Dixon v. Bruce Const. Corp.
| Citation | 160 So.2d 116 |
| Decision Date | 20 November 1963 |
| Docket Number | No. 32539,32539 |
| Parties | John DIXON, Petitioner, v. BRUCE CONSTRUCTION CORPORATION, Employers Insurance Company of Alabama and the Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
John V. Christie and Allen Clements, Miami, for petitioner.
Wakefield & Underwood, Edwin H. Underwood, Jr., and Andrew L. Richard, Miami, for Bruce Construction Corp., Employers Ins. Co. of Alabama.
Burnis T. Coleman and Patrick H. Mears, Tallahassee, for Florida Industrial Commission.
The petitioner, an untrained day laborer, was injured during the course of his employment by Bruce Construction Corporation 4 November 1954, when he fell down a stairway and struck his back. Subsequently he underwent two operations, one for removal of a disk and one for spinal fusion. Afterward, 17 July 1959, the deputy commissioner awarded him compensation for 45 per cent. permanent partial disability of the body as a whole.
On 10 August 1961 petitioner, through his attorney, presented a petition for modification of the deputy's order 'based on a mistake in fact and/or change in condition.' The matter proceeded to a hearing which culminated in an order by a sequent deputy commissioner who, on 17 April 1962, after analyzing the testimony of the claimant and the medical witnesses, found that the claimant's condition had so changed since the date of the previous order of 17 July 1959, that he was entitled to compensation on the basis of 65 per cent. permanent partial disability of the body as a whole.
It should be emphasized that although the petition for modification was predicated on mistake of fact as well as change of condition, for both of which there is provision in Sec. 440.28, Florida Statutes, F.S.A., the finding was restricted to the latter aspect of the claim.
Despite the apparent limitation of the finding to the matter of change of condition and the obvious restriction of the order to that phase of the petition the Full Commission when reviewing the case seems to have mingled the two provisions for it was expressly recited in the final order of reversal that the employer and carrier had asked for the review 'urging essentially that there is no competent substantial evidence which would support a finding of the deputy that claimant had a change of condition subsequent to the entry of the order of July 17, 1959, or that there was a mistake in the determination of fact of the July 1959 Order,' which was followed by 'agreement with the contention of the carrier that the evidence adduced * * *, upon which [the] Deputy Commissioner * * *, based his Order granting the petition for modification, is merely cumulative of the evidence submitted to the prior deputy commissioner.' (Italics supplied.) So the Full Commission appears to have applied the rule with reference to accumulation of evidence equally to the matters of mistake of fact and change of condition.
Cited as authority for the conclusion were our decisions in Sonny Boy's Fruit Co. v. Compton, Fla., 46 So.2d 17, McDonough v. Versailles Hotel, Fla., 57 So.2d 16, Hall v. Seaboard Maritime Corporation, Fla.App., 104 So.2d 384, and Beaty v. M & S Maintenance Co., Fla., 124 So.2d 868.
In the first of these we rejected the contention of the claimant that there should be modification when it...
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Massie v. University of Florida, BN-98
...on a mistake in a determination of fact. Steele v. A.D.H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965); Dixon v. Bruce Construction Corp., 160 So.2d 116 (Fla.1963); Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963); Beaty v. M & S Maintenance Co., 124 So.2d 868 The statu......
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Eastern Airlines v. Griffin
...of decisions, with the result that modification on such ground is allowed only in the very rare case. See, e.g., Dixon v. Bruce Constr. Corp., 160 So.2d 116 (Fla.1963); Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963); Beaty v. M & S Maintenance Co., 124 So.2d 868 (Fla.1960); ......
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Flesche v. Interstate Warehouse, AD-327
...by the court in Soloff v. U-Totem, Inc. of Broward, 257 So.2d 31 (Fla.1971), in which the court reaffirmed Dixon v. Bruce Construction Corporation, 160 So.2d 116 (Fla.1963), for the proposition that the so-called "cumulative evidence" rule, while applicable to petitions for modification on ......
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Soloff v. U-Totem, Inc. of Broward
...modification based upon mistake in determination of fact, rather than those relating to changes in condition. In Dixon v. Bruce Construction Corporation, Fla.1963, 160 So.2d 116, we quashed a similar Order by the Commission and '(T)he Full Commission appears to have applied the rule with re......