1. Introduction
Workers' compensation claims are brought in the Office of the Judges of Compensation Claims (OJCC), a part of the Department of Administrative Hearings. Consult Chapter 17 of this Handbook for more information on workers' compensation claims. The requirements for preparing and filing the appellate record in workers’ compensation cases are found in Florida Rule of Appellate Procedure 9.180(f), (g), and (h)(2). This includes the contents of the record, who is responsible for preparing it, paying for it, and submitting it to the appellate court. The process for preparation of the record in appeals from final orders is started by the filing of the notice of appeal with the Judge of Compensation Claims’ (JCC) office that decided the case. As discussed below, in appeals of nonfinal orders allowable under rule 9.180(b)(1), the notice of appeal initiates the time limit for submitting the initial brief and the appendix to that brief which serves as the record in such appeals.2. Appeals from Final Orders
Rule 9.180(f)(1) requires that the record in workers’ compensation appeals of final orders include all petitions for benefits, all notices of denial of the claim filed by the employer or its insurance company, as well as any pretrial stipulations, pretrial orders, trial memoranda, depositions, or other exhibits the JCC admitted into evidence, motions for rehearing (and responses to them), the order(s) addressing any motions for rehearing, the transcripts of any hearings held before the JCC, and the order that is being appealed. If there is anything that was filed with the workers’ compensation judge that is not on this list and which a party wants to be in the record on appeal, or does not want to be in the appellate record, a party (or all parties) may designate other items for inclusion in or omission from the record in accordance with the process explained in rule 9.200(f), and section (C)(1) of this chapter, by filing a notice of designation with the JCC.Evidence, such as documents, reports, deposition transcripts, or testimony at trial, that a party asked the JCC to admit into evidence, but which the JCC ruled was not admissible, is generally not included in the record or considered on appeal. However, rule 9.180(f)(2) states that a party may direct that the record include such evidence if the evidence was proffered and the exclusion of the evidence is one of the issues on appeal. In other words, if a party asked the JCC to admit something into evidence, the JCC refused to do so, and the party is appealing that refusal, that party should request the JCC to include it in the record on appeal. See Fla. R. App. P. 9.180(f)(2). But this can be done only if, at the hearing, the party seeking to have the evidence admitted asked the JCC to accept it so that the appellate court can review the evidence and decide if it should have been admitted.
Rule 9.180(f)(4) allows the parties to agree on the contents of the appellate record. In this situation, the parties would file a written stipulation of the record with the clerk for the JCC, and that stipulated record along with the order being appealed would be transferred to the appellate court. Rule 9.180(9) provides that rule 9.200(a)(3) applies in workers’ compensation appeals. As explained in section (C)(3) of this chapter, under 9.200(a)(3), the parties may prepare a stipulated statement explaining how the issues on appeal arose and were decided by the JCC. The order appealed should be attached to this statement as well as those parts of the record necessary for the court of appeal to decide the issues on appeal. If this process is chosen, the parties are required to inform the clerk of the OJCC and file the stipulated statement with the clerk within 60 days.
Rule 9.180(f)(6) provides that the deputy chief judge of compensation claims shall designate the person to prepare the record on appeal, and that the clerk of the OJCC is to supervise the record’s preparation. When the record (including any transcript(s)) is ready, the clerk of the OJCC sends it to the JCC who presided over the case to review it and certify that it was prepared according to the rules and send it to the court of appeal within 60 days after the notice of appeal is filed. The JCC is also required to provide an electronic image copy of the record to the lawyers for represented parties, and to any unrepresented party. Rule 9.180(f)(8) allows the JCC to extend the time for delivery by 30 days, but any further extensions requires permission from the appellate court.
Generally, pro se parties receive a copy of the record on a CD through the mail. However, they may also register for electronic access to the OJCC case by going to the eJCC website, https://www.fljcc.org/eJCC, signing up for an account, and then filling out the "request for eJCC Access to Case" form found at: https://www.fljcc.org/JCC/forms.asp. After completing all of the steps to gain eJCC access to their case, pro se parties may view and download a copy of the appellate record, which is also on their OJCC docket. As with all public records, pro se parties may make a public records request for any missing document they may want.
