CARROL D. PIGG, APPELLANT,
v.
BALDERSON, INC., APPELLEE
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In a workers' compensation appeal, the First District Court of Appeal affirmed a Judge of Compensation Claims' (JCC) order denying permanent total disability (PTD) benefits to Carrol D. Pigg, who had previously had a PTD petition denied in 2001 and failed to appeal or file a timely modification petition before refiling in 2005.
The court affirmed the JCC's order denying PTD benefits on the grounds that the 2005 petition was barred by res judicata, and alternatively, that even if viewed as a modification petition under section 440.28, it was untimely because it was filed more than two years after the prior JCC order.
[1] A prior judgment on the merits between the same parties on the same cause of action is conclusive as to all matters that were or could have been litigated.
[2] A petition for modification of a workers' compensation order must be filed within two years of the last payment of compensation or within two years of the mailing of an o…
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Join FLexlaw to unlock all legal intelligence“A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in the action.”
Establishes the res judicata doctrine barring Pigg's second PTD petition based on the 2001 order.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePigg injured his right shoulder on August 24, 1998, while working for Balderson, Inc. In 2001, the JCC denied his initial PTD petition, which Pigg did…
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PER CURIAM.
In this workers’ compensation appeal, claimant, Carrol D. Pigg, appearing pro se, appeals an order of the Judge of Compensation Claims (JCC) which denied his petition for permanent total disability (PTD) benefits filed on May 21, 2005. For the reasons that follow, we affirm.
Claimant was working for Balderson, Inc., appellee, when he injured his right shoulder on August 24, 1998. Claimant, through an attorney, filed a petition for PTD benefits. On December 21, 2001, the JCC entered an order denying PTD benefits. Claimant did not appeal this order. In December 2003, through a second attorney, claimant filed a new petition for PTD benefits which was dismissed. No petition for modification demonstrating any change of circumstances has been filed.
On May 21, 2005, claimant filed a pro se petition seeking PTD benefits. At the final hearing on this petition, claimant raised the same facts presented with respect to the 2001 petition and sought to introduce documents he asserted should have been presented at his first merits hearing. On the employer’s objection, the JCC ruled that this new evidence could not be admitted, and concluded that claimant’s 2005 petition was barred by the doctrine of res judicata. We agree with the JCC that claimant’s petition is barred by res judica-ta. As the Florida Supreme Court stated in Florida Department of Transportation v. Juliano, 801 So. 2d 101, 105 (Fla.2001)(emphasis in original)(quoting Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla.1984)):
A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in the action.
Section 440.28, Florida Statutes (1997), does allow any party in interest to file a petition for modification “on the ground of a change in condition or because of a mistake in a determination of fact.” This petition, however, must be filed “prior to 2 years after the date of the last payment of compensation pursuant to the compensation order the party seeks to modify, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties....” Id. Thus, even if we were to view the claimant’s 2005 petition as a petition under section 440.28, the petition was untimely.
Accordingly, we affirm the order on appeal.
BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.
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Francesca Engler v. Am. Friends OF the Hebrew Univ. & Fireman's Fund Ins., 18 So. 3d 613 (Fla. 1st DCA 2009)…, and to the JCC before she issued her 2007 order. For reasons not clear from the record, the E/C failed to do so. The JCC’s reliance on this evidence effectively gave the E/C “another bite at the apple.” This was error. See Pigg v. Balderson, Inc., 951 So. 2d 914, 915 (Fla. 1st DCA 2007) (affirming JCC’s refusal to consider evidence that should have been presented at prior hearing where claimant sought permanent total disability benefits after order denying pri- or request for such benefits). By failing to…
Authorities Cited
- Fla. Dep't OF Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001)
- Dorman K. Kimbrell, Jr. v. Paige, 448 So. 2d 1009 (Fla. 1984)