Caldwell v. Wal-Mart Stores, Inc.

980 So. 2d 1226, 2008 Fla. App. LEXIS 6948, 2008 WL 1930139
CourtDistrict Court of Appeal of Florida
DecidedMay 5, 2008
Docket1D07-4359
StatusPublished
Cited by24 cases

This text of 980 So. 2d 1226 (Caldwell v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caldwell v. Wal-Mart Stores, Inc., 980 So. 2d 1226, 2008 Fla. App. LEXIS 6948, 2008 WL 1930139 (Fla. Ct. App. 2008).

Opinion

980 So.2d 1226 (2008)

Mary CALDWELL, Petitioner,
v.
WAL-MART STORES, INC. and Sedgwick/CMA, Respondents.

No. 1D07-4359.

District Court of Appeal of Florida, First District.

May 5, 2008.

*1227 L. Anton Rebalko, Coral Springs, for Petitioner.

Michael Goldstein and Laurence F. Leavy of Laurence Leavy & Associates, Ft. Lauderdale, for Respondents.

PADOVANO, J.

Mary Caldwell, the claimant in a workers' compensation case, seeks review by certiorari of an order by the Judge of Compensation Claims directing her to submit to an independent medical examination. We conclude that the petition is untimely and therefore ineffective to confer jurisdiction on this court. Accordingly, we dismiss the petition.

The claimant was injured at work and she sought to recover permanent and total disability benefits from her employer, Wal-Mart Stores, Inc., and its insurance carrier. Wal-Mart informed the claimant that it had selected Dr. Christopher Brown as an independent medical examiner. The evaluation was to take place on November 20, 2006, but the claimant failed to keep the appointment. Wal-Mart then rescheduled the examination for January 11, 2007, but, once again, the claimant failed to attend. Subsequently, the claimant's counsel wrote to Wal-Mart's counsel expressing his concern that the employer did not have a right to schedule the claimant for an independent medical examination.

When it became apparent that the claimant would not go to Dr. Brown's office voluntarily, Wal-Mart filed a motion compelling her to submit to an independent medical examination. A hearing was held on the motion, and on February 28, 2007, the Judge of Compensation Claims entered an order compelling the claimant to submit to the examination with Dr. Brown. The claimant did not seek review of this order, nor did she obey it.

With the benefit of the order, Wal-Mart's counsel notified the claimant's attorney in writing that the examination had been rescheduled for March 29, 2007. Shortly after this notice was given, counsel sent a second letter as a reminder of the appointment. No objection was made to the examination or the proposed date, but the claimant failed to appear yet again. As a consequence, Wal-Mart was obligated to pay Dr. Brown for the missed appointment.

Wal-Mart filed a motion for sanctions on April 25, 2007, in which it sought to enforce the original order and to recover costs and attorney's fees against the claimant for her disobedience of the order. Subsequently, on May 22, 2007, the claimant filed a motion styled as a "Motion for Reconsideration of Order Entered February 28, 2007." In this motion, she alleged that Dr. Brown was a known advocate for the insurance industry and she argued that the judge had erred by granting Wal-Mart's motion without conducting an evidentiary hearing. Wal-Mart responded by pointing out that the request for reconsideration, coming as it did nearly three months after the judge's order, was untimely.

During the hearing on the motion, the claimant's attorney informed the judge that he had discovered new information that changed his argument on the claimant's duty to submit to the examination. He said that he learned only recently that Wal-Mart had access to a report by another *1228 medical professional, Dr. Elizabeth Ciano, regarding the claimant's medical condition. He argued that this report was the equivalent of an independent medical examination and that the employer was not entitled to another one. Wal-Mart argued that the report was merely a peer review and that it did not qualify as an independent medical examination.

The judge entered an order on July 25, 2007, denying the claimant's motion for reconsideration. He concluded that the motion merely restated the arguments made in response to the original motion to compel the examination and noted that he had fully considered and rejected those arguments before. The judge also rejected the new argument raised for the first time in the motion for reconsideration, that Dr. Ciano's previous evaluation qualified as Wal-Mart's opportunity for an independent medical examination.

The claimant sought review by certiorari in this court to challenge the July 25, 2007 order denying her motion for reconsideration. We issued an order directing her to show cause why the petition should not be dismissed for lack of jurisdiction. She responded to the order but has not shown that this court has jurisdiction to issue a writ of certiorari in the circumstances presented here.

Although the claimant states that she is seeking review of the July 25, 2007 order, the ruling that is the subject of her petition was made much earlier. Whether the claimant is obligated to submit to an independent medical examination is an issue that was settled on February 28, 2007, by the order granting Wal-Mart's motion to compel the examination. If the claimant believed that the judge had departed from the essential requirements of the law in making that decision, she should have filed a petition for writ of certiorari then.

It is too late now to seek review of the order granting Wal-Mart's motion to compel the examination. Rule 9.100(c)(1) of the Florida Rules of Appellate Procedure provides that a petition for writ of certiorari shall be filed within thirty days of the date of rendition of the order. This is not merely a matter of procedure; the time for seeking review by certiorari is jurisdictional. See Jones v. Cannon, 750 So.2d 108 (Fla. 1st DCA 1999); Excel Auto Group, Inc. v. Ford Motor Credit Co., 777 So.2d 1187 (Fla. 5th DCA 2001). As with an untimely notice of appeal, an untimely petition for writ of certiorari is ineffective to confer jurisdiction on the appellate court.

The claimant's motion for reconsideration did not extend the time for seeking review of the original order for several reasons. First, a motion for reconsideration is not an authorized motion under the Rules of Procedure for Workers' Compensation Adjudications. Second, the motion was untimely even if it had been properly styled as a motion for rehearing. Rule 60Q-6.122(1) of the Workers' Compensation Rules provides that a motion for rehearing "shall be filed and served within 10 days from the date of the order sought to be reviewed." Third, a motion for rehearing in a workers' compensation case, unlike a motion for rehearing in a civil case, does not suspend the date of rendition of the order to which it was directed. On this point, Rule 60Q-6.122(3) states that a motion for rehearing "does not toll the time within which an order becomes final or an appeal may be filed." See Martin v. Walmart Dist., 917 So.2d 346 (Fla. 1st DCA 2005).

The petition for writ of certiorari was filed within thirty days from rendition of the July 25, 2007 order, but that order merely reaffirmed the court's earlier ruling that the claimant is required to submit *1229 to an independent medical examination. An untimely appeal cannot be revived by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of the more recent order. See Gen. Motors Corp. v. Strickland, 913 So.2d 1227 (Fla. 1st DCA 2005); Wegner v. Schillinger, 921 So.2d 854 (Fla. 4th DCA 2006); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003). Of course, the same is true of the jurisdictional time period for seeking review by certiorari.

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Bluebook (online)
980 So. 2d 1226, 2008 Fla. App. LEXIS 6948, 2008 WL 1930139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldwell-v-wal-mart-stores-inc-fladistctapp-2008.