In re Amendments to the Florida Rules of Workers' Compensation Procedure (674 So. 2d 631, 1996)

WELLS, Justice.

This matter is before the Court upon a report filed by the Workers’ Compensation Rules Committee of The Florida Bar recommending emergency amendments to the Florida Rules of Workers’ Compensation Procedure. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution.

A synopsis of the proposed amended rules was published for comment in The Florida Bar News. Upon the request of the chief judge of the First District Court of Appeal, we approved part B of the Florida Rules of Workers’ Compensation Procedure relating to appellate procedure. See In re Amendments to the Fla. Rules of Workers’ Comp. Pro., 664 So.2d 945 (Fla.1995).

The Court has received comments concerning the remaining proposed amended rules and has held oral arguments on these proposed rules. After oral arguments, we directed the Workers’ Compensation Rules Committee to consider several of the submitted comments. The committee thereafter submitted a supplemental report addressing these comments. Additionally, we received comments from a subcommittee of the Mediation and Arbitration Rules Committee. In response to the submitted comments and oral arguments, we have made the following substantive changes to the proposed rules.

Proposed rule 4.025(b) is amended to specifically exclude a claim for reimbursement from the Special Disability Trust Fund from being consolidated with other claims not contained in a petition.

Proposed rule 4.028(a)(5)(D) is amended to clarify that in cases in which an injured employee is required to exhaust all managed care grievance procedures before filing a petition for benefits under section 440.192(3), Florida Statutes (1995), any claims for benefits under section 440.13(2)(a) and (b), Florida Statutes (1995), brought after the grievance procedures required by section 440.134(15) are exhausted are to be determined by a judge of compensation claims and not by administrative appeal brought under chapter 120, Florida Statutes (1995).

Proposed rule 4.310(e) is revised to reflect that the mediator has ten days following the conclusion of the mediation conference to file a written report to the presiding judge as to the status of the case.

Proposed rule 4.361(a) is revised to reflect that the mediator shall have control of the mediation and not just the mediation conference.

Accordingly, we now approve and adopt the remainder of the committee’s proposed amendments as modified and reflected in the appendix to this opinion. New language is indicated by underscoring; deleted language is indicated by overstriking. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules. These amendments shall take effect upon the release of this opinion.

No motion for rehearing shall be entertained.

It is so ordered.

GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur.

APPENDIX

FLORIDA RULES OF WORKERS’ COMPENSATION PROCEDURE

PART AL TRIAL PROCEEDINGS

RULE 4.010. SCOPE AND TITLEGEN-ERAL PROVISIONS

These rules, adopted and promulgated pur-saant-to-the legal authority of the Supreme Gourt of-Floridawith the authority of sections 440.271 and 440,29(3), Florida Statutes, shall govern all workers’ compensation proceedings in and before the judges of compensation claims and in the District Court of Appeal, First District.

These rules shall be cited as Florida Rules of Workers’ Compensation Procedure? and may be abbreviated Fla.R.Work.Comp.P.

Committee Notes

1979 Adoption. This replaces rule 1, W.C.R.P. There is no substantive change except to the changed title of trial forum from “judge of industrial claims” to “deputy commissioner,” and “industrial relations commission” to “District Court of Appeal, First District.”

1992 Amendment. The rules are amended throughout to reflect the change in the title “deputy ' commissioner” to “judge of compensation claims.”

1995 Amendment. Editorial changes only.

RULE 4.020. DEFINITIONS

Throughout these rules, unless the context or subject-matter-otherwise requires^

(a) “district — court” - means — the—District Court-of-Appeal, First-District;

(b) “clerié’ means the clerk of-the district court?

(c) “division” means-the-Division of Workers’ Compensation-of — the-Florida Department of Labor and Employment Security;-

(d) “department” means the -Florida Department-of-Labor-and Employment Securi-⅛⅞

(e) “judge” means judge of compensation claims pur-suant to- chapter 440, Florida Stat-

(f) “chief judge” means the-chief judge of compensation claims appointed by the Governor, serving in the Department-of-Labor-and Employment Security?- pursuant to chapter 440, Florida Statutes;

(g) in construing these rules, when — the context indicates, the-singular includes the plural and vice versa;

(h) filing-shall-be accomplished-by placement with-the division, the judge of compensation claims, or the-clerk ■ of — the district court as the context of chapter 440, Florida Statutes, or these rules-requires?

(i) “carrier” means-any licensed insurance carrier, self-insured employer, self-insurance fund or pool proriding workers’ compensation insurance coverage pursuant-to chapter 440, Florida Statutes, -and includes the -servicing agents of self-insureds;-

(j) “claimant” meane-any-person making a claim for workers’ compensation-benefits-or payments as permitted-by chapter 440, Florida Statutes^ A “claimant” is a party within the meaning of these rules;

(⅛) — pleading—means-an-y-paper- or document filed ■ under these ■ rules invoking the jurisdiction of or seeking relief from — the judge-of-compensation-claims-or any- -court under chapter 440, Florida Statutes.

The following definitions apply to all workers’ compensation proceedings.

(a) “Carrier” means any licensed insurance carrier, self-insured employer, self-insurance fund, or pool providing workers’ compensation insurance coverage under chapter 440, Florida Statutes, and includes the servicing agents of self-insureds.

(b) “Chief judge” means the chief judge of compensation claims appointed by the Governor, serving in the Department of Labor and Employment Security under chapter 440, Florida Statutes.

(c) “Claim” means any element of a petition for benefits or other entitlement for which judicial relief is sought. A claim not contained in a petition for benefits may be made only under rule 4.025.

(d) “Clerk” means the clerk of the District Court of Appeal, First District.

(e) “Department” means the Florida Department of Labor and Employment Securi-' ⅛

(f) “District Court” means the District Court of Appeal, First District.

(g) “Division” means the Division of Workers’ Compensation of the Florida Department of Labor and Employment Security.

(h) “Docketing judge” means one or more judges designated by the chief judge pursuant to section 440.45(3), Florida Statutes.

(i) “EAO” means the Employee Assistance and Ombudsman Office created by section 440.191, Florida Statutes.

(j) “Facsimile” means the electronic transmission of documents by electronic signal that, when received, can be transformed by electronic means and stored on paper, microfilm, magnetic storage device, optical disk, or other storage media.

(k) “Filing” means delivery to the division, the judge, or the clerk of the district court as the context of chapter 440, Florida Statutes, or these rules requires.

