FLORIDA RULES OF WORKERS’ COMPENSATION PROCEDURE
TABLE OF CONTENTS
PART I. TRIAL PROCEEDINGS
4.010.
GENERAL PROVISIONS [NO CHANGE]
4.020.
DEFINITIONS [AMENDED]
Committee vote: 21-3
4.022.
PLEADINGS AND PROPOSED ORDERS [NO CHANGE]
4.023.
CONTRACT OF REPRESENTATION [NO CHANGE]
4.024.
REPRESENTATION AND APPEARANCE OF COUNSEL
[NO CHANGE]
4.025.
CLAIMS NOT CONTAINED IN PETITION [NO CHANGE]
4.026.
EXEMPTIONS FOR COLLECTIVE BARGAINING
AGREEMENTS [NO CHANGE]
4.027.
VENUE [NO CHANGE]
4.028.
PETITION FOR BENEFITS [AMENDED]
Committee vote: 19-4
4.029.
REVIEW OF PETITION [AMENDED]
Committee vote: 19-2
4.030.
FILING AND SERVICE [AMENDED]
Committee vote: 14-10
4.040.
COMPUTATION OF TIME [NO CHANGE]
4.045.
PRETRIAL PROCEDURE [AMENDED]
Committee vote: 20-3
4.055.
DISCOVERY [NO CHANGE]
4.065.
MOTION PRACTICE [NO CHANGE]
4.075.
PROSECUTION OF CLAIM AND PETITION FOR BENEFITS
BEFORE JUDGE [AMENDED]
Committee vote:
4.085.
FINAL HEARING [AMENDED]
Committee vote: 14-7
4.095.
EMERGENCY CONFERENCES [AMENDED]
Committee vote: 18-2
4.105.
EXPEDITED HEARINGS [AMENDED]
Committee vote: 19-5
4.113.
EFFECT OF CONTINUANCES [NO CHANGE]
4.115.
ORDERS [NO CHANGE]
4.120.
ADMISSIBILITY OF EVIDENCE; PROFFERS; EXHIBITS; POST-
HEARING EVIDENCE [NO CHANGE]
4.141.
MOTION FOR REHEARING [NO CHANGE]
4.142.
AGREEMENTS OR STIPULATIONS [NO CHANGE]
4.143.
SETTLEMENT UNDER SECTION 440.20(11), FLORIDA
STATUTES [NO CHANGE]
4.1435. RULE 4.142 SETTLEMENTS UNDER SECTION 440.20(11)(c), (d)
AND (e), FLORIDA STATUTES [NO CHANGE]
4.144. PAYMENT OF ATTORNEY FEES AND COSTS [NO CHANGE]
4.150. SANCTIONS [NO CHANGE]
4.155. DISQUALIFICATION OR RECUSAL OF JUDGES [NO CHANGE]
PART II. MEDIATION PROCEDURES
4.300.
GENERAL PROVISIONS [NO CHANGE]
4.310.
MANDATORY MEDIATION [AMENDED]
Committee vote: 14-1
4.340.
REQUEST FOR OR REFERRAL TO SUBSEQUENT
MEDIATION
Committee vote: Unanimous [AMENDED]
4.350.
APPOINTMENT OF MEDIATOR AND SCHEDULING
MEDIATION CONFERENCE FOR SUBSEQUENT
MEDIATION [AMENDED]
Committee vote: 14-2
4.360. MEDIATION CONFERENCE [AMENDED]
Committee vote: 15-1
4.361. AUTHORITY AND DUTIES OF MEDIATORS [NO CHANGE]
4.370. CONCLUSION OF MEDIATION [NO CHANGE]
4.380. DISQUALIFICATION OF MEDIATOR [NO CHANGE]
PART III. FORMS
4.900.
FORMS [NO CHANGE]
4.901.
CAPTION AND STYLE OF PLEADINGS [NO CHANGE]
4.902.
ATTORNEY’S CERTIFICATE OF SERVICE OF EX PARTE
ORDER [NO CHANGE]
4.903.
