The repeal of the Rules of Workers' Compensation Procedure eliminates the need for that committee. See Amendments to the Fla. Rules of Workers' Compensation Procedure., 891 So.2d 474 (Fla. 2004). We decline to adopt proposed new rule 2.170(b), Photographing Jurors Faces, which the media and the First Amendment Foundation maintain is inconsistent with decisions of this Court and the Fourth District Court of Appeal.
JCCs are not "courts" because, unlike Article V courts, they have no inherent authority beyond that granted by statute. See generally Amends. to theFla. Rules of Workers’ Comp. Proc. , 891 So. 2d 474, 477–78 (Fla. 2004) ("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State because it is neither the supreme court, a district court of appeal, a circuit court, nor a county court."); Jones v. Chiles , 638 So. 2d 48, 51–52 (Fla. 1994) ("We find that compensation claims judges are executive branch officials, not judicial branch officials."). Conversely, section 440.1926, enacted almost a decade after section 440.211, creates a separate and distinct statutory avenue by which parties may, in the absence of a CBA, seek approval of the JCC to alternatively resolve workers’ compensation issues via arbitration.
The supreme court has addressed separation of powers and its rulemaking authority in the context of workers' compensation proceedings. SeeAmendments to the Fla. Rules of Workers' Comp. Procedure , 891 So. 2d 474 (Fla. 2004). The supreme court previously declared, "[w]e conclude that this Court must be removed from this rulemaking process, and the rules this Court has adopted must be repealed as unauthorized under the Florida Constitution."
Additionally, although the Florida Supreme Court has the authority to adopt procedural rules for judicial proceedings under article V, section 2(a) of the Florida Constitution, it is well established that the Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Florida Statutes. See Amendments to the Fla. Rules of Workers' Comp. Procedure , 891 So.2d 474, 478 (Fla. 2004) ("Given that the [Office of Judges of Compensation Claims] is not an article V court, but rather part of an executive branch department, we find that this Court has no authority under the Florida Constitution ... to promulgate rules of practice and procedure for this executive entity."). Accordingly, even if in In re Amendments to the Florida Evidence Code , supra , the Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers' compensation proceedings.
See In re Amendments to Florida Rules of Workers' Compensation Procedure, 674 So.2d 631, 642 (Fla. 1996). In 2004, the Florida Supreme Court held that "by granting this Court the authority to promulgate rules of workers' compensation procedure, the Legislature un-constitutionally enlarged this Court's jurisdiction by delegating to it powers that belong exclusively to the executive branch of government" and, as a result, repealed the Rules of Workers' Compensation Procedure. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474, 479 (Fla. 2004). Under the rules governing workers' compensation proceedings, the Employer/Carrier can depose Claimant and inquire about his medical and claims history.
See Callahan, 470 So.2d at 819; Mendez, 432 So.2d at 141. However, this rule, along with all workers' compensation procedural rules adopted by the Florida Supreme Court, was repealed in 2004, see Amendments to Fla. R. Workers Comp. P., 891 So.2d 474, 479 (Fla. 2004), and it was effectively replaced by section 440.25(4)(i). This statute allows for dismissing a "petition" for lack of prosecution, whereas former rule 11(b) allowed for dismissing "[a]ny claim, or any petition to modify."
In the present case, the petition for attorney's fees and costs remained pending for over seven years, and for some unknown reason, the action was never addressed by the JCC; therefore, the undisposed of 1998 petition for attorney's fees and costs tolled the running of the statute of limitations. Although the Florida Supreme Court has since repealed the Florida Rules of Workers' Compensation, see Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004), the pertinent provisions of rule 4.144 have been re-adopted in Florida Administrative Code Rule 60Q-6.124.
In addition, I cannot believe that the Florida Supreme Court by its adoption of rule 9.180(b)(2) reasonably intended to divest a JCC from jurisdiction to decide whether the failure of a party to file a timely motion to vacate should be excused. If, however, the court contemplated such result, I am of the opinion a serious question would arise as to the constitutionality of the court's rule-making powers. See Amendments to the Fla. R. of Work. Comp. P., 891 So.2d 474, 479 (Fla. 2004) (holding that the Rules of Workers' Compensation Procedure adopted by the supreme court constituted an unconstitutional encroachment on the power of the executive branch to adopt rules of procedure for its agencies). In my judgment, the adoption of rule 9.180(b)(2) was not intended to bar a party from filing an appeal from an abbreviated order simply because the party had not complied with the ten-day limitation period provided in rule 60Q-6.119 for moving to vacate an abbreviated final order.