                                                                   [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT          FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          DEC 14, 2000
                              No. 99-2201
                                                        THOMAS K. KAHN
                       ________________________             CLERK

                 D. C. Docket No. 98-00065-CV-ORL-18C


CRAWFORD & COMPANY,
FLEETWOOD HOMES OF FLORIDA,

                                                     Plaintiffs-Appellees,

                                  versus


KENNETH S. APFEL, Commissioner of Social Security,


                                               Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                           (December 14, 2000)


Before ANDERSON, Chief Judge, DUBINA and HILL, Circuit Judges.
HILL, Circuit Judge:

       The merits of this appeal present a novel issue of first impression under Title

II, 42 U.S.C. § 405, of the Social Security Act (Act) and its applicable regulations,

20 C.F.R. §§ 404.932 and 416.1432.1 The merits of the federal law issue presented

in this case are juxtaposed against the backdrop of a state statute, Florida’s

Workers’ Compensation Law, Fla. Stat. Ch. 440 (1994).

       The Commissioner of Social Security (Commissioner) appeals from an

eighteen-word handwritten order of the district court. By this squib notation,

written in the left-hand margin of the report and recommendation (R&R) of the

magistrate judge, the district court rejected the R&R, finding that the court had

subject matter jurisdiction and that the plaintiff corporations could intervene as

proper parties to an individual claimant’s social security disability hearing.2 For

the following reasons, we reverse the decision of the district court.

                                   I. Factual Background


       1
         Congress has given the Commissioner of Social Security (Commissioner) full power
and authority to make regulations and establish procedures not inconsistent with the Act, which
are necessary or appropriate to carry out the statute. See 42 U.S.C. § 405(a). Pursuant to his
authority, the Commissioner has promulgated regulations establishing who may request a
hearing and who may be a party to a hearing. See 20 C.F.R. §§ 404.932; 416.1432.
       2
       Corporate plaintiffs are identified as the claimant’s former employer and its workers’
compensation insurance carrier.

                                               2
       The underlying facts are not in issue and are pertinent only to set the stage

for this appeal. In 1994, Deborah D. Scott, while employed by Fleetwood Homes

of Florida (Fleetwood) as an assistant foreman, was injured on the job.3 In 1995,

Scott filed an application for federal social security disability insurance benefits

and an application for supplemental security income.4 She also filed a state claim

in Florida for workers’ compensation seeking permanent total disability (PTD)

benefits.

                                 II. Procedural Background

       The underlying procedural background of this appeal is germane. In 1996,

Fleetwood, and Crawford & Company, Inc. (Crawford), described as Fleetwood’s

workers’ compensation insurance carrier, filed a motion to intervene in Scott’s

social security disability case, pending before an Administrative Law Judge (ALJ).

They contended that their rights would be “adversely affected” by the decision of

the ALJ making them proper parties to the hearing under 20 C.F.R. § 404.932(b).5

       3
         Scott fell through an open duct in the bathroom floor of a mobile home, injuring her left
leg, pelvic area, back and neck.
       4
        Scott’s supplemental security income claim was subsequently denied. This appeal only
concerns her application for disability benefits.
       5
          This regulation states in part that “[a]fter a request for a hearing is made, you [the
claimant], the other parties to the initial, reconsidered, or revised determination, and any other
person who shows in writing that his or her rights may be adversely affected by the hearing, are
parties to the hearing.” 20 C.F.R. § 404.932(b) (emphasis added); see also note 22 supra for the
entire text.

                                                3
They argued that Scott might, without their presence in the federal forum, receive a

finding of “catastrophic injury” from the ALJ. This ruling could in turn be relied

upon by the Florida Judge of Compensation Claims (JCC) to support an award of

PTD benefits in the state forum, payable by responsible parties Fleetwood and

Crawford to Scott, perhaps for the rest of her life.6

       Using a rationale supported by Fed. R. Civ. P. 24, the ALJ found that

Fleetwood and Crawford were not proper parties to Scott’s hearing, and denied

their motion to intervene.7 He reasoned that, under Florida law, it was not

mandatory, only discretionary, for a JCC to consider a decision by an ALJ.

