Opinion
December 7, 1960.
Monast, Sladon Quick and William T. Quick, Fort Lauderdale, for petitioner.
Charles Desmond Crowley, Fort Lauderdale, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.
February 9, 1959, petitioner, feeling that he had suffered an injury while employed by respondent M S Maintenance Co., filed claim for compensation. June 16, 1959, the deputy commissioner entered his order dismissing the claim because "The claimant has failed to produce competent substantial evidence to establish that he sustained an injury by accident as he alleged. The carrier has produced competent substantial evidence showing that the claimant did not sustain an injury as alleged." Thereafter petitioner pursuant to § 440.28, Florida Statutes, F.S.A. sought review and modification of the deputy's order of June 16 on the ground of newly discovered evidence. Hearing was held on the petition for modification and on November 12, 1959, the deputy found he was in error in his first order and entered a second order finding petitioner's injury compensable. He based said finding on newly discovered evidence, the same being a "repair ticket," and entered judgment requiring that compensation be paid petitioner. The full commission reversed the said order because, said the full commission,
"The employer and carrier argue essentially that the repair ticket submitted by the claimant herein at the second hearing was not newly discovered evidence since it merely corroborated the testimony of the claimant in the first hearing in this matter, and therefore, should only be considered cumulative rather than newly discovered evidence. The contentions of the employer and carrier are well taken, and, in our opinion, the evidence submitted by the claimant is cumulative. The fact that the Deputy Commissioner has now changed his mind respecting the instant claim is not a ground for reopening the case under Section 440.28. There does not appear to be any basis for the Deputy to have found a mistake in the determination of fact from that of his prior order."
We are confronted by an appeal by certiorari from the order of the full commission.
The point for determination is whether or not the "repair ticket" introduced at the second hearing constituted newly discovered evidence as contemplated by § 440.28, Florida Statutes, F.S.A.
In Sonny Boy's Fruit Co. v. Compton, Fla. 1950, 46 So.2d 17, we held that in order to modify a prior compensation order on the basis of a mistake in a determination of fact, pursuant to the evidence offered in support of the modification sought must not be merely cumulative, that is, it must do more than add to or controvert the evidence already taken and considered by the deputy. We have consistently adhered to this rule. McDonough v. Versailles Hotel, Fla. 1952, 57 So.2d 16; Hall v. Seaboard Maritime Corp., Fla.App. 1958, 104 So.2d 384, and Power v. Joseph G. Moretti, Inc., Fla. 1960, 120 So.2d 443, 446. In the latter case, the court said:
"It is well established that in order to justify the modification of a compensation order on the basis of a mistake, the subsequent showing must consist of something more than additional evidence of facts already known, an accumulation of testimony on facts previously established, a mere change of mind by a witness, or a reanalysis of the prior record by the deputy and a change of his conclusions as a result of a retrospective exploration of the original record."
Modification of the order complained of is sought on the ground of newly discovered evidence. The newly discovered evidence consists of a "repair ticket" allegedly misplaced by petitioner and discovered by his wife after the deputy had entered his first compensation order. Careful analysis of the deputy's first order reveals that petitioner's claim for compensation was denied because he failed to produce competent substantial evidence showing a compensable injury, that is, that petitioner's injury occurred while levelling or repairing a telephone booth in accordance with the requirement of his employment. Considerable testimony was taken relative to the repair ticket at the first hearing. We do not think it can be said that the repair ticket and the evidence relating to it does more than add to or controvert the evidence taken and considered by the deputy in the first hearing.
The petition for certiorari is denied.
THOMAS, C.J., TERRELL and ROBERTS, JJ., and SAULS, Circuit Judge, concur.
DREW, J., dissents.
An examination of the record in this case, and particularly that portion of it containing the examination of the claimant by the deputy commissioner at the hearing on the petition for modification, leads me to the conclusion that the commissioner concluded that he clearly misunderstood and misinterpreted the evidence of the claimant at the original hearing with reference to a vital factor, namely the reinstallation of a levelling bolt used in the telephone booth.