(l) “Forms” means forms incorporated in these rules and promulgated pursuant to chapter 440, Florida Statutes.

(m) “Impasse” means the parties’ inability to reach a mutually acceptable and voluntary agreement as to any matter at the mediation conference.

(n) “Informal dispute resolution” means the procedure established by section 440,191, Florida Statutes.

(o) “Joint petition” means a pleading filed jointly by the parties seeking approval of the stipulation in which the claimant receives a lump-sum payment of past or future benefits, or a combination of both, or a release of a lien against a third party, in exchange for releasing the carrier from liability for certain benefits as allowed under section 440.20(11), Florida Statutes.

(p) “Judge” means judge of compensation claims pursuant to chapter 440, Florida Statutes.

(q) “Mediation agreement,” also known as a “mediation settlement agreement,” means a mutually acceptable and voluntary written or recorded agreement reached by the parties at a mediation conference, with the assistance of a mediator, resolving completely or partially a workers’ compensation dispute or claim,

(r) “Mediation conference” means an informal, nonadversarial negotiation or settlement conference attended by the interested parties and supervised and conducted by a mediator.

(s) “Mediator” means the person who conducts a mediation conference.

(t) “Parties” include the employee, claimant, employer, carrier, health care provider, and division.

(u) “Petition for benefits” means a pleading meeting, specifically but not limited to, the requirements of sections 440.192(1)-(4), Florida Statutes, that invokes the jurisdiction of the judge.

(v) “Petitioner” or “claimant” means any person making a claim. A “petitioner” or “claimant” is a party within the meaning of these rules.

(w) “Pleading” means any paper or document filed under these rules invoking the jurisdiction of or seeking relief from the judge or any court under chapter 440, Florida Statutes. The request for assistance or other contact with the EAO is not a pleading that invokes the jurisdiction of the judge.

(x) “Procedural motion” means a motion relating to procedure or discovery that does not seek adjudication of entitlement to benefits. Motions that do not seek adjudication of entitlement to benefits and are based upon stipulated facts requiring no other evidence also shall be treated as procedural motions.

(y) “Request for assistance” means the initiation of the informal dispute resolution procedure established by section 440.191, Florida Statutes.

(z) “Verified pleading” means a pleading the facts of which are attested to under oath.

Committee Notes

1979 Adoption. These definitions adapt to the 1979 legislation by which, for instance, the Bureau of Workmen’s Compensation was upgraded to a Division [of Workers’ Compensation], This replaces rule 2, 1977 W.C.R.P.

1988 Amendment. This rule is revised to include definitions of “carrier” (to include self-insured and servicing agents) and “claimant” (to include any party with standing to bring a claim under chapter 440, Florida Statutes).

1995 Amendment. Many new definitions were added and the list was alphabetized.

RULE 4.022. FORMS OF PLEADINGS AND PROPOSED ORDERS

(a) Generally. All Ppleadings in proceedings before the-judge of-eempensation claims under- these- rules shall substantially conform to these rules unless otherwise ordered by the judge of compensation-elaims. All pleadings (andincluding notices or subpoenas, if originated by a party or an attorney-) shall

(1)be typewritten or printed on 8½" by 11" bond paper;

(2) be signed by the .party in interest and/or the party’s attorney of record-; and

(3) All pleadings shall contain the mailing address and telephone number of the party or attorney filing the pleading. Attorneys shall include their Florida Bar number. ■Pleadings shall be typewritten-or-^printed on 8½" by 11" bond paper.

(b) Proposed Orders. Proposed orders, except-as otherwise provided-in-these-rules unless otherwise directed by the judge, shall be accompanied by an original, and one copy for the use-of the judge of compensation claims together with, and enough copies and preaddressed postage-paid envelopes to permit service on all parties and counsel of record. A copy of any proposed order shall be sent to opposing counsel and any party not represented.

Committee Notes

1988 Adoption. This rule is intended to standardize the form of pleadings and the preparation of documents by counsel for the use of the deputy commissioner.

1995 Amendment. Aligns pleadings in workers’ compensation matters with those in the court system.

Section 440.32(3), Florida Statutes, requires that every pleading be signed by the attorney of record regardless of whether the claimant or petitioner executes the pleading.

RULE 4.023. CONTRACT OF REPRESENTATION

(a) Approval of Contract.

(1) The claimant and the attorney for the claimant may jointly apply to the judge having jurisdiction of the industrial accident to approve the contract of representation and enforce its provisions.

(2) The judge may approve the contract of representation without a formal hearing if it appears to be in substantial compliance with these rules and the provisions of chapter 440, Florida Statutes.

(3) Upon approval of the contract of representation without a formal hearing, the judge shall enter an order and serve a copy of the order on the attorney for the claimant.

(4) The attorney for the claimant shall promptly serve a copy of the order on all parties and counsel of record using the certificate of service provided in form 4.902,

(b) Motion to Modify or Vacate Order Approving Contract.

(1) Any party, for good cause, may object to and move to modify or vacate any order approving a contract of representation at any time.

(2) The filing and service of a motion to modify or vacate an order approving a contract of representation shall suspend the operation and effect of the order until the motion is heard and decided.

(3) The judge shall hear such motions promptly.

(c) Modification or Disapproval. Nothing in this rule shall preclude the .judge from modifying or disapproving any contract of representation for good cause or to avoid undue hardship to any party.

Committee Notes

1995 Adoption. From former rule 4.061(a). Approval of any contract of representation by the .judge of compensation claims is discretionary and not mandatory.

RULE 4,024. REPRESENTATION AND APPEARANCE OF COUNSEL

(a) Appearance of Counsel. An attorney who undertakes representation of a party in a workers’ compensation matter shall file promptly a notice of appearance and serve copies to all parties including counsel of record. The notice of appearance shall be one page in length, bear the style and caption provided in form 4.901, and include the name, address, telephone number, and Florida Bar number of counsel.

The following shall suffice as notice of appearance:

(1) the service by the claimant’s attorney of the order approving the contract of representation under rule 4.023;

(2) the filing of a notice of appearance with the division if no claim, application for hearing, request for assistance, or petition has been filed; and

(3)the filing of a notice of appearance with the presiding judge aftér a claim, application for hearing, request for assistance, or petition has been filed;

(b) Substitution of Counsel. Co-counsel or any successor attorney shall file a notice of appearance in accordance with the rules. Substitution of counsel may be made:

(1) by the filing and service of a stipulation, which does not require the approval of the judge;

(2) by motion, which requires approval of the judge.