Therefore the outcome of Scott’s federal case was not legally binding, nor



       6
          In defining PTD benefits, Florida law provides that “[o]nly a catastrophic injury as
defined in s. 440.02 shall, in the absence of conclusive proof of a substantial earning capacity,
constitute permanent total disability. Only claimants with catastrophic injuries are eligible for
permanent total benefits. In no other case may permanent total disability be awarded.” Fla.
Stats. § 440.15(b)(1994)(emphasis added).
        Turning to § 440.02 (37)(f), applicable for purposes of this appeal, “Catastrophic injury”
means “[a]ny other injury that would otherwise qualify under this chapter of a nature and
severity that would qualify an employee to receive disability income benefits under Title II [42
U.S.C. § 401 et seq.] . . . of the federal Social Security Act as the Social Security Act existed on
July 1, 1992, without regard to any time limitations provided under that act.” Fla. Stats. §
440.02(37)(f)(1994) (emphasis added).
       7
         Other reasons offered by the ALJ were: that Fleetwood and Crawford had no interest in
Scott’s federal case; that there was no question of law or fact in common between them and
Scott’s federal case; that entitlement to coverage under federal law was dissimilar to coverage
under the state statute (i.e., federal disability must be total, while state disability could be
permanent or temporary, permanent or partial); and that Scott’s privilege to have her medical
records kept confidential would be breached by Fleetwood and Crawford’s tender of such
records in her federal case.

                                                 4
necessarily even considered, in her state case. The ALJ concluded that Fleetwood

and Crawford would have an opportunity to protect their interest in Scott’s state

case; this was their sole remedy.

       Fleetwood and Crawford then filed its first petition in district court

challenging the ALJ ruling. The magistrate judge dismissed their petition for lack

of jurisdiction on the basis that there was no final decision to review.8 Upon

motion for reconsideration, the magistrate judge reconfirmed its original

disposition, granting Fleetwood and Crawford leave to seek review by the Appeals

Council of the Social Security Administration (SSA) in order to exhaust their

administrative remedies and to obtain a final decision of the Commissioner.

       So Fleetwood and Crawford filed a petition for review with the Appeals

Council. Finding that Fleetwood and Crawford had “not claimed any benefits or

other rights provided under Title II or XVI of the Act and ha[d] not established that

such rights would be adversely affected,” the Appeals Council dismissed their

request for review “because they [were] not a proper party” under the regulations.

See 20 C.F.R. §§ 404.932; 416.1432.9


       8
           All parties consented to a final disposition before a United States Magistrate Judge.
       9
         The Appeals Council noted that Fleetwood and Crawford were not Scott’s appointed
representative; that, with respect to benefits, their rights were not adversely affected by the
decision of the ALJ; that they were not a party to the ALJ decision; and that they would not be
adversely affected by any decision the Appeals Council might make.

                                                  5
         Now armed with a final decision, Fleetwood and Crawford returned to

district court with a second petition for review pursuant to 42 U.S.C. § 405(g).10

The Commissioner filed a motion to dismiss the petition for lack of standing and

lack of subject matter jurisdiction. The magistrate judge recommended that the

motion be granted on the basis that § 405(g) did not confer jurisdiction upon the

court.

         Citing § 405(b)(1) 11, he stated:

         Petitioners are corporations, not individuals. Congress has taken great
         care to specifically name each individual who may seek an
         administrative determination of entitlement to disability benefits . . .
         Because Congress limited benefit determinations to individuals . . .
         Congress had no need to allow anyone other than an individual to seek
         judicial review of the Commissioner’s final decision . . . [It] did not
         allow corporations to seek judicial review from the Commissioner’s
         decision that [Fleetwood and Crawford] are not proper parties to a


         10
           Section 405(g), entitled “Judicial review” provides in pertinent part: “Any individual,
after any final decision of the Commissioner of Social Security made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain a review of such decision by a
civil action . . . Such action shall be brought in the district court of the United States . . . .”
         11
              Section 405(b)(1) provides in relevant part:

         . . . Upon request by any such individual or upon request by a wife, divorced wife,
         widow, surviving divorced wife, surviving divorced mother, surviving divorced
         father, husband, divorced husband, widower, surviving divorced husband, child,
         or parent who makes a showing in writing that his or her rights may be
         prejudiced by any decision the Commissioner of Social Security has rendered, the
         Commissioner shall give such applicant and such other individual reasonable
         notice and opportunity for a hearing with respect to such decision . . . .

