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

WHS TRUCKING LLC,                   NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-693

REEMPLOYMENT
ASSISTANCE     APPEALS
COMMISSION AND MICHAEL
HENRY,

      Appellees.


_____________________________/

Opinion filed January 15, 2016.

An appeal from an order of the Reemployment Assistant Appeals Commission.

Gigi Rollini, Melanie R. Leitman, and Ellery Sedgwick of Messer Caparello, P.A.,
Tallahassee, for Appellant.

Frank E. Brown, Chairman; Norman A. Blessing, General Counsel; and Amanda L.
Neff, Executive Senior Attorney, Tallahassee, for Appellees.



ROBERTS, C.J.,

      In this appeal, the employer/appellant, WHS Trucking, LLC (WHS), argues

that the appellee, the Reemployment Assistance Appeals Commission (the

Commission), erred in holding a Reemployment Assistance Appeals Referee (the
Referee) had jurisdiction and legal authority to make a correction to its original

decision after the decision became final.       We agree that the Referee lacked

jurisdiction and legal authority to enter the corrected decision and reverse.

      WHS employed the claimant, Michael Henry, as a CDI-licensed, professional

truck driver to haul forestry products from January 2012 to February 2014. At the

time of hire, WHS’s insurance company ran a driver’s license check and determined

that the claimant had a clean driving record. Between October 2013 and January

2014, the claimant was involved in two traffic accidents and received one speeding

ticket. In February 2014, WHS discharged the claimant because it could not obtain

cost-effective insurance coverage for him.

      The claimant filed a timely claim for benefits with the Department of

Economic Opportunity, Reemployment Assistance Program (the Department). On

February 24, 2014, the Department entered a Notice of Approval that determined the

claimant’s discharge was for reasons other than misconduct, the claimant was

entitled to benefits, and benefits paid would be charged to WHS’s account.

      WHS initiated an appeal, challenging the finding of no misconduct. On April

16, 2014, the Referee entered a decision (the original decision) finding WHS failed

to prove the accidents were due to the claimant’s misconduct. The last sentence in

the conclusions of law portion of the original decision stated: “Thus, the claimant




                                          2
will remain eligible for benefits, but the employer will not be charged.” Immediately

below this sentence was the decisional paragraph, which stated:

      Decision: The determination dated February 24, 2014, is AFFIRMED.
      The claimant is eligible for the receipt of benefits for the period
      beginning February 2, 2014.

The original decision also contained the standard language regarding appeal rights:

“This decision will become final unless a written request for review or reopening is

filed within 20 calendar days after [April 16, 2014].”

      It is undisputed that the 20-day time period for appeals expired without action

from either party. On May 13, 2014, a Notice of Benefits Paid was issued to WHS

identifying a charge of $1,375 made to its account with respect to the claimant.

      On May 14, 2014, in order to align the original decision with the Notice of

Benefits Paid, the Referee sua sponte entered a proposed corrected decision, stating

the original decision contained “clerical errors.” The proposed corrected decision

changed the finding that the employer would not be charged to, “The employer will

be charged because misconduct was not established.”

      On June 2, 2014, WHS’s attorney sent a letter directly to the Commission

seeking review of the proposed corrected decision on the basis that it was entered

without jurisdiction because the original decision became final and binding on the

parties and the Department on May 6, 2014. The letter argued the correction made

was not merely clerical, but was a prohibited, substantive change that impacted

                                          3
WHS’s substantial interest. The letter also disputed the Referee’s conclusion of no

misconduct.

       On June 4, 2014, the Referee entered a corrected decision making the change

in the proposed corrected decision. WHS again sought review of the Referee’s

jurisdiction and the finding of no misconduct with the Commission.

