinion^ that the requirement that the-hearing notice be sent by certified mail should-be retained for two reasons. — In the first instance,-the statute, section 440.25(3)(a), Florida Statutes, requires notice by-eertifled mail, and, secondlyy-this provision is viewed as-one which-^rovides at least-a minimum-level of procedural due process.

& — (b) The portion of this-rule which the rules-eemmittee of the-section-recommends be removed was-in-conflict with the wording of rule-14, which has been tr-ansplantedr in toto, tequie 8(b).

1981 Amendment, — Conforms hearing-notice requirements — to—section -440.25(-8)(a),' Florida-Statutes, as amended-to delete-requirement of certified mail sendee, and provides clarification of time periods-involved to the effect that-aninimum 15 days’ notiee is measured from the date notice is mailed.-

1988 Amendment, — This-rule and accompanying-forms provide a-standard form for-the notice of hearing. — In the alternative, a hearing doekeU-system is -provided for in recognition of the adoption-of that procedure in some districts, — The provisions-of-subdivision (b) are new- — The balance of-the rale reflects the 1984 revision with minor-changes in wording for clarity.

RULE 4.085. FINAL HEARING (a) Notice. The judge shall give 30 days’ notice of the final hearing to all parties by mail. The notice of the final hearing may be set forth in the pretrial order accompanying the notice of mediation, notice of pretrial hearing, and pretrial order, or may be issued separately by the judge.

(b) Form and Service of Notice. The notice shall state clearly the questions at issue or in dispute that the .judge will hear. (c) Attendance.

(1) Unless excused by the .judge, counsel for all parties shall attend the final hearing in person.

(2) Except as authorized under the Florida Rules of Civil Procedure, the claimant shall attend the final hearing in person. As provided under rule 4.075, a witness may appear by telephone, provided communication equipment is available at the location of the final hearing and prior arrangements have been made for administering the oath to the witness-es) Witnesses appearing by telephone must be identified at the time of the pretrial hearing or specifically designated in the witness list or pretrial stipulation.

(d) Witnesses.

(1) Only those witnesses listed in the pretrial stipulation or in the witness list served no later than 30 days before the final hearing will be allowed to testify.

(2) Witnesses may be added after the 30-day witness deadline only by stipulation of the parties or by approval by the judge.

(e) Admissibility of Evidence.

(1) The judge shall rule promptly on a question of the admissibility of evidence. (2) If an objection is made and not ruled on by the judge, the ruling shall be presumed to be adverse to the party making the objection,

(f) Proffers. Evidence that has been offered but ruled inadmissible may be proffered but shall be clearly identified as such by the judge.

(g) Exhibits.

(1) The contents of the division file with respect to a claim or petition shall not be admissible evidence as such, absent the stipulation of all parties, but individual portions of the file shall be admitted if admissible under the rules of evidence.

(2) Legible copies may be substituted for original documents when reasonably necessary.

(3) Voluminous or cumbersome exhibits shall not be received into evidence unless their use is unavoidable.

(h) Posthearing Evidence. Except in extraordinary circumstances and only on specific motion, posthearing evidence, including exhibits and depositions, will not be allowed. However, the .judge on his or her own motion may consider posthearing evidence.

1995 Adoption. In most circumstances the petitioner/claimant will appear at the final hearing, particularly if his or her testimony is needed. However, under Florida Rule of Civil Procedure 1.330(a)(3), the deposition of a party may be used at trial under certain circumstances. This rule is intended to conform to Florida Rule of Civil Procedure 1.330(a)(3).

RULE 1.090. DISCOVERY (a)-Depositions, — Depositions of witnesses or parties, residing within or-without-the statey-may-betaken and used in connection with proceedings under chapter 440,- Florida Statutes; either on the order of the judge of compensation claims-or-at-the instance of any party-or-prospeetive party to such proceeding, — For good cause shown,--the judge of compensation claims may require the taking of a deposition-by-telephone.

(b) Production of Documents and Entry on -Land. — The parties-shall be-subject -to duction of records and other tangible things, and entry on land or other property for inspection or other purposes within the scope of-discover-y,-inclading--but-not-limited-to-all hospital and medical reports pertaining to the-industrial accidenty all rehabilitation-re-portsy-aii-records-pertaining to the olaimanifs average weekly wage at the time of the industrial accident or earnings made subsequent to the industrial accident, and a transcript of any recorded statement' of a' party. The parties shall have 30 days to serve a written response after service of any request under this rule. — The judge of compensation ciaimsy-for-good-eause shown, may enlarge or shorten-the-time-allowed for compliance with this rule.

(c)-Produc-tion-of-Doouments-from Non-Parties..Theparties-also-may-seek-the-pro-duetion — of—doouments and other tangible things, within the-scope -of.discovery, — for inspection and copying from a person who is not a party pursuant to applicable' Florida Rules of Civil Procedure.

(d)-Jurisdictiom — The judge of compensation claims shall have jurisdiction to-take appropriate action to-compel discovery, including the imposition of sanctionsy-andy-as circumstances warrant,- may-enlarge or shorten the applicable time for complying with discovery.

(e) When Discovery May Be Had. — Discovery under-this-rule may be had prior to the institution-of-a claim, if the claimant is represented-by-an attorney, or after the fíl-ing-of-a-claim, in the same-manner-and-for the-same-purposes as provided in the Florida Rules of Civil Procedure,

(f) Other -Discovery. — Interrogatories, requests — for admission, and other--forms — of discovery not authorized-by this rule shall not be used or permitted in workers’ compensation proceedings.

(g) Surveillance. -The-evidence of any investigatory-adjustor, or other witness-in-the nature of surveillance shall be subject-to discovery when such evidence will be used at trial — provided the party-intending to use suc-h evidence is first given a reasonable opportunity to-depose the party or witness who is the subject-of the surveillance.

1979 Adoption. This replaces rule 9, 1977

It is derived substantially from — section 449.30,-Florida Statutes' (-1979).

1984 — Amendment,-Subdivisions—(b) through (f) are new and formalize additional forms of — diseovery already widely — 'used in-workers’ compensation -proceedings, — This rule specifically declines to adopt interrogatories or requests for admission — as-unduly-cumbersome-and contrary to the overriding policy consideration for-the expeditious resolution of — an—injured worker’s rights, — AF though discovery is generally intended to be self-administrating, itis-subject to the supervision of the-deputy commissioner. Stephens v. Southern Furniture -Transports, Inc., 420 So. 2d 904 (F-Ia.lst DGA^1982), — This rule dees not-medtfy and is consistent--with the powers and authority-conferred — upon-the deputy commissioner pursuant to -section 440.33, Florida-Statutes,

1988 Amendment, — Subdivision (g) of this rule is intended to conform to Dodson v.-Persell, 390 So-.2d 704 (F-la-.1980).-

RULE 4.095. EMERGENCY CONFERENCES (a) Generally. An emergency conference may be held if there is a bona fide emergency involving the health, safety, or welfare of an employee as provided for in section 440.25(4)(h), Florida Statutes.

(b) Requests. A request for an emergency conference shall be handled in the same manner as provided for a procedural motion in rule 4.065. A written request for an emergency conference shall be filed with the judge and served on the parties in accordance with rule 4.030. It shall set forth in detail the facts giving rise to the request, its legal basis, the factual or medical basis for the claim that there is a bona fide emergency involving the health, safety, or welfare of an employee, and the specific relief sought. Any documents relied upon should be specifically referenced and attached.

(c) Certificate of Counsel. The request shall contain the certificate of counsel that:’ (1) the request is made in good faith and not for the purpose of delay;

(2) the opposing party or counsel, if represented, has been contacted in an effort to resolve the matter without a hearing, and despite those efforts a hearing is required; and (3) to the best of counsel’s knowledge, information, and belief, formed after inquiry reasonable under the circumstances, a bona fide emergency exists involving the health, safety, or welfare of the employee.

(d) Notice of Emergency Conference. The judge may require the appearance of the parties and counsel without written notice for such an emergency conference.

(e) Attendance. Parties, counsel, and witnesses may appear by telephone if telephone equipment is available.

(f) Orders. An emergency conference under this rule may result in the entry of an order or the rendering of an adjudication by the judge that shall be limited to those issues and relief sought in the request.

.

1995 Adoption. This rule is intended to provide some structure, notice, and procedure in requesting emergency conferences that may result in the entry of an order or the rendering of an adjudication by the judge of compensation claims.

This rule replaces rule 4.112, which allowed compulsory advisory conferences.

RULE 4,100, PRETRIAL PROCEDURE (a) Generally, — Judges of compensation claims may, on their own motion, or-shall on the motion of any party to the action, hold a pretrial — conference,—at-which.⅛⅛-parties shal-b (1) state and simplify-the claims, defenses, and issues?

