MONTGOMERY WARD/JEFFERSON, AETNA L & C, APPELLANTS,
v.
THEODORE WADE, APPELLEE
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Montgomery Ward and Aetna appealed a workers' compensation modification order that corrected the compensation rate from $288 to $228 per week and denied a credit for overpayments made under the incorrect rate. The court affirmed, holding that the deputy properly modified the order to correct an apparent clerical error and properly denied credit because the error was patent and the employer should have detected it with ordinary care.
The court held that the deputy properly modified the order pursuant to Florida Statutes section 440.28 to correct the apparent mistake in the compensation rate, and properly denied credit for the overpayments because the error was patent and visible on the face of the order, making it reasonable to expect the employer/carrier to have detected and corrected it with ordinary care before making the inflated payments.
[1] A workers' compensation deputy may modify a prior order to correct a mistake in a determination of fact, even after the order has been issued, if the issue is promptly br…
[2] A deputy may amend a workers' compensation order to correct a discrepancy between the stated findings and the decretal portion when the error is apparent on the face of t…
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Join FLexlaw to unlock all legal intelligence“This amendment was permissible pursuant to section 440.28, Florida Statutes, which allows modification upon a mistake in a determination of fact by the deputy.”
Establishes the statutory basis for the deputy's authority to modify the compensation rate to correct the clerical error.
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Join FLexlaw to unlock all legal intelligenceThe deputy issued a workers' compensation order awarding disability benefits with findings establishing a maximum compensation rate of $228 per week, …
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WENTWORTH, Judge.
Employer/carrier seek review of a workers’ compensation order by which the compensation rate established in a prior order was modified. Claimant cross-appeals. We find that the modification was appropriate, and that the deputy did not abuse his discretion in declining to allow employer/carrier a credit for payments made pursuant to the prior order. We therefore affirm the order appealed.
Claimant was awarded disability benefits by an order which addressed an average weekly wage issue. In reciting claimant’s position, which the deputy accepted, the order noted the corresponding maximum compensation rate of $228. However, in the decretal portion of the order benefits were awarded upon a compensation rate of $288. Claimant obtained a rehearing on other matters, but neither party advised the deputy as to the discrepancy with regard to the compensation rate.
Several months later employer/carrier did bring the issue to the deputy’s attention, by a motion seeking credit for overpayment. Employer/carrier indicated that past due compensation had been provided and current payments made in accordance with the $288 compensation rate, and sought credit for the amount by which these payments exceed the correct compensation rate of $228.
The deputy treated employer/carrier’s motion as one for modification. Conceding that, contrary to the findings in the body of the prior order, the compensation rate had been inaccurately recited in the decretal portion thereof, the deputy amended that portion of the order to conform with the maximum compensation rate of $228 established by the evidence recited and accepted in the order. This amendment was permissible pursuant to section 440.28, Florida Statutes, which allows modification upon a mistake in a determination of fact by the deputy. See City of Vero Beach v. Thomas, 388 So. 2d 1374 (Fla. 1st DCA 1980).
While the issue might have been presented to the deputy before the order became final, in the circumstances of this case the deputy was not precluded from subsequently addressing the issue. Unlike cases such as Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981), employer/carrier did not bypass the deputy and initiate an appellate proceeding challenging the compensation order before it became final. There is no indication that employer/carrier failed to promptly bring the matter to the deputy’s attention once it was discovered. In these circumstances the deputy was entitled to treat employer/carrier’s motion as one seeking modification, and amend the prior order to reflect the proper compensation rate.
Although amending the prior order, the deputy declined to allow any credit for excess payments made pursuant thereto, noting that this resulted from employer/carrier’s delay in detecting the inconsistency in the order and failure to file a timely motion for rehearing. Credit has been permitted where an overpayment resulted from a clerical error in circumstances where the court did not find a lack of due diligence by employer/carrier. See Marrero v. FPA Corp., 511 So. 2d 1008 (Fla. 1st DCA 1987).
But crediting is proper only when there is a reasonable basis for the overpayment. See Belam Florida Corp. v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981).
In the present case the error in the prior order was apparent from the face of the document. Employer/carrier clearly could have obtained a correction of the patent conflict in the terms of the order before making the mandated payments had they acted with ordinary care and diligence in ascertaining their responsibility under the order. The deputy was entitled to conclude that in this context a reasonable basis did not exist for the excess payments, and the request for credit was thus properly denied.
The order appealed is affirmed.
NIMMONS and MINER, JJ., concur.
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Citator
Cited By
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Rhea Carvell v. Loomis Armored & Underwriters Adjusting Serv. (Continental Loss Adjusting Service), 558 So. 2d 117 (Fla. 1st DCA 1990)…n overpayment resulted from a clerical error in circumstances where there has not been a lack of due diligence by the employer/carrier. However, crediting is proper only where there is a reasonable basis for the overpayment. Montgomery Ward v. Wade, 545 So. 2d 410, 411 (Fla. 1st DCA 1989). In Wade, the original compensation order required the carrier to pay benefits in excess of the maximum compensation rate, which the carrier did for several months before discovering the error. This court affirmed the judge…
Authorities Cited
- Acosta Roofing Co. & Lumbermens Mut. Cas. Co. v. Gussie Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981)
- Belam v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981)
- City OF Vero Beach & Royal Globe Ins. Co. v. Thomas, 388 So. 2d 1374 (Fla. 1st DCA 1980)
- Marrero v. FPA Corp. & Corporate Grp. Serv., Inc., 511 So. 2d 1008 (Fla. 1st DCA 1987)
- Alton Lee Jackson v. State, 511 So. 2d 1008 (Fla. 2d DCA 1987)