GATOR SHOE CORPORATION, AND GALLAGHER BASSETT INSURANCE COMPANY, APPELLANTS,
v.
DARINA RIVERO MUNGIA AND DIVISION OF WORKERS' COMPENSATION, APPELLEES
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Affirmed wage loss benefits award where evidence of work search was adequate and res judicata does not bar relitigation of work search issues in successive wage loss claims absent the statutory constraints applicable to permanent impairment determinations.
Res judicata does not bar relitigation of work search issues in successive wage loss claims, and the evidence of work search presented was competent and substantial.
[1] Res judicata does not bar relitigation of work search and causal connection issues in successive wage loss claims, though such constraints apply to adjudications of permanent impairment under Fla. …
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Join FLexlaw to unlock all legal intelligence“no such rigidity applies in the determination of work search and other causal connection issues in successive wage loss claims”
Court distinguishing work search issues from permanent impairment determinations, which are subject to res judicata constraints under section 440.28
An employer and carrier appealed an award of wage loss benefits from April 1985 through June 1986, contending there was insufficient evidence of work …
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WENTWORTH, Judge.
This appeal by employer/carrier controverts an award of wage loss benefits from April 1985 through June 1986, based on lack of competent substantial (and specific) evidence of work search. We affirm because the evidence recited in the order is adequate in the context before the deputy, and we find some merit in appellee’s frivolity argument based on the closely parallel evidence reviewed in earlier orders, and the deputy’s finding that “none of the circumstances have changed between the time when the claimant was first awarded wage loss benefits and the subsequent award of wage loss benefits both of which were affirmed on appeal.” Appellee erroneously contends, however, and the deputy erred in finding, that res judicata bars relitigation of the work search issues here in question absent “proof of a change in condition or a material mistake of fact” under section 440.28, Florida Statutes. While a new adjudication as to permanent impairment is subject to those constraints, Wellcraft Marine Corp. v. Turner, 435 So. 2d 864 (Fla. 1st DCA 1983), no such rigidity applies in the determination of work search and other causal connection issues in successive wage loss claims. Miller v. Richard Cole Roofing, 510 So. 2d 1018 (Fla. 1st DCA 1987).
We affirm, however, because the order otherwise indicates the deputy did properly evaluate anew the evidence presented as to the current period, and did not limit his consideration to res judicata and modification principles.
MILLS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelson & Co. & Executive Risk Consultants, Inc. v. Holtzclaw, 566 So. 2d 307 (Fla. 1st DCA 1990)…rst claim for wage loss benefits. As is apparent from the deputy’s first order, the claimant simply failed in his proof of a permanent impairment.” Moore at 329 (citations omitted). In contrast, the wage loss claimant in Gator Shoe Corp. v. Mungia, 510 So. 2d 1192 (Fla. 1st DCA 1987), relied on Well-craft to argue that the employer/ carrier was foreclosed by previous wage loss orders from arguing an inadequate work search. This court disagreed, noting that, while a new adjudication as to permanent impairment…
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Archer v. State, 681 So. 2d 296 (Fla. 1st DCA 1996)…lacement are identical to the criteria for initial placement, § 394.467(4)(a), Fla. Stat. (1995), and the parties may be viewed as the same in both proceedings, the lapse of time created a different “cause of action.” Cf. Gator Shoe Corp. v. Mungia, 510 So. 2d 1192 (Fla. 1st DCA 1987). Assuming, without deciding, that an administrative determination may be entitled to res judicata effect in a de novo judicial proceeding in some circumstances, see School Bd. of Seminole County v. Unemployment Appeals Comm’n, 52…
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Shelfer v. Dairymen, Inc., 543 So. 2d 246 (Fla. 1st DCA 1989)…fits for a subsequent period. Miller v. Richard Cole Roofing, 510 So. 2d 1018 (Fla. 1st DCA 1987). Thus, he maintains that it was error for the dc to treat the later claim as a modification of the earlier claim. Citing to Gator Shoe Corp. v. Mungia, 510 So. 2d 1192 (Fla. 1st DCA 1987), he also asserts error in the dc’s reliance on the doctrine of estoppel to deny the claim here in issue contending that estoppel does not apply to causal connection issues in successive wage loss claims. Citing Wellcraft Marine…
Authorities Cited
- Wellcraft Marine Corp. & Crawford & Co. v. Turner, 435 So. 2d 864 (Fla. 1st DCA 1983)
- Miller v. Richard Cole Roofing & Cigna Cos., 510 So. 2d 1018 (Fla. 1st DCA 1987)