DONALD J. KRAMER, PETITIONER,
v.
CHAPMAN & GERBER, INC., AETNA INSURANCE COMPANY, AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
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The Florida Supreme Court addresses whether a Judge of Industrial Claims may unilaterally extend the eight-month period for taking testimony under Industrial Commission Rule No. 3. The Court reaffirms that the rule is directory rather than mandatory, meaning it may be waived by party agreement or conduct, but cannot be extended sua sponte by the judge except in narrow circumstances involving witness clarification or court-appointed medical examinations.
The rule is directory, not mandatory, and may be waived by agreement or conduct of the parties, but the judge cannot unilaterally extend the deadline sua sponte. The only exceptions are: (1) recalling a witness to clarify improperly recorded testimony, and (2) appointing a disinterested physician to examine the claimant and hearing such witness after the eight-month period to reconcile conflicting medical evidence.
[1] Rules governing the time for taking testimony in industrial claims proceedings are directory and may be waived by the parties' agreement or conduct.
[2] A Judge of Industrial Claims may, sua sponte, extend the time for taking testimony beyond the prescribed period only to recall a witness for clarification of improperly r…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We have the view, however, that Rule 3, supra, is not mandatory in the sense that it establishes jurisdictional conditions precedent upon the conduct of a deputy commissioner. It is not mandatory in the sense that its provisions cannot be waived by agreement of the parties or by a course of conduct such as a failure to assert the rule.”
Establishes the fundamental distinction that the rule is directory rather than mandatory, allowing waiver by party agreement or conduct.
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Join FLexlaw to unlock all legal intelligenceA workers' compensation case involved a dispute over whether a Judge of Industrial Claims could extend the deadline for taking testimony beyond the ei…
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The question presented here is whether the Judge of Industrial Claims may, sua sponte, extend the time for taking testimony beyond the eight-month period allowed by Rule No. 3 of the Florida Industrial Commission, now the Industrial Relations Commission.
The identical question was before the Court in Black v. Blue Ribbon Laundry.1 In that case we said:2
“We construe Rule 3 to fix a time limit for the taking of testimony from the date announced for the first hearing. This is the date when the first hearing is scheduled to be heard. If the hearing is not heard on that date, nevertheless, it remains the date set for the first hearing. The Commission itself has so construed the rule. In addition to our own view we accord great persuasive weight to the administrative interpretation. Jones v. W. H. Vann, Inc., 2 F.C.R. 278 Cert. den., Jones v. Vann, Fla., 101 So.2d 147.
“We have the view, however, that Rule 3, supra, is not mandatory in the sense that it establishes jurisdictional conditions precedent upon the conduct of a deputy commissioner. It is not mandatory in the sense that its provisions cannot be waived by agreement of the parties or by a course of conduct such as a failure to assert the rule. The rule is directory to the extent that its provisions may be waived by agreement or conduct of the parties. However, the rule is mandatory in the sense that in the absence of such a waiver, the deputy is bound to apply it when a party claims its benefits. Jones v. Vann, supra.
“In analogous situations the provision of similar rules of procedure have been held to be directory. In Schneider v. Gustafson Industries Inc., Fla., 139 So.2d 423, we considered Industrial Commission *491Rule 6(a) providing for the filing of a transcript within 45 days after the filing of the application for review. We held this rule may be waived and is, therefore, directory even though apparently mandatory language was employed in the rule. In Heath v. Thomas Lumber Co., Fla., 140 So.2d 865, we expressly held that the 90 day provision of Rule 3(a) supra, could be waived by stipulation of the parties.
“The sum of our previous holdings, as well as those of the respondent Commission, is that the provisions of the subject rule may be waived, either by agreement or by conduct of the parties. To that extent the rule is not mandatory. However, the record must reveal either the required stipulation or the existence of a state of facts from which the deputy may properly determine the presence of a waiver. If such facts do exist in the judgment of the deputy, he should so find in his order. * * * ” (Emphasis added.)
We specifically call attention of the Bar to the fact that Black v. Blue Ribbon Laundry, supra, has, in the recent cases of Perez v. Carillon Hotel3 and Sweeney v. Pine Island Citrus Groves,4 been reaffirmed and adhered to so far as it holds these rules to be discretionary instead of mandatory. The sole exception in Black is the language there (underscored in the quoted portion of the opinion above) with reference to the particular question presented here. The Judge of Industrial Claims may, of his own motion or otherwise, recall a witness for the purpose of clarifying his testimony in the event — and only in the event — it has not been properly recorded. He may, under the rules and after the eight-month period, if it becomes necessary, appoint a disinterested physician to examine a claimant for the purpose of aiding h,im in reconciling conflicts in the medical evidence and hear such witness after said period.5 In all other situations, we again affirm our previous holdings that these rules are directory.
In remanding this case however, as in Black v. Blue Ribbon Laundry, supra, we do so without prejudice to the rights of claimant for further hearing in appropriate proceedings for any change in condition that might have taken place.
Subject to the above, the Compensation Order reviewed is approved.
It is so ordered.
ERVIN, C. J., and ROBERTS, THOR-NAL and CARLTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. Kikilis Florist, 290 So. 2d 22 (Fla. 1974)…e period has run, and absent application upon good cause shown for extension, the cause must be determined on the evidence which has been submitted, we specifically reaffirmed Black v. Blue Ribbon Laundry, supra, in Kramer v. Chapman & Gerber, Inc., 235 So. 2d 489 (Fla.1970), citing Perez v. Carillon Hotel, 231 So. 2d 519 (Fla.1970), and Sweeney v. Pine Island Citrus Groves, 234 So. 2d 644 (Fla.1970). See also Knell v. Southgate Towers Restaurant, Inc., 235 So. 2d 291 (Fla.1970). If the parties, by their con…
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Tropicana Prods., Inc. v. Parrish, 293 So. 2d 683 (Fla. 1974)…nion. . Eff. Jan. 1, 1974, these rules are now referred to as Rules 8 and 30, Workmen’s Comp. Rules of Procedure. See In Re Workmen’s Compensation Rules of Procedure, 285 So. 2d 601 (Fla.1973). . As we observed in Kramer v. Chapman & Gerber, Inc., 235 So. 2d 489 (Fla.1970), after noting some of the circumstances in which strict application of the rule is not required: “In all other situations, we again affirm our previous holdings that these rules are directory.” . Black v. Blue Kibbon Laundry, 161 So. 2d…
Authorities Cited
- Schneider v. Gustafson Indus., Inc., 139 So. 2d 423 (Fla. 1962)
- Black v. Blue Ribbon Laundry, 161 So. 2d 532 (Fla. 1964)
- Sweeney v. Pine Island Citrus Groves, Inc., 234 So. 2d 644 (Fla. 1970)
- Perez v. Carillon Hotel, 231 So. 2d 519 (Fla. 1970)
- Leila H. Heath v. Thomas Lumber Co., 140 So. 2d 865 (Fla. 1962)
- McCOIN v. City of Fort Lauderdale, 101 So. 2d 147 (Fla. 1957)
- Northgate Baptist Holding Co., Inc. v. Whidden, 101 So. 2d 147 (Fla. 1957)