(c) Withdrawal of Counsel. An attorney of record shall remain attorney of record and not be permitted to withdraw unless:

(1) the attorney files a written motion for withdrawal setting forth the reasons for the motion;

(2) the motion is served on the client and counsel for all parties; and

(3) an order is entered granting the motion of withdrawal.

(d) Hearing. If requested by any party, or on the .judge’s own motion, a hearing may be held to protect the rights of all parties.

(e) Order. The judge may, without a hearing, enter an order substantially the same as form 4.907.

Committee Notes

1995 Adoption. This replaces rule 4.060 and further clarifies existing procedure as to appearance and substitution of counsel.

RULE 4.025. CLAIMS NOT CONTAINED IN PETITION

(a) Generally. Claims not contained in a petition shall be filed with the division at its office in Tallahassee and served pursuant to rule 4.030. Claims shall be subject to adjudication by the .judge or reviewing court but shall not be subject To the informal dispute resolution process or review by the docketing .judge. Claims shall be limited to the following subjects:

(1) Modification of Prior Compensation Order. Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.192(2), Florida Statutes, and shall include a reo[uest for a hearing. Adjudication shall be in the manner provided in rules 4.045, 4.075, and 4.085.

(2) Claim for Reimbursement From Special Disability Trust Fund. A claim for reimbursement from the Special Disability Trust Fund filed under section 440.49(7), Florida Statutes, shall be made under the administrative rules promulgated by the division. Adjudication of such a claim shall be in the manner provided in rules 4.045, 4,075, and 4.085.

(3) Claims against Third Parties. The employer or its carrier may at any time file a claim seeking reimbursement, contribution, indemnification, or exoneration from any third party. Adjudication of such a claim shall be in the manner provided in rules 4.045, 4.075, and 4.085.

(4) Claims Limited to Attorney Fees and/or Taxable Costs. Claims limited to attorney fees and/or taxable costs when benefits have been paid previously and provided or awarded shall be handled under rule 4.144.

(b) Consolidation of Claims. On the judge’s own motion, or on the motion of any party, the judge may consolidate any of the aforementioned claims, except for a claim for reimbursement from the Special Disability Trust Fund referred to in subdivision (a)(2), with any pending petition for the purpose of a hearing or for any other purpose.

Committee Notes

1995 Adoption. This rule defines the types of claims not included in a petition for benefits filed under section 440.192, Florida Statutes, that bypass the request-for-assistance process in section 440.191(2)(a), Florida Statutes, and the docketing judge’s review under section 440,45(3), Florida Statutes.

RULE 4.026. EXEMPTIONS FOR COLLECTIVE BARGAINING AGREEMENTS

If authorized by a collective bargaining agreement filed with the division under section 440,211, Florida Statutes, the informal dispute resolution process, review by the docketing judge, or adjudication by a judge may be replaced by an alternative dispute resolution system that may supplement, modify, or replace the provisions of chapter 440, Florida Statutes.

Committee Notes

1995 Adoption. This rule recognizes an alternative dispute process other than that expressed in chapter 440, Florida Statutes.

RULE 4.027. VENUE

(a) Generally. Venue shall be governed by section 440.25(4)(d), Florida Statutes.

(b) Consolidated Petitions. If a party’s entitlement to benefits arises or may arise from two or more accidents in different venues against one or more employer/carriers, the party may file a consolidated petition or claim against both or all employer/carriers. Venue shall be determined by order of the chief judge or by agreement of the parties.

(c) Motion. A motion for consolidation shall be made to a presiding judge who shall forward the motion to the chief judge for determination.

Committee Notes

1995 Adoption. This rule intends to avoid the confusion as to the proper venue when there are two or more accidents in different venues involving the same or different employer/carriers.

RULE 4.028. PETITION FOR BENEFITS

(a) Generally.

(1) Service. A petition under chapter 440, Florida Statutes, shall be served by certified mail upon the employer, carrier, and the division in Tallahassee. Counsel for each party and any unrepresented party shall be served under rule 4.030. Upon receipt of the petition, the division shall forward it immediately to the docketing judge pursuant to section 440.192(2), Florida Statutes.

(2) Form. A petition shall meet the specificity requirements of sections 440.192(2) and (3), Florida Statutes, shall include a request for a hearing, and shall be in substantial compliance with the forms of these rules. The judge may request the EAO to assist unrepresented employees in filing a petition, as provided in section 440.192(2), Florida Statutes.

(3) Notice. A petition shall contain the fraud notice contained in section 440.105(7), Florida Statutes, and shall personally be signed and attested to by the petitioner.

(4) Certificate of Good-Faith Effort. A petition must include a certificate by the claimant or, if the claimant is represented by counsel, by the claimant’s attorney stating the claimant or attorney has made a good-faith effort to resolve the dispute and the claimant or attorney was unable to resolve the dispute with the carrier.

(5) Certificate of Completion of Informal Administrative Remedies. A petition shall also include a certifícate that one of the following has occurred:

(A) The informal dispute resolution process required by section 440.191, Florida Statutes, has been concluded.

(B) The EAO has declined to consider the matter.

(C) The parties were unable to resolve the dispute within 30 days after a request for assistance was made to the EAO.

(D) If medical care is being provided to the employee through managed care and the petition includes a claim for medical care under section 440.13(2)(a) and (b), Florida Statutes, the certificate must indicate that the grievance procedures required by section 440.134(15), Florida Statutes, were exhausted before Sling the petition under section 440.192(3), Florida Statutes.

(b) Amended Petition for Benefits. A petition cannot be amended except by stipulation of the parties and approval by the judge. Such an amended petition shall not be subject to the informal dispute process or review by the docketing judge.

(c) Employer/Carrier Petition for Benefits. The employer or carrier may file a petition seeking an adjudication of any issue.

(d) Consolidation. Successive petitions may be consolidated by the judge on his or her own motion or on the motion of any party for purposes of any proceeding under chapter 440, Florida Statutes.

Committee Notes

1995 Adoption. Replaces rules 4.050 and 4.070. This rule is intended to standardize the form for a petition for benefits and the preparation of such forms by counsel resulting from the 1993 amendments to chapter 440, Florida Statutes. The request or application for hearing is now incorporated in the petition and no longer a separate pleading.

