Still Sending Certified?

I have had the chance to speak to many attorneys in the last few weeks. The meetings of the Florida Bar Workers' Compensation Section Executive Council, the Florida Workers' Advocates and the WCI Hall of Fame afforded some of these opportunities. The continuing education program presented by the Office of Judges of Compensation Claims (OJCC) and the Workers' Compensation Institute (WCI) in Tallahassee afforded additional opportunities. In short, the last thirty days has been a great opportunity for feedback on our transition to e-service.

I hear that some continue to produce documents such as petitions and responses to petitions, and then send them to others by certified mail. Some ask me "do we still have to use certified mail?"

Well, the post office is failing. They have recently conceded that and they will abandon Saturday delivery. The Post Office is not failing because of our transition to electronic filing and service, but because of the cumulative effects of many abandoning the practice of sending paper to other people. I am proud to be part of encouraging this environmentally friendly alternative.

The Legislature has charged the OJCC with adoption of procedural Rules. Fla. Stat. §440.45. This mandate specifically includes "rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge." Filing Petitions is controlled by Fla. Stat. §440.192(1), which says "the employee shall also serve copies of the petition for benefits by certified mail, or by electronic means approved by the Deputy Chief Judge, upon the employer and the employer's carrier." The filing of responses to petitions is controlled  by Fla. Stat. §440.192(8), which says "The carrier shall provide copies of the response to the filing party, employer, and claimant by certified mail or by electronic means approved by the Deputy Chief Judge.

Rule 60Q6.108(1)(b) provides "any pleading or other paper filed in a proceeding shall be served on all other parties or, if represented, their attorneys of record at the time the document is filed." This Rule specifically addresses Petitions for Benefits (PFB). These  "shall be served on the parties as provided in Section 440.192(1), F.S., and copies of the petitions shall be served on counsel for the opposing parties." Furthermore, "service shall be by electronic mail, facsimile, or U.S. mail. The use of electronic mail by parties or attorneys is approved only when the serving party or attorney uses the opposing party’s or attorney’s e-mail address registered with the OJCC, as listed in e-JCC." 

The Rule is intended to provide clarity on the Fla. Stat. §440.192(1) "alternative" (electronic means approved by the Deputy Chief Judge). The alternative is electronic service through the OJCC. Rule 60Q6.108(1)(b) says "electronic mail sent by the OJCC on behalf of the serving party through the e-JCC program shall be the only approved alternative to certified U.S. mail for service of petitions for benefits and responses to petitions for benefits." Thus, by rule, there is an (1) approved alternative to certified mail for petitions and responses. The approved alternative is service through the "e-JCC program." That service is available today for most parties. 

The missing parties in e-JCC are currently the "Employer" and "Claimant." So attorneys can file petitions and serve the carrier through e-JCC's service portal, but not the Employer or Claimant unless the filing party has those email addresses to add to the service in the service portal.

This alternative is approved and endorsed by procedural rule, duly promulgated. Some have suggested that there needs to be a an administrative order entered by the Deputy Chief  Judge to approve an alternative to Certified Mail. But this ignores Fla. Stat. §440.45 and the effect of Rules generally. No administrative order is needed, the Rules provide for the alternative.

As mentioned above, we do not have the Employers or the Claimants in the database as yet, but that is coming. In the meantime, the filing party can add these addresses to the e-JCC e-service portal when filing a petition or a response. By doing so, the e-filing process will e-serve upon these "added" service parties, through the e-service portal. This complies with the Rule, and fulfills the statute. In short, if you know the email addresses for the Employer and Claimant, you can abandon Certified Mail completely. If you do not have email addresses for these other parties, you can certainly abandon Certified Mail for the Carrier or Third Party Administrator (TPA), and the attorneys, and markedly reduce your Certified Mail expenses. 

Please remember, even if you do not abandon Certified Mail, that you are required to serve by electronic means "if available," when you electronically file. This is critical for motions and other non-PFB filings. Rule 60Q6.108(1)(b) says that when you e-file you are "required to serve the other party or parties, or their designated representative, with a copy of that pleading or paper simultaneously by electronic means, if available." It is not appropriate to e-file a motion and then send a copy to the other party by hand delivery or U.S. Mail to delay delivery and prejudice them. 

E-service and e-JCC are here to stay. Learn to use them to leverage your practice and save your money. We estimate that our users will save about one million dollars annually through these processes, your gain, the Postal Service's loss. I feel bad for them, but I congratulate you!