WELLCRAFT MARINE CORPORATION AND CRAWFORD AND COMPANY, APPELLANTS,
v.
JUDY A. TURNER, APPELLEE
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Estoppel by judgment precludes the employer/carrier from relitigating the issue of permanent impairment after it was determined in a prior unappealed wage-loss proceeding.
[1] An unappealed order awarding wage-loss benefits, which expressly found permanent impairment, precludes the employer/carrier from relitigating the issue of permanent impai…
[2] Compensation orders are governed by the principles of res judicata and estoppel, similar to judgments of courts.
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Join FLexlaw to unlock all legal intelligenceThe employer/carrier appealed an order awarding wage-loss benefits, arguing the claimant failed to prove permanent physical impairment. A prior hearin…
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[*865] NIMMONS, Judge.
The employer/carrier (E/C) appeals from the deputy commissioner’s order awarding wage-loss benefits. The E/C asserts that the deputy erred because the claimant failed to present evidence supporting a finding of a permanent physical impairment as required by Section 440.15(3)(b), Florida Statutes. The deputy, however, ruled that the claimant was not required to present such evidence because this was the subject of a prior wage-loss hearing which resulted in an unappealed order awarding wage-loss benefits.
The hearing resulting in the appealed order was the third wage-loss hearing held before the deputy commissioner. The first wage-loss hearing in April, 1981, resulted in an order denying the claim on the grounds that the claimant had not made an adequate job search. A subsequent wage-loss claim heard in October, 1981, resulted in an order awarding the claimant wage-loss benefits, the order expressly finding that the accident resulted in permanent impairment. The E/C did not appeal that order. Except to the extent modification is permitted by Section 440.28, Florida Statutes, deputies’ compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts. Power v. Joseph G. Moretti, Inc., 120 So. 2d 443 (Fla.1960); City of West Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981); compare Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982).
Although the statutory scheme governing a claimant’s entitlement to wage-loss benefits affords the employer/carrier the right to contest on appropriate grounds succeeding wage-loss claims, §§ 440.-15(3)(b), 440.185(10), and 440.20, Florida Statutes, there would be no justification for requiring the parties to relitigate the element of permanent impairment after the same has been determined in a wage-loss proceeding.
We hold that estoppel by judgment precludes the E/C from relitigating the issue of permanent impairment.
This, of course, does not mean that the E/C would be foreclosed from controverting the claim on the basis of an alleged change in the claimant’s condition in which case the E/C would bear the burden of proving such change in condition. The deputy’s order, after ruling that the claimant need not again prove permanent impairment, then construed the E/C’s notice to controvert as a petition for modification on the grounds of a change in condition pursuant to Section 440.28, Florida Statutes. The deputy’s order then correctly ruled that the E/C failed to prove such a change in the claimant’s condition.
The deputy commissioner’s order awarding wage-loss benefits is therefore AFFIRMED.
LARRY G. SMITH and JOANOS, JJ., concur.
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City OF Miami v. Simpson, 496 So. 2d 899 (Fla. 1st DCA 1986)…cerning wage-loss.1 We agree with appellant that the dc erred in applying res judicata regarding the issue of wage-loss. Although the doctrine of res judicata is generally applicable to workers’ compensation cases, Wellcraft Marine Corp. v. Turner, 435 So. 2d 864 (Fla. 1st DCA 1983), it has no relevancy to the facts at bar. The only item concerning wage-loss in the decretal portion of the 1983 order, item 2, did not award specific benefits.2 Since there was no wage loss award, the dc’s discussion of wage-los…
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Nw. Orient Airlines & Underwriters Adjusting Co. v. Gonzalez, 500 So. 2d 699 (Fla. 1st DCA 1987)…tention that the D/C was barred by the 1978 order from considering the compensability of the knee condition. While compensation orders are governed by the same principles of res judicata as are judgments of a court, Wellcraft Marine Corp. v. Turner, 435 So. 2d 864, 865 (Fla. 1st DCA 1983), an essential element of that doctrine is the identity of the thing sued for. Boston v. Budget Luxury Inns, 474 So. 2d 355, 357 (Fla. 1st DCA 1985). In 1977, Gonzalez sought permanent partial benefits for injuries to his rig…
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Boston v. Budget Luxury Inns, 474 So. 2d 355 (Fla. 1st DCA 1985)…tted by section 440.28, Florida Statutes, compensation orders are governed by the same principles of res judicata as are judgments of a court. Florida Mining & Materials v. Moore, 443 So. 2d 328 (Fla. 1st DCA 1983); Wellcraft Marine Corp. v. Turner, 435 So. 2d 864 (Fla. 1st DCA 1983). Claimant asserts that res judicata does not apply here because in the earlier claim she was seeking only a pool or a Jacuzzi and an exercycle for treatment purposes, while in the claim now under review she sought diagnosis and t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flesche v. Interstate Warehouse & U. S. Fid. & Guar. Co., 411 So. 2d 919 (Fla. 1st DCA 1982)
- Power v. Joseph G. Moretti, Inc., 120 So. 2d 443 (Fla. 1960)
- City OF W. Palm Beach v. Chisolm, 405 So. 2d 279 (Fla. 1st DCA 1981)