42 U.S.C. § 405(b)(1)(emphasis added); see also 20 C.F.R. §§ 404.932(b); 416.1432(b).

                                                    6
      hearing because Congress envisioned only listed individuals as
      requesting, or intervening in, hearings.


      In a footnote, the magistrate judge noted that, from examining the record,

there was no indication: (1) that the Florida JCC would be bound to follow the

determination of the Commissioner, nor (2) that the Florida JCC would not allow

Fleetwood and Crawford an opportunity to present their evidence in the state

workers’ compensation proceeding.

      The district court rejected the R&R by this handwritten notation: “The

recommendation is rejected. The Court finds that plaintiffs are proper parties and

therefore have subject matter jurisdiction.” In response to the Commissioner’s

motion to clarify, the district court again made a handwritten notation across the

top of the motion: “Granted. The Court’s decision was based on the memo in

opposition to the magistrate R&R [filed by Fleetwood and Crawford and treated as

a motion for rehearing].” Six weeks later, the ALJ determined that Scott was

entitled to social security disability benefits. The district court stamp-granted

Fleetwood and Crawford’s motion for final judgment, with the hand-written

notation across the top: “Final Judgment. Petitioners are proper parties.” The

Commissioner filed this appeal.

                             III. ISSUES ON APPEAL


                                           7
      Three issues are presented on appeal:

      A.     Whether the ‘Final Judgment’ of the district court finding that

Fleetwood and Crawford are proper parties to Scott’s social security disability

hearing is immediately appealable?

      B. If the order is immediately appealable and this court has jurisdiction,

whether this appeal is moot, as Scott’s state workers’ compensation proceeding is

now final?

      C. If this appeal is not moot, whether Fleetwood and Crawford are proper

parties under the Act and applicable regulations to Scott’s social security disability

hearing before the ALJ?

                          IV. STANDARD OF REVIEW

      The decisions by the district court that subject matter jurisdiction was

present, 42 U.S.C. § 405(g), to review the final decision of the Commissioner that

Fleetwood and Crawford were not proper parties to Scott’s social security

disability hearing, 42 U.S.C. § 401(b)(1), raise pure questions of law that we

review de novo. Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1238

(11th Cir. 2000).

                                 V. DISCUSSION

A. Jurisdiction


                                          8
       We raised the issue of jurisdiction sua sponte. The parties responded in

supplemental briefings.

       The jurisdiction of this court in social security proceedings is limited to final

orders of the district courts. 28 U.S.C. § 1291. A final order is one that “ends the

litigation on the merits and leaves nothing for the court to do but execute its

judgment.” Huie v. Bowen, 788 F.2d 698, 701 (11th Cir. 1986)(citations omitted).

Generally, an order of a district court remanding a case to the Commissioner is not

an appealable order.12 Id. However the Supreme Court has held a judgment of the

district court that reverses the decision of the Commissioner and orders a remand

to the SSA is final and appealable under §1291 when entered under the fourth

sentence of § 405(g).13 Forney v. Apfel, 118 S.Ct. 1984, 1986-87 (1998).




       12
          The SSA was established in 1994 as “an independent agency in the executive branch,”
42 U.S.C. § 901(a), “to administer the old-age, survivors, and disability insurance program[s],”
42 U.S.C. § 901(b). Previously, the SSA had administered these programs under the auspices of
the Department of Health and Human Services. 42 U.S.C. § 901 note. Hence, some of the older
cases refer to the Secretary of the Department of Health and Human Services instead of the
Commissioner of the SSA. See Biddle v. Heckler, 721 F.2d 1321 (11th Cir. 1983).
       13
          The fourth sentence of § 405(g) provides that “[t]he court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.”