"14. I am of the opinion that the position of the bolts is persuasive evidence of whether or not the claimant was actually performing the repair operation that he alleged. The witnesses for the carrier testified that they had never known the position of the bolts to be reversed and that this would be a very unusual circumstance. If the bolts had been reversed, it would show that the claimant had probably performed the operation that he alleges he was engaged in when he felt the pain in his back."
In the original hearing the carrier's attorney exhibited what was apparently a model of the floor of the telephone booth showing the bolts in question. With reference to whether the levelling bolt was inserted from the outside or the inside when he examined and repaired the booth, the claimant's testimony in describing what was found and what was done — using the exhibit to describe it — was confusing to and misunderstood by the deputy. When re-examined by him, however, on the petition for remodification, it is quite clear to me that he realized he had misunderstood the claimant and that the story told by him at the original hearing was true. This is the actual finding of the deputy and was rendered conclusive in his mind by the subsequent discovery of the disputed work slip and its introduction at the hearing on the petition for modification. At this hearing both the claimant and his wife testified that they found the slip in a dresser drawer sometime after the first hearing. This testimony is not controverted and must be accepted as true. The deputy commissioner so accepted it and concluded that his original assumption that the claimant did not work on the booth on the day in question was wrong, such conclusion being influenced as I have shown largely by his misinterpretation of the evidence of the claimant concerning the floor of the telephone booth and his reliance upon the testimony of the employer that no repair slip had been filed with them.
"* * * claimant testified that when he repaired the telephone booth he found that a nut and bolt arrangement which was inserted through the side of the phone booth and which tightened on a bracket which helped to level a phone booth, was reversed and installed incorrectly. The employer testified that such an arrangement was extremely unlikely because the nut-bolt and bracket arrangement were not manufactured to work unless properly installed and it was, therefore, thought by the parties that an examination of the booth would, and the position of the nut-bolt arrangement, be persuasive evidence as to whether claimant had ever worked on the booth. Following the hearing the claimant and his attorney and the employer's attorney then went to the telephone booth, examined same, and found that the nuts and bolts were properly installed at which time claimant stated that they were properly installed simply because he had corrected it on February 9, 1959."
"4. The most persuasive bit of evidence, however, in behalf of the employer was that claimant had never turned in a repair slip showing any work done on the phone booth on February 9, 1959. Thereafter, an order was entered on June 16, 1959, finding that claimant had not suffered an injury by accident arising out of and in the course of his employment with the employer herein."
I think this is exactly the type of situation contemplated by that provision of the Workmen's Compensation Act providing for modification of an award by virtue of a change of fact. The Workmen's Compensation Act is designed to protect workmen injured in the performance of their duties and when this fact is made to appear by conclusive evidence as was done here within the time fixed by the statute, it seems to me the purpose of the law is served by awarding compensation. The purpose of the modification provision would surely be thwarted if a deputy commissioner is to be prevented by a strained construction of the law from correcting an obvious injustice on clear and convincing evidence within the period the statute provides for that purpose.
" 440.28 Modification of orders. —
Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commission may at any time prior to two years after the date of the last payment of compensation pursuant to any compensation order, or at any time prior to two years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedure prescribed in respect of claims in § 440.25 and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. * *"
We are concerned here with a mistake of fact. In Hall v. Seaboard Maritime Corporation, Fla.App., 104 So.2d 384, 387, the District Court correctly stated:
"* * * As we construe it, this section was intended to apply to those cases in which by reason of a lack of evidence the Commission has not had an opportunity to properly determine the issues arising out of a claim — * * *"
In the instant case there is no doubt the commission lacked "the most persuasive bit of evidence" i.e. the repair slip.
I would quash the order of the full commission and affirm the order of the deputy commissioner.