The grievance procedures referred to in subdivision (a)(5)(D) are the procedures required by section 440.134(15), Florida Statutes, and not chapter 120, Florida Statutes.

RULE 4.029. REVIEW BY DOCKETING JUDGE

(a) Generally. After receiving the petition, the division shall forward the petition immediately and all attachments filed with or received by the division to the docketing judge-

lb) Review. After receiving the petition from the division, the docketing judge shall promptly review the petition and attachments to determine if the requirements of sections 440.192 and 440,32(3), Florida Statutes, have been met and the matters in dispute have been acted on by the EAO.

(c) Dismissal of Petitions Without Prejudice. If the issues raised in the petition do not meet the requirements of sections 440.192(2)-(4), Florida Statutes, or the petitioner did not exhaust the EAO administrative remedies, the docketing judge shall summarily dismiss the petition without prejudice with leave to amend within 30 days.

(d) Dismissal of Petitions With Prejudice. If the petition does not meet the requirements of sections 440.192(2)-(4), Florida Statutes, and these rules, and the judge intends to dismiss the petition with prejudice, the judge may do so only after first giving the parties a reasonable opportunity to be heard.

(e) Extension of Mediation, Pretrial, and Final Hearing Deadlines. If the judge intends to dismiss the petition with prejudice, the judge must conduct a hearing on the matter after giving the parties 5 days’ written notice. The parties may appear by telephone at any such hearing in accordance with procedures established under these rules for telephone hearings. Statutorily mandated mediation, pretrial, and final hearing deadlines shall be extended if a hearing under this subdivision is required.

(f) Petition that Meets Statutory Requirements. If the docketing judge determines the petition meets all statutory requirements, the .judge shall so indicate and immediately forward the petition to the appropriate district.

Committee Notes

1995 Adoption. The docketing judge’s ruling on specificity under section 440.192, Florida Statutes, or on the issue of whether the allegations contained in the petition were well grounded as required under section 440.32(3), Florida Statutes, is not a final determination on either issue. Subject to the time limitations of section 440.192(5), Florida Statutes, a motion to dismiss for lack of specificity or for failure to exhaust EAO remedies may be filed with the presiding judge. The same is true for a motion to strike or dismiss the petition for lack of an appropriate signature or for a motion to impose a sanction under section 440.32(3), Florida Statutes.

RULE 4.030. FILING AND SERVICE

(a) Filing. Unless otherwise ordered or otherwise provided by these rules or chapter 440, Florida Statutes, any pleading or other papers filed in proceedings shall be served on each party.

(b) Method and Proof of Service.

(1)Same; How Service Is Made. When service is required or- permitted to be made on a party represented by an attorney-r-se-r-vice shall be made on the attorney unless sendee on the party4s ordered by the court. Service -on- the-attorney or party shall be made by delivering a- copy-to the attorney’s or party’s' last known-address^ Delivery of a copy within this rule shall mean

(aA) handing it to the attorney or party,; or

(bB) leaving it at the attorney’s office with a clerk or other person in charge thereof, or (e) if there is no one in charge, leaving it in a conspicuous place therein,-; or

(dC) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with a member of the person’s family above 15 years of age and informing such person of the contents,; or

(eD) by placing it in the United States mail, postage prepaid, to-the last-known address- of the party or attorney. — Service-by mail — shall be — complete upon mailing.; or

(E) transmitting it by facsimile.

Service by delivery or by facsimile after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

The use -of-facsimile machines also is permitted -when available-. — When a facsimile machine is-u-sed, a cover sheet providing the sender’s name-and telephone number shall-be included and-a copy-of-the document-shaft be sent simultaneously — to the recipient by mail The sending party-shall retai-mproo-f-of tran-smissiom — Delivery shall be complete on-transmission-of-a complete facsimile of the document.

(2) Service by Mail.

(A) When service is made by mail, the copy shall be mailed by United States mail, postage prepaid, to the last known address of the party or attorney. Petitions must be sent by certified mail.

(B) Service by mail shall be complete upon mailing.

(C) Except for a petition, when service is made by mail, 5 days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. This does not apply to filing requirements for institution of appellate proceedings or notices of hearings.

(3) Service by Facsimile Device.

(A) When a facsimile device is used, a cover sheet or its equivalent providing the sender’s name and telephone number shall be included and a copy of the document shall be sent simultaneously to the recipient by mail.

(B) The sending party shall retain proof of the transmission.

(C) Delivery shall be complete on transmission of a complete facsimile of the document.

(2c) Certificate of Service. When required, any attorney or unrepresented party shall certify in substance:

“I certify that a copy hereof has been furnished to . (name or names and address or addresses) . by . (method of delivery).this.day of.,19.

Attorney (or unrepresented party)”

The certificate shall be taken as prima facie proof of such service in compliance with these rules.

(e)-Service-by Mail. — When service is effectuated-by-maily 5-days-shall ■ be.added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. (This subdivision-does-not-appl-y-to-the-filing-requirements for institution of appellate pro-eeedings-or-notices-of-hear-mg-)

(d) Subpoenas. Issuance, service, and proof of service of subpoenas of the judge of compensation claims shall be in the form and manner provided by the Florida Statutes and the Florida Rules of Civil Procedure.

Committee Notes

1979 Adoption. This replaces rule 2(h), 1977 W.C.R.P., which merely provided “ ‘Service’ shall be as provided in the Florida Rules of Civil Procedure.”

Subdivision (c) replaces rule 3(b), 1977 W.C.R.P. The caveat to the filing of appellate proceedings is to warn of the jurisdictional nature of section 440.25(4)(f), Florida Statutes (1979), which provides:

Beginning on October 1, 1979, procedures with respect to appeals from orders of deputy commissioners shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules. The provisions of paragraphs (a)(e) shall apply only until September 30, 1979.

1984 Amendment. Clarifies rules 3(e) and 8(a) by specifically excluding 15-day hearing notice from operation of rule 3(c).

1988 Amendment. This rule is not intended to confer standing to sue on any person not accorded such standing by Florida Statutes.

1995 Amendment. Further clarifies method of service of pleadings and specifically includes service by facsimile device.

RULE 4.045. PRETRIAL PROCEDURE

(a) Generally. The judge shall, on a motion by any party, hold a pretrial hearing. If no pretrial hearing has been noticed previously, the judge shall schedule a pretrial hearing after receiving a notice of impasse from the mediator-

lb) Notice of Pretrial. The judge shall give parties at least 7 days notice of a pretrial hearing and may combine the notice of the pretrial hearing with the other notices. Unless the judge indicates otherwise, pretrial hearings will be held in the county where the judge’s office is located.

