Champlovier v. City of Miami, 93-710

• Decision Date: 12 October 1995
• Docket Number: No. 93-710,93-710
• Parties: 20 Fla. L. Weekly D2286 Frederick CHAMPLOVIER, Appellant/Cross-Appellee, v. CITY OF MIAMI, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 315

667 So.2d 315

20 Fla. L. Weekly D2286

Frederick CHAMPLOVIER, Appellant/Cross-Appellee, v. CITY OF MIAMI, Appellee/Cross-Appellant.

No. 93-710.

District Court of Appeal of Florida,

First District.

Oct. 12, 1995.

As Amended on Motion for

Clarification Dec. 19, 1995.

Appeal from an order of the Judge of Compensation Claims; John G. Tomlinson.

George M. Nachwalter, Andrew B. Sapiro, and Joseph C. Segor, Miami, for Appellant/Cross-Appellee.

A. Quinn Jones, III, City Attorney; Ramon Irizarri and Kathryn S. Pecko, Assistant City Attorneys, Miami, for Appellee/Cross-Appellant.

EN BANC

PER CURIAM.

Frederick Champlovier was injured in 1978 in a compensable accident. His claim for disability compensation from the City of Miami was followed by a stipulation of the parties that his average weekly wage at the time of the accident was $335.71. The stipulation was approved by the deputy commissioner in his order on temporary total disability in 1981, in which he adjudicated the amount of disability compensation. Champlovier was subsequently accepted as permanently and totally disabled after reaching maximum medical improvement.

Champlovier now seeks a redetermination of his average weekly wage to enhance his benefits as a result of the decision in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). It appears from the record that he knew or believed at the time of the stipulation that the average weekly wage was higher than that to which he agreed. It follows that there is no evidence of fraud, misrepresentation, or other circumstance that would render the stipulation void. The judge of compensation claims ruled with the City of Miami and held that the 1981 compensation order was conclusive on the issue of average weekly wage. We agree and affirm.

The parties to this litigation stipulated to the exact amount of average weekly wage in 1981 thus obviating the need for proof on this issue. Average weekly wage was, nevertheless, an issue because the compensation rate could not have been set without it. Section 440.14(1), Florida Statutes (1977), provided that "... the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation...." The issue of average weekly wage was a necessary element of the claim for disability compensation in 1981 and remains so today for the same injury occurring in 1978. It is many years too late to modify the 1981 order under section 440.28, Florida Statutes (1977). Battle v. General Sand and Stone, 478 So.2d 396 (Fla. 1st DCA 1985). The principle of estoppel by judgment bars going behind the 1981 order to relitigate the same issue whether the claim is identical or collateral. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). The policy in Florida which strongly favors finality of judgments is applicable whether a judgment is reached through contest or consent. Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184 (Fla.1989).

ZEHMER, C.J., and ERVIN, JOANOS, BARFIELD, ALLEN, WOLF, KAHN, WEBSTER, MICKLE, DAVIS and VAN NORTWICK, JJ., concur.

BENTON, J., dissents with opinion in which BOOTH, MINER and LAWRENCE, JJ., concur.

BENTON, J., dissenting.

On the authority of section 440.21, Florida Statutes (1993), as construed in Barragan, ¹ Mr. Champlovier, a former Miami police officer twice injured in the line of duty, instituted the present proceeding. The City concedes What Mr. Champlovier seeks in the present proceeding is to enforce an award of permanent total disability benefits, the amount of which he has never questioned. He presents a new and discrete claim asserting that, in offsetting his workers' compensation benefits against his pension, the City deprived him de facto of the benefits it ostensibly undertook to pay in 1982. He seeks an "increase [in] the amount of workers' compensation to offset illegal deductions [from his pension benefits] made on the account of the payment of workers' compensation benefits." Barragan, 545 So.2d at 253.

that Barragan controls. The majority opinion mischaracterizes the present proceeding as an improper effort to overturn a compensation order in no way assailed here. The present proceeding is separate and distinct from the 1981 proceeding ² in which temporary partial disability benefits were awarded. Mr. Champlovier does not seek modification of an order under section 440.28, Florida Statutes (1993).