(2) make appropriate-amendments to the claims and defenses; (3) stipulate-and-admit-to such facts and documents as will-avoid-u-n-necessary proof;

(4) present, examine, and mark-for -identification,- - all-exhibits. — Impeachment and rebuttal exhibits-need not be revealed;

(5) furnish-the-opposing-party the names and addresses.of all — witnesses.—Impeachment — witnesses,—and—rebuttal—witnesses thereto, need not be revealed;

(6) exchange all available written-reports of experts when expert opinion is to'be-offered at trial. — The reports should clearly disclose the expert opinion and its basis-on all subjects on which-the-expert-will-testifyr If stipulated into - evidence,-the-parties-shal-l present-the -reports-to-the-judge of compensation-claims to be so marked. — The parties shall consider-and-determine-a-limitatie-Hr-on the-number-of-expert witnesses;

(7) estimate trial time;- and (8)-eonsider — and—determine—such other matters-as may aid in the disposition of the cause-.-

(b) Notice. — The judge of compensation claims shall give the parties at least 15 days’ notice of the pretrial-conference, — I-f-a-party or the party’s attorney fails to attend the conference without good-cause, -the- - judge-of compensation claims may dismiss-the-claim- or strike the defenses, or take such other action as may be authorized by law or these rules. — The judge of compensation claims may cancel the pretrial conference on-submission of a written pretrial-stipulation. The judge-of-compensation — claims may conduct the pretrial conference by telephone at the request of any -party,-or-on-the-judge^s-own motion, provided-all parties -are-represented by counsel.

(c) Record. — The judge of compensation-claims shall record-the-pretrial conference by stenographic-or — electren-ic-means at the request-of-any party, or by-a written-stipulation signed-by-the-partiesr (d) Pretrial Order,-^At-the request of any party, the judge-of-compensation claims shall promptly enter an order reciting the action taken-at-the pretrial conference,-the -amendments allowed to the-claims and defenses, and the agreements made by the parties about any of the matters--considered-,--and limiting the issues for-trial-to-those-not-disposed of by admissions-or-stipulations-of-the parties. — The judge-of [...]compensation-claims shall serve the order on the attorneys for the parties and on any party not represented by-counsel. — The order shall control-the-subsequent course of the action unless the judge of compensation claims modifies it to prevent injustice. — The order on the pretrial conference-may be in letter form unless a formal order is -requested by any party.

-19-79-Adoption. — This replaces rule 10, 1977 W.C.R.P., but is -substantially-t-he-same.-

1984 Amendment. — Provides that - a -party-lias the right to a pretrial conference.upon request. — Deletes---requirement-of—notice-of pretrial by-order-RULE 4.105. EXPEDITED HEARINGS (a) Generally. If a petition filed in accordance with section 440.192, Florida Statutes, involves a claim or petition of $5,000 or less, excluding attorney fees and costs, it may be considered for resolution under section 440.25(4)(j), Florida Statutes.

(b) Application for Expedited Hearings. On written application of one party or by stipulation, any claim or petition filed in accordance with section 440.192, Florida Statutes, may be resolved under section 440.25(4), Florida Statutes. The application for expedited hearing shall be substantially the same as form 4.9091. A copy of this application shall be filed with the judge and served on all interested parties.

(c) Motion to Dispense. Any motion to dispense with expedited hearing shall comply with rule 4,065 and must be based on compelling evidence that the claim or petition is not appropriate for expedited resolution-id) Expedited Docketing and Notice. The judge shall serve written notice of the hearing on the parties not less than 45 days before the hearing.

(e)Discovery. The parties shall have at least 30 days to conduct discovery, which shall be completed 15 days before the hearing. (f) Pretrial Outline. At least 15 days before the hearing, a pretrial outline shall be filed with the judge and served on all parties. The following shall be attached:

(1) Statement of the Facts. The statement shall include references to the specific pages in the deposition testimony of witnesses as well as a suggestion of the expected testimony of those witnesses who will be called to testify at the hearing.

(2) Memorandum of Law. The memorandum shall include relevant case citations and copies of the cases cited.

(3) Attachments. A complete composite of the records of the medical advisor appointed by the judge or the division, any independent medical examination (IME) physicians, and any other authorized providers shall be attached. There shall also be attached any depositions or other documentary items on which a party will rely to establish the case. The pages of the composite shall be numbered and the composite shall be preceded by an abstract referencing and synthesizing those portions of the records on which the filing party relies. No additional records, depositions, or documentary evidence will be admitted at the time of the hearing.

(g) Witness and Subpoenas. At the final hearing, the parties must arrange to have all witnesses present or available to testify promptly at the time and place noticed. Subpoenas-will be issued on request of the parties or their counsel. If any party or legally subpoenaed witness fails to appear at the time and place set for the hearing, sanctions under rule 4.150 may be imposed or punitive actions authorized under sections 440.32 and 440.33, Florida Statutes, may be initiated.

(h) Final Hearing Procedure. The final hearing will not exceed 30 minutes. The employer/carrier may be represented by an adjuster or other qualified representative. All previously scheduled final hearings and pretrial conferences shall be canceled.

(i) Posthearing Evidence. Posthearing evidence shall be considered in the same manner as provided in rule 4.085,

1995 Adoption. This rule codifies the procedure to follow when requesting a 30-min-ute expedited hearing as authorized by section 440.25(4)(j), Florida Statutes, for claims of $5,000 or less, or if stipulated to by the parties.

RULE-4,110» — PROSECUTION-©E CLAIM BEFORE JUDGE OF COMPENSATION CLAIMS (a-)-Prosecution of Claim, — When a trial has been set by a judge of compensation claims, all parties shall diligently prosecute and defend the claim. — Judges of compensation claims may cancel qr continue a trial-on their-own motion or on the motion of a party if they-find that the cancellation or continuance is-for good cause which-has not-resulted-from lack of diligence in the prosecution or defense-of the claim, — A notice-of voluntary dismissal is without prejudice, except that a second notice of voluntary dismissal by-fee claimant operates as an adjudication of denial of any claim for the-same benefit or benefits previously the subject of a voluntary dismiss-ak (b) Dismissal of-Claim or-Petition.- —Any claim, or any petition to modify, in which-it affirmatively appears that no action has been taken by request-fer hearing, filing of pleadings, order of the-judge -of — compensation claims, payment of-compensation, provision of medical care, or-otherwise-for a period-of one year, is subject to dismissal for -lack-of prosecution. — On motion to dismiss filed-by any -interested — party, or-on request of the judge of compensation claims-before whom the action is pending, the file-shall be for- ' warded-to the appropriate judge of compensation claims who shall dismiss-the claim-o-r petition^ after service of -notice to the parties by-regular mail at their last known addresses and opportunity for hearing, unless a party shows good cause^why the-elaim or-petition should remain pending.

1979-Adoption, — This replaces rule — 1-1, 1977 W.C.R.P. The 1977 rule was the result of-extensive debate and revision, and the-committee did not-see-need for substantial revision. 1980 Amendment. — Deletion of the words “after filing” in rule ll(b)allows-the-€femiss-ak of a state-claim after any two year period of inactivity- — T-he-efaange will make this rule consistent with rule 1.420(e) of the Florida Rules of Civil Procedure.

1984 Amendment.

(-a)-Gonforms-^workers’ compensation procedure-withr-Florida Rule of Civil Procedure 1.42Q(-a-)(-l). Voluntary dismissal of the same claim or claim for the same benefits is-with prejudice and operates--as — a— denial— of-the elaim-for those benefits.

(b)Conforms nonprosecution time period to civil practice period of one year. RULE 4,1-11, PROCEEDINGS BY TELEPHONE

The judge of compensation — claims—may-conduct any proceeding permitted — under these rules or under-Ghapter-440, — Florida Statutes, by telephone conference provided no live testimony, other than that of an expert witness as defined by the applicable statutes, is taken without the agreement-of allparties-and-provided a means of recording the proceedings is available if requested by any party.

1988 Adoption, — This-rale is adapted from rule 2.071, Florida Rules of Judicial Administration, to which reference -maybe-made-for purposes of-constr-uetiem

RULE 4.112. EMERGENCY — CONFERENCES

The judge of compensation claims may require the appearance of the parties and counsel-on-less than 15 days’ written notice as otherwise required by these rules and by chapter 440, Florida Statutes, only to consider the reasonableness--and-medical necessity of proposed-medieal treatment when there is a bona fide emergency-involving the health or safety of an employee. — The parties-may agree to consider other issues at--an-emergency conference. An emergency-conference under this-rule-shall be advisory in nature, shall not constitute a-hearing for any purpose, and shall not result in the entry of an order-or-the rendering of an adjudicatiom-by-the judge of compensation claims. — No other emergency conference or-hearing is permitted by these rules.

