Following a 2014 amendment to the 60Q-6.113(2)(a) of the Rules of Procedure for Workers’ Compensation Adjudications, the First District Court of Appeals has held employer/carriers to a strict standard in stating all defenses available in pre-trial stipulations. The rule states that “all available defenses not raised in the pre-trial stipulation are waived unless thereafter amended by the judge for good cause shown” and that “absent an agreement of the parties, in no event shall an amendment or supplement be used to raise a new claim or defense that could, or should have been raised when the initial pre-trial stipulation was filed, unless permitted by the judge for good cause shown.”
In the April 11, 2017 opinion of McFarlane v. Miami Dade, 42 Fla. L. Weekly D 808 (Fla 1st DCA 2017), concerning a one-time change, the E/C asserted in its portion of the pre-trial stipulation a defense that the claimant had already requested and received her one-time change with a doctor who thereafter began providing treatment. However, the court noted that the word “acquiescence” did not appear at all in the pre-trial stipulation and was not mentioned by the E/C until their trial memorandum was filed less than a week before the final hearing. Therefore, by failing to comply with the applicable pre-trial rule, the court found that the E/C waived any defense based on acquiescence.
This case highlights the importance of maintaining a collaborative relationship between client and counsel in forming a comprehensive strategy early in a case, including what defenses should be pursued and asserted.