3. Appeals from Nonfinal Orders
Rule 9.180(b)(1) allows for appeals from only three types of nonfinal administrative orders: orders on jurisdiction, venue, or compensability. The proper method of submitting the record in an appeal in these cases is to include the relevant materials in an appendix to the appellate brief, as discussed in section (B)(1) of this chapter. Rule 9.180(h)(2) provides that in an appeal from a nonfinal order in a workers' compensation case, the "[a]ppellant's initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 15 days of filing the notice" of appeal. Thus, once an appellant files a notice of appeal of one of the nonfinal orders allowed by rule 9.180(b)(1), that party has just 15 days to file an initial brief and appendix. Therefore, it may be advisable to make sure that all documents and transcripts have been obtained before filing the notice of appeal, but keep in mind that the deadline for filing the notice is 30 days after the JCC sends the nonfinal order to the parties either by mail or email, and if the notice of appeal is late the appeal will be waived. See Fla. R. App. P. 9.180(b)(3).Rule 9.220(b) provides that the appendix shall contain an index (which is a list of the items included in the appendix and the page number on which they can be found), a conformed copy of the order being appealed, and all of the documents that concern or support the appellant’s argument on appeal. This includes, for example, any petitions for benefits, motions, responses to motions, and any exhibits or records that were admitted into evidence. Also, if there were any hearings on the issue decided in the non-final order, the appendix should include a transcript of the hearing(s). The appellant may already have copies of the papers that were filed in the JCC that are needed to include in the appendix. If so, the appellant can usually prepare the appendix from these copies. Otherwise, the appellant may obtain copies of those documents from the judge of compensation claims or through the eJCC electronic filing system. The copies do not have to be certified, but they must be accurate and the appellate parties cannot change or mark up the copy. If a transcript or other record of a hearing is needed for the appendix, the appellant may need to request a copy of the audio recording from the OJCC and then have the audio recording transcribed for inclusion in the appendix.
Rule 9.220(c) provides that the appendix should be filed in electronic (PDF) format unless a paper copy is allowed. The rule then discusses the formatting requirements for an appendix in paper format. The rule provides that, a paper appendix "shall be separately bound or separated from the petition, brief, motion, response, or reply by a divider and appropriate tab, and" that the paper size should be 8 ½ by 11 inches. Please see Chapter 1 for more information on electronic filing in the appellate courts.
The appellee may decide that the appellant's appendix is incomplete or missing important documents or transcripts that were part of the record below. If so, the appellee can file an appendix with the answer brief, following the same format and procedure discussed above and in section (B)(1) of this chapter, including any additional documents that the appellee thinks are necessary for the appellate court to consider. If the appellant files a reply brief and wants to include additional documents from the lower court’s record for the appellate court to review that have not already been included in an appendix, the appellant can file an additional appendix with the reply brief.
4. Costs
The appellant is responsible for paying the cost of preparing the record in a worker's compensation appeal. The cost of preparing the record in a workers' compensation appeal is addressed in rule 9.180(f)(5). For appeals from final orders, subdivision (f)(5)(A) of this rule states that within 5 days after the contents of the record have been determined, the OJCC must serve notice on the appellant of the estimated cost of preparing the record. At this point, the appellant must either (1) pay the estimated costs within 15 days after service of the notice of the estimated costs, or (2) file a motion asking to be excused from paying all or some of the costs as provided in rule 9.180(g)(3). If the appellant fails to deposit with the JCC the estimated costs, the OJCC will notify the appellate court, which may dismiss the appeal.Rule 9.180(g)(3) states that the cost of the record will be waived or excused if the appellant can show that the appellant is “insolvent” or “indigent.” According to the law, an appellate party is insolvent or indigent if the party has stopped regularly paying his/her debts and cannot pay his/her debts when they are due, or if a bankruptcy court has entered an order stating that an appellate party is insolvent. According to rule 9.180(g)(3)(B), if an appellate party believes that he/she meets these criteria, that party must file a verified petition with the judge of compensation claims within 15 days after the date the judge sent the notice of estimated costs to that party, stating that the appellate party is insolvent. If the verified petition is filed before receiving the notice of estimated costs or more than 15 days after the judge sent the notice of estimated cost, the petition will be denied as untimely. For purposes of pursuing this petition, the party who filed it is referred to as the petitioner rather than as the appellant.