CONTRACT OF REPRESENTATION, POWER OF ATTORNEY,
TRUST AGREEMENT, AND MOTION [NO CHANGE]
4.904. ORDER APPROVING CONTRACT OF REPRESENTATION
AND DIRECTING PAYMENT OF BENEFITS [NO CHANGE]
4.905.
MOTION FOR EX PARTE PAYMENT OF ATTORNEY FEES
AND COSTS [NO CHANGE]
4.906.
ORDER APPROVING ATTORNEY FEES AND COSTS
[NO CHANGE]
4.907.
ORDER ON MOTION TO WITHDRAW AS COUNSEL
[NO CHANGE]
4.9075.
PETITION FOR BENEFITS [NO CHANGE]
4.908.
NOTICE OF HEARING, OTHER THAN FINAL HEARING AND
PRETRIAL CONFERENCE [NO CHANGE]
4.9085. NOTICE OF MEDIATION CONFERENCE AND ORDER
[NO CHANGE]
4.9086. MOTION TO SUBSTITUTE PRIVATE MEDIATION FOR
MANDATORY STATE MEDIATION [NO CHANGE]
4.9087. ORDER AND NOTICE OF SUBSTITUTED PRIVATE
MEDIATION [NO CHANGE]
4.909. NOTICE OF FINAL HEARING AND PRETRIAL CONFERENCE
4.9091.
APPLICATION FOR EXPEDITED HEARING [NO CHANGE]
4.9092.
NOTICE OF EXPEDITED HEARING AND ORDER
[NO CHANGE]
4.910.
UNIFORM PRETRIAL STIPULATION AND PRETRIAL
COMPLIANCE QUESTIONNAIRE [NO CHANGE]
4.9105.
CERTIFICATE OF NOTARY PUBLIC [NO CHANGE]
4.911.
ORDERS APPROVING SETTLEMENT OF PROSPECTIVE
BENEFITS [NO CHANGE]
4.912. NOTICE OF ESTIMATED COST OF PREPARATION OF
RECORD ON APPEAL [NO CHANGE]
4.9125.
FINANCIAL AFFIDAVIT IN SUPPORT OF VERIFIED PETITION
FOR RELIEF FROM COSTS [NO CHANGE]
4.913.
SUBPOENA [NO CHANGE]
4.9135.
AFFIDAVIT OF SERVICE OF SUBPOENA [NO CHANGE]
4.914.
PROOF OF CLAIM FOR SUBMISSION TO SPECIAL
DISABILITY TRUST FUND [NO CHANGE]
4.915. UNIFORM SPECIAL DISABILITY TRUST FUND PRETRIAL
STIPULATION, PRETRIAL COMPLIANCE QUESTIONNAIRE,
AND ORDER [NO CHANGE]
4.916. UNIFORM PRETRIAL STIPULATION AND ORDER FOR
PENALTY CASES [NO CHANGE]
4.917. MOTION FOR APPROVAL OF ATTORNEY’S FEE AND
ALLOCATION OF CHILD SUPPORT ARREARAGE FOR
SETTLEMENTS UNDER SECTION 440.20(11)(c), (d), and (e),
FLORIDA STATUTES [NO CHANGE]
4.918. ORDER FOR ATTORNEY’S FEE [NO CHANGE]
RULE 4.020. DEFINITIONS
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) “Deputy chief judge” means the deputy chief judge appointed by the Governor, serving
in the Office of the Judges of Compensation Claims within the Department of Management Services,
Division of Administrative Hearings 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) “Department” means the Florida Department of Management Services, Division of
Administrative HearingsFinancial Services.
(e) “Division” means the Division of Workers’ Compensation of the Florida Department of
Labor and Employment SecurityFinancial Services.
(f) “EAO” means the Employee Assistance and Ombudsman Office created by section
440.191, Florida Statutes.
(g) “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.
(h) “Filing” means delivery to the Office of the Judges of Compensation Claims or the
judge, as the context of chapter 440, Florida Statutes, or of these rules requires.
(i) “Forms” means forms incorporated in these rules and promulgated pursuant to chapter
440, Florida Statutes.
(j) “Impasse” means the parties’ inability to reach a mutually acceptable and voluntary
agreement as to any matter at the mediation conference.