-1988-Adoption. — This rule is intended to allow for a compulsory, advisory conference with the deputy commissioner only as to issues relating to the reasonableness and medical — necessity—of—proposed—emergency

RULE 4.115. ORDERS (a) Generally.

(1) The order of the judge shall set forth findings of fact, conclusions of law, and the judge’s determination of the claim or other ruling.

(2) The order shall be signed by the judge and shall include a certificate of service to all parties and counsel of record.

(b) Amending or Vacating Order. (1) A judge may, at his or her own discretion or pursuant to a motion for rehearing, vacate or amend an order not yet final pursuant to section 440.25, Florida Statutes.

(2) Grounds for vacating an order may include circumstances in which it appears to the judge that due consideration of a motion for rehearing may not be practicable before the order becomes final.

(c) Effect of Appeal. Nothing in these rules shall be construed to interfere with the judge’s jurisdiction to either approve settlements or correct clerical errors, as specified under rule 4.160.

(d) Rule Nisi. Pursuant to an order of a court having jurisdiction of a proceeding to enforce an order of the judge, the judge may conduct such hearings, consider such evidence, and enter such orders as may be necessary to determine any specific sums due pursuant to the order that is the subject matter of the rule nisi proceeding.

1995 Adoption. This rule incorporates former rules 4.080(c) and 4.141(b)-(d).

Subdivision (b) codifies the long-established practice in workers’ compensation litigation: A judge of compensation claims retains jurisdiction over an order that has not yet become final. The rule implicitly adopts the majority view in Drexel Properties, Inc. v. Brown, 443 So. 2d 150 (Fla.lst DCA 1983), giving the deputy commissioner wide latitude in determining whether to amend or vacate an order. RULE-4,130. AGREEMENTS

No-agreement-or-stipulation shall-be valid unless; — (1) in writing and signed-by the parties-er their-attorneys, or (2) dictated on the -record. — Any agreement or — stipulation under-⅛⅛ rule-may-be expressly relied on by the judge of compensation-claims in-any proceeding,-unless-a-party seeks to be-relieved of the -agreement-or stipulation for — good cause shown. — The judge of compensation claims.-may abrogate-any stipulation which appears-to be manifestly contrary to the evidence on due -notice to the parties-; however, the judge of compensation claims-need not inquire beyond the stipulation or agreements

1979 Adoption, — This replaces — rule—1⅝ .1.97⅝⅝€,⅞⅛

RULE — 4.131. SETTLEMENT OF PROSPECTIVE BENEFITS

In any proceeding-in which the parties undertake to compromise or release-the prospective entitlement-of the employee to-any class — el—benefits—pursuant—te—section 440,20(42), Florida Statutes:

(a) The parties-shall submit their agree-ment4n-~writing executed by all-attorneys-of record and by the-employee.

(b)-The employee shall acknowledge the agreement and its material provisions under oath in writing or before the judge of compensation claims,

(c) An agreement under this rule-shall set forth the terms, conditions, and consideration for the settlement-together with all-material facts-necessary for approval of — the settlement pursuant to-seetion 440.20(12)-, Florida Statutes,

(d) Prior to the approval of any-agreement under this rule, the parties and their attorneys shall submit-to the judge of-compensation claims for inclusion in the division file-all evidence in their possession which is material to-the consideration and disposition of the settlement agreement.

(e)The order-of the judge-of compensation claims.approving or disapproving the proposed settlement shall set forth findings of fact and conclusions of law to support-the approval-or-disapproval of the proposed settlement and may be in substantially the form provided in these rules.

1988 Adoption. The rule intends to codify and standardize-existing practice as -to washout settlements, — The accompanying forms are substantially those presently in general use,

RULE 4.140. MOTION PRACTICE (a) Procedural Motions. Any matter relating to procedure or — discovery may be raised by motion before the judge of compensation claims. The motion shall be filed with the judge of-compensation claims having jurisdiction of the industrial accident, who-will promptly hear-and decide -the issues-raised by the motion-after giving not less than 5 days’ written-netice to all parties. — Motions ' may be heard at any pretrial conference,provided the-motion was filed and served not less than-5-days prior to the date of-the pretrial conference.

(b) Motions Seeking Affirmative Relief. Judges of compensation claims, in their' discretion, may treat any motion seeking affirmative relief or the adjudication of entitlement to any-benefit in the manner provided for a claim for benefits under these -rules.

1988 Adoption. — Subdivision (a) of this rule is intended-to create an expedited procedure for the disposition of motions relating to discovery and-ether preliminary matters-not involving the adjudication-ef issues properly ralsed-by claim-or notice of defenses. Subdivision (b) is-intended to control the adjudication of substantive motions, such as motions for change of physicians, to suspend the payment or prevision of benefits-, and the like. RULE 4.141. MOTION FOR REHEARING; VACATING OR AMENDING ORDER -QF-JUDGE OF COMPENSATION CLAIMS; RULE-NISI (a) Rehearing. — Any party-may-file-with-the judge -of-compensation claims a motion for rehearing directed to-am-order-not yet final by operation-of-section 440.25, Florida Statutes. — Such-a—motion—shall state with specificity the-grounds on which it is based. The filing of such motion-does-not-toll-either the time within which an-order-becomes-final or the time witfain-whieh-an appeal may be fflod.

(b) Amending^ — Cheating Orders. — At the judge of compensation claims’ discretion,-an order-net yet final by operation of section IdOrg^-FIorida Statutes, may be either vacated or amended at either the judge -of-eom-pensation-claims^-own initiative or pursuant to a-motion for rehearing. — Grounds for vacating-an order may include circumstances in whie-h-lt-appears to the judge of compensation claims that due consideration-of-a motion for rehearing may not be-praetieahle-within the time remaining.under — section—44&2§y Florida Statutes-.

(c) Effect of Appeal. Nothing in this-rule shall-be-construed to interfere with the judge^ of compensation claims’ jurisdietion-to-either approve of-settlements or correct clerical errors, as specified under rules 4-.-160(-h)(3)-and 4465(g),

(d) Rule-Nisi. — Pursuant to an order of a court-having jurisdiction of a proceeding-to enforce-an-order-of the judge of compensation claims, the — judge may conduct such hearings, consider-such evidence, and enter such-orders as may be necessary to determine any specific sums due-pursuant-to-the order which-is-the-subject matter of the rule nisi proceeding.-

(a)Generally. A motion for rehearing shall state specifically the grounds on which it is based and should not be used to reargue issues already determined. A motion for rehearing may be filed only within 20 days from the date of an order not yet final under section 440.25, Florida Statutes.

(b) Purpose. The purpose of the motion shall be limited to:

(1) call attention to typographical, technical, and scrivener’s errors;

(2) challenge rulings that were outside the scope of the issues presented; or (3) seek clarification in matters of law or fact that the judge overlooked or misapprehended.

(c) Effect on Timeliness. A motion for rehearing does not toll the time within which either an order becomes final or an appeal may be filed. It is the moving party’s responsibility to contact the judge’s office to schedule a hearing on the motion.

1984 Adoption. This new rule affords parties a rehearing process in response to such First District Court of Appeal pronouncements as are found in Acosta Roofing Company v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981), and Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982). Though time for filing appeal is not tolled by the filing of a motion for rehearing, subdivision (b) specifically invites use of a deputy’s power to vacate as a means of affording the parties additional time for processing a motion for rehearing where circumstances warrant. This flexible process was deemed preferable to the tolling of the appellate filing period in every ease of motion for rehearing.

Subdivision (b) codifies the long established practice in workers’ compensation litigation: A deputy commissioner retains jurisdiction over an order that has not yet become final. The rule implicitly adopts the majority view in Drexel Properties, Inc. v. Brown, 443 So. 2d 150 (Fla. 1st DCA 1983), giving the deputy commissioner wide latitude in determining whether to amend or vacate an order. 1995 Amendment. Subdivisions (b), (c), and (d) were moved to new rule 4.115, Orders. New subdivision (c) was added.

RULE 4.142. AGREEMENTS OR STIPULATIONS (a) Scope. Agreements or stipulations not involving settlements under section 440.20(11), Florida Statutes, shall comply with this rule.

(b) Generally. No agreement or stipulation shall be enforceable unless it is:

(1) in writing and signed by the parties or their attorney;

(2) dictated on the record; or (3) in the case of a settlement agreement resulting from a conference pursuant to section 440.191(2)(c), Florida Statutes, approved in writing by the docketing judge.