       The Commission entered an order upholding the Referee’s actions in both

regards.     The Commission agreed that a referee would typically be without

jurisdiction to rehear a case after expiration of the 20-day appeal period; however, it

concluded that a referee could still make corrections so long as the corrections were

clerical and not substantive corrections that would affect a party’s substantial

interests.    The Commission held, in correcting WHS’s chargeability in the

conclusions of law to render it consistent with the affirmance in the decisional

paragraph, the Referee only remedied a clerical inconsistency. Because the Referee

did not modify the substantive outcome of the case in the decisional paragraph, the

Referee acted within the scope of Florida Administrative Code Rule 73B-20.026(1)

to clarify the actual effect of the Referee’s ruling and preserve WHS’s right to file a

timely appeal. The Commission also upheld the Referee’s finding of no misconduct

because there was not sufficient evidence to infer the degree of negligence or

conscious disregard to justify disqualification.       WHS sought review of the

Commission’s order in this Court.

                                          4
      We review the underlying interpretations and applications of the law de

novo. See Arbor Tree Mgmt., Inc. v. Fla. Unemployment Appeals Comm’n, 69 So.

3d 376, 381 (Fla. 1st DCA 2011) (citing Chapman v. Unemployment Appeals

Comm’n, 15 So. 3d 716, 721 (Fla. 1st DCA 2009)). This Court generally gives

deference to an agency’s interpretation and application of its laws. See Chapman,

15 So. 3d at 721 (finding the de novo standard of review applied to review the

appeals referee’s and Commission’s application of the law to the facts, but

recognizing that the Commission’s interpretation of its statutes was entitled to great

weight and would not be overturned unless it was clearly erroneous).

      Florida agencies are creatures of statute and only have the authority and

jurisdiction conferred by statutes. See Fiat Motors of N. Am., Inc. v. Calvin, 356

So. 2d 908, 909 (Fla. 1st DCA 1978). Section 443.151(4)(b)6., Florida Statutes

(2013), provides that a referee’s decision is final unless an appeal is initiated with

20 days after the date of mailing or delivery of the notice of the decision. After

expiration of the 20-day appeals period, the Department loses jurisdiction, and the

case may not be reviewed or revisited by the Commission. See Fla. Admin. Code

R. 73B-22.006; Molina v. Home Depot USA, Inc., 941 So. 2d 460, 461 (Fla. 3d

DCA 2006) (stating the same principles under a previous version of the rule).

      Here, it is undisputed that the proposed corrected decision issued after the 20-

day time period expired. Under the plain language of section 443.151(4)(b)6., the

                                          5
original decision was already final at this time, and the Referee was divested of

jurisdiction to make the correction. We are not persuaded by the Commission’s

reliance on Taylor v. Department of Professional Regulation, Board of Medical

Examiners, 520 So. 2d 557 (Fla. 1988), which we find distinguishable from the

instant case. While Taylor recognized an agency’s inherent authority to correct

clerical errors and errors arising from mistake or inadvertence in order to align the

order with the intention of the agency, the Court also specifically recognized that

upholding the agency’s inherent authority in the case did not affect the doctrine of

administrative finality and that inherent authority was not applied in a manner that

would result in prejudice to a party. Id. at 560. In contrast here, expanding the

agency’s jurisdiction to allow the correction prejudiced WHS. See also Dep’t of

Rev. v. Vanamburg, 174 So. 3d 640 (Fla. 1st DCA 2015). While there may be some

exceptions to a strict application of the 20-day time limit, the instant case provides

no such exception where the Referee’s purported “clerical” correction actually

affected WHS’s substantial interests.

      We decline to adopt the dissent’s assertion that section 443.151(3)(e), Florida

Statutes (2013), provided the authority for the Appeals Referee to issue the proposed

and corrected opinions. First, neither the Commission nor the Department relied on

section 443.151(3)(e) as authority to act and made no arguments relating to section

443.151(3)(e) in the briefs or at oral argument. While we could issue a Tipsy

                                          6
Coachman affirmance, we nonetheless find section 443.151(3)(e) inapplicable to the

instant case.   Section 443.151(3)(e), entitled “Redeterminations,” provides the

Department the authority to reconsider a determination up to one year after the last

day of a benefit year “if it finds an error or if new evidence or information” is

discovered. Reading section 443.151 as a whole in conjunction with the decisions

applying subsection (3)(e) leads us to conclude that the Redeterminations provision

was meant to apply to the determination itself or a subsequent proliferation of error

arising out of an error in the determination process. We do not believe that section

443.151(3)(e) was meant to apply to the facts of the instant case where the error

originated in the appeals decision, which section 443.151(4)(b)6. mandates is final

after the expiration of the 20-day time period.