                                                9
       The Commissioner argues that jurisdiction is present under the fourth

sentence of § 405(g). Fleetwood and Crawford argue it is not, although both sides

appear to agree that this is an jurisdictional issue of first impression.14 We need not

address whether jurisdiction is present under § 405(g), as we conclude, after

reviewing the briefs of the parties, that the precedential authority of this circuit

establishes that the judgment of the district court, even if not “final” per se, is

reviewable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan

Corp., 69 S.Ct. 1221 (1949). Huie, 788 F.2d at 701-02. “[T]he Cohen doctrine

allows appeals to be taken from orders that (1) finally determine claims entirely

collateral to and separable from the substance of other claims in the action, (2)

require review because they present significant, unsettled questions, and (3) cannot

be reviewed effectively once the case is finally decided.” Id.

       This appeal satisfies all three prongs of Cohen. First, the issue of whether

third-party corporations not claiming benefits may participate in an individual

claimant’s disability hearing is a structural matter unrelated to the merits of the

individual’s disability claim. Id. Second, the issue is important as the broad


       14
          Somewhat incompatible with their jurisdictional position, however, Fleetwood and
Crawford agree with the Commissioner that the merits of their claim present an important
question as “there is a vital need for this Court to address whether employers and carriers can
intervene in an applicant’s social security hearing, and the extent to which employers and
carriers can participate in the applicant’s social security hearing.”

                                                10
mandate of the district court would create a fundamental change in the social

security disability hearing and would be unprecedented in nature. Id. Third, the

issue would be otherwise unreviewable.15 Id. We therefore find jurisdiction

present under the Cohen collateral order doctrine.

B. Mootness

       We now turn to the issue of mootness. Again sua sponte, during oral

argument the court inquired as to whether or not this appeal was now moot, as

Scott’s workers’ compensation claim had concluded. The parties also addressed

the issue in supplemental briefings.

       As we know, Scott filed a claim under Florida workers’ compensation law

seeking PTD benefits. The JCC in the state proceeding awarded PTD benefits to

Scott. Fleetwood and Crawford appealed the decision of the JCC to the Florida

First District Court of Appeal. On June 9, 2000, the First District Court of Appeal

affirmed the order of the JCC per curiam without opinion. Crawford & Co. v.

Scott, 767 So.2d 1205 (Fla. 1st DCA 2000).



       15
           If the remand decision is to award benefits, the procedural issue is moot. However, if
the remand decision is to deny benefits, Scott could appeal on the basis of both the merits and
the procedural issue. The review of an important issue of first impression should not depend
upon the discretion of a private party. See Matthews v. Eldridge, 96 S.Ct. 893, 896-97 n.11
(1976)(where, in a social security context, the Supreme Court stated that “the core principle that
statutorily created finality requirements should, if possible, be construed so as not to cause
crucial collateral claims to be lost and potentially irreparable injuries to be suffered”).

                                                11
       The decision by the Florida district court does not moot the merits of this

appeal as Florida law provides for modification of a JCC order. Under Fla. Stat. §

440.28 (1994), at any time prior to two years after the date of the last payment of

compensation made pursuant to the compensation order a party seeks to modify, on

the ground of a change in condition or because of a mistake in a determination of

fact, a JCC may review a compensation case and issue a new compensation order

which may terminate, continue, reinstate, increase or decrease the award.16 Also,

Scott’s social security disability case is still in active status, as the ALJ

recommended that she be reevaluated in one year (although this time has now

passed) and referred for vocational rehabilitation services. 20 C.F.R. §§ 416.1710;

1715; and 404.2101. Hence the claim of Fleetwood and Crawford is not moot and

the issue of intervention continues.

C. The Merits of the Appeal

       We now turn to the underlying merits of the case. The net effect of the

district court order will be to require Scott’s case to be reopened by the ALJ, in

order to conduct a second hearing. The Commissioner contends that this rehearing

will be adversarial in nature, with Fleetwood and Crawford as opposing parties to

       16
         The Commissioner argues that Fleetwood and Crawford’s claim of a right to intervene
has been rendered moot for lack of injury. See Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d
1392, 1401 (11th Cir. 1998)(where “[a] case becomes moot ‘when . . . the parties lack a legally
cognizable interest in the outcome’”).

