Emerita O. Flores- Orellana v. Circle-K and Constitution State Ser.

• Court: District Court of Appeal of Florida
• Decided: August 5, 2014
• Docket: 14-2055
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

EMERITA O. FLORES- NOT FINAL UNTIL TIME EXPIRES TO ORELLANA, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Petitioner,

v. CASE NO. 1D14-2055

CIRCLE-K AND CONSTITUTION STATE SERVICES,

Respondents.

___________________________/

Opinion filed August 5, 2014.

Petition for Writ of Mandamus.

Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Respondents Circle K and Constitution State Services.

Stephanie R. Hayes, Staff Counsel, Office of the Judges of Compensation Claims, Division of Administrative Hearings, Tallahassee, for JCC E. Douglas Spangler.

PER CURIAM.

In this workers’ compensation matter, Petitioner/Claimant seeks a writ of

mandamus requesting this Court order the Judge of Compensation Claims (JCC) to

schedule a hearing on an action pending under section 440.28, Florida Statutes (2009). “To show entitlement to a writ of mandamus, a petitioner must demonstrate

a clear legal right on her part, an indisputable legal duty on the part of the respondent,

and that no other adequate remedy exists.” Gant v. Nat’l Linen, 999 So. 2d 1079,

1080 (Fla. 1st DCA 2009). Because Claimant met each of these requirements, we

grant the petition for writ of mandamus.

After being adjudicated permanently and totally disabled under the Florida

Workers’ Compensation Law in January 2011, Claimant reached an agreement with

her Employer to settle a separate wage claim under the federal Fair Labor Standards

Act. Following dismissal of that federal claim based on the settlement, the E/C

discontinued payment of Claimant’s permanent total disability (PTD) benefits.

Claimant filed a petition for benefits (PFB) seeking reinstatement of her PTD

benefits. The E/C filed a motion for summary final order on grounds that Claimant,

by signing a release in the wage case, had settled both her federal claim and her

workers’ compensation claim against the Employer. The JCC denied the motion,

and the matter proceeded forward on the PFB.

On the date of the scheduled final hearing, August 29, 2013, the JCC entered

an order cancelling the hearing, dismissing Claimant’s PFB, declaring the

proceeding before him to be a modification proceeding under section 440.28, and

instructing the parties to coordinate a hearing to address modification of the order

awarding Claimant PTD benefits.

On September 3, 2013, the presiding federal court judge granted Claimant’s 2 motion to set aside the settlement previously approved and reinstated Claimant’s

Fair Labor Standards Act claim. One month later, the E/C reinstated Claimant’s

PTD benefits.

In April 2014, Claimant filed a motion in her workers’ compensation claim

asking the JCC, in relevant part, to reset the hearing on the modification matter as

referenced in the August 29, 2013, order. The JCC denied the motion on grounds

the August 29, 2013, order was final and the time to modify it or amend it had passed.

In Valdes v. Galco Construction, 883 So. 2d 359, 361 (Fla. 1st DCA 2004),

this Court issued a writ of mandamus and directed the JCC “to issue an order on

claimant’s motion for attorney’s fees within a reasonable time.” This Court having

determined that the issuance of an order can be mandated, it follows that the

scheduling of the event that results in that order can likewise be mandated. Both

Claimant and the E/C have the right to have claims and pending legal rights

adjudicated. Thus, Claimant has shown she has a clear legal right.

Section 440.25(4), Florida Statutes (2009), sets out the procedure for hearings.

The final hearing is to be concluded within 90 days of the mediation conference (see

§ 440.25(4)(b), Fla. Stat.) or 210 days after the PFB is filed (see § 440.25(4)(d), Fla.

Stat.). Section 440.25(4)(c) requires the JCC to give the parties at least 14 days’

notice of the final hearing. Here, the JCC, in the August 2013 order, declared the

proceeding was “a proceeding to modify the final compensation Order rendered

January 26, 2012.” Section 440.28, Florida Statutes (2009), provides that 3 proceedings to modify orders are to be conducted “in accordance with the procedure

prescribed in respect to claims in s. 440.25.” Thus, the JCC had an indisputable legal

duty to schedule a hearing.

JCCs have exclusive jurisdiction over workers’ compensation

matters. See Sanders v. City of Orlando, 997 So. 2d 1089, 1094 (Fla. 2008)

(reiterating that “well-established precedent [establishes] that JCCs have exclusive

jurisdiction over workers’ compensation matters”). Thus, Claimant had no

alternative forum in which she could secure a remedy.

Accordingly, the petition for writ of mandamus is GRANTED, and the JCC

is directed to provide the parties notice of a final hearing to address the E/C’s request

for modification within a reasonable time, not to exceed 30 days, from issuance of

mandate in this cause.

WOLF, ROBERTS, and ROWE, JJ., CONCUR.