Summary
In Battle, for example, the claimant alleged in the pretrial stipulation an average weekly wage of $975, while the employer and the carrier listed the average wage as $505. The parties stipulated that the compensation rate was the then maximum of $126 per week; a 1983 final order found an average weekly wage of $550 and awarded the maximum compensation rate.
Summary of this case from Champlovier v. City of MiamiOpinion
No. BE-162.
October 30, 1985. Rehearing Denied December 6, 1985.
Appeal from the Deputy Commissioner, Patrick J. Murphy.
Anthony J. Aloneftis, Fort Myers, and Bill McCabe, of Shepherd, McCabe Cooley, Orlando, for appellant.
Peter C. Burkert, of Henderson, Franklin, Starnes Holt, Fort Myers, for appellees.
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, 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.
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.
Accordingly, we reverse the amended final order and remand for reinstatement of the order of October 31, 1983.
BOOTH, C.J., and NIMMONS and ZEHMER, JJ., concur.