                                              12
Scott. Fleetwood and Crawford argue that although their rights are adversely

affected by Scott’s social security disability hearing, their intervention would not

render the hearing adversarial. On the contrary, they claim it would develop and

supplement the record in order to promote fair and objective evaluation of claims,

and efficient determination of eligibility for benefits.17

       Social security disability proceedings are inquisitorial rather than

adversarial. See Sims v. Apfel, 120 S.Ct. 2080, 2085 (2000) (citing Richardson v.

Perales, 91 S.Ct. 1420 (1971)). The SSA is perhaps the best example of an agency

that is not based to a significant extent on the judicial model of decisionmaking. It

has replaced normal adversary procedure with an investigatory model, where it is

the duty of the ALJ to investigate the facts and develop the arguments both for and

against granting benefits; review by the Appeals Council is similarly broad. Id.18

The regulations also make the nature of the SSA proceedings quite clear. They

expressly provide that the SSA “conducts the administrative review process in an


       17
          Here, Fleetwood and Crawford assert, that there is no other party to Scott’s hearing that
can adequately represent their viewpoint with regard to conflicting medical evidence. They
contend that all employers and carriers should be allowed to participate in the discovery process
by presenting medical records, surveillance evidence, rehabilitation reports, depositions of
treating physicians, employer documents regarding job availability, and vocational evaluations
of an individual’s ability to return to gainful employment.
       18
          Intervention, claims the Commissioner, would greatly deserve the average disability
claimant, typically unrepresented by counsel, facing and confronting presumably well-
represented corporate adversaries at this juncture.

                                                13
informal, nonadversary manner.” 20 C.F.R. § 404.900(b). The Commissioner has

no representative before the ALJ to oppose the claim for benefits; neither is there is

any indication that he opposes claimants before the Appeals Council. Sims, 120

S.Ct. at 2085 (citing Dubin, Torquemada Meets Kafka: The Misapplication of the

Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Colum.

L.Rev. 1289, 1301-05, 1325-29 (1997)).

      Next, the Commissioner contends that the statute and regulations should be

construed to limit participation to individuals and not corporate entities and that his

reasonable interpretation is entitled to deference. See Thomas Jefferson Univ. v.

Shalala, 114 S.Ct. 2381, 2386-87 (1994). As the regulations speak in terms “you”

and “other parties” in referring to individual human beings, the term “any other

person” should be similarly construed. This conclusion is buttressed by the use of

the terms “his” and “her.” See City of Delray Beach, Fla. v. Agricultural Ins. Co.,

85 F.3d 1527, 1534 (11th Cir. 1996)(applying the doctrine of statutory construction

“ejusem generis”).

      Fleetwood and Crawford assert that the Commissioner’s statutory

interpretation of the word “individual” to mean only human beings and not

businesses is incorrect. They claim they have a right to be a party in Scott’s hearing

because they are “any other person who shows . . . that his or her rights may be


                                          14
adversely affected by the hearing, are parties to the hearing.” 20 C.F.R. §

404.932(b) (emphasis added).19

       Under the Act, the statutory provisions governing hearings in disability

cases contemplate participation by only individuals with a stake in obtaining

benefits.20 The statute speaks in terms of “individuals applying for a payment,”

       19
          Fleetwood and Crawford rely on two decisions interpreting the word “individual” in a
§ 405(g) context. In Califano v. Yamasaki, 99 S.Ct. 2545 (1979), a class action was brought
against the Secretary of the Department of Health, Education and Welfare to recoup insurance
overpayments by decreasing future benefits. The Secretary argued class relief was inappropriate
using the definition of “individual” under § 405(g). The Supreme Court disagreed with this
narrow interpretation. Similarly, in Attorney Registration and Disciplinary Comm’n v.
Schweiker, 715 F.2d 282 (7th Cir. 1983), the Commission brought suit against the Secretary of
Health and Human Services seeking a declaration that their employees were covered by social
security or a refund. The Seventh Circuit held that the Commission was an “individual” within
the meaning of § 405(g) entitled to judicial review of an administratively final decision. Id. at
289.
       20
            Section 405(b)(1) provides:

