Boynton Landscape v. Dickinson

• Decision Date: 20 March 1996
• Docket Number: No. 94-3631,94-3631
• Parties: 21 Fla. L. Weekly D692 BOYNTON LANDSCAPE and Liberty Mutual, Appellants, v. James DICKINSON, Appellee.
• Court: Florida District Court of Appeals

Page 151

670 So.2d 151

21 Fla. L. Weekly D692

BOYNTON LANDSCAPE and Liberty Mutual, Appellants, v. James DICKINSON, Appellee.

No. 94-3631.

District Court of Appeal of Florida First District.

March 20, 1996.

An appeal from an order of the Judge of Compensation Claims; Melanie Jacobson, Judge.

Randall T. Porcher of Rigell & Leal, P.A., West Palm Beach, for Appellants.

Jerry J. Goodmark of Goodmark & Goodmark, P.A., West Palm Beach; and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellee.

DAVIS, Judge.

Boynton Landscape and Liberty Mutual Insurance Company (employer and carrier respectively, hereinafter "e/c"), appeal an order in which the Judge of Compensation Claims modified a 1989 order setting the rate of pay for those of the claimant's family members who provided attendant care while still employed outside the home, and granted a change in the rate of pay to claimant's mother, who gave up her outside employment to take care of the claimant. We reverse that portion of the order which improperly modified the rate of pay for attendant care which was controlled by the earlier order, but affirm as to the rate of pay for attendant care provided by the mother after her change in employment status, which was not encompassed within the 1989 decision.

In December 1989, after a full hearing on the issue of the correct rate of pay for those of the claimant's family members who were providing attendant care, an order was entered setting the rate of pay. That order expressly declined to retroactively modify the rate of pay and stated that it established the rate of pay "from the date of the order onward." In ruling on the claimant's 1992 claim for a change in the rate of pay to attendant care providers, the Judge of Compensation Claims ("JCC") correctly determined that it would have been necessary that claimant seek to modify the 1989 order, due to the continuing nature of the award. See Hardrives of Delray, Inc. v. Stimely, 670 So.2d 108 (Fla. 1st DCA 1996). However, the JCC erred in granting modification under section 440.28, Florida Statutes, because the claimant failed to establish that modification is appropriate in this case. The sole basis for granting the modification was the JCC's conclusion that a mistake of fact had been made when the 1989 order set the rate of pay at the federal minimum wage. Yet the error in the 1989 decision stemmed from an incorrect interpretation of the statute controlling the rates of pay to family members who provide attendant care. That was not a mistake of fact justifying a modification under section 440.28; it was a mistake of law, as this court made clear in Buena Vida Townhouse Assoc. v. Parciak, 603 So.2d 26 (Fla. 1st DCA 1992). See ...