IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA RESPONDENTS ENGLEWOOD COMMUNITY HOSPITAL AND RSKCO S ANSWER BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA VICKI LUCAS, vs. Petitioner, ENGLEWOOD COMMUNITY HOSPITAL and RSKCO, CASE NO.: SC L.T. Case No.: 1D Respondents. / RESPONDENTS ENGLEWOOD COMMUNITY HOSPITAL AND RSKCO S ANSWER BRIEF ON JURISDICTION FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) mtinker@fowlerwhite.com Attorneys for Respondents By: Mark D. Tinker Florida Bar No:

2 TABLE OF CONTENTS Table of Contents...i Table of Authorities...ii Preliminary Statement...1 Statement of the Case and Facts...2 Summary of Argument...3 Argument: I. The Court should decline to accept jurisdiction because, in the proceedings below, LUCAS effectively conceded that there is a rational basis for the disparity between represented and unrepresented claimants II. There is no express and direct conflict between the underlying Opinion and any other reported decision with respect to the standard of review, and thus the Court should decline jurisdiction Conclusion Certificate of Service... C-1 Certificate of Compliance... C-2 i

3 TABLE OF AUTHORITIES Acton v. Fort Lauderdale Hosp., 440 So. 2d 1282 (Fla. 1983)...9 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 7, 8 Flamily v. City of Orlando, 924 So. 2d 78 (Fla. 1st DCA 2006)... 6, 7 Hardee v. State, 534 So. 2d 706 (Fla. 1988)...2 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...7 Lucas v. Englewood Community Hosp., So. 2d, 32 Fla. L. Weekly D2027 (Fla. 1st DCA Aug. 23, 2007)... 2, 5, 8 North Florida Women s Health and Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003)... 3, 7, 8 Winn Dixie v. Resnikoff, 659 So. 2d 1297 (Fla. 1st DCA 1995)...9 Art. V, 3(b)(3), Fla. Const....7 Fla. R. App. P Fla R. App. P THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Rev., et. al. 17th Ed. 2000)...1 ii

4 PRELIMINARY STATEMENT This petition arises out of the First District s review of a final order entered in a worker s compensation proceeding. The Petitioner, VICKI LUCAS, was the appellant/claimant below. She will be referred to as LUCAS in this Brief. Respondents ENGLEWOOD COMMUNITY HOSPITAL and RSKCO were the appellees/employer/carrier below, and will be collectively referred to as ENGLEWOOD. The proceedings below were conducted by the Honorable Judges Allen, Barfield, and Hawkes. They will be collectively referred to as the appellate panel. Legal citations contained in this Brief are intended to conform to Florida Rule of Appellate Procedure and THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Rev., et. al. 17th Ed. 2000). All emphasis has been supplied by counsel unless otherwise noted. 1

5 STATEMENT OF THE CASE AND FACTS When considering its potential conflict jurisdiction, this Court is limited to the facts which appear on the face of the lower court s opinion. E.g. Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988)( for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion ). LUCAS s Brief, however, recites a great deal of underlying factual material that cannot found in that opinion. Indeed, the decision at issue does not contain any factual statements whatsoever. Lucas v. Englewood Community Hosp., So. 2d, 32 Fla. L. Weekly D2027 (Fla. 1st DCA Aug. 23, 2007). Instead, it simply quotes Florida Statute Section (11)(c), notes that its constitutionality hinges upon the rational basis test, and then finds that as effectively conceded by LUCAS the provision does bear a rational relationship to a legitimate state purpose. Id. The Court should thus restrict its analysis to that limited statement when considering whether an express and direct conflict exists. 2

6 SUMMARY OF ARGUMENT The Court should conclude that it has no jurisdiction to review the First District s decision because there is no express or direct conflict between that opinion and the case LUCAS cites North Florida Women s Health and Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003). Specifically, conflict jurisdiction requires two elements: (1) that the cases expressly conflict on the same issue of law, and (2) that the conflict arises under indistinguishable factual circumstances. The cases at issue in this matter diverge in both respects. Legally, LUCAS s argument focuses on the standard applied when a court considers the constitutionality of a statute. North Florida, however, recites the standard applicable to statutes affecting a fundamental right, whereas the First District s opinion in this case expressly notes that the statute in question does not implicate a fundamental right. Thus, there is no express conflict in the law enunciated by those decisions. Factually, the two cases are distinguishable for the same reason. While the underlying opinion deals with washout settlements in worker s compensation cases, the North Florida decision discussed governmental intrusion into the constitutional right of privacy. For those reasons, the two opinions are distinct both legally and factually, and the Court should decline jurisdiction. 3

