CITY OF HIALEAH AND GAB BUSINESS SERVICES, INC., APPELLANTS,
v.
HUMBERTO CASCARDO & DIVISION OF WORKERS' COMPENSATION, APPELLEES
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.
The court held that the award of temporary total disability benefits was proper, but the increase in the compensation rate was not. The issue of work search was not preserved for appeal.
[1] An issue is not preserved for appellate review if it was not raised in the lower tribunal.
[2] A claim for benefits that could have been made at the time of an earlier proceeding is barred by its omission from that proceeding.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceClaimant suffered a compensable knee injury and received TTD benefits. A prior order denied further benefits, finding maximum medical improvement. Cla…
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.
Explore caselaw by topic → Browse Due Process Principles cases and more on FLexlaw
WENTWORTH, Judge.
The employer and its servicing agent appeal an order which modified a February 20, 1981 order, and awarded temporary total disability (TTD) benefits from July 9, 1981, through February 7, 1982. Appellants do not contest the existence of grounds supporting modification, but argue that the award of TTD was improper on procedural and evidentiary grounds. In addition, they argue that the deputy commissioner erred in increasing claimant’s compensation rate from that which had been paid previously. We affirm the TTD award but reverse that portion of the order increasing claimant’s compensation rate.
Claimant suffered a compensable accident on May 29, 1980, in which his right knee was injured.1 The employer voluntarily paid temporary total disability benefits (TTD) through July 14, 1980, at the rate of $157.66 per week. On August 29, 1980, a claim for further temporary benefits and medical treatment was filed. That claim was denied on February 20, 1981, by an order finding that claimant had reached maximum medical improvement (MMI) with no residual impairment.
On December 8, 1981, another final order was entered in which further medical treatment was awarded. That order states that a pretrial conference was held on May 26, 1981, and a hearing was held on August 6, 1981. It does not refer specifically to a petition for modification, nor does it find a change of condition other than that which is implicit in an award of further remedial medical treatment after the date of MMI previously determined.
On February 8, 1982, claimant was hospitalized by order of the authorized doctor, and the employer reinstituted TTD payments at the rate previously applied. On February 16, 1982, claimant filed a petition for modification of the February 1981 order which had denied his claim for temporary benefits. The order granting that petition awarded claimant TTD benefits from July 9, 1981, through February 7, 1982, at a compensation rate of $168.67; the increase representing the inclusion of the employer’s contribution to claimant’s health insurance premiums.
Appellants argue that the award of TTD was improper because there was insufficient evidence of a good faith work search. However, appellants did not raise this issue below and did not cross examine claimant when he testified as to this issue. The issue therefore was not preserved for our review. Alternatively, appellants argue that the claim for TTD was barred because it “should have been made a part of the claim resulting in the order of December 8, 1981.”2 The latter contention has superficial merit because any claim which could have been made, i.e., was mature at the time of an earlier proceeding, will be barred by its omission. Winkel v. Grand Union Stores, 436 So. 2d 351 (Fla. 1st DCA 1983); Hunt v. International Minerals and Chemicals Corp., 410 So. 2d 640 (Fla. 1st DCA 1982). However, the record in this case does not show that the claim for TTD benefits for the period in question was mature at the time of the proceedings which resulted in the order for further medical treatment. In fact, the only evidence of those proceedings is the order itself. As noted, that order states that a pre-trial conference was held in May, at which presumably the issues to be litigated were set. Any claim which had matured at that time would ordinarily be barred by an ensuing final order, under the decisions cited. However, a claim for TTD benefits commencing in July could not have been made at that time3 and any attempt to supplement the claim after the pre-trial conference would have required consideration of the due process principles discussed in Winkel. In the seven-month time span between the date of the pre-trial conference and the date of the order, a claim for TTD benefits might, of course, have been raised. We will not, however, assume such to be the case in the absence of record evidence so indicating.4
As to claimant’s average weekly wage, it is clear that any claim pertaining to the rate then used by the carrier was necessarily matured and could have been presented at the time of the proceedings which resulted in the order of February 1981. If the wage issue was urged at that time and the deputy failed to rule on it, claimant’s remedy was by review of that order; if he neglected to question the rate at which compensation had been paid, such a claim is generally barred thereafter. Hunt, supra. The increased rate awarded was not based on a mistake of fact, newly discovered evidence, or other superseding ground. The deputy therefore erred in assigning claimant a greater AWW and ordering reimbursement for the benefits which had earlier been paid at the lower rate.
That portion of the order increasing claimant’s compensation rate and ordering reimbursement for the benefits paid at the lower rate is reversed. The order is affirmed in all other aspects.
NIMMONS and ZEHMER, JJ., concur. . Claimant had suffered an earlier injury while working for the same employer, who was then covered by a different workers' compensation insurance carrier. However, issues pertaining to the effect of that accident on claimant’s present condition are not involved in this appeal.
. Although the issue of the timeliness of the present claim is expressly raised by appellants, we have received no real analytical assistance on the question from either party.
. If the order on appeal had awarded temporary benefits for months prior to May 1981, appellants’ argument would have apparent validity.
. Appellant has the burden of providing such parts of the record as are necessary to support its contentions on appeal. Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brantley v. Allen, 538 So. 2d 1338 (Fla. 1st DCA 1989)…1982). In the instant case, however, the claim for increased AWW appears to have been based on newly-discovered evidence that claimant’s earnings included fringe benefits in the form of group insurance benefits. (Compare City of Hialeah v. Cascardo, 443 So. 2d 448 at 450 (Fla. 1st DCA 1984), in which this court reversed an order increasing claimant’s AWW and comp rate on the basis that the issue was mature at an earlier proceeding and was not based on “a mistake of fact, newly discovered evidence, or other su…
-
Battle v. Gen. Sand & Stone & Nationwide Mut. Ins. Co., 478 So. 2d 396 (Fla. 1st DCA 1985)…carrier (E/C) to challenge that determination was through direct appeal. Since they did not file a timely appeal, the E/C cannot now go back and obtain relief unless there was a mistake of fact on the part of the deputy. City of Hialeah v. Cascardo, 443 So. 2d 448 (Fla. 1st DCA 1984). Section 440.28, Florida Statutes (1975), allows a modification based upon “a mistake in the determination of a fact.” This has been interpreted to mean “relief by modification for mistake cannot be granted merely because differe…
-
Chamberlain v. Chamberlain, 588 So. 2d 20 (Fla. 1st DCA 1991)…hese rules shall be on the ... appellant.” If the record is insufficient to demonstrate reversible error, the case must be affirmed. JOA Corp. v. Lamerica Realty Co. of Miami, 435 So. 2d 972 (Fla. 3d DCA 1983); see also, City of Hialeah v. Cascardo, 443 So. 2d 448 (Fla. 1st DCA 1984). Because the hearing which resulted in the revocation of rehabilitative alimony was not recorded, there is no way to know what evidence was presented or which issues are preserved; and there is no basis on which to find the trial…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hunt v. Int'l Minerals & Chem. Corp., 410 So. 2d 640 (Fla. 1st DCA 1982)
- Marlin Conner and Otelia Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977)
- Winkel v. Grand Union Stores & Crawford & Co., 436 So. 2d 351 (Fla. 1st DCA 1983)