GUY E. CLEVELAND, INDIVIDUALLY, AND D/B/A ROYAL SCOTSMAN INN, CONSORTIUM CONSTRUCTION COMPANY, CONSORTIUM MANAGEMENT COMPANY AND/OR SWANEE MOTEL ASSOCIATES, APPELLANTS,
v.
ALTON DARRELL EVERSON, LODGINGS, INC. AND ITS INSUROR, LUMBERMAN'S MUTUAL CASUALTY COMPANY, INC., AND AMERICAN STATES INSURANCE COMPANY, APPELLEES
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Workers' compensation appeal where appellants sought to vacate or modify prior workers' compensation orders. The appellate court affirmed the denial of the petition, rejecting numerous challenges to the deputy commissioner's authority, jurisdiction, and procedural rulings.
The court held that: (1) the deputy commissioner had authority despite not being appointed at the time of the hearing; (2) no continuance was required; (3) cancelling the second hearing was proper; (4) the judge of industrial claims had jurisdiction; (5) all prior orders were final; (6) no post-order modification relief was available because appellants offered no new evidence; (7) the attorney's fees order was final; (8) the finality of prior orders mooted the substantial evidence question; and (9) no due process violation occurred.
[1] A deputy commissioner has authority to enter an order if appointed prior to the entry of the order, even if not appointed at the time of the hearing, absent a showing of…
[2] A trial court does not abuse its discretion by denying a continuance when the hearing was scheduled without objection.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact. The petition must be supported with new evidence. It is not available to relitigate previously decided questions.”
Establishes the legal standard for post-order modification relief in workers' compensation cases and limits the scope of such relief
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Join FLexlaw to unlock all legal intelligenceA workers' compensation claim was filed and amended before a deputy commissioner. The deputy commissioner, though not appointed at the time of the hea…
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MILLS, Judge.
Appellants appeal from a workers’ compensation order denying their petition to vacate or modify earlier orders. We affirm.
We will consolidate the thirteen issues raised by appellants in their ninety-three page brief and restate them for brevity’s sake.
1. Did the deputy commissioner have authority to hold the hearing? Yes.
Although the deputy was not appointed at the time of the hearing, he was appointed prior to entry of his order. He was a deputy within the district where the claim arose and merely replaced the other deputy who recused himself. Additionally, appellants have not claimed or shown prejudice.
2. Should the deputy have granted a continuance? No. The hearing was scheduled without objection. No abuse of discretion has been shown.
3. Should the deputy have cancelled the second hearing? Yes. The deputy did not abuse his discretion in cancelling the second hearing because he correctly concluded that as a matter of law it was unnecessary.
4. Did the judge of industrial claims have jurisdiction over appellants in the previous hearings? Yes.
The filing of the amended claim with the deputy, rather than the Division, is sufficient. Section 440.19(1), Florida Statutes (1977). Additionally, appellants had actual notice of the hearings from a judge of industrial claims and decided not to participate.
5. Are any of the prior orders final? Yes, all.
The prior orders are final. The failure of the JIC’s secretary to date the certificates of service does not affect the finality of the orders. No assertion is made that the orders were not promptly mailed or received.
6. What post-order relief is available? None here.
Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact. The petition must be supported with new evidence. It is not available to relitigate previously decided questions. Cumulative evidence or evidence available at the original proceeding cannot support a petition to modify, University Inns v. Davis, 413 So. 2d 128 (Fla. 1st DCA) 1982; McKenney v. School Board of Palm Beach, 408 So. 2d 655 (Fla. 1st DCA 1981). Appellants offer no new evidence except on the coverage issue and that was available to them at the December 1978 hearing. Appellants should not be allowed to use a petition for modification to avoid all consequences of not appearing. They had their chance.
7. What is the status of the 15 February 1979 order setting attorney’s fees? Final.
The order of 15 February 1979 is obviously final. No guidance is required.
8. Were the prior orders supported by competent substantial evidence? Moot.
The orders of 18 January and 15 February 1979 were not appealed and are now final.
9.Has due process been violated? No. Appellants were not denied due process. They were properly and promptly notified and given the opportunity to participate in all proceedings or take appropriate action. When appellants failed to take action, it was because they opted to take no action.
The order appealed is affirmed.
LARRY G. SMITH and SHAW, JJ., concur.
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E. Airlines & GAB v. Griffin, 654 So. 2d 1194 (Fla. 1st DCA 1995)…DCA 1984); Everwear Prods. Co. v. Holloway, 422 So. 2d 1020 (Fla. 1st DCA 1982); Housing by Vogue v. Caswell, 421 So. 2d 556 (Fla. 1st 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. Ther…
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Emmett H. Massie v. Univ. OF Fla. & Div. of Risk Mgmt., 570 So. 2d 963 (Fla. 1st DCA 1990)…Everwear Products Co. v. Holloway, 422 So. 2d 1020 (Fla. 1st DCA 1982); Housing By Vogue v. Caswell, 421 So. 2d 556 (Fla. 1st DCA 1982); 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 Wes…
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City OF ST. Augustine & Travelers Ins. Co. v. Allen, 424 So. 2d 939 (Fla. 1st DCA 1983)…So. 2d 783 (Fla. 1st DCA 1982). Our conclu [*941] sion is bolstered by the fact that no new evidence was introduced at the petition for modification hearing to support appellee’s claim of mistake in a determination of fact. In Cleveland v. Everson, 415 So. 2d 763 (Fla. 1st DCA 1982), we stated: Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact. The petition must be supported with new evidence. It is not available to relitigate previously decided questio…
Authorities Cited
- McKENNEY v. Sch. Bd. OF Palm Beach Cnty., 408 So. 2d 655 (Fla. 1st DCA 1981)
- Univ. Inns & Ins. Co. of N. Am. v. Belva Joyce Davis, 413 So. 2d 128 (Fla. 1st DCA 1982)