7 ARGUMENT In the proceedings below, LUCAS claimed that Florida Statute Section is unconstitutional to the extent that it creates a disparity between represented and unrepresented claimants in worker s compensation proceedings. The First District, however, noted that there is a rational basis for that disparity, and thus upheld the statute. LUCAS has now presented this Court with several arguments in support of her request for discretionary review of that decision. All of those arguments lack merit, however, and the Court should thus decline jurisdiction. I. The Court should decline to accept jurisdiction because, in the proceedings below, LUCAS effectively conceded that there is a rational basis for the disparity between represented and unrepresented claimants. LUCAS first asks the Court to exercise discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(2)(A)(i) because the First District s Opinion upholds the constitutionality of a statute. However, as noted in that Opinion, LUCAS has effectively conceded that the statute passes constitutional scrutiny. Accordingly, the Court should decline her request. Specifically, the decisive portion of the First District s opinion is as follows: We note initially that the appellant is complaining of the disparate treatment of represented claimants at a point in post-settlement proceedings when represented claimants have already received different treatment than that extended to unrepresented claimants. Unlike an 4

8 unrepresented claimant who is subject to considerable oversight by the judge of compensation claims when she negotiates a washout settlement, see section (11)(b), Florida Statutes, a represented claimant is free to negotiate her settlement with only minimal oversight by the judge of compensation claims. The appellant does not challenge this initial disparity; indeed, she concedes that there is a rational basis for it, stating that a represented Claimant has an attorney looking out for his wellbeing, whereas an unrepresented Claimant does not, and that one would certainly presume that an attorney representing the Claimant would be looking out for that Claimant s best interest, and would not agree to settle the workers compensation case unless it was in the Claimant s best interest. For the same reason, however, a rational basis exists to support the legislature s decision to make section (7) inapplicable when a claimant has entered into a settlement agreement while represented by counsel. A represented claimant is not precluded from negotiating for the payment of settlement proceeds within a particular time period or from negotiating for an increased benefit should the payment be late. The legislature therefore might rationally have assumed that a claimant's attorney would negotiate for the inclusion of such terms in a settlement agreement when doing so would be in the claimant s best interests. As the appellant has acknowledged, by limiting the degree to which a judge of compensation claims must supervise a settlement under section (11)(c), the legislature has already apparently embraced the presumption that a claimant s attorney will act in the claimant s best interests during these negotiations. Lucas, 32 Fla. Law Weekly D2027(emphasis added). Simply stated, the First District s Opinion notes that LUCAS has acknowledged that there is a rational basis for the disparate treatment of represented and unrepresented claimants, and 5

9 there thus is no need for this Court to engage in any further analysis of that point. For that reason alone, the Court should decline jurisdiction. Otherwise, LUCAS s Brief asserts that the Court has accepted jurisdiction over the same constitutional question in Robert Flamily v. City of Orlando, Case Number SC06-847, 1 and contends that it should thus accept jurisdiction in this case to be consistent. Petitioner s Brief at 5. That assertion is not correct. In Flamily, the First District addressed the question of whether a new provision in the worker s compensation statutes Section (11)(c) should be applied prospectively or retroactively. Flamily v. City of Orlando, 924 So. 2d 78, 80 (Fla. 1st DCA 2006). The court did not address any constitutionality question. Likewise, when the claimant in that case petitioned this Court for discretionary review, his Brief on Jurisdiction did not mention any constitutional concerns whatsoever. Instead, it discussed an express and direct conflict between the First District s opinion and decisions from this Court as well as the Second, Fourth, and Fifth Districts. 1 LUCAS s Brief inadvertently lists the case number as SC07-847, as opposed to the correct case number stated above. In addition, the Court should note that, due to a substitution of parties occurring on August 20, 2007, that case is now styled Betty Anna Sanders vs. City of Orlando, et al. 6

