GREG A. HALPHEN, APPELLANT,
v.
WESTERN CONTRACTING CORP. ET AL., APPELLEES
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An employee appeals a workers' compensation order vacating a settlement agreement. The court affirmed the vacatur, holding that the prior settlement order was not final under Florida law and the deputy had authority to reconsider it based on jurisdictional concerns raised by the claimant's subsequent Jones Act suit.
The court affirmed the vacatur order, holding that the prior settlement order had not become final under § 440.25(4)(f) because no appeal had been taken, and the deputy acted within his authority in vacating it. The claimant's pending Jones Act claim presented reasonable grounds for reconsideration because § 440.09(2) makes the Jones Act a jurisdictional matter in workers' compensation cases.
[1] A workers' compensation order approving a joint petition settlement is not a final order if it has not yet become final under the terms of § 440.25(4)(f), Florida Statute…
[2] A deputy commissioner has the authority to vacate a prior order approving a settlement agreement when issues of mutual mistake or misrepresentation regarding subject matt…
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 intelligence“The deputy acted within his authority in vacating the prior order in these circumstances.”
Establishes the core holding that the deputy had authority to reconsider and vacate the settlement order.
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Join FLexlaw to unlock all legal intelligenceClaimant Halphen and employer/carrier agreed to a joint petition settlement in a workers' compensation matter. Nineteen days after an order approving …
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WENTWORTH, Judge.
Claimant appeals a workers’ compensation order granting employer/carrier’s motion to vacate an order entered 19 days earlier approving a joint petition settlement. We affirm because the prior order had not become a final order under the terms of § 440.25(4)(f), Florida Statutes (1979), and no appeal had been taken. The deputy acted within his authority in vacating the prior order in these circumstances. Mills v. Laris Painting Co., 125 So. 2d 745 (Fla.1961).
The deputy determined that the order should be set aside “in order to preserve the rights of the parties . .. and a further hearing scheduled for the purpose of considering the issues raised by the Motion to Vacate.” Those issues related to alleged mutual mistake or misrepresentation by the claimant as to subject matter jurisdiction in the settlement proceeding, because of the claimant’s filing of a “Jones Act” suit after the settlement hearing and before the entry of the order approving settlement based on the same accident. Section 440.09(2) provides that “no compensation shall be payable ... [to] any employee covered by . . . the Jones Act.” This provision is construed to be jurisdictional in nature, Habrew Maritime International v. Williams, IRC Order 2-3673 (Jan. 31, 1979), and the claimant’s pending Jones Act claim in the present case appears to be a reasonable ground for the deputy to reconsider his prior order approving the settlement agreement. For standards applicable to final settlement orders see East v. Pensacola Tractor, 384 So. 2d 156 (Fla. 1st DCA 1980), cert. den., 384 So. 2d 159 (Fla.1980), and Morgan Yacht v. Edwards, 386 So. 2d 883 (Fla. 1st DCA 1980).
We note that the vacating order was entered after a hearing held with less than 15 days’ notice. While § 440.25(3)(a) requires 15 days’ notice, the deputy has discretion to schedule a hearing on shorter notice in appropriate circumstances. See Lundy’s Market Inc. v. Wexler, IRC Order 2-3739 (March 20, 1979). Claimant’s appearance at and participation in the hearing, without raising the notice issue, indicates waiver and further precludes consideration of the issue on appeal. Poinciana Village v. Sustack, IRC Order 2-3676 (January 31,1979); Patterson v. Carnegie, 9 FCR 368 (1976), cert. dismissed 336 So. 2d 600 (Fla.1976).
The order appealed is affirmed.
JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.
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Citator
Cited By
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Skinner v. Burnup & Sims & Crawford & Co., 422 So. 2d 1076 (Fla. 1st DCA 1982)…Electrical Contractors v. Marthens, et al., 417 So. 2d 700 (Fla. 1st DCA 1982); The Wash House v. Tucker, 413 So. 2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So. 2d 836 (Fla. 1st DCA 1982); Halphen v. Western Contracting Corp., 389 So. 2d 1254 (Fla. 1st DCA 1980). ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.…
Authorities Cited
- Morgan Yacht Corporation/Beatrice Foods & Gallagher Bassett Ins. Co. v. Edwards, 386 So. 2d 883 (Fla. 1st DCA 1980)
- Mills v. Laris Painting Co., 125 So. 2d 745 (Fla. 1960)
- East v. Pensacola Tractor & Equip. Co., Inc., 384 So. 2d 156 (Fla. 1st DCA 1980)
- East v. Pensacola Tractor & Equip. Co., Inc., 384 So. 2d 159 (Fla. 2d DCA 1980)