       (b) Administrative determination of entitlement to benefits; findings of fact;
       hearings; investigation; evidentiary hearings in reconsiderations of disability
       benefit terminations; subsequent applications
       (1) The Commissioner of Social Security is directed to make findings of fact, and
       decisions as to the rights of any individual applying for a payment under this
       subchapter. Any such decision by the Commissioner of Social Security which
       involves a determination of disability and which is in whole or in part unfavorable
       to such individual shall contain a statement of the case, in understandable language,
       setting forth a discussion of the evidence, and stating the Commissioner’s
       determination and the reason or reasons upon which it is based. Upon request by any
       such individual or upon request by a wife, divorced wife, widow, surviving divorced
       wife, surviving divorced mother, surviving divorced father, husband, divorced
       husband, widower, surviving divorced husband, child, or parent who makes a
       showing in writing that his or her rights may be prejudiced by any decision the
       Commissioner of Social Security has rendered, the Commissioner shall give such
       applicant and such other individual reasonable notice and opportunity for a hearing
       with respect to such decision, and, if a hearing is held, shall, on the basis of evidence
       adduced at the hearing, affirm, modify, or reverse the Commissioner’s findings of

                                                  15
“his or her rights,” “such individual or upon request by a wife, divorced wife,

widow . . . .” Section 405(b)(1). The applicable regulations governing who may

request a disability hearing are 20 C.F.R. §§ 404.923(a) and 416.1432(a).21 The

applicable regulations governing who are parties to a disability hearing are §§

404.923(b) and 416.1432(b).22 As corporate entities, it is clear that Fleetwood and


       fact and such decision. Any such request with respect to such a decision must be
       filed within sixty days after notice of such decision is received by the individual
       making such request. The Commissioner of Social Security is further authorized, on
       the Commissioner’s own motion, to hold such hearings and to conduct such
       investigations and other proceedings as the Commissioner may deem necessary or
       proper for the administration of this subchapter. In the course of any hearing,
       investigation, or other proceeding, the Commissioner may administer oaths and
       affirmations, examine witnesses, and receive evidence. Evidence may be received
       at any hearing before the Commissioner of Social Security even though inadmissible
       under rules of evidence applicable to court procedure.
       21
            According to the regulations, the following may request a hearing before an ALJ:

       (a) Who may request a hearing. You may request a hearing if a hearing is
       available under §404.930. In addition, a person who shows in writing that his or
       her rights may be adversely affected by the decision may request a hearing.

20 C.F.R. §§ 404.932(a); 416.1432(a)(emphasis added).



       22
            According to the regulations, the following may be parties to a hearing before an ALJ:

       (b) Who are parties to a hearing. After a request for a hearing is made, you, the
       other parties to the initial, reconsidered, or revised determination, and any other
       person who shows in writing that his or her rights may be adversely affected by
       the hearing, are parties to the hearing. In addition, any other person may be made
       a party to the hearing if his or her rights may be adversely affected by the
       decision, and the administrative law judge notifies the person to appear at the
       hearing or to present evidence supporting his or her interest.

20 C.F.R. §§ 404.932(b); 416.1432(b)(emphasis added).

                                                 16
Crawford are not the individuals or specified persons enumerated by the Act or

regulations with a potential stake in the award of social security benefits to a

particular claimant. As a result, under the law, they are not proper parties to

Scott’s federal hearing. Id.

       Fleetwood and Crawford suggest, that in 1994, when the Florida Legislature

changed the standard for awarding PTD benefits to include “any [catastrophic]

injury that would otherwise qualify . . . of a nature and severity that would qualify

an employee to receive disability income benefits under Title II,” Fla. Stats. §

440.02(37)(f), employers and insurance carriers alike recognized the importance

of the claimant’s award or denial of social security benefits by an ALJ. It was

then, Fleetwood and Crawford contend, that employers and carriers began filing

motions to intervene with ALJs.23

       The JCC in this case held that she had “considered whether the Claimant has

sustained a catastrophic injury which would entitle her to receive disability income

benefits under Title II or Supplemental security Income Benefits under Title XVI

Social Security Act . . . .” She found that “the Claimant’s injuries . . . are of such a

nature and severity that they would qualify this Claimant to receive disability



       23
           They claim that “[virtually all of the Motions to Intervene filed by employer and
carriers have either been ignored or simply discarded by the Administrative Law Judges.”