(c) Continuance. Pretrial hearings may be continued or extended with prior approval of the judge.

(d) Appearance of Counsel. Counsel for the parties shall appear at the pretrial conference. If attendance is not waived by the judge following proper notice, nonlocal attorneys, as defined in the pretrial order, may appear by phone.

(e) Telephone Hearing. The judge may conduct the pretrial hearing by telephone at the request of any party or on the judge’s own motion, provided all parties are represented by counsel.

(f) Waiver of Hearing. If all parties are represented by counsel, the judge may waive attendance or cancel the pretrial hearing if a written pretrial stipulation is filed with the judge before the date of the pretrial hearing. In such cases, all parties will be presumed to have a full and complete understanding of all issues involving benefits claimed, the defenses asserted, the witnesses to be presented, and the exhibits to be introduced into evidence.

(g) Attendance. If a party or a party’s attorney fails to attend the hearing without good cause, the .judge may dismiss the petition or claim, strike defenses, or take such other action as may be authorized by law or rule 4,150.

(h) Purpose of Pretrial. At the pretrial conference, the parties shall:

(1) state and simplify the claims, defenses, and issues;

(2) stipulate and admit to such facts and documents as will avoid unnecessary proof;

(8) present, examine, and mark all exhibits for identification, including all impeachment and rebuttal exhibits;

(4) furnish the opposing party the names and addresses of all witnesses, including impeachment and rebuttal witnesses. A party may be required to provide a statement of subject matter of the expected testimony of one or more 'witnesses;

(5) exchange all available written reports of experts when expert opinion is to be offered at trial. The reports should clearly disclose the expert opinion and its basis on all subjects on which the expert will testify. If stipulated into evidence, the reports shall be presented to the judge to be so marked. The parties shall consider and determine a limitation of the number of expert witnesses;

(6) estimate trial time and schedule the final hearing; and

(7) consider and determine such other matters as may aid in the disposition of the case, including referral to additional mediation.

(i) Forms of Stipulations. The appropriate pretrial stipulation and pretrial compliance questionnaire shall be used. Final witness and exhibit lists, and any supplements to the pretrial stipulation, shall be filed at the pretrial hearing or 30 days before the final hearing. Exhibits shall be attached to the pretrial stipulation. Witness lists, exhibit lists, and supplements served after the pretrial hearing must first be approved by the judge. A motion seeking such approval is a procedural motion.

(j) Motion Hearings at Time of Pretrial. At the discretion of the judge and on filing and service of motion and notice of hearing not less than 5 days before the date of the pretrial hearing, procedural motions may also be heard at the time of the pretrial hearing.

(k) Pretrial of Penalty Hearings.

(l) When an employer or carrier has protested an assessment by the division of penalties, fines, or interest under sections 440.185 or 440.20, Florida Statutes, the judge shall cancel and waive attendance at a pretrial hearing regarding a hearing on such penalties, fines, or interest if a written pretrial stipulation is filed with the judge before the date of any scheduled pretrial hearing.

(2) Pretrial stipulations regarding penalties, fines, or interest assessed against an employer or carrier shall be substantially the same as form 4.916.

(3) The division shall complete its portion of the pretrial stipulation and mail or otherwise deliver the original and one copy to the employer or carrier. The division shall file a notice of filing with the judge indicating the stipulation has been delivered to the employer or carrier for completion. The employer or carrier shall complete its portion of the pretrial stipulation and file the original with the judge and simultaneously mail or otherwise deliver a copy to the division and to the general counsel of the department.

Cl) Record. The judge shall record the pretrial hearing by stenographic or electronic means at the request of any party or by a written stipulation signed by the parties.

(m) Pretrial Order.

(1) At the request of any party or by his or her own motion, the judge promptly shall enter an order reciting the actions taken at the pretrial hearing and the agreements made by the parties about any of the matters considered and limiting the issues for trial to those not disposed of by admissions or stipulations of parties.

(2) The order shall control the subsequent course of the action unless the judge modifies it to prevent injustice.

(3) The judge shall serve the order on the attorneys for the parties and on any party not represented by counsel.

(4) Unless otherwise specified in the notice of hearing, the .judge may consider and determine all issues pending as of the date of the pretrial hearing.

(n) Setting and Noticing Final Hearing. If the date is not already set, the judge shall set the date of the final hearing at the pretrial hearing. The notice of the final hearing may be set forth in the pretrial order accompanying the pretrial stipulation or may be mailed separately by the judge to all interested parties.

Committee Notes

1995 Adoption. Replaces rule 4.100, but includes many of the provisions of the previous rule. Requires a .judge of compensation claims to schedule a pretrial hearing after receipt of a mediator’s report declaring an impasse as per section 440.25(4)(a), Florida Statutes.

Provides for pretrial of protested penalty assessment orders and the method thereof. Clarifies when personal appearances may be waived and prescribes the form of the pretrial stipulation. Requires furnishing names and addresses of all witnesses to be used at trial, including; impeachment and rebuttal witnesses.

RULE 4.050, CLAIMS

Claims-and notices to controvert shall be filed -with the division at its office in Tallahassee, — Claims shall-be-subject to adjudication by the judge of compensation claims or reviewing court.

Committee Notes

-197-9-Adoption. --This replaces rule 4,1977 W-.C.R.P.

-It-appears- to-be the view of the Division of Workers’ — Compensation—(hereafter—“Division”) that the filing of a claim, the-for-m- of that-claim-,- and all massaging of that claim prior to the same being assigned-to-a-deputy commissioner [for judicial function] -pursuant to an application for hearing, is solely and totally within the purview of the division and ought not be addressed by-these Workers’ Compensation — Rules-of-Procedure, or any other-rules-except those of the division-,- — Section 440.19(2)(d)> Florida Statutes (1979), provides that:

Such claim shall be filed-with the division- at its office in Tallahassee and shall contain the name and address of the employee, the name and address of the employer, and a statement of the time-place, nature, and cause-of the injury, of such fairly equivalent information-as will put the divis-ion-and-the- employer on notice-with-respect to the identity of the parties and the specific compensation benefit whieR-is due but has not been paid-or is not being provided. — Any claim, or portion-thereof, not-in- compliance with this-subsec-tion-shall be--subject to dismissal upon-motion-of -any interested party, the division7-or the deputy commissioners.