      Here, the Commission takes the position that after the expiration of the 20-

day time period, the Referee still had the authority to make the correction because it

did not affect WHS’s substantial interests. In so arguing, the Commission relies on

Florida Administrative Code Rule 73B-20.026(1), which provides:

      (1) At any time prior to the filing of an appeal, the appeals referee may
      issue a corrected decision to eliminate any clerical errors contained
      therein, but the referee shall not make any changes which affect the
      substantial interest of any party.


The Commission interprets the phrase, “At any time prior to the filing of an appeal,”

to impose a functional, not temporal, limit on the Referee’s ability to issue a

                                          7
corrected decision. We disagree with the Commission that the limit is functional

rather than temporal. Section 443.151(4)(b)6. clearly provides that a decision

becomes final after 20 days, and where an appeal is not filed, the decision is final

upon the expiration of the 20-day period.1 The agency’s jurisdiction is terminated

at this time.

       We further disagree with the Commission that the correction here was clerical

and not substantive. The Commission argues that because a referee may only affirm,

reverse, or modify a determination of benefits under section 443.151(4)(b)2., Florida

Statutes (2013), the sentence in the original decision that non-charged the employer

was obviously a clerical error. We disagree with this argument as the Referee’s

actions could be construed as a modification.       The Commission cites Florida

Administrative Code Rule 73B-20.025(3) to argue that the ultimate ruling in the

case, affirmance, was confined to the decisional paragraph of the original decision.

At oral argument, the Chairman of the Commission cited numerous policy

documents to support its characterization of the decisional paragraph as preeminent



1
  We are also persuaded by WHS’s argument that, notwithstanding the ability to
enter the proposed corrected decision, the Referee was certainly without jurisdiction
to issue the corrected decision after WHS had already initiated an appeal of the
proposed corrected decision in its June 2 letter to the Commission. We are not
persuaded by the Commission’s attempt to style WHS’s June 2 letter as a premature
appeal where the letter provided the arguments that were ultimately considered by
the Commission on appeal and the Commission’s own Notice of Docket stated that
the appeal was initiated on June 2.
                                          8
and providing the ultimate ruling in the case. While we accept that the Commission

may internally regard the decisional paragraph as the ultimate ruling in the case, the

Chairman admitted at oral argument that nothing in rule 73B-20.025(3) specifically

elevates the decisional paragraph over any other portion of the decision.

Furthermore, accepting the Commission’s position would essentially render the rest

of the decision meaningless despite the fact that the correction here was made to the

only sentence in the entire decision that spoke to the chargeability of WHS. It is

clear to us that changing WHS’s chargeability from non-charged to charged affected

its substantial interests. While the intent of the Referee may have been to remove

any perceived internal inconsistencies, after the expiration of the 20-day time period

for appeals, the Referee lacked the jurisdiction and legal authority to do so. We

agree with WHS that there must be some expectation of finality for the parties to

rely on, and under the Commission’s position, no decision would ever truly be final.

We reverse the Commission’s order, quash the Referee’s proposed corrected

decision and corrected decision, and reinstate the original decision.

      REVERSED.

BENTON, J. CONCURS. KELSEY, J. CONCURS IN PART AND DISSENTS IN
PART WITH OPINION.




                                          9
KELSEY, J., concurring in part and dissenting in part.

      I agree with the majority’s conclusion that the employee was correctly found

not guilty of misconduct. However, I respectfully dissent with respect to the

authority to issue a corrected decision, because I conclude that the Commission has

the legal authority to correct errors in decisions, including internal inconsistencies

as was the case here. At all three levels of review – before the Department, Referee,

and Commission – the end result was always that the former employee was not guilty

of misconduct and would receive benefits, and the employer would be charged. It

was only the Referee’s initial order, subsequently corrected, that both affirmed the

Department’s decision that the employer would be charged, and mistakenly stated

that the employer would not be charged -- an internal inconsistency. In light of the

error and its subsequent correction, the employer was never validly adjudicated to

have the substantive right to be relieved of its obligation to be charged for the former

employee’s benefits, and therefore was not prejudiced when the mistake was

corrected. Thus, the corrected order was authorized under Florida Administrative

Code Rule 73B-20.026(1).