In the initial proceeding, the amount of his average weekly wages was not at issue in the same way as it now is: At that time, Mr. Champlovier was eligible for the same workers' compensation benefits, whether his average wages were at or above the stipulated level. Because the parties stipulated, in the workers' compensation proceeding on the claims for temporary benefits, that his average weekly wage was $335.71, he received what was then the maximum workers' compensation disability benefit awardable. Later accepted administratively as permanently totally disabled, Mr. Champlovier began receiving workers' compensation benefits on account of his permanent total disability in August of 1982.

He first received City disability pension benefits in May of 1982. From 1982 through 1989, the City paid full workers' compensation benefits ($126 weekly), but reduced his disability pension benefits by the exact amount of his workers' compensation benefits. On July 14, 1989, the supreme court ruled offsets of this kind illegal, but laid down a new rule permitting the City to reduce disability pension benefits to the extent the sum of disability pension benefits and workers' compensation benefits exceeds "average monthly wage." Barragan v. City of Miami, 545 So.2d 252, 255 (Fla.1989). Only with the Barragan decision did the question of whether Mr. Champlovier's average weekly wage had exceeded $335.71 take on the legal and practical significance it now has, because only since the Barragan decision has the City been authorized, when "the total of the two exceeds the employee's average monthly wage," Barragan, 545 So.2d at 255, to reduce pension benefits to the extent of the excess.

The City concedes that it illegally reduced appellant's pension benefits by deducting all of his workers' compensation benefits, but argues it was entitled to reduce Mr. Champlovier's monthly pension benefit by $470.92, contending that was the amount by which his combined monthly benefits exceeded the average monthly wage stated in (or inferable from) the 1981 stipulation. Appellant alleges that his average weekly wage was actually $564.37, but that he did not make an issue of 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 inapposite ⁴ proposition that a final order awarding compensation benefits should not be revisited after time for appeal expires, ⁵ absent modification on account of "a change in condition or because of a mistake in a determination of fact." § 440.28, Fla.Stat. (1993).

it in 1981 because it would not have increased his workers' compensation benefits. The judge of compensation claims ruled for the City, deciding that a workers' compensation order ³ entered in the initial proceeding on December 9, 1981, which recognized the stipulation, was conclusive on the issue of average weekly wages.

Amount of Excess of Disability Pension Benefits and Workers' Compensation Benefits Over Average Monthly Wage Never Decided

Because the present proceeding arises on a different "cause of action" than those litigated in the prior proceedings, no prior order should preclude litigation of the claim appellant now raises. The "cause of action" or theory supporting the present claim was not even available to appellant prior to the decision in Barragan, which overturned the decisions in City of Miami v. Knight, 510 So.2d 1069 (Fla. 1st DCA), review denied, 518 So.2d 1276 (Fla.1987) and Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1987). The supreme court decided Barragan after the parties' prior workers' compensation proceedings had concluded. Even a casual reading of Gordon v. Gordon, 59 So.2d 40 (Fla.1952), on which the majority relies, refutes the contention that any prior adjudication between these parties precludes consideration of the present claim. ⁶

Estoppel by judgment or collateral estoppel is equally inappropriate in the present circumstances. ⁷ The amount by which the It is also a settled rule that when the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it. Gordon [v. Gordon], 59 So.2d [40,] 43 [ (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952) ]. Therefore, if the cause of action is not the same there will be no estoppel as to those issues which could have been litigated in the previous action [but were not].

sum of disability pension and compensation benefits exceeds average monthly wages has never been litigated. With regard to collateral estoppel, it has been said, in a workers' compensation context:

Caron v. Systematic Air Servs., 576 So.2d 372, 375 (Fla. 1st DCA 1991), quoting Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984), superseded by statute on other grounds as stated in Bowen v. Dep't of Envtl. Regulation, 448 So.2d 566 (Fla. 2d DCA 1984). Whether appellant's average weekly wage exceeded $335.71 could have been, but was not, litigated in any previous workers' compensation proceeding. ⁸

Underlying Stipulation Did Not Contemplate Barragan Decision

What remains is the question of the effect of the unadorned stipulation. The order in the original proceeding was predicated on a stipulation entered into in order...