(k) “Informal dispute resolution” means the procedure established by section 440.191,
Florida Statutes.
(l) “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)(a)–(b), Florida Statutes.
(m) “Judge” means judge of compensation claims serving in the Office of the Judges of
Compensation Claims within the Department of Management Services, Division of Administrative
Hearings under chapter 440, Florida Statutes.
(n) “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’ compen-
sation dispute or claim.
(o) “Mediation conference” means an informal, nonadversarial negotiation or settlement
conference attended by the interested parties and supervised and conducted by a mediator.
(p) “Mediator” means the person who conducts a mediation conference.
(q) “Office of the Judges of Compensation Claims” is the office within the Department of
Management Services, Division of Administrative Hearings where the deputy chief judge and judges of
compensation claims preside.
(r) “Parties” include the employee, claimant, employer, carrier, health care provider, and
division.
(s) “Petition for benefits” means a pleading meeting, specifically but not limited to, the
requirements of sections 440.02(40) and 440.192(1)–(4), Florida Statutes, that invokes the jurisdiction
of the judge.
(t) “Petitioner” or “claimant” means any person making a claim. A “petitioner” or
“claimant” is a party within the meaning of these rules.
(u) “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, and
responses to petitions for benefits. The request for assistance or other contact with the EAO is not a
pleading that invokes the jurisdiction of the judge.
(v) “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.
(w) “Request for assistance” means the initiation of the informal dispute resolution
procedure established by section 440.191, Florida Statutes.
(xw) “Verified pleading” means a pleading the facts of which are attested to under oath.
Committee Notes
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-insureds and
servicing agents) and “claimant” (to include any party with standing to bring a claim under chapter 440, Florida
Statutes).
1996 Amendment. Many new definitions were added and the list was alphabetized.
2004 Amendment. Subdivisions (d) and (e) are amended to conform to the 2002 changes to sections
440.12(12) and (14), Florida Statutes, respectively. Subdivision (s) is amended to conform to the 2003 changes to
section 440.02(40), Florida Statutes. Subdivision (w) is deleted to conform to the 2002 changes to section 440.191,
Florida Statutes, and the following subdivision is relettered accordingly.
RULE 4.028. PETITION FOR BENEFITS
(a) Generally.
(1) Service. A petition under chapter 440, Florida Statutes, shall be filed by
certified mail, or by electronic means approved by the deputy chief judge upon the employer, carrier,
and the Office of the Judges of Compensation Claims in Tallahassee. Counsel for each party and any
unrepresented party shall be served under rule 4.030. Upon receipt of the petition, the deputy chief
judge shall refer the petition for benefits to the presiding judge of compensation claims pursuant to
section 440.192(1), Florida Statutes.
(2) Form. A petition shall meet the specificity requirements of sections 440.02(40)
and 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) Fraud 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
RemediesCompliance with Managed Care Requirements. A petition shall also include a
certificate 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 petition shall
also include a certificate that must indicate that the grievance procedures required by section
440.134(15), Florida Statutes, were exhausted before filing 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 presiding 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.
Committee Notes
1996 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 is 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.
2004 Amendment. The amendments to subdivisions (a) and (b) conform the rule to the 2002 and 2003 changes to
section 440.191, Florida Statutes.
RULE 4.029. REVIEW OF PETITION
(a) Generally. After receiving the petition, the deputy chief judge shall immediately forward the petition
and all attachments filed with or received by the Office of the Judges of Compensation Claims to the
presiding judge of compensation claims.
(b) Review. Upon receipt, the Office of the Judges of Compensation Claims shall review each petition
and attachments to determine if the requirements of sections 440.192 and 440.32(3), Florida Statutes, have
been met.
(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, the Office of the Judges of Compensation
Claims shall, or the presiding judge of compensation claims may, upon their own motion or the motion of
any party, dismiss the petition or any portion of such a petition without prejudice. The claimant must be
allowed 20 days after the date of the order of dismissal in which to file an amended petition. The dismissal
of any petition or portion of such petition under this section does not require a hearing.
(d) Dismissal of Petitions With Prejudice. 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.
