Karell v. Miami Airport Hilton/Miami Hilton Corp.

Decision Date31 January 1996
Docket NumberNo. 95-2068,95-2068
Citation668 So.2d 227
Parties21 Fla. L. Weekly D316 Nydia KARELL, Petitioner, v. MIAMI AIRPORT HILTON/MIAMI HILTON CORPORATION, Respondent.
CourtFlorida District Court of Appeals

Petition for Writ of Certiorari--Original Jurisdiction.

Mark J. Feldman, Miami, for Petitioner.

Douglas W. Barnes and Frank Angione of George, Hartz, Lundeen, Flagg & Fulmer, Ft. Lauderdale, for Respondent.

SMITH, Senior Judge.

The claimant, Nydia Karell, petitions for a writ of certiorari to quash an order of the Judge of Compensation Claims (JCC) dated May 16, 1995, compelling the claimant's appearance before two physicians, one a psychiatrist and the other an orthopedist, for independent medical examinations (IMEs) on motion by the employer/carrier (E/C). We treat this review as an interlocutory appeal pursuant to Rule 4.160(a)(1)(A), Florida Rules of Workers' Compensation Procedure, as amended November 9, 1995, because the JCC's order determines subject matter jurisdiction of the JCC. We find that the JCC has no jurisdiction to compel the claimant to attend an IME during the informal dispute resolution process provided for by section 440.191, Florida Statutes (1994 Supp.). We therefore reverse the challenged order.

According to the petition, the accident occurred on June 8, 1994. Disposition of the petition before us is therefore governed by the pertinent amendments to Chapter 440 effected by Chapter 93-415, Laws of Florida (1993), which have an effective date of January 1, 1994. 1

We have read and carefully considered the provisions of section 440.191, which creates the "Employee Assistance and Ombudsman Office" (EAO) within the Division of Workers' Compensation, together with related statutes. We find no provision conferring jurisdiction upon the JCC to order an IME prior to the filing of a petition for benefits under section 440.192.

The respondent E/C urges us to find within various statutory provisions the implied authority for the JCC to order an IME during the informal dispute resolution stage of the proceedings. The E/C argue, not without some logic and reason, that jurisdiction on the part of the JCC to compel an IME is necessary to ensure the effectiveness of the informal dispute resolution process. While the E/C can point to no specific statutory provision conferring this authority upon the JCC, they nevertheless argue that the requisite jurisdictional authority can be implied from several statutory provisions as follows: sections 440.30; 440.33(1); 440.25(4)(h); 440.13(4)(c); and 440.13(5)(a), Florida Statutes (1994 Supp.). We cannot agree.

Examination of the cited statutes reveals that the authority of the JCC to act prior to the filing of a petition for benefits has been expressly conferred in certain instances. In some instances the language of the statute is such that the jurisdiction and authority of the JCC is necessarily confined to proceedings before the JCC after a petition for benefits has been filed.

Section 440.30 specifically authorizes the JCC to order the taking of depositions before a claim is filed. However, the authority of the JCC to order depositions or of a party to take depositions, before the filing of a claim, is limited to proceedings in which the claimant is represented by an attorney, and the statute further provides for payment of attorney's fees to the claimant's attorney for representation at such depositions. 2

Section 440.33(1), authorizes a Judge of Compensation Claims to do "all things conformable to law which may be necessary to enable him effectively to discharge the duties of his office." The key phrases are "conformable to law" and "duties of his office." There is no language in section 440.191 that either permits or requires the JCC to order an IME during the informal dispute resolution process, and nothing that suggests that the JCC has any "duties" or responsibilities during that process. This court has recently declined the invitation to read into section 440.191 authority on the part of a JCC to impose sanctions for a party's failure to attempt to resolve disputes in good faith or to cooperate with the settlement efforts of the EAO, or to find such power implied from the provisions of section 440.33(1). Plouffe v. Lake County Sheriff's Office, 653 So.2d 507 (Fla. 1st DCA 1995). We similarly decline in the case before us to, in effect, rewrite section 440.191 in the manner urged by the E/C.

The E/C argue that conferring authority upon the JCC to act during the informal dispute settlement process would help to bring about the results sought to be achieved by that process. However, such arguments are properly addressed to the legislature rather than to this court. Our task is to interpret and apply the statutes as written, so far as it is possible to do so, and not as one party or the other would like to have them written.

As we recently observed in Wright v. Industrial Automotive and F.A.W.A., 662 So.2d 1321 (Fla. 1st DCA 1995): "The Request for Assistance is a procedure by which the claimant may seek to obtain benefits for his injury without litigation and the involvement of attorneys. The Request for Assistance was created to help avoid the filing of claims and the commencement of litigation."

Section 440.25 contains detailed provisions for mediation and final hearings after the filing of a petition for benefits. Subsection (4)(h) authorizes the JCC to require the appearance before him of the parties and counsel for an emergency conference where there is a bona fide emergency involving the health, safety or welfare of an employee. Section 440.13(4)(c), another provision cited by the E/C as authority for the JCC's jurisdiction to order an IME before the filing of a petition for benefits, provides for the access to and production of medical records, and also requires health care providers to discuss claimant's workplace injuries...

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9 cases
  • M & H Profit, Inc. v. City of Panama City
    • United States
    • Florida District Court of Appeals
    • 14 Diciembre 2009
    ...were not placed there by the legislature. See Hayes v. State, 750 So.2d 1, 4 (Fla.1999); see also Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So.2d 227, 229 (Fla. 1st DCA 1996) ("Our task is to interpret and apply the statutes as written ... and not as one party or the other woul......
  • Smurfit-Stone Container Corp. v. Taylor
    • United States
    • Florida District Court of Appeals
    • 1 Junio 2001
    ...informal dispute process] during this period [before the petition for benefits had been filed.]"); Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So.2d 227, 229-30 (Fla. 1st DCA 1996) (concluding no provision conferred jurisdiction on judge of compensation claims to order independen......
  • Miller v. Jupiter Medical Center
    • United States
    • Florida District Court of Appeals
    • 8 Mayo 2006
    ...that a party is entitled to an IME "to resolve the threshold question of causation"). See also Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So.2d 227 (Fla. 1st DCA 1996) (observing that the E/C has the right to schedule an IME prior to the filing of a petition for benefits, becaus......
  • Delgado v. JC CONCRETE
    • United States
    • Florida District Court of Appeals
    • 23 Octubre 1998
    ...because the JCC's order determines subject matter jurisdiction of the JCC [judge of compensation claims]." Karell v. Miami Airport Hilton, 668 So.2d 227, 228 (Fla. 1st DCA 1996). We affirm on the authority of Compcare of Florida v. Cason, 693 So.2d 127 (Fla. 1st DCA 1997) (reversing order d......
  • Request a trial to view additional results
1 books & journal articles
  • Continued revision of the economic loss rule: statutory causes of action not barred.
    • United States
    • Florida Bar Journal Vol. 74 No. 4, April 2000
    • 1 Abril 2000
    ...[and it is not] permitted to substitute" its view of what the law should be); Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So. 2d 227 (Fla. 1st D.C.A. 1996) (court's task is to interpret and apply statute as [16] FLA. STAT. [sections] 812.014(1) provides: "(1) Any person commits t......

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