A sample form titled “Verified Petition: Relief from Paying Cost of Record Preparation” can be found online at www.jcc.state.fl.us/JCC/forms.asp. Rule 9.180(g)(3)(D) provides that the petition must be sworn, signed by the appellant, and notarized by a notary public. The petitioner must attach to the petition a complete and detailed “Financial Affidavit,” which must also be sworn, signed by the petitioner, and notarized by a notary public. The financial affidavit must list all of the party's assets, liabilities, and income, including assets owned with the party's spouse. A form for the financial affidavit is also available at www.jcc.state.fl.us/JCC/forms.asp. The petitioner must also attach a copy of any directions filed with the judge of compensation claims specifying which filings the party directed be included in the record.
Rule 9.180(g)(3)(E) states that, when filing the petition for relief, financial affidavit, and a copy of the directions with the judge of compensation claims, the petitioner must also provide copies of the same documents to all other parties to the appeal and to the Division of Workers’ compensation (whose website is http://www.fldfs.com/wc/), the office of general counsel of the department of financial services (the department’s website is http://www.fldfs.com), and the clerk of the appellate court.
Rule 9.180(g)(3)(F) provides that, after the JCC gives 15 days’ notice of the petition to the other parties and the Division of Workers' Compensation, the JCC is to promptly set the matter for a hearing. However, if there is no objection to the petition from any of the other parties or the Division within 20 days, then the JCC can enter an order on the petition without a hearing. Rule 9.180(g)(3)(G) provides that, if the JCC denies the petition, or grants it in part, then the petitioner/appellant must deposit the estimated costs with the JCC within 15 days of the order and, if the appellant fails to do so, the OJCC will notify the appellate court, which may dismiss the appeal. If the appellant decides to withdraw the petition to be relieved of paying for the cost of record, the payment should be submitted when the petition is withdrawn.
5. Transcripts
As noted in section (G)(2) of this chapter, the record in appeals from final orders is supposed to include transcripts of all hearings held by the JCC. Just as in civil appeals, if an appellant needs a transcript of a hearing that was held before the judge of compensation claims, the appellant needs to make arrangements to have a court reporter at the hearing or to be sure the judge will electronically record the hearing, and to have the hearing transcribed. Rule 9.180(f)(6)(A), provides that the deputy chief judge of compensation claims is the one who selects the transcriber or reporter to prepare the necessary transcript(s), and requires the deputy chief judge to notify the parties of the selection. Subdivision (f)(6)(B) of the rule allows for a party to object to the selection of transcriber, in writing, within 15 days of service of the notice of selection. If there is an objection, the deputy chief judge is to hold a hearing on the matter within 5 days. Subdivision (f)(6)(C) of the rule requires the transcriber selected by the deputy chief judge to certify and deliver an electronic version any transcript(s) to the clerk of the OJCC, and to do so in sufficient time for the OJCC to include the transcript(s) in the appellate record. The transcriber must also notify the parties when the transcript(s) is delivered to the clerk of the OJCC. In an appeal from a nonfinal order, if a transcript or other record of a hearing is needed for the appendix, the appellant may need to request a copy of the audio recording from the OJCC and then have the audio recording transcribed for inclusion in the appendix.6. Supplementing the Appellate Record
As with an appeal from a final order in a civil case, the parties to a workers' compensation appeal may obtain permission from the appellate court to supplement or correct the record. Rule 9.180(f)(9) explains that the provisions of rule 9.200(f), discussed in section (C)(5) of this chapter, apply to workers’ compensation appeals. If there is an error or if something is missing from the record, the parties can stipulate to a correction, the JCC can correct the record before transmitting it, or the appellate court can order the record to be corrected. Any error or omission in the record discovered before the record is transmitted should be brought to the JCC’s attention by a motion to supplement or correct the record. If the error or omission is discovered after the record is transmitted to the court of appeal, such motion should be filed with the court of appeal. When it is necessary to supplement or correct the record originally prepared, the procedures concerning the costs of preparing and submitting the record are repeated.Likewise, if the appellant determines that the appendix that was filed with the initial brief in the appeal of a nonfinal order, the appellant can file a motion with the appellate court requesting permission to amend the appendix to include missing items.
