GUS STEPHENS DRYWALL AND EXECUTIVE RISK CONSULTANTS, INC., APPELLANTS,
v.
WILLIE DURR, APPELLEE

Fla. 1st DCA | 1990-11-06
No. 89-3078
WENTWORTH and WIGGINTON, JJ., concur.
569 So. 2d 844 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 4 cases

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Synopsis

An employer/carrier appeals a workers' compensation order requiring payment for an injured worker's treatment by an unauthorized physician. The court reversed, holding that a stipulation agreed to by both parties that made the worker solely responsible for costs from the unauthorized physician should be enforced absent fraud, overreaching, misrepresentation, or changed circumstances.


Holding

A stipulation between parties in a workers' compensation case should not be ignored absent a showing of fraud, overreaching, misrepresentation, or changed circumstances necessitating modification. The trial court's order awarding payment for unauthorized physician treatment was deficient because it did not explain why the stipulation should not be binding, and therefore must be reversed and remanded.


Headnotes

[1] A stipulation between parties in a legal proceeding should not be disregarded absent a showing of fraud, overreaching, misrepresentation, or a change of circumstances nec…

[2] An award for medical bills of an unauthorized physician is erroneous when the claimant has previously stipulated to be solely responsible for such costs.

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Key Quotes

“A stipulation should not be ignored absent a showing of fraud, overreaching, or misrepresentation, Steele v. A.D.H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965), or a showing of a change of circumstances necessitating an order that a stipulation be modified.”

Establishes the legal standard for when a stipulation may be disregarded in workers' compensation cases

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Facts & Procedural History

The claimant suffered a back injury in an industrial accident and was deemed permanently and totally disabled. In November 1988, the employer/carrier …

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Opinion of the Court
SMITH, Judge.

SMITH, Judge.

Appellant, the employer/carrier, challenges an order awarding payment of medical bills of an unauthorized physician. We reverse.

Appellee, the claimant below, injured his back in an industrial accident, and was determined to be permanently and totally disabled. In June 1987, appellee began receiving palliative care from Dr. Dolce, M.D. In November 1988, appellant and appellee executed a stipulation whereby the appellant agreed to pay attorney fees, costs and outstanding medical charges. Appellant also agreed to reimburse appellee for certain out-of-pocket medical expenses. The parties stipulated that appellee would be solely responsible for the cost of care by a non-authorized physician and that Dr. Dolce was not an authorized physician. The stipulation was ratified by the JCC. Though under the care of other authorized physicians, appellee returned to Dr. Dolce in February 1989. In June 1989, the principal treating physician, Dr. Fishman, informed the appellee he had nothing else to offer him. Appellant refused to authorize Dr. Dolce, and the appellee rejected the five orthopedists offered by appellant. Thereafter, appellee filed a claim for payment of Dr. Dolce’s medical bills, authorization for future care by Dr. Dolce, costs, interests and attorney fees. Following a hearing, the JCC ordered payment of Dr. Dolce’s bills from June 1989 until the date of the order. The remainder of the claim was denied.

On appeal, appellant argues the award was erroneous because appellee waived his right to see Dr. Dolce by entering into the stipulation. Moreover, there being no demonstrated emergency, the appellee is not entitled to reimbursement for treatment by an unauthorized physician regardless of the stipulation.

The JCC did not find that appellee sought Dr. Dolce’s care in an emergency, nor did she explain why the appellee should not be bound by the stipulation. A stipulation should not be ignored absent a showing of fraud, overreaching, or misrepresentation, Steele v. A.D.H. Building Contractors, Inc., 174 So. 2d 16 (Fla.1965), or a showing of a change of circumstances necessitating an order that a stipulation be modified. See, Fuller Lumber Co. v. Parler, 390 So. 2d 709 (Fla.1980). In the absence of a finding in the order, based on the record, explaining why the stipulation is not binding, the order for payment for treatment by Dr. Dolce is deficient, and must be reversed. We therefore reverse the order appealed and remand for further proceedings and entry of an amended order either enforcing the stipulation regarding treatment by Dr. Dolce, or setting forth reasons why the stipulation between the parties should not be given effect.

REVERSED and REMANDED.

WENTWORTH and WIGGINTON, JJ., concur.


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Cited By

  • Marin v. Aaron's Rent TO OWN and Broadspire, 53 So. 3d 1048 (Fla. 1st DCA 2010)
    …t.” (internal citations and quotation marks omitted)); Jacobs v. Volker Stevin Constr., 609 So. 2d 132, 133 (Fla. 1st DCA 1992) (JCC may void or modify a stipulation founded on fraud, misrepresentation, or concealment); Gus Stephens Drywall v. Durr, 569 So. 2d 844, 845 (Fla. 1st DCA 1990) (A stipulation should not be ignored absent showing of fraud, overreaching, or misrepresentation). Although the regular course of litigation commonly requires parties to amend or supplement claims, defenses, objections, or…
  • Champlovier v. City OF Miami, 667 So. 2d 315 (Fla. 1st DCA 1995)
    …ion was entered. Fawaz v. Florida Polymers, 622 So. 2d 492 (Fla. 1st DCA 1993); Williams v. Kraft, Inc., 585 So. 2d 1120, 1121 (Fla. 1st DCA 1991); Myrick v. Gitlard Grove Serv., 511 So. 2d 655, 656 (Fla. 1st DCA 1991); Gus Stephens Drywall v. Durr, 569 So. 2d 844 (Fla. 1st DCA 1990); Howard Johnsons v. Pineda, 560 So. 2d 336 (Fla. 1st DCA 1990); I.A.T.S.E. v. Nesselroad, 534 So. 2d 709 (Fla. 1st DCA 1988); City of Vero Beach v. Thomas, 388 So. 2d 1374 (Fla. 1st DCA 1980). . Cf. Travelers Ins. Co. v. VES Ser…

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