10 Accordingly, this Court did not accept jurisdiction to resolve a constitutional question in Flamily, and LUCAS s consistency argument is misplaced. In any event, the Court should decline further review for the reason stated above. II. There is no express and direct conflict between the underlying Opinion and any other reported decision with respect to the standard of review, and thus the Court should decline jurisdiction. LUCAS s second argument is her contention that the First District s Opinion is in direct conflict with North Florida Women s Health and Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003) regarding the standard the court should apply when assessing the constitutionality of a statute. That assertion is incorrect. Specifically, the Florida Constitution creates conflict jurisdiction only if the underlying decision expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V, 3(b)(3), Fla. Const. This Court has interpreted that provision to require two prerequisites to jurisdiction: (1) The opinions must express decisions on the same question of law, and (2) That question of law must be addressed under indistinguishable factual circumstances. E.g. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)( This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. ); Department of Revenue v. Johnston, 442 So. 2d 950, 950 (Fla. 1983)( Because we find this cause 7

11 distinguishable on its facts from those cited in conflict, we discharge jurisdiction. ). Applying those two standards to this case, it is apparent that there is no conflict. From a legal standpoint, North Florida recites the standard applicable to statutes affecting a fundamental right, whereas the First District s Opinion in this case expressly notes that the statute in question does not implicate a fundamental right. Lucas, 32 Fla. Law Weekly D2027( Because section (11)(c) does not negatively impact a suspect class or result in the deprivation of a fundamental right, the appellant's challenge is subject to a rational basis review. ). Thus, there is no express conflict in the law enunciated by those decisions. One discusses a statute affecting a fundamental right, while the other does not. Factually, the two cases are distinguishable for the same reason. While the underlying opinion deals with washout settlements in worker s compensation cases, the North Florida decision discussed governmental intrusion into the constitutional right of privacy. For those reasons, the two opinions are distinguishable on their facts, and the Court should thus decline jurisdiction. Johnston, 442 So. 2d at 950. As a final point, LUCAS s Brief implies that the statute at issue in this case Section could somehow be construed to affect either a suspect class or a fundamental right. That same position, however, has already been rejected by 8

12 this Court in Acton v. Fort Lauderdale Hosp., 440 So. 2d 1282, 1284 (Fla. 1983). See also, Winn Dixie v. Resnikoff, 659 So. 2d 1297, 1299 (Fla. 1st DCA 1995)( the claimant asserts that heightened judicial scrutiny should apply in connection with his constitutional arguments, given his status as an injured worker who is thereby disabled. Despite the Florida Supreme Court's ruling in Acton v. Ft. Lauderdale Hospital, 440 So. 2d 1282 (Fla. 1983), indicating that such workers are not a suspect class and that the wage loss system need only bear a reasonable relationship to a legitimate state interest ). Moreover, LUCAS s suggestion that all individuals affected by the worker s compensation laws must necessarily be considered physically disabled and thus a purported suspect class is illogical. Certainly there are many individuals who incur a minor injury at work, file and settle a worker s compensation claim, yet would not be considered disabled under the law. Given that commonsense premise, it simply is not possible for LUCAS to maintain that the worker s compensation laws create disparate treatment for that class of individuals. Accordingly, her argument should be rejected for that reason as well, and the Court should decline jurisdiction. 9

13 CONCLUSION For all of the foregoing reasons, this Court should decline to exercise its discretionary jurisdiction. Respectfully submitted, FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) Attorneys for Respondents By: Mark D. Tinker Florida Bar No:

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that an original and five copies of the foregoing Answer Brief on Jurisdiction have been furnished by U.S. Mail and electronic submission this October 15, 2007, to THOMAS D. HALL, CLERK, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida ; and one copy each by U.S. Mail to MARK L. ZIENTZ, ESQUIRE, Law Offices of Mark L. Zeintz, P.A., 9130 South Dadeland Boulevard, Suite 1619, Miami, FL 33156, and ALEX LANCASTER, ESQUIRE and ROSEMARY EURE, ESQUIRE, Lancaster & Eure, Post Office Drawer 4257, Sarasota, FL FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) mtinker@fowlerwhite.com Attorneys for Respondents By: Mark D. Tinker Florida Bar No: C-1

15 CERTIFICATE OF COMPLIANCE Pursuant to Florida Rule of Appellate Procedure 9.210, the undersigned counsel certifies that this Brief is printed in Times New Roman 14-point font. FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) Attorneys for Respondents By: Mark D. Tinker Florida Bar No: C-2