C£-M40^5(-l-)-Fla.Stat.-(1979⅜ § 440.20(10)(b), Fla.Stat. (1979).

This differs radic-a-Ily-from-the traditional source of creating and disciplining-the plead-i-ng-by-which civil actions are initiated.

-1984- Amendment. — Derived from section 440.271, F-lorida-StatuteSj-and rule 20, Florida -Workers’ Compensation Rules of-Rroce-dure. — Providing for exclusive adjudicatory-powers- -in - workers’ compensation matters with-the-deputy-commissioner or reviewing cou-rt-rather than the Division of Workers’ Compensation.

RULE-4-95-1. — CONSOLIDATION-OF CLAIMS

Judges of compensation claims -may-, — on their-own - motion or on the motion of any party, consolidate olaims-for-the--purpose of hearings or for any other purpose.

Committee Notes

■1988 Adoption. This rule formalizes exist-iug^proeedure-for-con-solidation-of claims,

RULE — 4,052,—T-HIRD-BART¥—PRAC-TICE

The employer or its carrier (or servicing agent) may at any -time file a claim seeking reimbursement, contribution, indemnification, or exoneration from any third party.

Committee Notes

1988 Adoption, — This-rule- is intended-lo provide for the joinder-of additional parties defendant by-tfae employer or its-carrier by the filing of a claim rather than motion or other pleading-

RULE 4.055. DISCOVERY

(a) Jurisdiction. The judge shall have .jurisdiction to take appropriate action to .compel discovery, including the imposition of sanctions and, as circumstances warrant, may enlarge or shorten the applicable time for complying with discovery.

(b) When Discovery May Be Had. Discovery under this rule may be had before or after the filing of a claim or petition, in the same manner and for the same purpose as provided in the Florida Rules of Civil Procedure or section 440.30, Florida Statutes. At the pretrial hearing, the judge shall set a date for the final hearing that allows the parties at least 30 days to conduct discovery unless the parties consent to an earlier hearing date,

(c) Types of Discovery Not Permitted. Interrogatories, requests for admission, and other forms of discovery not authorized by these rules shall not be permitted or used in workers’ compensation proceedings.

(d) Depositions.

(1) Depositions of witnesses or parties may be taken and used in proceedings under chapter 440, Florida Statutes, in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure or as otherwise provided by law.

(2) For good cause shown, the judge may require taking a deposition by telephone.

(3) If a deposition is taken by telephone, the oath shall be administered in the physical presence of the witness by a notary public or officer authorized to administer oaths. A certificate of the notary public or officer, substantially the same as form 4.9105, shall be filed by the party offering the witness’s deposition within 15 days.

(e) Production of Documents and Entry on Land.

(1) The parties shall be subject to discovery procedures seeking the production of records or other tangible things, including, but not limited to, all hospital and medical records pertaining to the industrial accident, all rehabilitation reports, all records pertaining to the claimant’s average weekly wage at the time of the accident or earnings made subsequent to the industrial accident, and a transcript of any recorded statements of a Party-

(2) The parties shall be subject to discovery procedures seeking entry on land or other property for inspection or other purposes within the scope of discovery.

(3) The parties shall have 30 days to serve a written response after service of any request under this rule.

(f) Production of Documents from Non-parties. The parties may seek the production of documents and other tangible things within the scope of discovery for inspection and copying from a person who is not a party pursuant to applicable Florida Rules of Civil Procedure, except that the time for objection to production of documents under this rule is reduced to 5 days.

(g) Surveillance. The evidence of any investigator, adjuster, or other witness in the nature of surveillance shall be subject to discovery when such evidence will be used at trial, provided the party intending to use such evidence is first given a reasonable opportunity to depose the party or witness who is the subject of the surveillance.

Committee Notes

1995 Adoption. Replaces rule 4.090. Provides for deponent’s oath when deposition taken by telephone. Limits objection to notice of production from nonparty to 5 days, rather than 10 days as required by Florida Rule of Civil Procedure 1.351.

RULE 4.05&- RIPENESS

At any time during any proceeding-on the motion of any party-or on-the judge’s-own motion, the judge of compensation claims may make a-determination of-the-ripeness for-adjud-ieation of any pending claim-or defense or element thereof- — The judges of compensation- claims may, in their discretion take ■ such testimony- hear- such argument, and enter such orders as may be necessary to-determine the ripeness of an issue. — To protect the interests of any party -and — to advance the proceedings, the judge of compensation-claims may

(a) sever any issue;

(b) continue a scheduled-hearing-as-to any or all issues;

(c) reserve jurisdiction of any issue; or

(d-)~dism-iss any issue without prejudice.

■I-n -determining the ripeness of any- issue, the judge of compensation-claims shall consider-whether the opposing-party--has had adequate time within-wvhich-to prepare to litigate-the- issue, taking into account the due diligence of the parties.

Committee Notes

-1988 Adoption, — This rule recognizes the serial nature of claims ancbdefenses as they arise under-chapter 440, Florida Statutes. It eedifies-existing- procedure to permit the-deputy commissioner to-adj-udicate- issues as they become ripe.

RULE 4.058, PETITION-F-OR MODIFICATION; PETITION FOR REIMBURSEMENT FROM — SPECIAL DISABILITY TRUST FUND

■Petitions- for modification pursuant-to-seetion ■ 440.28, Florida Statute^ — a-nd-petitions for-reimbursement from the Special Disability-Trust Fund pursuant to section 44&49(-2-)-,--Flo-rida-Statutes — shall be made substantially in the form of a claim. — Adjudication of a petition under this-rule-shall-be in the manner provided-i-n-these-rules for-the disposition of claims-and-defensesT

RULE 4,060, — REPRESENTATION AND APPEARANCE OF COUNSEL; SUBSTITUTION OF COUNSEL; WITHDRAWAL OF COUNSEL

(a) Appearance of-Counsel. An attorney undertaking the representation of a-part-y-to a proceeding under these rules shall-promptly — fíle-with- -the-divlsion- a notice of appearance, not to exceed one page in length,--prior-te-the-fi-li-ng-of-an- application for hearing, or with-the-office-of-the judge of compensation claims having — jurisdiction-of-the industrial accident after the filing of -an-appl-ication- -for-hearing. The notice shall bear the style and caption provided in-form 4.901 and Include the address and telephone number of-coun-seh — A claim or application for hearing signed by counsel and-containing the address and telephone number-of counsel shall-suffice as a notice of appearance. — Notice of appearance-shall be filed by any successor, or associated-attorney, prior to or concurrently with the filing of any pleading -or presentation of oral argument to or — before a judge of-eom-pensation claims or-the district court.