(c) Form. All agreements or stipulations submitted to a judge for approval and entry of an order shall include a detailed statement of the issues in dispute and how the issues were resolved, including a description of the benefits provided.

(d) Reliance. Any agreement or stipulation under this rule may be expressly relied on by the .judge in any proceeding, unless a party seeks to be relieved of the agreement or stipulation for good cause shown.

(e) Abrogation. The judge may abrogate any stipulation that appears to be manifestly contrary to the evidence on due notice to the parties; however, the judge need not inquire beyond the stipulation or agreement.

1995 Adoption. This replaces and clarifies rule 4.130. Subdivision (c) requires that an order approving an agreement or stipulation under this rule also include a detailed statement of the issues, their resolution, and the benefits to be provided as reflected in the agreement or stipulation.

RULE 4,143. SETTLEMENT UNDER SECTION 440.20(11), FLORIDA STATUTES (a) Scope. This rule applies in any proceeding in which the parties undertake to compromise or release any class of benefits pursuant to section 440.20(11), Florida Statutes.

(b) Uniform Stipulation Forms. The parties shall submit their agreement in writing executed by all attorneys of record and the employee. The parties will use the standard forms published by the Office of the Judges of Compensation Claims, or the equivalent, when submitting an agreement.

(c) Required Documents. A .joint petition seeking the approval of a lump-sum settlement under section 440.20(11), Florida Statutes, shall be filed with the .judge’s office along with;

(1) a stipulation using the standard forms published by the Office of the Judges of Compensation Claims, or the equivalent, signed by the claimant, all attorneys of record, unrepresented parties, or representatives of the employer/carrier;

(2) an affidavit of the claimant in which the claimant shall acknowledge the agreement and its material provisions under oath in writing or before the judge, unless all relevant information is incorporated in the verified stipulation;

(3) a maximum medical improvement report, documentation of the permanent impairment rating, information concerning the need for future medical care, and other essential medical information;

(4) any other evidence in the possession of the parties and their attorneys that is material to the consideration and disposition of the settlement;

(5) a notice letter to the employer as required under section 440.20(ll)(b), Florida Statutes;

(6) an attorney-fee data sheet;

(7) an attorney’s affidavit seeking approval of an attorney fee and specifying the statutory factors forming the basis for a variance, if the requested fee exceeds the statutory guidelines under sections 440.34(l)(a)-(l)(h), Florida Statutes;

(8) the notice(s) of denial and the report to the chief judge for settlements under section 440.20(ll)(a), Florida Statutes.

(d) Orders. The order of the judge approving or disapproving the proposed settlement shall set forth findings of fact and conclusions of law to support the approval or disapproval of the proposed settlement, and may be in the form provided in these rules.

1995 Adoption. This rule replaces rule 4.131 because of the 1993 amendments to washout settlements under section 440.20(11), Florida Statutes. The intent of the rule is to codify and provide statewide uniformity as to washout settlement practice. The accompanying forms are substantially those presently in general use.

RULE 4.144. PAYMENT OF ATTORNEY FEES AND COSTS (a) Generally. On written request for hearing, the judge shall hear any claim for attorney fees and taxable costs in the manner provided for a hearing on a petition.

(b) Payment of Undisputed Attorney Fees and Costs by Claimant.

(1) The claimant and his or her attorney may .jointly move for the judge to approve the payment of an attorney fee and reimbursement of costs pursuant to a contract of representation by a stipulated motion substantially in the form provided by these rules.

(2) The claimant may waive a formal hearing before the judge and the judge may consider the motion ex parte based on verified pleadings.

(3) No motion for attorney fees shall be granted by the judge unless it appears affirmatively that the provisions of these rules and of chapter 440, Florida Statutes, have been substantially complied with and that the employee has been advised as to those provisions.

(c) Payment of Undisputed Attorney Fees and Costs by Employer/Carrier/Servicing Agent. The employee and the employer/carrier/servicing agent may stipulate to the payment of attorney fees and costs and submit the stipulation for the judge’s approval pursuant to rule 4,115.

(d) Payment of Disputed Attorney Fees and Costs.

(1) Any claim for attorney fees shall allege the statutory basis for the claim and may be subject to a pretrial hearing under these rules. However, if entitlement to attorney fees or costs has been adjudicated or stipulated, no pretrial hearing shall be held unless ordered by the judge.

(2) Unless otherwise ordered at the pretrial hearing, the verified petition shall be served on all par-ties 30 days before the scheduled fee hearing and shall include:

(A) a statement of the facts relied upon in support of the petition pursuant to section 440.34, Florida Statutes, including an opinion as to a reasonable fee amount;

(B) the statutory and legal basis relied upon in support of the petition;

(C) except for hearings to determine the value of appellate services, a recitation of all benefits secured for the claimant through the attorney’s efforts, including projected future benefits reduced to present value;

(D) a detailed chronological listing of all time devoted to the claim; and (E) a detailed list of all taxable costs advanced or incurred.

(e) Service of Response. Within 20 days after the verified petition is served, the opposing party or parties shall respond to the petition and shall include a recitation of all matters controverted in the verified petition.

(f) Bifurcation. If both entitlement and the amount of the fee are contested, the hearing may be bifurcated.

(g) Evidence on Amount. With the agreement of the parties, testimony as to the amount of the fee may be submitted in affidavit form. Otherwise, such testimony must be presented by deposition or at the fee hearing as provided in rule 4.085.

1995 Adoption. This rule replaces subdivisions (b) and (c) of rules 4,061 and 4.062, and codifies and standardizes the procedure for adjudication of disputed attorney-fee matters.

RULE 4.150. SANCTIONS (a) Generally. Failure to comply with the provisions of these rules or any order of the judge of compensation claims may subject a party to reprimand*; striking of briefeclaims, defenses, or pleadings, denial of oral argu-m&ntr-dismissab-o-f — proceedings*; imposition of costs* or attorney fees*; or such other sanctions as the judge of compensation claims shallmay deem appropriate. These sanctions are in addition to any sanctions available to the judge pursuant to section 440.33, Florida Statutes.

(b) Signature. Every pleading, written motion, and other paper shall be signed by the attorney of record or, if the party is not represented, by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(c) Representations to Judge. By presenting to the judge, whether by signing, filing, submitting, or later advocating, a pleading, written motion, or other paper, an attorney or unrepresented party is certifying to the best of the person’s knowledge, information, and belief, formed after inquiry reasonable under the circumstances, that:

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(d) Determination of Violation. If, after notice and a reasonable opportunity to respond, the judge determines that subdivision (c) has been violated, the judge may, subject to the conditions stated below, impose an appropriate sanction on the attorneys or parties who have violated subdivision (c) or are responsible for the violation.

(e) How Initiated.

(1) A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (c). It shall be served as provided in rule 4.030, but shall not be filed with or presented to the judge unless the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected within 21 days after service of the motion (or such other period as the judge may prescribe). If warranted, the judge may award to the party prevailing on the motion the cost of the proceeding and attorney fees incurred in presenting or opposing the motion.

(2) On his or her own initiative, the judge may enter an order describing the specific conduct that appears to violate subdivision (c) and directing an attorney or party to show cause why it has not violated subdivision (c) with respect thereto.

(f) Nature of Sanctions.

(1) A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in this subdivision and in subdivision (d), the sanction may consist of, or include, directives of a nonmone-tary nature, or a penalty pursuant to section 440.20 or 440.24, Florida Statutes; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney fees and other costs incurred as a direct result of the violation. If the judge determines that any proceedings were maintained or continued frivolously, the cost of the proceeding, including attorney fees, shall be assessed against the offending attorney. Penalties, fees, and costs awarded under this provision may not be recouped from the par-⅛

(2) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (c)(2). (3) Monetary sanctions may not be awarded on the judge’s initiative unless the judge issues an order to show cause before a voluntary dismissal or settlement of the claim made by or against the party that is, or whose attorneys are, to be sanctioned.

(g) Order. When imposing sanctions, the .judge shall describe the conduct determined to constitute a violation of the rule and explain the basis for the sanction imposed. If a penalty is assessed against an attorney pursuant to section 440,24, Florida Statutes, or this rule, the .judge shall forward a copy of the order assessing the penalty to the appropriate grievance committee acting under the jurisdiction of the supreme court.

1979 Adoption. This is new in W.C.R.P. It is derived from Florida Rule of Appellate Procedure 9.410,1979.

1995 Adoption. This rule extensively amends the prior rule. It is adopted from Federal Rule of Civil Procedure 11, and the intent is to create a uniform procedure to consider requests for sanctions relating to violations of section 440.32, Florida Statutes.

