CLYDE JAMES BATTLE, APPELLANT,
v.
GENERAL SAND AND STONE AND NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLEES
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The court held that the employer/carrier could not seek modification of a prior order establishing the average weekly wage because they failed to appeal that order directly and did not demonstrate a mistake of fact.
[1] An employer/carrier cannot challenge a prior workers' compensation order establishing an average weekly wage unless there was a mistake of fact in the original determinat…
[2] Modification of a workers' compensation order based on a mistake in fact requires more than the presentation of different facts that might have produced a different resul…
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Join FLexlaw to unlock all legal intelligenceThe employer/carrier appealed an amended order changing the claimant's average weekly wage (AWW) and compensation rate. A prior order had established …
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PER CURIAM.
This cause is before us on appeal from an amended final workers’ compensation order dated November 30, 1984, changing claimant’s average weekly wage (AWW) from $550 per week to $136.67 per week, which has the effect of reducing claimant’s compensation rate from $126 per week to $82 per week. We reverse.
The deputy’s 1983 order established $550 as the AWW; thus, the appropriate procedure for the employer/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 different facts presented to the judge might have produced different results.” City of Vero Beach v. Thomas, 388 So. 2d 1374, 1376 (Fla. 1st DCA 1980). In the pretrial stipulation, the E/C claimed that the AWW was $505,1 while claimant contended his AWW was $975. Both sides stipulated that the compensation rate was $126, the appropriate rate under either claimed AWW. The deputy awarded the stipulated rate.
Thus, the E/C have waived the right to complain about the compensation rate, absent fraud, overreaching, misrepresentation, withholding of facts by an adverse party, or such element as would render the agreement void, City of Vero Beach, supra, factors not found by the deputy to be present in the instant case.
Accordingly, we reverse the amended final order and remand for reinstatement of the order of October 31, 1983.
BOOTH, C.J., and NIMMONS and ZEH-MER, JJ., concur. . Review of the record shows that the E/C failed to request that claimant produce his business records until after the 1983 order and that the E/C specifically raised the issue of AWW in the 1981 hearing and produced evidence to support their assertion that claimant’s AWW was $505.
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I.A.T.S.E. & Claims Ctr. v. Nesselroad, 534 So. 2d 709 (Fla. 1st DCA 1988)…85 was valid, binding, and controls the issue of claimant’s average weekly wage, and there being no suggestion or finding by the deputy of fraud, overreaching, misrepresentation, or concealment at the hearing below, Battle v. General Sand and Stone, 478 So. 2d 396 (Fla. 1st DCA 1985), City of Vero Beach v. Thomas, 388 So. 2d 1374 (Fla. 1st DCA 1980), the deputy could not vary the amount agreed to as an average weekly wage. Accordingly, on remand we direct that the order be amended to reflect an average weekly…
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Champlovier v. City OF Miami, 667 So. 2d 315 (Fla. 1st DCA 1995)…ember 9,1981, which recognized the stipulation, was conclusive on the issue of average weekly wages. In denying appellant’s motion to reopen the issue of average weekly wages, the judge of compensation claims cited Battle v. General Sand and Stone, 478 So. 2d 396 (Fla. 1st DCA 1985), Yovan v. Burdines, 81 So. 2d 555 (Fla.1955), and Plymouth Citrus Products Co-op v. Williamson, 71 So. 2d 162 (Fla.1954). These cases stand for the important but in-apposite 4 proposition that a final order awarding compensation…1 / 2
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Oakdell, Inc. v. Gallardo, 505 So. 2d 672 (Fla. 1st DCA 1987)…rd which in our opinion is not required by section 440.-28, when a motion to modify a prior com [*675] pensation order is grounded on fraud, and when it is filed within the applicable two-year limitation period. Cf. Battle v. General Sand and Stone, 478 So. 2d 396 (Fla. 1st DCA 1985), where this court reversed an order to modify the amount of average weekly wage (AWW), finding that the AWW in the order was based on a stipulated rate, and the e/c had waived the right to complain about the compensation rate, “a…
Authorities Cited
- City OF Hialeah & GAB Bus. Servs., Inc. v. Humberto Cascardo & Div. of Workers' Comp., 443 So. 2d 448 (Fla. 1st DCA 1984)
- City OF Vero Beach & Royal Globe Ins. Co. v. Thomas, 388 So. 2d 1374 (Fla. 1st DCA 1980)