                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

EDWIN VAZQUEZ,                      CASE NO. 1D15-0623

      Petitioner,

v.

CARLOS ROMERO, L & R
STRUCTURAL CORPORATION,
ACOSTA
CONSTRUCTION/CO/ASSOCIAT
ED INDUSTRIES INSURANCE
COMPANY, GUARANTEE
INSURANCE COMPANY, and
STAR INSURANCE.,

      Respondents.

___________________________/


Opinion filed November 9, 2015.

Petition for Writ of Prohibition.

Matias R. Dorta, Gonzalo Ramon Dorta, and Craig A. Applebaum of Dorta Law,
Coral Gables, for Petitioner.

Rayford H. Taylor of Casey Gilson, P.C., Atlanta, GA., and William T. Goran,
Miami, for Respondents Romero and Associated Industries Insurance; and
Stephanie R. Hayes, Staff Counsel, Office of the Judges of Compensation Claims,
Tallahassee.



          ON MOTIONS FOR REHEARING, REHEARING EN BANC,
                 CERTIFICATION, OR CLARIFICATION
KELSEY, J.

      Following publication of our opinion, Respondent Romero filed a motion for

rehearing, rehearing en banc, and certification; and the Office of the Judge of

Compensation Claims (OJCC) filed a motion for rehearing, rehearing en banc, or

clarification. We grant the OJCC’s motion for clarification in part, to emphasize that

our disposition is limited to the facts of this case. We decline to address hypothetical

facts not before us, and deny all other post-decision motions. We withdraw our

opinion issued August 19, 2015, and substitute the following.

      Petitioner seeks a writ of prohibition to prevent the Judge of Compensation

Claims (JCC) from exercising jurisdiction over discovery requests that Respondent

Romero filed after Petitioner had voluntarily dismissed petitions for benefits (PFBs)

against Romero and two other alleged Employers, and their Carriers. After

considering all of the parties’ arguments and those of the OJCC, we grant the

petition.

      Petitioner filed three PFBs, thereby asserting that his injury is compensable

under the Workers’ Compensation Act. All three alleged employers denied having

an employer/employee relationship with Petitioner, thereby denying compensability.

Petitioner voluntarily dismissed his PFBs without prejudice, instead filing a tort

claim in circuit court. Nevertheless, Romero filed new papers before the JCC

attempting to rescind his prior denial of compensability, tried to provide benefits to

                                           2
Petitioner (which Petitioner rejected), and filed a contribution action against

Respondent Acosta (again disavowing any employment relationship with

Petitioner). Romero and his carrier also sought discovery related to the contribution

claim, including discovery of Petitioner’s medical records from a non-party hospital.

Petitioner objected. The JCC held a hearing on Petitioner’s objection, and entered

an order holding that the JCC has jurisdiction over Romero’s discovery efforts

within the workers’ compensation arena. Further proceedings before the JCC were

stayed upon this Court’s issuance of a show cause order on the Petition. See Fla. R.

App. P. 9.100(h).

      Romero and the OJCC argue that the JCC retains jurisdiction over Romero’s

discovery requests, either because Petitioner’s voluntary dismissal was without

prejudice and a PFB could be refiled, or pursuant to section 440.42(4), Florida

Statutes (2013) (conferring on the JCC jurisdiction over a controversy “as to which

of two or more carriers is liable for the discharge of the obligations and duties of one

or more employers with respect to a claim for compensation, remedial treatment, or

other benefits under this chapter”) (emphasis added). We reject all of the

Respondents’ arguments. We emphasize that Petitioner makes no claim,

compensability remains disputed, and no liability has been established.

Compensability has not been established by agreement, because Petitioner expressly

disavows it and has not accepted benefits. We have not been informed of any ruling

by the trial court on whether Petitioner’s claims are subject to the Workers’
                                           3
Compensation Act. There is therefore no justiciable controversy before the JCC

regarding the parties’ rights or obligations under the Workers’ Compensation Act.