RULE 4.155. DISQUALIFICATION OR RECUSAL OF JUDGES (a) Any motion for disqualification of a judge shall be made and determined pursuant to Florida Rule of Judicial Administration 2,160.

(b) Upon the entry of an order of disqualification or the voluntary recusal by a judge, the chief judge shall promptly reassign the matter to another judge to conduct all further proceedings. In the absence of any written objection filed with the chief judge within 7 days of the order reassigning the matter, the chief judge may, in the interest of the prompt administration of justice, transfer venue of the cause of action.

1995 Adoption. This rule adopts Florida Rule of Judicial Administration 2.160, for the procedure to disqualify or recuse a judge of compensation claims and permits reassignment by the chief judge.

PART CIII. MEDIATION PROCEEDINGS

RULE 4.300. GENERAL PROVISIONS (a) Generally. Mediation in workers’ compensation matters is a process authorized by section 440,25, Florida Statutes, in which a mediator acts to encourage and facilitate the resolution of a workers’ compensation dispute between two or more parties by assisting those parties in reaching a mutually acceptable and voluntary agreement, thereby dispensing with the need for judicial determination.

(b) Purpose. The purpose of this part is to provide the procedures that shall govern mediations of workers’ compensation matters.

(c) Privileged and Confidential Communications.

(1) Any information from the files, reports, case summaries, or other communications or materials, oral or written, relating to a mediation conference obtained by any person participating in mediation is privileged and confidential and may not be disclosed without written consent of the interested parties involved in the mediation conference.

(2) Each party to a mediation conference has a privilege during and after the mediation conference to refuse to disclose and prevent another from disclosing communications made during the mediation conference, whether or not the disputed issues are successfully resolved. This subdivision shall not be construed to prevent or inhibit the discovery or admissibility of any information that is otherwise subject to discovery or that is admissible under an applicable law or rule of procedure, except that any conduct or statement made during a mediation conference or in negotiations concerning the mediation conference are inadmissible in any proceedings under chapter 440, Florida Statutes.

(3) In no event shall the mediator be subpoenaed, be called to testify, or give a statement or deposition to resolve any matter or disclose any communications or conduct made during the mediation conference-id) Discovery. Discovery may continue notwithstanding an order of referral to medi ation or pending a mediation conference unless otherwise ordered by the presiding judge.

(e) Effect on Petitions or Claims. Mediation shall not preclude or be cause for delay in the prosecution of a petition or claim nor prevent the scheduling and attendance at hearings thereon as required by section 440.25, Florida Statutes, unless otherwise ordered by the presiding judge.

1995 Adoption. Subdivision (e) is from former rule 4.360(e), subdivision (d) is from former rule 4.350(d), and subdivision (e) is from former rule 4.340(e).

RULE 4.310. MANDATORY MEDIATION (a) Initial Mandatory Mediation. Except as hereinafter provided, an initial mandatory mediation conference is required to be held concerning every petition filed under section 440.192, Florida Statutes, that survives dismissal after review by a docketing judge under section 440.45(3), .Florida Statutes, or a motion to dismiss filed under section 440.192(5), Florida Statutes.

(b) Notice and Date of Mandatory Mediation Conference.

(1) Within 7 days after a petition is filed under section 440.192, Florida Statutes, but in no event more than 7 days from the presiding judge’s receipt of the petition that survives a dismissal, the judge, or the mediator if the judge so designates, shall notify all interested parties of the date, time, and location of the initial mandatory mediation conference. The notice may be served personally or by mail upon the interested parties.

(2) The mediation conference shall be held within 21 days after a petition is filed under section 440.192, Florida Statutes, but if continued or rescheduled as hereinafter provided, it shall be held and completed no later than 10 days before any scheduled pretrial hearing.

(c) Waiver of Initial Mandatory Mediation Conference. A mandatory mediation conference may be waived only by order of the chief judge after the filing with the presiding judge of a motion to waive the initial mandatory mediation conference no later than³ days before the scheduled conference.

(d) Mediator. The initial mandatory mediation conference required to be held under section 440,25(1), Florida Statutes, shall be conducted by a mediator or adjunct mediator employed by the chief judge under section 440.25(3), Florida Statutes.

(e) Mediator’s Report. Within 10 days following the conclusion of the mediation conference, the mediator shall file a written report with the presiding judge as to whether any of the issues in dispute are resolved. If an impasse was declared the mediator shall so report without comment or recommendation. If the parties reach an agreement, it shall be filed with the presiding judge in accordance with rule 4.142,

1995 Adoption. This rule codifies the procedure for mandatory mediation required by section 440,25, Florida Statutes, for every petition for benefits.

Subdivision (c) also permits filing the motion to waive with the presiding judge who shall then forward the motion to the chief judge for consideration.

Subdivision (d) contemplates that the mandatory mediation shall be conducted by the mediator or adjunct mediator employed by the chief judge under section 440.25(3), Florida Statutes, without charge to the parties. Any substitution of the mediator requires approval by the presiding judge.

RULE 4,330, GENERAL PROVISIONS (a) -Definitions, — The following definitions apply to workers’ compensation-mediation-, unless-the-context-or-subject matter otherwise requires:

(1) “Mediation” is-a-process authorized by section 440.25(3), Florida Statutes, whereby-a mediator-acts to enceurage-and facilitate the resolution of a workers’ compensation-dispute or claim between 2 or-more parties by assisting-the parties in reaching-a mutually acceptable-and voluntary agreement, thereby dispensing with the need for judicial determination by trial. (2) “Mediator” is the person appointed by the chief judge in-accordance with the provisions of section 440.25(3-)(b-)l, Florida Statutes, to conduct a mediation-conference. The mediator is a member-i-n-good standing of The Florida Bar, known-as-a-ganerah-master, special master^-or a judge of compensation claims. — A-judge-of compensation claims who acts as a mediator shall not act as a presiding judge on the-same-easfe (3) “Mediation conference”- is-an-in-formal, nonadversarial negotiation or settlement-eon-ference attended by the interested — pariaes and supervised-and-condueted by a mediator-id) “Mediation agreement,” also known as a mediation settlement-agreement, means a mutually-acceptable and voluntary written-or-recorded agreement reached 'by the-parties at a mediation conference,- with the assistance of a mediator, resolving-completely-or partially a workers’-eompensation dispute or claim.

(5) “Impasse — -is the parties’ inability to reach a mutually acceptable and voluntary agreemenh-as-to-any matter at the mediation conference.

(6) “Chief judge” means the chief judge of compensation claims appointed by the-governor, serving in the Department-of~Labor-an4 Employment — Seeurity, pursuant to section 440.45(3),-Florida-Statutes.

(7) “Judge” means a judge-of -compensation claims pursuant to -section 440.45, Florida Statutes. — A presiding judge is the judge having jurisdiction of-the-i-ndustrial accident and to whom the claim-has been assigned.

(8) “Parties” means the employee — claimant, employer^-and carrier. (b) Purpose, — The purpose of these rules-,adopted and promulgated pursuant to the legal authority of the -Supreme Court of Florida, is to provide the procedures-that-shali govern-the mediation of workers’-compensation-disputes and claims.

RULE 4.340. REQUEST FOR OR REFERRAL TO SUBSEQUENT MEDIATION (a) ApplicationRequest for Subsequent Mediation. A mediation conference-maybe requested by-any — interested party, at any time-following a claim up to 60 days-prior-to-a — hearing scheduled pursuant to — section-440.25(3)(c), Florida Statutes. — A -request shali-be-made by the filing of an application-for mediation-conference with one of the following;

(1) The division, if filed simultaneously with a claim for benefits and/or application (2) The presiding judge or-genera-I-ma-starr An-order-requiring the parties to attend - a mediation conference shall be entered-by-a-presiding-judge-upon the application.-

(1) Notwithstanding attendance at a mandatory mediation conference, any interested party may request a mediation conference at any time following the filing of a petition under section 440.192, Florida Statutes, or any other claim subject to adjudication by a judge. The request shall be made on or before 45 days prior to a final hearing scheduled pursuant to section 440.25(4)(a), Florida Statutes. A request shall be made by the filing of a motion for mediation conference with the presiding judge.

(2) After considering the merits of the request, the presiding judge may enter an order referring the matter to mediation and requiring the parties to attend a mediation conference. An order upon such request may be entered without a hearing, unless good cause for a hearing is shown,

(b) Referral by Presiding Judge or by Stipulation. The presiding judge may also enter an order referring any claim or petition or any selected issues therein to mediation on a party’s motion,-the parties’ stipulation requesting mediation, or at the pretrial eon-ferencehearing te — accordance—with—rule 4.100(-a-)(8), if the judge finds mediation may aid in the disposition of the matter before trial.

