LAW OFFICES OF

Mark L. Zientz, P.A.

Mark L. Zientz*

Andrea Cox

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*Board Certified in Workers' Compensation

Admitted in Florida, New York & Montana

TWO DATRAN CENTER, SUITE 1619

9130 SOUTH DADELAND BOULEVARD

MIAMI, FL 33156

(305) 670-6275

FAX: (305) 670-6588

WWW.MZLAW.COM

March 1, 2004

The Florida Bar Journal

Letters Department

651 East Jefferson Street

Tallahassee, Fl. 32399-2300

RE:            PCA’s in the DCA’s (March 2004)

Dear Editor:

How easy it is for Mr. England to lump together all matters that appear in the various district courts for review in support of his views on PCA’s, without the mention of one major area of law that does not get the benefit of appellate  review except in one district court of appeal. And that district court is but a stones throw from the supreme court. I write of workers’ compensation and the requirement that all appeals from final orders of the Judges of Compensation Claims (JCC’s are not Art. V judges) be heard by a three judge panel of the First District Court of Appeal to the exclusion of the other four district courts of appeal.  This ‘scheme’ was put in place in 1979, at or about the same time as the 1980 constitutional amendments were proposed to limit  Supreme Court jurisdiction.

As I recall, not only did Justice England’s court wish to avoid the responsibility for reviewing workers’ compensation decisions of the former Industrial Relations Commission (IRC), but the court wished to restrict the review of workers’ compensation cases to an even greater extent than those cases emanating from the various district courts of appeal. The court still might consider reviewing non-workers’ compensation decisions of a DCA which happened to be in direct and express conflict with a decision of another district court of appeal or of the supreme court on the same issue of law. Since 1980 there can be no conflict between the various district courts in workers’ compensation matters and it is highly unlikely that there will be conflict with a supreme court decision since the supreme court only hears compensation cases that declare chapter 440 unconstitutional or are certified by the First DCA as questions of great public importance. Certified question jurisdiction is itself discretionary. A ‘PCA’ from a 3 judge panel of the First DCA is the end of the road. The one and only time Article V judges have jurisdiction over the case and the appellant (and maybe the cross-appellant) receive no reason why their appeal or cross-appeal is denied. One may not ask for rehearing, nor request  en-banc consideration, nor request certification. There is  no chance of review in the supreme court and worst of all, no ability to ethically abide by the new amended Rule 9.330(a). A workers’ compensation recipient of the dreaded PCA could not allege with a straight face that had there been a written decision, it would conflict with that of another district; or that the decision appears to be in conflict...: or that there is an arguable basis for Supreme Court jurisdiction (Did the PCA declare a state statute unconstitutional?); or that the decision establishes a new rule of law; or modifies an existing rule of law; or ...you get the picture.

While the judges of the First DCA are all eminently qualified to decide workers’ compensation issues, those of us in the practice of workers’ compensation law both at trial and appeal, have had to learn at least 5 new workers’ compensation schemes since 1980 (‘83, ‘89, ‘90, ‘94 and now 2003). There were also major amendments in 1974 and 1979. Should the court of both first and last resort be allowed the luxury of the PCA?

The rights of tens of thousands of injured workers to whom the courtroom door is already  locked shut by the “Exclusive Remedy” are truly second class citizens. The use of the PCA in their appeals makes them third world citizens at best. Injured workers are set upon numerous additional  times in the unwieldy process of trying to recover meager benefits following an injury on the job. The jury system is closed to them. Workers’ compensation is the exclusive remedy for losses caused by workplace accidents. Worker’s litigate their claims before non-Article V JCC’s. The burdens of proof they must meet far exceed those in the tort system. The ‘presumptions’ against them are unheard of in tort. If they are denied benefits but believe there was legal error in the result, their only appeal is to the First DCA, whether their claim was decided by a JCC  venued in that district or not. Those claimants in the geographical distribution of the other 4 DCA’s do not get to vote to retain the judges in the First DCA that hear their appeals. Only the injured workers who happen to get hurt in the First DCA’s geographical territory get to voice their approval or disapproval of the First DCA judges when they ‘run’ for retention on the bench. The majority of appellants have their claims decided by three judge panels that do not have to hear oral argument, even when requested by the litigants. When panel written decisions conflict the court usually refuses to settle the matter en-banc.  Claimant/Appellant’s may then get a PCA from which no further rehearing can even be requested, other than under the useless new Rule of Appellate Procedure 9.330(a).

Litigants and their lawyers at every level of the judicial system should be given a plausible reason in a written opinion explaining why their cause is not meritorious. The PCA only fosters additional litigation that might be avoided by an explanation instead of a rubber stamp. PCA doesn’t cut it. Especially for those litigants whose path to the DCA is littered with roadblocks and patently unconstitutional jurisdictional constraints and unreasonable burdens of proof.

By way of explanation, the reason our Supreme Court in Rollins v. Southern Bell 384 So. 2d 650 (Fla. 1980) (England, C.J. concurring) gave for finding the current method of appeal to only one DCA constitutional, was to engage in the fiction that the Division of Workers’ Compensation of the Department of Labor and Employment Security was a ‘party’ to all workers’ compensation appeals and the Division was headquartered in Tallahassee which is within the territorial jurisdiction of the First DCA. If that were the true reason or a legal reason, then all unemployment compensation appeals would be in the First DCA as well. Last time I  looked, they weren’t. And by the way, a statutory change a number of years ago repealed the language making the ‘Division’ a party.  See also Rule 9.180(e)(3) Rules of Appellate Procedure which says the ‘Division’ is not a party until and unless the ‘Division’ seeks to intervene in an appeal. 

Very truly yours,

Mark L. Zientz, Esquire