ROSA LEE HALL, APPELLANT,
v.
CITY OF JACKSONVILLE AND TRAVELERS INSURANCE COMPANY, APPELLEES

Fla. 1st DCA | 1983-12-28
No. AS-99
WENTWORTH and ZEHMER, JJ., concur.
443 So. 2d 326 Florida District Court of Appeal, First District (1983) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Rosa Lee Hall appealed a workers' compensation deputy commissioner's order denying her petition for modification to increase her permanent disability benefits from 20% PPD to PTD or a higher PPD percentage. The appellate court affirmed the denial, finding that Hall failed to demonstrate any change in her condition or wage earning capacity since the original 1978 award.


Holding

The court affirmed the denial of modification, holding that Hall failed to establish any change in condition, either physical or in wage earning capacity, since the original 1978 hearing. The court reasoned that Hall's own evidence affirmatively showed no change in her employability or wage earning capacity, and therefore the statutory requirement of 'change in condition' was not satisfied.


Headnotes

[1] A petition for modification of a workers' compensation order requires proof of a change in condition, which can include a change in wage-earning capacity even if the phys…

[2] A claimant seeking modification of a workers' compensation order must demonstrate a change in employability or wage-earning capacity since the initial hearing.

Previewing 2 of 4 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

Key Quotes

“To construe Section 440.28 to permit modification of the first order under the evidence which was presented to the deputy in this case would, in our view, render nugatory the legislative standard of 'change in condition.'”

Establishes the core holding that the statutory 'change in condition' requirement has substantive meaning and cannot be satisfied where claimant's own evidence shows no change

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Hall was originally awarded 20% PPD in 1978, with 10% attributable to surgery from a compensable accident and 10% attributable to obesity. The origina…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

Hall appeals the deputy commissioner’s order denying her petition for modification asserting entitlement to permanent total disability (PTD) or a greater percentage of permanent partial disability (PPD) benefits than the 20% PPD awarded in the original order entered March 9, 1978. We affirm.

In the modification proceedings, Hall asserted that there had been a change of condition under Section 440.28, Florida Statutes, because her disability1 had changed since the original hearing. The principal evidentiary predicate presented by Hall was her work search conducted prior to the second hearing and testimony of a vocational rehabilitation expert that she was unemployable.

The deputy’s order denying the petition is brief and is set forth as follows:

THIS CAUSE having come on for hearing, the undersigned finds:
1. The claim was predicated on a petition for modification which was predicated in turn on an alleged change of condition which was predicated in turn on a recent job search.

2. The prior Order, however, was not decided on the basis of the adequacy or inadequacy, presence or absence of a job search. Indeed the prior Order recognizes that Claimant has a large disability. Presumably such a disability would make Claimant’s future employment difficult or impossible. The prior Order, however, turned on the fact that only a fraction of Claimant’s physical disability had been shown to be related to the accident. The rest of her disability arose after the accident.

3. Because of the foregoing, the claim should be denied.

Whereupon, it is, therefore,

ORDERED AND ADJUDGED that the claim is denied.

The initial 1978 order awarded 20% PPD, 10% of which was attributable to the surgery necessitated by the compensable accident and 10% of which was attributable to the effects of obesity. That order went on to recite, in part:

9. Claimant doubtless has a much greater disability, which disability is in fact increasing; because this is due to a degenerative arthritic condition which was not shown to be connected to the accidents.

10. Claimant was not shown to have sustained a loss of wage earning capacity in excess of 20% based on the residuals of the surgical procedure augmented by the obesity.

After close examination of the record in this case, we have been unable to find any evidence indicating any change in condition either in terms of the claimant’s physical condition or wage earning capacity. We recognize that a Section 440.28 change in condition should be construed so as to encompass a change in wage earning capacity even though the claimant’s physical condition remains unchanged and even though the original award was based on physical impairment and no economic loss. See DuPont Plaza Hotel v. Schiffman, IRC Order 2-2326 (1973), cert. denied, 291 So. 2d 5 (Fla.1974), and Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982). However, in the case at bar, no effort was made to demonstrate that claimant’s employability or wage earning capacity was any different than it was at the time of the initial hearing or that the loss was attributable in any different proportion to compensable or noncompensable causes. The testimony of both the claimant and her vocational rehabilitation expert was that claimant’s employability was the same at the time of the second hearing as it was when the first hearing was held. Further, appellant states in her brief that at the second hearing, “claimant presented evidence that she was no more able to engage in employment in the open labor market then than she had been at the time of the first hearing.”

To construe Section 440.28 to permit modification of the first order under the evidence which was presented to the deputy in this case would, in our view, render nugatory the legislative standard of “change in condition.” We do not believe that the court in Flesche intended to extend the meaning of “change in condition” to include a situation where, as here, the claimant’s own evidence affirmatively showed there was no change of condition either in terms of physical condition or wage earning capacity.

The order denying claimant’s petition for modification is AFFIRMED.

WENTWORTH and ZEHMER, JJ., concur. . Section 440.15(3)(u), Florida Statutes (1977), provides that "disability" means either physical impairment or diminution of wage earning capacity, whichever is greater.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • City OF Miami v. Janies Knight, 510 So. 2d 1069 (Fla. 1st DCA 1987)
    …did not affect his performance, and that the position was not created or adjusted for him nor was it “sheltered” employment, he granted the City’s petition for modification, holding that Knight was no longer PTD, citing Hall v. City of Jacksonville, 443 So. 2d 326 (Fla. 1st DCA 1983) (a “change in condition” sufficient to modify PTD can be found from a change in wage-earning capacity even though physical condition remains unchanged). The D/C did not specify a date other than that of the final order on which K…
  • …ese findings were not appealed by claimant and became the law of the case, subject to modification pursuant to § 440.28, Fla.Stat. (1981). Cf. McCandless v. M.M. Parrish Construction, 449 So. 2d 830 (Fla. 1st DCA 1984); Hall v. City of Jacksonville, 443 So. 2d 326 (Fla. 1st DCA 1983). Although the earlier order did not establish claimant’s right to permanent total disability benefits, the deputy properly relied on it in his subsequent order as establishing the specific issues ruled upon, such as causation, co…
  • Emmett H. Massie v. Univ. OF Fla. & Div. of Risk Mgmt., 570 So. 2d 963 (Fla. 1st DCA 1990)
    …lized at the time the first order was entered. Claimant’s testimony, while potentially relevant to the claimed mistake of fact, does not prove a change in condition sufficient to require modification of the prior order. Hall v. City of Jacksonville, 443 So. 2d 326 (Fla. 1st DCA 1983). Claimant’s contention that he sufficiently proved a mistake in a determination of fact that required modification is more difficult to resolve. The deputy commissioner, in his February 1984 order, found that claimant was perman…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw