Oakdell, Inc. v. Gallardo, Nos. BK-284

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN
Citation505 So.2d 672,12 Fla. L. Weekly 1079
Docket NumberBP-46,Nos. BK-284
Decision Date21 April 1987
Parties12 Fla. L. Weekly 1079 OAKDELL, INC. and Crawford and Company, Appellants, v. Jose GALLARDO, Appellee.

Page 672

505 So.2d 672
12 Fla. L. Weekly 1079
OAKDELL, INC. and Crawford and Company, Appellants,
v.
Jose GALLARDO, Appellee.
Nos. BK-284, BP-46.
District Court of Appeal of Florida,
First District.
April 21, 1987.

Page 673

Henry Fierro, Jay M. Levy of Hershoff & Levy, Miami, for appellants.

No appearance for appellee.

Renee R. Pelzman of Levine, Busch, Schnepper & Stein, P.A., Miami, as amicus curiae.

ERVIN, Judge.

In this consolidated workers' compensation appeal the employer/carrier (e/c) appeals an order awarding permanent total disability (PTD) benefits, and an order denying a motion to set aside the PTD award. We reverse and remand as to both orders.

Claimant worked as a laborer at Oakdell Nursery where he was injured on August 5, 1983. The e/c paid temporary total disability (TTD) from the date of the accident to the date of maximum medical improvement (MMI), September 4, 1984. The employee subsequently filed a workers' compensation claim following MMI. In case number BK-284, the deputy, by order dated October 11, 1985, which was republished and reaffirmed on December 13, 1985, found the claimant was PTD, accepting the testimony of one physician who found the claimant 20 percent disabled, and that of claimant, and rejecting the testimony of other physicians who opined that claimant suffered no or only very minor permanent impairment. The dc based his order in part on his observations of the claimant at the hearings, observing that the claimant "is unable to sit comfortably more than ten minutes after which time he begins to squirm and move around...." The claimant testified that no one had offered him employment since his industrial accident. He also testified to an extensive unsuccessful work search.

While the appeal from the above order was pending, this court issued an order temporarily relinquishing jurisdiction for the purpose of allowing the dc to consider a petition for modification of the order on the

Page 674

ground that the claimant had given false testimony at the claim hearing. Submitted as evidence at the later hearing to modify the order of PTD were depositions from both the owner and the general manager of Kerry's Bromeliad Nursery, a subsequent employer of claimant, who testified that the claimant had worked as a full-time laborer with the nursery from February 10, 1984 until May 9, 1986, when he quit for personal reasons.

On August 21, 1986, the dc issued an order denying the e/c's petition for modification. The dc made this decision, despite his finding that the claimant had obtained the PTD award by "his own flagrant fraud and misrepresentation" regarding his inability to obtain work, which was contradicted by the later discovered evidence disclosing that the claimant had been gainfully employed on a full-time basis at Kerry's Nursery and had performed all physical acts necessary for said employment, "including but not limited to, bending, standing, stooping, lifting and driving or operating machinery or equipment between February 10, 1984, until the claimant voluntarily quit said employment on May 9, 1986." In denying the petition, the deputy found that the e/c could have, had it acted with diligence, discovered the fraud perpetrated upon it by claimant, long before the entry of the original compensation order of...

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8 practice notes
  • Massie v. University of Florida, No. BN-98
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 1990
    ...it was shown by the employer that claimant obtained the compensation order by fraud and misrepresentation. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987). In all other appellate decisions the Florida courts have continued to struggle to give some meaning and purpose to the sta......
  • Eastern Airlines v. Griffin, No. 93-292
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1995
    ...generally applicable to relief from a stipulation as set forth by Judge Webster in his dissent in Fawaz. Cf. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987) ("Section 440.28 by its terms does not limit one seeking to modify a compensation order to a shorter period than two year......
  • Millinger v. Broward County Mental Health Div. and Risk Management, No. 85343
    • United States
    • United States State Supreme Court of Florida
    • March 14, 1996
    ...Id. at 884; see also Atlantis Nursing Center v. Drinkwater, 616 So.2d 627 (Fla. 1st DCA 1993); Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA Millinger asserts that, because there is no qualitative difference between Morgan Yacht and this case, the JCC had authority under section 44......
  • ABC Liquors, Inc. v. Acree, Nos. 96-2212
    • United States
    • Court of Appeal of Florida (US)
    • May 27, 1997
    ...of an order entered by a judge of compensation claims on grounds that the order was procured by fraud. Oakdell, Inc. v. Gallardo, 505 So.2d 672, 674-675 (Fla. 1st DCA 1987). To the extent the judge of compensation claims ruled otherwise, we are obliged to Issue for Judge of Compensation Cla......
  • Request a trial to view additional results
8 cases
  • Massie v. University of Florida, No. BN-98
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 1990
    ...it was shown by the employer that claimant obtained the compensation order by fraud and misrepresentation. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987). In all other appellate decisions the Florida courts have continued to struggle to give some meaning and purpose to the sta......
  • Eastern Airlines v. Griffin, No. 93-292
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1995
    ...generally applicable to relief from a stipulation as set forth by Judge Webster in his dissent in Fawaz. Cf. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987) ("Section 440.28 by its terms does not limit one seeking to modify a compensation order to a shorter period than two year......
  • Millinger v. Broward County Mental Health Div. and Risk Management, No. 85343
    • United States
    • United States State Supreme Court of Florida
    • March 14, 1996
    ...Id. at 884; see also Atlantis Nursing Center v. Drinkwater, 616 So.2d 627 (Fla. 1st DCA 1993); Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA Millinger asserts that, because there is no qualitative difference between Morgan Yacht and this case, the JCC had authority under section 44......
  • ABC Liquors, Inc. v. Acree, Nos. 96-2212
    • United States
    • Court of Appeal of Florida (US)
    • May 27, 1997
    ...of an order entered by a judge of compensation claims on grounds that the order was procured by fraud. Oakdell, Inc. v. Gallardo, 505 So.2d 672, 674-675 (Fla. 1st DCA 1987). To the extent the judge of compensation claims ruled otherwise, we are obliged to Issue for Judge of Compensation Cla......
  • Request a trial to view additional results

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