(e) Extension of Mediation, Pretrial, and Final Hearing Deadlines. Statutorily mandated mediation,
pretrial, and final hearing deadlines shallmay be extended if a hearing under this rule is requiredas set forth
in section 440.25, Florida Statutes.
Committee Notes
1996 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.
2004 Amendment. The amendment to subdivision (e) clarifies that continuances are subject to section 440.25, Florida
Statutes.
RULE 4.030. FILING AND SERVICE
(a) Filing. Unless otherwise ordered or provided by these rules or chapter 440, Florida Statutes, any
pleading or other papers filed in proceedings shall be served on each party. If a party has known
representation, service shall be made upon the attorney for the party, except when service upon a party
is required by law. In such situations, service shall be made upon the party and attorney.
(b) Method of Service.
(1) How Service Is Made. Delivery of a copy within this rule shall mean
(A) handing it to the attorney or party;
(B) leaving it at the attorney’s office with a clerk or other person in charge thereof, or if there is no
one in charge, leaving it in a conspicuous place therein;
(C) 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;
(D) placing it in the United States mail; 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.
(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.
(4) Service or Filing by Electronic Means.
(A) When service or filing is made by electronic means approved by the deputy chief judge, the
document must be served as provided by Fla. R. Jud. Admin. 2.090.
(B) The sending party shall retain proof of the transmission.
(c) Certificate of Service. When required, any attorney or unrepresented party shall certify in
substance:
“I certify that a copy has been furnished to .....(name or names and address or addresses)..... by
.....(method of delivery)..... on .....(date)......
Attorney (or unrepresented party)”
The certificate shall be taken as prima facie proof of such service in compliance with these rules.
(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.
Committee Notes
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(c) 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.
1996 Amendment. Further clarifies method of service of pleadings and specifically includes service by facsimile device.
2004 Amendment. The amendment to subdivision (a) conforms service with the definition in the Florida Rules of Civil
Procedure.
RULE 4.045. PRETRIAL PROCEDURE
(a) Generally. If the parties fail to agree to written submission of a pretrial stipulation, the judge shall
conduct a live pretrial hearing. 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.
(b) Notice of Pretrial. The judge shall give parties at least 714 days’ notice of a pretrial hearing by mail
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;
(3) 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, as appropriate, such other matters as may aid in the disposition of the case,
including, but not limited to, referral to additional mediation or appointment of an expert medical advisor
under section 440.13(9)(c), Florida Statutes.
(i) Forms of Stipulations. The appropriate pretrial stipulation and pretrial compliance questionnaire
shall be used. Exhibits shall be attached to the pretrial stipulation.
(j) Final Witness Lists, Final Exhibit Lists, Supplements, and Amendments. Final witness lists,
final exhibit lists, supplements, and amendments to the pretrial stipulation shall be served no later than 30
days before the final hearing. Witness lists, exhibit lists, supplements, and amendments served less than 30
days before the final hearing must be approved by the judge or stipulated to by the parties. A motion
seeking such approval is a procedural motion.
(k) 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.
(l) Pretrial of Penalty Hearings.
(1) 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.
(m) 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.
(n) 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.
(o) 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.
Committee Notes
1996 Adoption. Replaces rule 4.100, but includes many of the provisions of the previous rule. Requires a judge of com-
pensation 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.
2000 Amendment. Subdivision (h) (7) was amended to include the appointment of an expert medical advisor as one
of the matters to be addressed at the time of the pretrial conference. Subdivision (i) was shortened and a new subdivision
(j) was added to require stipulation of the parties or approval by the judge if final witness lists, final exhibit lists,
supplements, and amendments to the pretrial stipulation are served less than 30 days before the final hearing.
2004 Amendment. The amendments to subdivisions (a) and (b) conform the rule to the 2003 changes to section
440.25(4)(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. A continuance may be granted only if the requesting party demonstrates to the judge that the reason
for requesting the continuance arises from circumstances beyond the party’s control. The written consent
of the claimant must be obtained before any request from a claimant’s attorney is granted for an additional
continuance after the initial continuance has been granted. An order granting a continuance must set forth
the date and time of the rescheduled hearing. The claimant may waive the time frame for occurrence of the
final hearing for good cause shown.