(b) Substitution of Counsel, — Substitution of counsel may-be- effected by the filing and service of a stipulation, for which no approval-of-the-judge of compensation-claims is required;- or by motion.

(c) Withdrawal-of-Counsel, An attorney-who has filed a elaim-or-has otherwise become-an attorney of record-for--any-party to a workers^-compensation cause-shall-remain attorney of-record in said cause-and-shall-not be permitted-to withdraw from the-cau-se unless the attorney-first files with the judge of compensation claims-a-written motion for withdrawal setting — forth-the reasons therefor, serving a copy of said — motion - on the movant’s-clie-n-t-and-counsel for the adverse party, and then shall-obtain-from the judge of — compensation claims an order granting such motion for withdrawal, — If appellate proceedings -have been instituted in the cause, the motion — shall—be—filed--with - the appropriate court. — Upon-the-fillng-of -a motion to withdraw as counsel, the judge of compensation claims having — jurisdiction.of the industrial accident — may--conduct such hearings-as-may be requested by any party or-on -the-judge’s own motion to protect the rights of all partiesj-or-the-j-udge- of-compensation-claims-may enter an order substantial-⅛⅛-the-form-provided-in -form 4.907.

Committee Notes

1979 Adoption, — This replaees-rule-6 — 19-7-7-

-1988-Amendment. — This rule clarifies existing procedure as to the appearance and substitutiom-of-cou-nsel — and-provides for -an alternate procedure to approve the withdrawal of counsel without a hearing in the absence of-a timely objection.

RULE 4.061, CONTRACTS OF REPRESENTATION; ATTORNEY FEES

(a) Contracts of Representation, — The employee (or claimant)-and the attorney for the- employee (on-claimaat)-may-jointly-apply to-the-judge of compensation claims having jurisdiction of the industrial accident to approve their contract of-representation and enforce the provisions thereof. — The judge of compensation claims may approve ■ the- contract of — representation- without a formal hearing if- it appears — to be — in substantial compliance with — these rules and the provisions of chapter-440, Florida Statutes. Upon approval of the-contract of-representation without a hearing,- the judge of-compensation claims shall enter an order and serve a copy of-the ■ order on the attorney for the employee, — The—attorney for the employee-shall promptly serve a copy of the-order -on all parties and counsel of record using the-eertif-icate of-service-providedrin-form 4.902. Any party, for-good-cause-shown, may object to and move- to -modify-or vacate any — order approving a contract of representation at any time. — The judge of compensation claims shall promptly-hear-any- such motion. — The filing and-service- of a motion-to--modify-on vacate an order approving a contraet-of representation shall-suspend the-operation and effect of the order until the motion is-heard and decided. — Nothing in this rule shall preclude the-judge-of compensation- claims-from modifying-or-disapproving any- contract of representation for good cause or to- avoid undue hardship on any party,

(b) Payment — of Undisputed — Attorney Pees, — The employee and the-attorney for-the-employee may jointly move for the judge of compensation claims-to approve the- payment of-an- attorney fee-and reimbursement of-costs-pursuant to a contract of representation by-a-stipulated motion substantially in the form provided by these rules. — The employee-and the employer and its carrier (or servicing -agent) — and/or- their counsel -may stipulate-to the-payment of an attorney fee and costs and submit their stipulation to the judge of compensation-claims for approval,

(c) Disputed-Attorney Fees or Costs, A claim for attorney fees-or costs broughh-by an — attorney or party shall- be in-the form provided for-a claim for compensation and shall-be treated as-a claim-for compensation for-ailpurposes. Any claim-for attorney-fees shall allege-ultimate- facts-which, if proven, would give rise to entitlement to the award-of an-attorney fee. — Prior to hearing-any issue as to-the amount of-disputed attorney fees or costSj-the attorney shall file a verified-petition-setting-forth-with specificity the amount of time expended — costs—advanced or incurred, and -the benefits-obtained together with all other allegations -of fact-pursuant to section 440.34, Florida Statutes. — At the request-of any party, or on the judge’s own motion, the -judge-of compensation claims shall determine the procedure for the hearing — and adjudication of any issues as to a disputed attorney fee and taxation of costs.

Committee Notes

1988 Adoption, — This rule formalizes-and makes- substantially-nniform existing practice as -to-attorne-y-client contracts and attorney fees as these proceedings have evolved since the 1979 legislative- reforms. — Approval-of any-attorney-client agreement by the deputy commissioner is discretionary and-not mandatory.

RULE 4,062, PAYMENT OF ATTORNEY FEES BY EMPLOYEE

The- judge- of compensation claims shall hear any motion for attorney, fees in the manner provided-for a hearing on a claim for compensation, — With respect to-proceedings in which the -fee is to be paid by the employee, the employee may waive -a formal hearing before the judge of compensation claims and the judge of - compensation-claims-may -consider the motion ex-parte,-based-on verified pleadings. — No motion for-attor-ney-fees-shall be granted by the-judge-of compensation claims- unless it appears affirmatively that the-provisions of these rules and-of chapter 440 — Florida Statutes, have been substantially complied with and — that-the employee has beemadvised as to those provisions.

Committee Notes

1988 Adoption, — It is intended that -all motions under this rule be-swor-n-to by-the employee and contain a notarial jurat.

RULE 4.065. MOTION PRACTICE

(a) Substantive Motions. A motion relating to the adjudication of entitlement to benefits, including, but not limited to, motions to vacate orders for lump-sum advances, motions for advances under sections 440.20(12)(c)2 and 440.20(12)(d), Florida Statutes, appeals of administrative fines or penalties under section 440,106, Florida Statutes, motions for appointment of guardians, motions to appoint expert medical advisors under section 440.13, Florida Statutes, requests for imposition of sanctions under these rules, motions to disqualify a .judge or a mediator, motions to recuse counsel, motions to correct the appellate record, and motions to appoint independent medical examiners under section 440,13, Florida Statutes, shall be handled in the manner as provided for a claim in rule 4.025.

(b) Procedural Motions.