                                                17
income benefits [under either Title].” In her opinion, the JCC makes no reference

to the prior decision of the ALJ to award benefits. It appears clear from the record

that the JCC applied social security standards yet made her own independent

findings. This is in accordance with Florida case law.24 Most recently, in Florida

Distillers v. Rudd, 751 So.2d 754 (Fla. 1st DCA 2000), the court stated:

              Nevertheless, despite the statutory intent to render PTD status
       comparable to disability under the Social Security Act, we have been
       cited to no requirement in chapter 440 that a JCC is bound by the
       [grant or] denial of a claim for social security disability benefits. The
       legislature could have easily included such a requirement when
       chapter 440 was substantially amended as a result of chapter 93-415,
       Laws of Florida, but it did not do so. Furthermore, given the fact that
       the evidence may vary between a workers’ compensation proceeding
       and a proceeding on a claim for social security disability benefits
       through no fault of the claimant, it would be unjust to view federal
       disability determinations as carrying binding precedential authority in
       a proceeding under chapter 440, Florida Statutes.

Id. at 756-757.


       24
            See also Alachua County Adult Detention Center v. Alford, 727 So.2d 388, 391 (Fla.
1st DCA 1999)(where the court upheld the refusal of the JCC to stay payment of PTD benefits
pending review of an application for modification, based on the fact that the SSA had reached a
different conclusion, as the employer/carrier made no showing that the Florida legislature
intended to delegate the authority of the JCC to the SSA); Union Camp Corp. v. Hurst, 696
So.2d 873, 876 (Fla. 1st DCA 1997) (“[while receipt of social security disability benefits may be
relevant to a determination of entitlement to PTD benefits under the definition of catastrophic
injury . . . in section 440.02(34)(f)[sic] . . . , claimant’s receipt of SSD benefits alone is not
sufficient to qualify him for PTD benefits. The claimant must still prove every element of his
claim, including . . . a causal connection between his compensable injury and the inability to
earn which has entitled him to receive SSD benefits.”); Bob Wilson Dodge v. Mohammed, 692
So.2d 287, 288 (Fla. 1st DCA 1997)(claimant still has “burden of proving entitlement to PTD
benefits” and could not rely “solely on fact that he had been awarded social security disability
benefits to prove that he was permanently totally disabled”).

                                                18
      Evaluating credibility of witnesses, conflicts of evidence, weight to be given

testimony, physical evidence, and expertise, all to determine where the

preponderance lies is no small task. Those charged with doing so ought not be

tempted to abdicate the responsibility to the conclusions of another. Traditionally

the temptation has been disallowed. On a retrial, the jury is not told the verdict of

the first jury; an investigator, appearing as a trial witness, is rarely permitted to

testify that he or she believes one side or another has the better case. See e.g., 1

John W. Strong et al., McCormick on Evidence § 12 at 51 (5th ed. 1999)(opinions

on the ultimate issue); Warren Petroleum Co. v. Thomasson, 268 F.2d 5 (5th Cir.

1959).

      It appears that Florida has a different idea. In that enlightened jurisdiction

Scott can assist the JCC in determining PTD benefits by putting in evidence the

findings of the ALJ, another factfinder in another tribunal. What the ALJ does

with its findings does not “cost” Fleetwood and Crawford anything. It is what the

State of Florida allows the JCC, in the state proceeding, to do with those findings

that concerns them.

      In this issue of first impression, Fleetwood and Crawford seek from our

court an unprecedented broad order, revamping social security hearings,

transforming a non-adversarial, inquisitorial system, established by Congress under


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federal law to determine eligibility for disability benefits. Even if we had the

power to do so, we respectfully decline. If there is any relief to be found by

Fleetwood and Crawford at all, their remedy lies, not at the federal judicial or

legislative level, but at the state level, in the reform of the Florida Workers’

Compensation Law by the Florida Legislature.

                                 VI. CONCLUSION

      The decision of the district court is REVERSED.




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