(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, 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 unless the physical
presence of the notary public or officer is waived by the parties. 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.
Committee Notes
1996 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. Granese, 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.
2000 Amendment. The First District Court of Appeal has stated that the requirements of subdivision (f)(3) may be
waived by agreement of counsel. E-Z Serve Convenience Stores, Inc. v. Paul, 720 So. 2d 301 (Fla. 1st DCA 1998).
2004 Amendment. Subdivision (c) is amended to reflect the 2002 changes to section 440.25(4)(b), Florida Statutes.
RULE 4.085. FINAL HEARING
(a) Notice. The judge shall give 3014 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 communi-
cation equipment is available at the location of the final hearing and prior arrangements have been made for
administering the oath to the witness.
(3) 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.
Committee Notes
1996 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).
2000 Amendments. Subdivisions (e), (f), (g), and (h) are deleted to avoid duplication with rule 4.120. Procedural rules
involving admissibility of evidence, proffers, exhibits, and post-hearing evidence now are contained in one rule and are
applicable to all proceedings before judges of compensation claims.
2004 Amendment. Subdivision (a) is amended to conform the rule to the 2003 changes to section 440.25(4)(c), Florida
Statutes.
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)(hf), 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.
Committee Notes
1996 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.
2004 Amendment. Subdivision (a) is amended to reflect the 2003 change to section 440.25(4)(f), Florida Statutes.
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, for medical benefits only, or reimbursement
for mileage for medical purposes, it shall be considered for resolution under section 440.25(4)(jh), 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. A pretrial hearing shall not
be held and no mediation scheduled unless requested by a party.
(b) Average Weekly Wage Issues. Any claim relating to a issue of an employee’s appropriate average
weekly wage shall be determined under section 440.25(4)(g), Florida Statutes. Additionally, unless it is
determined by the judge of compensation claims that there is necessity for oral argument for good cause
shown, no oral hearing will be held and any decision regarding an employee’s appropriate average weekly
wage shall be determined based upon submission of brief written statements in support of an adjustment
and/or opposition to an adjustment as well as submission of documents, including deposition testimony, if
applicable. If an oral hearing is ordered to be held, the average weekly wage issue shall be determined
under section 440.25(4)(h), Florida Statutes.
(bc) Other Claims. On written agreement of all parties and application of any party, any claim or
petition filed in accordance with section 440.192, Florida Statutes, may be resolved as provided for in
subdivision (a).
(cd) 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.
(de) Notice. The judge shall serve written notice of the hearing on the parties not less than 45 days
before the hearing.
(ef) Discovery. The parties shall have at least 30 days to conduct discovery, which shall be completed
15 days before the hearing.
(fg) Pretrial Outline. At least 15 days before the hearing, a pretrial outline of all issues, defenses, and
witnesses 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 deposi-
tion 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.
(gh) 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.
(hi) 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.
(ij) Post-hearing Evidence. Post-hearing evidence shall be considered in the same manner as provided
in rule 4.085.
Committee Notes
1996 Adoption. This rule codifies the procedure to follow when requesting a 30-minute 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.
2000 Amendment. The changes were made to make rule 4.105 consistent with section 440.25(4)(j), Florida Statutes.
2004 Amendment. The amendments to subdivision (a) reflect the 2002 and 2003 changes to section 440.25(4), Florida
Statutes. New subdivision (b) reflects the 2003 change to section 440.25(4)(g), Florida Statutes. Subdivision (g) (relettered
from (f)) conforms the rule to section 440.25(4)(h), Florida Statutes.
RULE 4.310. MANDATORY MEDIATION
(a) Initial Mandatory Mediation. Except as provided in this rule, 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(2) or (5), Florida Statutes.
(b) Notice and Date of Mandatory Mediation Conference.
(1) Within 740 days after a petition is filed under section 440.192, Florida Statutes, but in no event
more than 740 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 state mediation conference. The notice may be served personally or by mail upon
the interested parties. If the parties agree or if state mediators are not available, the parties shall hold a
mediation at the carrier’s expense within the 130-day period set for mediation. A private mediator must
be certified under section 44.106, Florida Statutes.