(c) Motion to Dispense With or Defer Subsequent Mediation.

(1) Within 45 days of the order of referral to mediation or notice of mediation conference, whichever is entered first, any party may move to dispense with or defer mediation if: (4A) the matter has been previously mediated between the same-parties and the moving party verifies that further mediation would be of no benefit in resolving the matter;

(2B) the issue presents a question of law only; or (SC) other good cause is shown.

(2) The movant shall set the motion for hearing prior tobefore the scheduled date ferof the mediation* conference and shall serve Nnotice of the hearing shall be provided toon all interested parties, including the mediator. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation shall be suspended until a disposition of the motion.

(d) Denial of Mediation by-Mediator, — A mediator may deny a request for mediation-if the mediator determines the-matter or issues to be-inappropriate for mediation. Within-15 days of the receipt of application for mediation conference or an order-of referral to mediation, the-mediator-shall notify the parties— of the recommendation of denial — and refer-the matter-feo the -presiding judge for the entry of an-order approving or disapproving — the denial or, at the judge’s discretion, scheduling a hearing on the mediator’s recommendation*

(e) Effect on Claims for Benefits. — Mediation shall not preclude or-delay the prosecution-of a claim for benefits -nor prevent-the filing -of an applioation for-hearing and the scheduling and attendance at hearings-thereon — as-required by section 440.25, Florida Statutes*

1995 Amendment. This rule extensively amends the prior rule and affords the parties the opportunity to request or stipulate to a subsequent mediation in the event they reached an impasse at the initial mandatory mediation conference.

RULE 4.350. APPOINTMENT OF MEDIATOR AND SCHEDULING MEDIATION CONFERENCE FOR SUBSEQUENT MEDIATION (a) Appointment or Selection of Mediator. On receipt of an application for mediation conference from the division, the chief judge shall assign-the matter to the appropriate mediator; — However, if-the referral to mediation is pursuant to an order based on a motion,- stipulation, or pretrial-hearing, then the order shall designate the appropriate mediator^-previously selected and-assigned-by the-c-hief judge to the district-having jurisdiction-of-the industrial accident*

(1) Within 10 days of the order of referral to mediation entered pursuant to rule 4.340, the parties may stipulate to the selection of a member of The Florida Bar to act as a mediator who, in the opinion of the parties and the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the pending workers’ compensation claim or petition.

(2) If the parties cannot agree on a mediator within 10 days of the order of referral, the judge shall appoint a mediator or adjunct mediator employed by the chief judge pursuant to section 440.25(3), Florida Statutes, in the district in which the matter is pending-lb) Mediator Fees.

(1) Mediations conducted by a mediator or adjunct mediator employed by the chief judge under section 440.25(3), Florida Statutes, shall be at no cost to the parties.

(2) When the mediator selected by the parties and approved by the judge is one other than a mediator or adjunct mediator employed by the chief judge under section 440.25(3), Florida Statutes, the amount and method of payment of the mediator fees shall be agreed upon between the parties, or their attorneys, and the mediator. (fee) Notice of Mediation Conference* Order-. Within 15 days after-receipt by-the appropriate mediatorreceiving of an application-for mediation conference or an order referring the parties to mediation under rule 4.340, the mediator shall notify the parties in writing of the date, time, and place of the mediation conference unless the order of referral specifies the date, time, and place. A notice-of mediation-conference shall be substantially in the same form as-the notice-of hearing-form in-rule 4*908= — The first mediation conference shall be held-within 45-days of the filing of an, application for mediation conference or entry of an order of referral but no sooner-than 15 days from the date-of the notice or order scheduling such mediation conference. The mediation conference ordered under rule 4.340 shall be held no sooner than 7 days from the date of the notice scheduling; the mediation conference unless otherwise agreed by the parties.

(ed) Completion of Mediation; Continuances; Adjournments. Mediation shall be completed within 3010 days of the first mediation conferencebefore the final hearing unless extended by the mediator on stipulation of the partiesor the judge. However, the mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned mediation conference. No further written notification is required for parties present at the adjourned mediation conference.

(d) Discovery, — Discovery may continue throughout-mediatiem

1995 Amendment. This rule extensively amends the prior rule and is fashioned after Florida Rule of Civil Procedure 1.720(f). It allows the parties to stipulate to the selection of a private mediator to conduct a subsequent mediation. The stipulation also must reflect the amount and method of payment of the mediator fees.

RULE 4.360. MEDIATION PROCEDU-RESCONFERENCE (a) Attendance in Mediation. Any party required to attend a mediation conference must have full and binding authority to settle without further consultation. Notwithstanding rule 4.11-14.075, no party may appear by telephone unless specifically approved by the mediator. Further, a mediator may excuse the appearance of a party. Unless stipulated by the parties or relieved by order of the presiding judge, Aa party is deemed to appear at a mediation conference if the following persons are physically present:

(1)The claimant or petitioner, a representative of the carrier/servicing agent, an uninsured employer, or an insured or self-insured er/servicing agent does not have full settlement authority.

(2) The parties’ counsel of record. Appearance by counsel does not dispense with or waive the required attendance of the parties listed above.

(3) If the employer is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.

(b) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause or appears without full authority to resolve a claim, the presiding judge on a party’s or judge’s own motion and after a hearing may impose sanctions in accordance with rule 4.150, including payment of the mediator fees, if any.

(c) Counsel of Record. The -mediator shall-eontrol the mediation and the procedures-to-be followed in-mediation — Counsel shall be permitted to communicate privately with their clients at any time. In the discretion of the mediator and with the stipulation of the parties, a mediation conference may proceed in the absence of counsel.

(d) Communication with Parties. — The mediator may — meet and consult privately with-any party or parties-or their counsel.

(e) Privileged and-Gonfidential Communications.

(1) Any information-feom-the files, reports, case summariesj-mediator’s notes, or other communications or materials, oral or-wr-ittenT relating to a mediation conference obtained by any person -participating in mediation-is-privileged and confidentiaRand may not'be disclosed without-written consent of the-interested-parties involved in the mediation confereneei (2) Each party to a mediation conference has a privilege during and after the conference to-refuse to disclose-and prevent another-from-disclosing communications made during the mediation conference, whether-or-net the-disputed issues are successfully resolved-? This subdivision shall-not-be construed--to prevent or-inhibit the-diseovery or admissibility of any information that is otherwise subject to discovery or — that is — admissible under an-applicable law or rule of procedure, except that any conduct or statement made during-a-^nediation conference or in-negotiations concerning the conference is inadmissible in any-proceeding under chapter -440, Florida Statutes.

(3)In no event shall the-mediator-be sub-poenaedj-ealled to-testify, or give a deposition to resolve any claim or disclose any [...]communications or conduct made during the mediation conference.

1995 Amendment. This rule extensively amends the prior rule.

RULE 4.361. AUTHORITY AND DUTIES OF MEDIATORS (a) Authority of Mediator. (1) The mediator shall at all times be in control of the mediation and the procedures to be followed.

(2) The mediator may meet and consult privately with any party or parties or then-counsel during the mediation.

(3) The mediator shall make a good-faith effort to schedule the mediation conference at a time that is convenient for all parties, all attorneys, and the mediator. In the absence of agreement, the mediator shall schedule the date for the mediation conference.

(4) The mediator shall have discretion to allow any party to appear at the mediation conference by telephone.

(b) Duties of Mediator. The mediator shall inform the parties at the beginning of the mediation conference:

(1) of the process of mediation;

(2) that the mediator is an impartial facilitator, and is there to assist the parties in reaching, not to force them to reach, a voluntary settlement;

(3) of the differences between mediation and a final hearing before the presiding judge;

(4) if applicable, of the costs of the mediation;

(5) that the mediation process is consensual in nature, and the parties retain their right to a final hearing if they do not reach agreement;

(6) of the privileged and confidential nature of communications made during the mediation under rule 4.300(c);

(7) that any agreement reached at the mediation conference will be by mutual consent of the parties, reduced to writing, and subject to the approval of the presiding judge if necessary.

(c) Disclosure. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on possible bias, prejudice, or partiality.

(d) Guide for Mediator Conduct. A mediator’s conduct in discharging the professional responsibility in mediating workers’ compensation matters should be guided by the Standards of Professional Conduct found in Part II of the Florida Rules for Certified and Court-Appointed Mediators as approved by the Supreme Court of Florida.

(e) Matters beyond Mediator’s Competence. A mediator shall decline appointment, withdraw, or request technical assistance when the mediator decides that a matter is beyond the mediator’s competence.

1995 Adoption. This rule is intended to codify the authority and duties of a workers’ compensation mediator and adopts the Standards of Professional Conduct for Certified and Court-Appointed Mediators.