(1) Procedural motions include, but are not limited to, motions to consolidate, motions related to discovery, motions to dismiss for lack of prosecution, motions to dismiss for lack of specificity, motions to amend pretrial stipulations, motions for a continuance, motions to compel, motions for protective orders, and motions in limine. Procedural motions shall be heard on not less than 5 days’ written notice. The .judge may require the moving party to serve written notice of the hearing on opposing counsel. No pretrial hearing shall be required.

(2) A procedural motion shall set forth in detail the facts giving rise to the motion, its legal basis, and the specific relief sought. Any documents relied on should be specifically referenced and attached.

(c) Contents.

(1) All motions shall contain the following certificate of counsel:

(A) The motion is made in good faith and not for the purpose of delay.

(B) The opposing counsel has been contacted in an effort to resolve the matter without a hearing, and despite those efforts, the opposing counsel objects to the motion.

(d) Emergency Motions. All emergency procedural motions shall be identified as such and shall identify the nature of the emergency including time constraints. Emergency procedural motions shall be heard promptly.

(e) Response to Motions. A written response to a contested motion is not required. If a written response is made, it shall specifically state the basis for the objection.

(f) Hearing Location. Unless the moving party obtains prior approval of the judge, all procedural motions shall be heard at the office of the .judge. If the judge allows telephone appearances, the party wishing to appear by telephone shall be responsible to coordinate the appearance of counsel and other necessary participants and to notify the .judge.

(g) Notice of Hearing. Notices of hearing shall be prepared and served on the parties pursuant to rule 4.030.

(h) Motion Hearing at Pretrial Hearing. Motions may be heard at pretrial hearing in accordance with rule 4.045.

(i) Motions Seeking Affirmative Relief. Judges, at their own discretion, may treat any motion seeking affirmative relief or the adjudication of entitlement to any benefits in the manner provided for a claim or petition under these rules.

(j) Motions to Dismiss.

(1) In addition to meeting the requirements of subdivision (a), all motions to dismiss must state with particularity the basis for the motion. The judge shall enter an order on such motions without a hearing, unless good cause for the hearing is shown.

(2) Notwithstanding the entry of a docketing order under rule 4.029, any motion to dismiss for lack of specificity must be filed pursuant to section 440.192(5), Florida Statutes, and comply with the requirements of subdivisions (a) and (b) of this rule. The motion must be filed within 30 days after receipt of the petition or it is waived.

(k) Motion to Receive Medical Records. All medical records of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence upon proper motion served on the opposing party at the time of the pretrial hearing or no later than 80 days before the final hearing. Such records shall be served with the motion.

Committee Notes

1995 Adoption. This rule clarifies existing procedure in various districts and defines procedural versus substantive motions that may require an evidentiary hearing. Replaces rule 4.140.

The motion to receive into evidence the medical records of authorized treating health care providers may be contained within the Uniform Pretrial Stipulation, Pretrial Compliance Questionnaire, and Order.

RULE-4.070. APPLICATION-FOR HEARING

An application for -hearing — concerning' a claim, -made-pursuant to chapter 440, Florida Statutes, shall state concisely in separate numbered paragraphs the reasons for-requesting hearing, and the questions at issue or in dispute which the-applicant expects the judge to hear-and determine, with sufficient partieularity that the responding-er opposing parties-may be notified of the purpose of-the hearings including the issues to-be heard and determined and-specific benefit due and- not paid — Application for the first-diearing or trial in-a cause-shall be filed with the division at Tallahassee. — On receipt of an application for hearing, all-materials filed with or-received-by the division shall be incorporated in the-file for forwarding to the-appropriate judge of compensation claims who will ■cen-duct-the hearing. — All-subsequent materials received or filed also-shall be immediately forwarded to the judge of compensation claims. — Applications—for any subsequent hearings in that-cause shall be filed with-the judge to whom-the case has been assigned. A copy-of the application shall be served on counsel for each party — and a copy on any party not represented-by-counsel. Failure-to serve a copy of-the application as required shall-be-grounds-for a continuance or cancellation of the hearing.

Committee Notes

1979 Adoption. This replaces rule 7, 1977 W.C.Rd?. — It is derived- substantially from section 440.25(3)(a), Florida-Statutes-(197-9)y which again emphasizes “the-specifio-benefit due and-not paidd? — This clearly-p'oints-up one of the-many differences between civil proceedings-generally, and workers-eompen-sa&on:— [that] from the ‘Notice of-Injury’ a file is begun and maintained by the division in Tallahassee. — As a deputy commissioner assumes supervision-for the-purpose-of pr-o-viding judicial-type services-, that administrative file [in the division] provides, in part, the foundation for the file pertinent to-the litiga-⅛⅜ — Even as the litigation proceeds, the administrative functions must be continued, hence a continuing-relationship between the dual nature [of that file as]administr-ative/ju-dicial.

1-980 Amendment. — This- change-would keep the division, the agency whisk is -involved in various-stages of the management of-wrorkers’ compensation cases, apprised-of the-status-of the-case, and informed-of the reason for the deputy’s continued possession-of-the file.

1984 AmendmeHt, — Implements -section 440-.25(3)(a-)-Florida Statutes.

RULE 4.075. PROSECUTION OF CLAIM AND PETITION FOR BENEFITS BEFORE JUDGE

(a) Generally. To protect the interest of any party and to advance the proceedings, the judge may:

(1) sever any issue;

(2) continue a scheduled hearing as to any or all issues;

(3) reserve jurisdiction of any issue;

(4) dismiss any issue without prejudice;

(5) refer any issue to the EAO in the event a petition filed by an unrepresented claimant is found to be nonspecific or a party has failed to exhaust the EAO administrative remedies; or

(6) refer any issue to mediation.

(b) Prosecution of Claim or Petition. After a final hearing has been set, all parties shall diligently prosecute or defend the claim or petition.

(c) Continuances.

(1) Continuances of hearings will not be freely granted and will be granted only upon a showing of good cause.

(2) The .judge may cancel or continue a trial on his or her own motion or on the motion of a party if the judge finds that the cancellation or continuance is for good cause and has not resulted from lack of diligence in the prosecution or defense of the petition or claim.

(3) A request for a continuance shall be made by motion or stipulation of the parties and shall specify the reason that the continuance is necessary.

(4) Unless otherwise ordered by the .judge, continuance of a trial or pretrial hearing shall automatically extend the time provided for the completion of any subsequent act.

(5) If there is a pretrial stipulation or pretrial order in place and the final hearing is continued, an additional pretrial hearing will not be set unless requested in writing by