(2) The mediation conference shall be held within 21130 days after a petition is filed under section
440.192, Florida Statutes, but if continued or rescheduled, it shall be held and completed no later than 10
days beforeprior to 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 than 3 days before the scheduled conference.
(d) Continuance of Mediation. A continuance may be granted upon the agreement of the parties or if
the requesting party demonstrates to the judge of compensation claims that the reason for requesting the
continuance arises from circumstances beyond the party’s control.
(de) 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 deputy chief judge
under section 440.25(3), Florida Statutes, except when the parties have stipulated under rule 4.350 to
substitute a mediator who is not appointed by the deputy chief judge.
(ef) Mediator’s Report. Within 10 days following the commencement 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.
Committee Notes
1996 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.
2000 Amendment. Subdivision (d) was amended to permit the parties to stipulate to a private mediation conference
and the use of a private mediator in place of the initial mandatory mediation conference with a state or adjunct mediator
appointed by the chief judge.
2004 Amendment. Subdivisions (a) and (b) are amended to reflect the 2002 and 2003 changes to section 440.192,
Florida Statutes. Subdivision (b)(1) is amended and new subdivision (d) is created to reflect the 2002 and 2003 changes
to section 440.25, Florida Statutes.
RULE 4.340. REQUEST FOR OR REFERRAL TO SUBSEQUENT MEDIATION
(a) Request for Subsequent Mediation.
(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)(ab), 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 to mediation on the parties’ stipulation requesting
mediation, or at the pretrial hearing, 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 5 days of the order of referral to mediation or notice of mediation conference, whichever is
entered first, a party may move to dispense with or defer mediation if:
(A) the matter has been previously mediated between the parties and the moving party verifies that
further mediation would be of no benefit in resolving the matter;
(B) the issue presents a question of law only; or
(C) other good cause is shown.
(2) The movant shall set the motion for hearing before the scheduled date of the mediation conference
and shall serve notice of the hearing on 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 dis-
position of the motion.
Committee Notes
1996 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.
2004 Amendment. Subdivision (a) amended to reflect the 2002 changes to section 440.25, Florida Statutes.
RULE 4.350. APPOINTMENT OF MEDIATOR AND SCHEDULING MEDIATION
CONFERENCE FOR SUBSEQUENT MEDIATION
(a) Appointment or Selection of Mediator.
(1) Within 10 days of the order of referral to mediation entered pursuant to rule 4.340, or the agreement
to private mediation, 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 deputy chief judge pursuant to section 440.25(3),
Florida Statutes, in the district in which the matter is pending.
(b) Mediator Fees.
(1) Mediations conducted by a mediator or adjunct mediator employed by the Office of the Judges of
Compensation Claims under section 440.25(3), Florida Statutes, shall be at no cost to the parties.
(2) When the mediator selected by the parties andor approved by the judge is one other than a
mediator or adjunct mediator employed by the Office of the Judges of Compensation Claims 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.
(c) Notice of Mediation Conference. Within 15 days after receiving 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. The mediation
conference ordered under rule 4.340 shall be held no sooner than 714 days from the date of the notice
scheduling the mediation conference unless otherwise agreed by the parties.
(d) Completion of Mediation; Continuances; Adjournments. Mediation shall be completed 10 days
before the final hearing unless extended by the mediator or 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.
Committee Notes
1996 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.
2004 Amendment. Subdivisions (a)–(c) amended to reflect amendments to section 440.25, Florida Statutes.
RULE 4.360. MEDIATION CONFERENCE
(a) Attendance in Mediation. Any party required to attend the mediation conference must have full and
binding authority to settle the pending issues without further consultation. Notwithstanding rule 4.075, the
claimant or the adjuster may appear by telephone if specifically approved by the mediator. Further, a
mediator may excuse the appearance of a party. Unless stipulated by the parties, approved by the
mediator, or relieved by order of the presiding judge, a 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 a self-insured employer if its carrier/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 without the approval of the mediator, 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. 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.
Committee Notes
1996 Amendment. This rule extensively amends the prior rule.