                                          10
      The Commission also has the authority to correct such an error under Taylor

v. Department of Professional Regulation, Board of Medical Examiners, 520 So. 2d

557 (Fla. 1988). In pertinent part, the Taylor Court noted as follows:

             We are not addressing, under the factual circumstances of this
      case, the authority of administrative agencies to rehear or reconsider
      their orders in the absence of a specific authorization by statute or rule.
      ... Rather, we are considering the inherent power of an agency to correct
      clerical errors and errors arising from mistake or inadvertence in its own
      orders. All parties to this proceeding agree that agencies possess the
      inherent power to correct these types of errors. This Court has
      previously established the principle that an administrative tribunal,
      exercising quasi-judicial powers, enjoys the inherent authority to
      correct its own orders which contain clerical errors and errors arising
      from mistake or inadvertence.

Taylor, 520 So. 2d at 560 (citations omitted). This Court has applied the principle

of Taylor in the unemployment context to confirm “the inherent power of an

administrative tribunal to correct its own errors in its orders.” Johnston v. Florida

Unemployment Appeals Com'n, Agency for Workforce Innovation, 71 So. 3d 230

(Fla. 1st DCA 2011) (citing Johnson v. Terry Hunt Constr. Co., 878 So. 2d 1282

(Fla. 1st DCA 2004), which made the same point based on Taylor in the workers’

compensation context).

      Finally, it appears that the redetermination statute, section 443.151(3)(e) of

the Florida Statutes (2013), allows the Commission to correct errors for up to a year.

This section provides that “The department may reconsider a determination if it finds

an error or if new evidence or information pertinent to the determination is

                                          11
discovered after a prior determination or redetermination. A redetermination may

not be made more than 1 year after the last day of the benefit year ... .”

§ 443.151(3)(e), Fla. Stat. (2013). This Court held in Willis v. Florida

Unemployment Appeals Commission, 890 So. 2d 535, 535-36 (Fla. 1st DCA 2005),

that “Section 443.151 provides that the Agency may reconsider its original

determination, or may apply to the appeals referee, UAC, or court that rendered a

final determination to issue a revised decision, within one year of the last day of the

benefit year where ‘an error has occurred in connection therewith ... .” Although

the Willis Court rejected use of the reconsideration process for issues of law, the

analysis is different when it involves errors of fact or typographical errors and, by

reasonable analogy, internal inconsistencies in an order such as here. They can and

should be subject to correction. See also Blaser v. Unemployment Appeals Com’n,

687 So. 2d 337, 338 (Fla. 4th DCA 1997) (holding that the redetermination statute

in section 443.151(3) required remand – after the appeal time had passed but before

the passage of one year -- to reconsider a benefits determination due to division

error).

          The Commission has relied on this statute in at least one case to authorize the

correction of errors such as this up to a year after the last benefit week:

                 The Commission finds the delay in the issuance of the separation
          determination until August 12, 2013 both unfortunate and regrettable –
          but it is constrained by the plain wording of the statute regarding the
          power given by the Legislature to the Department to adjudicate
                                            12
      necessary issues within a certain time frame. Presumably the legislature
      gave this power to the Department because it realized that given the
      extreme volume of claims that come before the Department for
      processing during the course of any given year, mistakes will be made,
      and will have to be corrected.


RAAC Order No. 13-08356 (Feb. 20, 2014). So too here, a mistake was made. The

Referee affirmed an order holding that the employer would be charged, but

mistakenly also inserted a “not” within the same order. The internal inconsistency

was the type of error that the Commission had the legal authority to correct.

Accordingly, I would affirm.




                                        13
