City of Vero Beach v. Thomas

Decision Date17 October 1980
Docket NumberNo. QQ-294,QQ-294
Citation388 So.2d 1374
PartiesCITY OF VERO BEACH and Royal Globe Insurance Company, Appellants. v. Ernest THOMAS, Appellee.
CourtFlorida District Court of Appeals

Bradford L. Jefferson, of Brennan, McAliley, Hayskar & McAliley, Fort Pierce, for appellants.

Irvin A. Meyers and Gary J. Boynton of Meyers, Mooney & Adler, Orlando, for appellee.

PER CURIAM.

The employer/carrier appeal an order in a worker's compensation case which modified, on grounds of mistake, a prior order fixing claimant's average weekly wage at $162.50 as stipulated by the parties. The order appealed found claimant's average weekly wage to be $239.87, based upon claimant's evidence that he failed to advise his attorney, at the time of stipulation, that he had additional income from part-time employment which could have been added to his regular employment benefits in computing his average weekly wage. Claimant further established that he was unaware that part-time earnings could be considered, and that his attorney had no knowledge of his part-time employment until some three years after the date of the stipulation.

We reverse the order of modification because it is based upon an erroneous interpretation or application of Section 440.28, Florida Statutes (1975), which provides:

Upon a judge's own initiative or upon the application of any party in interest, on the ground of a change of condition or because of a mistake in the determination of a fact the judge of industrial claims may ... review a compensation case in accordance with the procedure prescribed in respect of claims in s. 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 ....

The statute permits a modification based upon "a mistake in the determination of a fact." Here we have no such mistake but merely a failure on the part of the claimant to present evidence which could have been considered in determining a fact, namely, his average weekly wage. The statute contemplates corrections based upon a mistake made by the judge of industrial claims, not by one of the parties or their counsel. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960); Scotty's Carpet Service v. McGriff, IRC Order 2-3155 (May 16, 1977); and Amway Corporation v. Yerby, IRC Order 2-3319 (January 16, 1978). The rule is not altered by the circumstance that the initial fact was determined based upon a stipulation of the party. A stipulation should neither be ignored, nor should it be set aside in the absence of fraud, overreaching, misrepresentation, a withholding of facts by the adversary party, or some such element as would render the agreement void. Steele v. A. D. H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965). Relief by way of...

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8 cases
  • Massie v. University of Florida, BN-98
    • United States
    • Florida District Court of Appeals
    • June 29, 1990
    ...v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981); Heter v. Buning The Florist, 396 So.2d 1201 (Fla. 1st DCA 1981); City of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980); Housing By Vogue v. Hendon, 386 So.2d 884 (Fla. 1st DCA 1980); Sheets v. City of Miami, 111 So.2d 690 (Fla. 3d DC......
  • Champlovier v. City of Miami, 93-710
    • United States
    • Florida District Court of Appeals
    • October 12, 1995
    ...v. Pineda, 560 So.2d 336 (Fla. 1st DCA 1990); I.A.T.S.E. v. Nesselroad, 534 So.2d 709 (Fla. 1st DCA 1988); City of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980).10 Cf. Travelers Ins. Co. v. VES Serv. Co., 576 So.2d 1349 (Fla. 1st DCA 1991), where Burger King stipulated with an in......
  • I.A.T.S.E. v. Nesselroad
    • United States
    • Florida District Court of Appeals
    • October 14, 1988
    ...or concealment at the hearing below, Battle v. General Sand and Stone, 478 So.2d 396 (Fla. 1st DCA 1985), City of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980), the deputy could not vary the amount agreed to as an average weekly wage. Accordingly, on remand we direct that the ord......
  • City of Miami v. Florida East Coast Ry. Co., s. 81-1107
    • United States
    • Florida District Court of Appeals
    • January 11, 1983
    ...misrepresentation, or withholding of facts rendering it void. Smith v. Smith, 90 Fla. 824, 107 So. 257 (1926); City of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). The City has failed to disclose any reason why the stipulation should be deemed ineffective. Because the March 3, ......
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