Consulate Health Care v. Ho
Decision Date | 24 February 2017 |
Docket Number | CASE NO. 1D16–3808 |
Citation | 210 So.3d 782 |
Parties | CONSULATE HEALTH CARE and Gallagher Bassett Services, Inc., Petitioners, v. Reina Mifon HO, Respondent. |
Court | Florida District Court of Appeals |
William H. Rogner, Winter Park, for Petitioners.
Victor Arias of Victor Arias, P.A., Cape Coral, for Respondent Reina Mifon Ho; and Stephanie R. Hayes of the Office of the Judges of Compensation Claims, Tallahassee, for Respondent Edward R. Almeyda.
In this workers' compensation case, the employer and its third-party administrator (Petitioners) seek a writ of prohibition to quash the order denying their motion to disqualify the Judge of Compensation Claims (JCC). We grant the petition for the reasons that follow.
The motion to disqualify was based on a comment allegedly made by the JCC after a lengthy video teleconference (VTC) hearing that was inadvertently picked up by the VTC equipment and overheard by Petitioners' attorney. Specifically, the motion alleged that "[f]ollowing the dismissal of counsel and the party, the [JCC] turned in his chair, and spoke to an off camera staff member, saying ‘was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam’?" The JCC summarily denied the motion as legally insufficient.
We agree with the JCC that the motion was legally insufficient. The comment attributed to the JCC did not specifically single out Petitioners' attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them. See Letterese v. Brody , 985 So.2d 597, 599 (Fla. 4th DCA 2008) ( ).
Notwithstanding the legally insufficiency of the motion, we are compelled to grant the petition because the response voluntarily filed on behalf of the JCC by the Office of Judge of Compensation Claims (OJCC) attempted to refute the alleged partiality of the JCC by asserting—without any record support—that JCC "did not interrupt or raise his voice to counsel" and that he "allowed both sides to fully make their arguments, resulting in what would normally be a 5 to 10 minute hearing lasting over an hour." This was improper because it effectively placed the JCC in an adversarial posture with Petitioners by impermissibly suggesting that the allegations in the motion to disqualify were an incomplete account of the factual circumstances bearing on the JCC's impartiality. See Ellis v. Henning , 678 So.2d 825, 827 (Fla. 4th DCA 1996) ( ). The fact that the response was filed by the OJCC rather than the JCC himself is immaterial. Fabber v. Wessel , 604 So.2d 533, 534 n.1 (Fla. 4th DCA 1992), disapproved on other grounds , Enterprise Leasing Co. v. Jones , 789 So.2d 964 (Fla. 2001) ; see also Valltos v. State , 707 So.2d 343, 344–45 (Fla. 2d DCA 1997) ( ).
In light of this disposition, we take this opportunity to remind the OJCC that it is under no obligation to file a response in a prohibition proceeding such as this unless the court specifically orders it to do so. See Fla. R. App. P. 9.100(e)(3) ( ); see also Fabber , 604 So.2d at 534 (...
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