UNIVERSAL ERECTORS, INC., AND MICHIGAN MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
DONALD MURPHY, APPELLEE
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The court held that a petition for modification of a workers' compensation order cannot be granted based on a mere disagreement with the prior interpretation of evidence or incomplete evidence, as this does not constitute a mistake of fact.
[1] Modification of a workers' compensation order is not a method for relitigating issues previously determined.
[2] A petition for modification of a workers' compensation order cannot be used as an untimely appeal of a prior order.
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Join FLexlaw to unlock all legal intelligenceA claimant was injured and initially cleared to return to work, but later claimed inability to work. A prior compensation claim was dismissed due to i…
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PER CURIAM.
This is an appeal from a workers’ compensation order granting claimant’s petition for modification. Appellants contend that no mistake of fact was proven, and therefore it was error for the deputy commissioner to grant modification. We agree and reverse.
Appellee was injured in the course and scope of his employment on September 13, 1973, and was diagnosed as having a possible chronic lumbosacral strain. On February 4,1974, the treating physician returned appellee to full work duties. After appellee worked for a few days, he returned to his physician complaining that he could not work. The treating physician remained of the opinion that appellee could work full time. Appellee then sought the opinions of several other physicians, all of whom concluded that claimant suffered no physical, neurological or psychiatric disability.
A hearing on a claim for compensation was held on April 13, 1976. Claimant sought additional temporary total disability benefits for the period of February 4, 1974, to July 4, 1974, wage loss benefits, future medical, attorney’s fees, costs, penalties and interest. The employer/carrier contended that maximum medical improvement had been reached on February 4, 1974, with no permanent disability, and that all benefits had been timely paid. At the conclusion of the hearing, the judge of industrial claims stated “. .. there’s very little competent substantial evidence of anything here except the man had an accident, he got paid for four months. ... ” In the final order, the judge of industrial claims again noted the lack of evidence presented by claimant and dismissed the claim. That order was not appealed.
On June 28, 1977, a petition for modification was filed seeking modification of the prior order on the ground that the judge of industrial claims’ interpretation of the evidence was erroneous. At the hearing on the petition for modification, claimant argued that the prior order was based on an honest mistake by the court in interpreting the evidence. The employer/carrier argued that the petition for modification was in fact an attempt to appeal the prior order. Since no timely appeal had been taken, the findings of fact in that order had become final and were res judicata.
On October 2, 1980, the deputy commissioner entered an order granting the petition for modification based on a mistake of fact. In that order, the deputy states that the testimony at the prior hearing was not clear as to whether claimant could have worked during the period from mid-March until July 4, 1974. The deputy found that maximum medical improvement was reached on July 4,1974, and ordered temporary total disability benefits from March 15, 1974, to July 4, 1974.
The statutory provision for modification based on change of condition or mistake of fact provides an exception to the doctrine of res judicata. Cabrera Vulcan Shoe Corp. v. Padron, IRC Order 2-2593 (1974), cert. denied, 304 So. 2d 128 (Fla.1974). The purpose of modification is to provide a remedy for the parties where the condition of the claimant has changed or where the prior order entered by the judge was based upon a mistake in a determination of fact. Ft. Harrison Hotel v. Matroni, IRC Order 2-2856 (1975). Modification is not a method of relitigating issues which have previously been determined. Hall v. Seaboard Maritime Corporation, 104 So. 2d 384 (Fla. 1st DCA 1958). It is well established that cumulative evidence which merely controverts or supports evidence taken at the original hearing is not sufficient as a basis for modification. Beaty v. M & S Maintenance Co., 124 So. 2d 868 (Fla.1960); Sonny Boy's Fruit Co. v. Compton, 46 So. 2d 17 (Fla.1950); City of West Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981).
It is clear from a review of the record that claimant failed to establish a mistake of .fact which required modification of the previous compensation order. As in Amway Corporation v. Yearby, IRC Order 2-3319 (1978), at most, it appears that the facts presented to the judge of industrial claims at the original hearing were incomplete. An alternative conclusion which could be reached is that the deputy commissioner changed his mind as to the sufficiency of the evidence originally presented to him; this, of course, is not a basis for modification. Chris Boat Yard v. Albury, IRC Order 2-2418 (1973), cert. denied, 292 So. 2d 20 (Fla.1974).
The evidence presented at the modification proceeding did not establish grounds for modification of the order. Accordingly, the order appealed is REVERSED.
BOOTH, SHAW and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Univ. Inns & Ins. Co. of N. Am. v. Belva Joyce Davis, 413 So. 2d 128 (Fla. 1st DCA 1982)…la. 1st DCA 1981). Modification proceedings are not intended to permit a claimant to relitigate issues which have been previously determined. City of West Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981); Universal Erectors, Inc. v. Murphy, 410 So. 2d 209 (Fla. 1st DCA, 1982). Evidence which merely supplements or controverts that already taken is insufficient, as held in the oft-cited case of Sonny Boy’s Fruit Company v. Compton, 46 So. 2d 17 (Fla.1950). Here, the Deputy Commissioner’s failure to ru…
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E. Airlines & GAB v. Griffin, 654 So. 2d 1194 (Fla. 1st DCA 1995)…t DCA 1982); Southern Bell Tel. & Tel. Co. v. Blackstock, 419 So. 2d 360 (Fla. 1st DCA 1982); Cleveland v. Everson, 415 So. 2d 763 (Fla. 1st DCA 1982); University Inns v. Davis, 413 So. 2d 128 (Fla. 1st DCA 1982); Universal Erectors, Inc. v. Murphy, 410 So. 2d 209 (Fla. 1st DCA 1982).4 One of the cases above cited, Housing by Vogue v. Caswell, is particularly instructive. There a dispute arose between claimant and the employer/carrier (E/C) regarding the amount of claimant’s average weekly wage (AWW). Becaus…
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Emmett H. Massie v. Univ. OF Fla. & Div. of Risk Mgmt., 570 So. 2d 963 (Fla. 1st DCA 1990)…); Southern Bell Telephone & Telegraph Co. v. Blackstock, 419 So. 2d 360 (Fla. 1st DCA 1982); Cleveland v. Everson, 415 So. 2d 763 (Fla. 1st DCA 1982); University Inns v. Davis, 413 So. 2d 128 (Fla. 1st DCA 1982); Universal Erectors, Inc. v. Murphy, 410 So. 2d 209 (Fla. 1st DCA 1982); McKenney v. School Board of Palm Beach County, 408 So. 2d 655 (Fla. 1st DCA 1981); City of West Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981); Heter v. Buning The Florist, 396 So. 2d 1201 (Fla. 1st DCA 1981); City of…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hall v. Seaboard Mar. Corp. & Fla. Indus. Comm'n, 104 So. 2d 384 (Fla. 1st DCA 1958)
- Sonny Boy's Fruit Co. v. Compton, 46 So. 2d 17 (Fla. 1950)
- City OF W. Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981)
- Beaty v. M & S Maint. Co., 124 So. 2d 868 (Fla. 1960)
- Poston Bridge & Iron, Inc. v. Soos, 292 So. 2d 20 (Fla. 1974)
- Fausto Padron v. Cabrera Vulcan Shoe Corp., 304 So. 2d 128 (Fla. 1974)
- Pope Assocs., Inc. v. Colbert Hopkins, 304 So. 2d 128 (Fla. 1974)