On these facts, Petitioner’s dismissal of his PFBs divested the JCC of jurisdiction.

“When all claims asserted through a petition for benefits are dismissed, the JCC loses

jurisdiction to address those claims. ‘Such dismissal divests a JCC of jurisdiction to

take any further action in the case.’” Cova v. Ostfeld, 994 So. 2d 1162, 1162 (Fla.

1st DCA 2008) (quoting Perez v. Winn-Dixie, 639 So. 2d 109, 111 (Fla. 1st DCA

1994)).

      The particular facts of this case distinguish it from the cases the Respondents

cite, in which a JCC’s jurisdiction exists or continues in the absence of a pending

PFB. See, e.g., Southeastern Utils. Serv. Co. v. Redding, 131 So. 2d 1 (Fla. 1961)

(permitting deposition of injured worker when carrier was voluntarily providing

benefits, worker was accepting them, and worker subsequently filed formal claim

for benefits); Covell v. Cracker Barrel Old Country Store, Inc., 118 So. 3d 991 (Fla.

1st DCA 2013) (holding JCC has subject matter jurisdiction over discovery requests

filed by injured worker who is pursuing benefits, even before PFB is filed); Shannon

v. Cheney Bros. Inc., 98 So. 3d 1228 (Fla. 1st DCA 2012) (permitting JCC to award

attorney’s fee to counsel for claimant who was pursuing benefits, when claimant’s

deposition was taken prior to filing of formal claim); Canovas v. Sugar Supply, Inc.,

921 So. 2d 26 (Fla. 1st DCA 2006) (permitting JCC to compel claimant who was

receiving workers’ compensation benefits to release Social Security Administration
                                          4
records to employer/carrier while no PFB was pending); Southeastern Recycling

Corp. v. McClure, 658 So. 2d 670 (Fla. 1st DCA 1995) (permitting JCC to compel

production of machine that injured claimant from employer even in absence of

pending claim where E/C had accepted compensability and was providing

benefits); Orange State Marine v. Snack, 382 So. 2d 1367 (Fla. 1st DCA 1980)

(permitting JCC to award attorney’s fees for appearance at two depositions after

worker filed claim; subsequent dismissal of claim did not divest JCC of jurisdiction

to award fee already earned by attendance at depositions).

      Section 440.42(4) does not confer jurisdiction on the JCC, because that statute

applies only to disputes over carriers’ relative coverage responsibilities after

underlying liability has been conceded or otherwise established. See,

e.g., Medpartners/Diagnostic Clinic Med. Group, P.A. v. Zenith Ins. Co., 23 So. 3d

202, 204 (Fla. 1st DCA 2009) (“[A] carrier can obtain contribution pursuant to

section 440.42(4) only if the carrier from which contribution is sought is liable to

the claimant for payment of benefits.”); Jeffrey’s Steel v. Conibear Equip., Inc., 854

So. 2d 268, 271 (Fla. 1st DCA 2003) (“[S]ection 440.42(3) [now renumbered as (4)]

can be applied only when each of the contending employer/carriers is liable to the

claimant for a portion of the benefits which have been determined under other

provisions of chapter 440.”).

      The defendants may conduct discovery in circuit court and may, if appropriate

(a question upon which we do not pass), assert workers’ compensation immunity as
                                          5
an affirmative defense. See, e.g., Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854

(Fla. 1992) (“A person has a right to file a personal injury action in circuit court, and

the court has jurisdiction to entertain the suit. The assertion that the plaintiff's

exclusive remedy is under the workers' compensation law is an affirmative defense,

and its validity can only be determined in the course of litigation.”).

      On the specific facts presented and in the present posture of the underlying

dispute, the JCC lacks jurisdiction.

      PETITION GRANTED.

      THOMAS and MARSTILLER, JJ., concur.




                                           6