RULE 4.370. CONCLUSION OF MEDIATION (a) Impasse. The mediator shall have sole discretion to terminate or suspend mediation if at the mediation conference the parties have reached an impasse, or the matter is not appropriate for further mediation. It is the duty of the mediator to timely determine when mediation is no longer helpful or viable and that an impasse exists, or that mediation should end. The mediator shall, within 10 days of the conclusion of the mediation con ference, file a report with the presiding judge reflecting the lack of agreement without comment or recommendation.

(b) Mediation Agreement.

(1) If a mutually acceptable and voluntary total or partial agreement is reached, it shall be reduced to writing and signed by the parties and their-attorneys — or dictated on the record before a judge of compensation claims, or electronically or stenographically recorded and transcribed.

(2) The agreement shall be a stipulation pursuant to rule 4A8Q4.142 and shall be filed with the presiding judge.

(3) Any agreement or stipulation under this rule may be expressly relied on by the judge of compensation claims in any proceed-' ings, unless a party seeks to be relieved of the agreement or stipulation for good cause shown. The judge of compensation claims may abrogate any stipulation that appears to be manifestly contrary to law on due notice to the parties. However, the judge of compensation claims need not inquire beyond the stipulation or agreement and may enter an order approving the mediation agreement.

(e) Enforcement of Agreement. In the event of any breach or failure to perform under a mediation agreement, enforcement shall proceed in accordance with section 440.24, Florida Statutes.

(d) Agreement to Enter into Section 440.20(121), Florida Statutes, Settlement. Any mediation agreement compromising or releasing prospective benefits of the claimant to-to the employee of any class of benefits pursuant to section 440.20(121), Florida Statutes, shall not be approved or become binding until after the parties have first complied with rule 4.1314,143 and the aforesaid statu-tery — provisionrequirements of section 440.20(11), Florida Statutes.

RULE 4.380. DISQUALIFICATION OF MEDIATOR (a) Procedure. Any party may, by motion, for good cause shown, request the presi-dingehief judge to disqualify a mediator. The request must state with particularity the basis for disqualification. If a mediator is disqualified, the chief judge shall immediately enter an order naming a qualified repla-cementsubstitute mediator. The time for a mediation conference shall be tolled during any periods in which mediation is deferred pending determination of a disqualification motion.

(b) Disclosure by Mediator. Mediators have a duty to be impartial and shall immediately disclose and advise all parties of any circumstances bearing on possible conflicts of interest, bias, prejudice, or impartiality. Nothing in this rule shall preclude mediators from disqualifying themselves or refusing any assignment.

APPENDIX

PART BIV. FORMS

FORM 4.901. CAPTION AND STYLE OF PLEADINGS

STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF WORKERS’ COMPENSATION OFFICE OF THE JUDGE OF COMPENSATION CLAIMS DISTRICT.(district number).

.(ADDRESS) ..... .(ADDRESS).

[If other than Employee.]

CARRIER CLAIM NUMBER:

(SERVICING AGENT):

.(NAME). DATE OF ACCIDENT:

.(ADDRESS).

(Title of Pleading)

1988 Adoption. This form is intended to standardize the caption and style of pleadings under these rules. It is intended to be incorporated by reference in the certificate of service where applicable.

There is no prior form.

FORM 4.902. ATTORNEY’S OF EX PARTE ORDER

Certificate of Service

I certify that a copy of the attached order was furnished to the following parties and counsel of record by. (method of delivery) . this_day of-, 19 — :

(Names and addresses of parties and counsel served, or if correctly shown in caption of order, then: “The parties and counsel as shown in the caption of the attached order.”)

Attorney for employee

.(address).

Florida Bar No.(bar no.)..

1988 Adoption. This form is intended for use with orders approving attorney contracts of representation under rule 4.061.

FORM 4.903. (a) Form of Agreement for Accidents Occurring before October¹,1989.

I, the undersigned employee, hereby retain and employ the undersigned as my attorney to represent me with respect to the industrial accident and injury described above in any workers’ compensation claim I may have, under the following terms and conditions:

1. AUTHORIZATION. I authorize my attorney to act on my behalf in prosecuting my workers’ compensation claim. My attorney is authorized to make such investigations, undertake such legal proceedings, and expend such monies on my behalf as my attorney may deem necessary. 2. ATTORNEY FEES. I agree to pay to my attorney a reasonable attorney fee for services rendered with respect to my workers’ compensation claim. I request that my employer and its carrier (or servicing agent) make all payments of workers’ compensation indemnity benefits payable jointly to me and my attorney in care of my attorney at the attorney’s address.

I authorize my attorney to retain in trust from my indemnity benefits to secure the payment of my attorney fees and costs:

25% of the first $5,000 of all benefits obtained;

20% of the next $5,000 of all benefits obtained;

15% of all benefits obtained in excess of $10,000;

although the attorney fee may be greater or less than the sums retained in trust, depending on the amount of time my attorney expends in the prosecution of my claim, the difficulty, novelty, or complexity of my case, and the amount ultimately paid or awarded.

THE JUDGE OF COMPENSATION CLAIMS (WORKERS’ COMPENSATION JUDGE) WILL MAKE THE FINAL DETERMINATION AS TO THE AMOUNT OF AND MY ATTORNEY’S ENTITLEMENT TO AN ATTORNEY FEE.

To the extent the money held in trust exceeds my attorney fees and costs, or if all or part of my attorney fees and costs are paid by my employer and its carrier (or servicing agent), the balance held in trust will be returned to me.

Under some circumstances, my employer and its carrier (servicing agent) may be found liable to pay all or a part of my attorney fees and court costs. Those circumstances are when:

b. my employer or its carrier has refused to provide me with medical care and I am not at that time entitled to any other benefits;

c. the conduct of my employer or its carrier is found by the judge of compensation claims to constitute “bad faith,” as defined in the Workers’ Compensation Act.

I understand that the recovery of attorney fees and costs in addition to my benefits may require a separate proceeding for which I may incur additional costs and attorney fees. If my employer or its carrier is required to pay my attorney a fee for any benefits my attorney obtains for me, I will not be obligated to pay an additional fee for obtaining that benefit.

3. COSTS. I agree to reimburse my attorney for all costs associated with the prosecution of my claim to the extent that these costs are not recovered from the employer and its carrier (servicing agent), regardless of the outcome of my claim. My attorney may use any monies held in trust under this contract to pay any costs incurred on my behalf.

4. EMPLOYEE’S RESPONSIBILITIES. I agree to promptly and fully advisé my attorney as to any developments or information which may have a bearing on my workers’ compensation claim and to keep my attorney advised at all times as to my whereabouts and correct mailing address.

I will promptly attend any appointments made for me by my attorney and will submit to any medical or vocational examinations or evaluations arranged by my attorney.

I agree to cooperate fully with my attorney. I understand that my attorney expressly relies on the truthfulness of all statements made by me, and that I may be subject to criminal prosecution if I make false or misleading statements in connection with my workers’ compensation claim.

I UNDERSTAND THAT MY ATTORNEY MAY TERMINATE THIS CONTRACT OF REPRESENTATION IF I DO NOT FULLY COMPLY WITH THIS AGREEMENT.

5. ATTORNEY’S RESPONSIBILITIES. The undersigned attorney agrees to diligently pursue the employee’s workers’ compensation claim and to keep the employee fully informed as to this claim. The attorney accepts the trust provisions of this agreement and will account to the employee as to any monies received, expended, or held on the employee’s behalf at the employee’s request.

6. LIMITED POWER OF ATTORNEY. The undersigned employee does hereby make, constitute, and appoint the undersigned attorney as the employee’s agent and attorney-in-fact to act in the employee’s name, place, and stead to negotiate the employee’s workers’ compensation benefit cheeks or drafts only for the purposes of this contract.

7. APPROVAL OF CONTRACT OF REPRESENTATION BY JUDGE OF COMPENSATION CLAIMS. Having read and signed this contract of representation and having discussed its provisions with my attorney, the undersigned employee jointly with the undersigned attorney moves that the judge of compensation claims approve this contract of representation. The employee waives notice of hearing and waives a formal hearing before the judge of compensation claims with respect to the approval of this contract of representation.

EMPLOYEE

WITNESS

WITNESS

DATE EXECUTED: _

QrrAnmr. at? -

COUNTY OF

BEFORE ME-,-the-undersigned authority, personally-appeared .., to me well-known-to be the person described-in-the-foregoing Contract of Representation?Power — of Attorney, Trust Agreement, and Motion and acknowledged to me that (s)he executed the same for the purposes-Gontained therein.-

IN WITNESS WHEREOF, I have hereunto set my-hand-and-official seal this_,-day-of , iQ

NOTARY PUBLIC

-My-Com-mission Expires:

STATE OF FLORIDA

COUNTY OF. The foregoing contract was acknowledged before me by.(name of employee/claimant) ., who identified this instrument as. (name of instrument)., who signed the instrument willingly, and who is Personally Known_OR Produced Identification Type of Identification Produced (Signature of Notary Public- — State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public)

ATTORNEY FOR THE EMPLOYEE (b) Form of Agreement for Accidents Occurring on or after October¹,1989 and before January¹,1994.

I, the undersigned employee, hereby retain and employ the undersigned as my attorney to represent me with respect to the industrial accident and injury described above in any workers’ compensation claim I may have, under the following terms and conditions:

1. AUTHORIZATION. I authorize my attorney to act on my behalf in prosecuting my workers’ compensation claim. My attorney is authorized to make such investigations, undertake such legal proceedings, and expend such monies on my behalf as my attorney may deem necessary.

2. ATTORNEY FEES. I agree to pay to my attorney a reasonable attorney fee for services rendered with respect to my workers’ compensation claim. I request that my employer and its carrier (or servicing agent) make all payments of workers’ compensation indemnity benefits payable jointly to me and my attorney in care of my attorney at the attorney’s address.

I authorize my attorney to retain in trust from my indemnity benefits to secure the payment of my attorney fees and costs:

25% of the first $5,000 of all benefits obtained;

20% of the next $5,000 of all benefits obtained;

15% of all benefits obtained in excess of $10,000;

although the attorney fee may be greater or less than the sums retained in trust depending on the amount of time my attorney expends in the prosecution of my claim, the difficulty, novelty, or complexity of my case, and the amount ultimately paid or awarded.

THE JUDGE OF COMPENSATION CLAIMS (WORKERS’ COMPENSATION JUDGE) WILL MAKE THE FINAL DETERMINATION AS TO THE AMOUNT OF AND MY ATTORNEY’S ENTITLEMENT TO AN ATTORNEY FEE.

Under some circumstances, my employer and its carrier (servicing agent) may be found liable to pay all or a part of my attorney fees and court costs. Those circumstances are when:

I agree to cooperate fully with my attorney.

EMPLOYEE

WITNESS WITNESS

DATE EXECUTED: _

STATE OF

COUNTY OF

NOTARY PUBLIC

My Commission Expires:

STATE OF FLORIDA

1. AUTHORIZATION. I authorize my attorney to act on my behalf in prosecuting my workers’ compensation claim. My attorney is authorized to make such investigations, undertake such legal proceedings, and expend such monies on my behalf as my attorney may deem necessary.

2, ATTORNEY FEES. I agree to pay to my attorney a reasonable attorney fee for services rendered with respect to my workers’ compensation claim. I request that my employer and its carrier (or servicing agent) make all payments of workers’ compensation indemnity benefits payable jointly to me and my attorney in care of my attorney at the attorney’s address. I authorize my attorney to retain in trust from my indemnity benefits to secure the payment of my attorney fees and costs:

20% of the first $5,000 of all benefits secured;

15% of the next $5,000 of all benefits secured;

10% of ail benefits secured thereafter until 10 years after the filing of a petition/claim;

5% of all benefits secured after the expiration of the 10-year term;

although the attorney fee may be greater or less than the sums retained in trust depending on the amount of time my attorney expends in the prosecution of my claim, the difficulty, novelty, or complexity of my case, and the amount ultimately paid or awarded.

THE JUDGE OF COMPENSATION CLAIMS (WORKERS’ COMPENSATION JUDGE) WILL MAKE THE FINAL DETERMINATION AS TO THE AMOUNT OF AND MY ATTORNEY’S ENTITLEMENT TO AN ATTORNEY FEE.

To the extent the money held in trust exceeds my attorney fees and costs, or if all or part of my attorney fees and costs are paid by my employer and its carrier (or servicing agent), the balance held in trust will be returned to me.

Under some circumstances, my employer and its carrier (servicing agent) may be found liable to pay all or a part of my attorney fees and court costs. Those circumstances are when:

b. my employer or its carrier has refused to provide me with medical care and I am not at that time entitled to any other benefits;

c. my employer or its carrier files a Notice of Denial with the Division of Workers’ Compensation for the benefits claimed.

I understand that the recovery of attorney fees and costs in addition to my benefits may require a separate proceeding for which I may incur additional costs and attorney fees. If my employer or its carrier is required to pay my attorney a fee for any benefits my attorney obtains for me, I will not be obligated to pay an additional fee for obtaining that benefit.

3. COSTS. I agree to reimburse my attorney for ail costs associated with the prosecution of my claim to the extent that these costs are not recovered from the employer and its carrier (servicing agent), regardless of the outcome of my claim. My attorney may use any monies held in trust under this contract to pay any costs incurred on my behalf.

I will promptly attend any appointments made for me by my attorney and will submit to any medical or vocational examinations or evaluations arranged by my attorney.

I agree to cooperate fully with my attorney.

I understand that my attorney expressly relies on the truthfulness of all statements made by me and that I may be subject to criminal prosecution if I make false or misleading statements in connection with my workers’ compensation claim.

I UNDERSTAND THAT MY ATTORNEY MAY TERMINATE THIS CONTRACT OF REPRESENTATION IF I DO NOT FULLY COMPLY WITH THIS AGREEMENT. 5. ATTORNEY RESPONSIBILITIES. The undersigned attorney agrees to diligently pursue the employee’s workers’ compensation claim and to keep the employee fully informed as to this claim. The attorney accepts the trust provisions of this agreement and will account to the employee as to any monies received, expended, or held on the employee’s behalf at the employee’s request.

7. APPROVAL OF CONTRACT OF REPRESENTATION BY JUDGE OF COMPENSATION CLAIMS. I understand that this agreement is binding upon signing. I authorize my attorney to submit this agreement to the judge of compensation claims for the judge’s approval.

Having read and signed this contract of representation and having; discussed its provisions with my attorney, the undersigned employee .jointly with the undersigned attorney moves that the judge of compensation claims approve this contract of representation. The employee waives notice of hearing and waives a formal hearing before the judge of compensation claims with respect to the approval of this contract of representation.

EMPLOYEE

WITNESS

WITNESS

STATE OF FLORIDA COUNTY OF. The foregoing contract was acknowledged before me by.(name of employee/claimant) ., who identified this instrument as. (name of instrument) ., who signed the instrument willingly, and who is Personally Known_OR Produced Identification_ Type of Identification Produced (Signature of Notary Public — State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public)

ATTORNEY FOR THE EMPLOYEE

FORM 4.904. ORDER APPROVING CONTRACT OF REPRESENTATION AND DIRECTING PAYMENT OF BENEFITS

ORDER APPROVING CONTRACT OF REPRESENTATION AND DIRECTING PAYMENT OF BENEFITS

The motion to approve the contract of representation having come before the undersigned ex parte, and having reviewed the contract of representation entered into between the attorney for the employee and the employee providing for the retention of certain monies in trust and requesting that the employer/carrier make payment of benefits to the attorney for the employee on behalf of the employee; it isy

2. That-tThe attorney for the employee is directed to serve a copy of this order on the employer, its carrier (or servicing agent), and counsel of record (if any) in the manner provided in Florida Rule of Workers’ Compensation Procedure 4.061(a)4.023.

8. That tThe employer and its carrier (servicing agent) shall pay all benefits due to the employee in care of the attorney for the employee and include the name of the attorney for the employee as an additional payee on any check or draft.

4. That-tThe attorney for the employee may retain monies paid by the employee in trust subject to the final determination by the judge of compensation claims of the entitlement to the amount of attorney fees.

I CERTIFY that the foregoing order was entered and a true copy served by mail or by hand delivery on the attorney for the employee at the address written above on __, 19_

1988 Adoption. The inclusion of this form is not intended to limit the discretion of the deputy commissioner in approving attorney-client agreements nor to imply that such approval is necessary. FORM 4.905. MOTION FOR EX PARTE PAYMENT OF ATTORNEY FEES AND COSTS

MOTION FOR EX PARTE PAYMENT OF ATTORNEY FEES AND COSTS

The employee and the attorney for the employee stipulate to the payment of attorney fees and costs and jointly move for the entry of an order for the payment of the fees and costs, and in support hereof state:

1. The employee and the attorney for the employee have heretofore entered into a contract of representation which has been approved by the judge of compensation claims at the joint request of the employee and the attorney for the employee.

2. Pursuant to the contract of representation, the attorney has obtained the payment and/or the provision of benefits to the employee as follows:

COMPENSATION:

Type; Period! Amounti