Sauder v. Coast Cities Coaches, Inc.

Decision Date22 May 1963
Docket NumberNo. 32399,32399
PartiesLloyd A. SAUDER, Petitioner, v. COAST CITIES COACHES, INC., United States Fidelity and Guaranty Company and Florida Industrial Commission, Respondents.
CourtFlorida Supreme Court

Kastenbaum, Mamber, Gopman & Epstein and Stanley Epstein, Miami Beach, for petitioner.

Summers Warden, Miami, for Coast Cities Coaches, Inc., United States Fidelity & Guaranty Co.

Burnis T. Coleman and Patrick H. Mears, Tallahassee, for Florida Industrial Commission.

THORNAL, Justice.

By petition for a writ of certiorari we are requested to review an order of the Florida Industrial Commission reversing an order of a deputy commissioner who had modified an award with a finding that a mistake in a determination of fact had occurred.

We must decide whether the record supports the deputy's finding to the effect that the original award was the product of a mistake in a determination of fact.

Petitioner Sauder sustained a compensable injury while working as a bus driver for the respondent Coast Cities Coaches on April 16, 1959. On October 26, 1959, deputy commissioner Falk, after an adversary hearing found that the claimant had reached maximum medical improvement on September 19, 1959. On the basis of the medical testimony then presented, he concluded that the claimant had sustained a lumbo-sacral sprain resulting in a 10% permanent partial disability of the body as a whole. Subsequently, the claimant, through the assistance of the Vocational Rehabilitation Department, attended barber college until April 1960. He was unable to return to work as a bus driver. From April 1960 to July 1961, claimant worked as a barber, earning various sums up to $60.00 per week. During this period the claimant's condition became increasingly more painful. Finally, on July 15, 1961, the claimant filed a petition for modification of the original award. It is not clear whether the petition was grounded upon an alleged change of condition or a mistake in the determination of a fact at the initial hearing. However, the modification petition does allege that the 'employee has sustained a herniated disc and is completely unable to earn a livelihood.' The modification proceeding was conducted before deputy commissioner Teller. At a hearing held February 14, 1962, the medical testimony was to the effect that the claimant was then suffering from a herniated disc. One doctor specifically testified that, assuming there had been no intervening injury, the original accident produced a condition that progressed to the herniated disc. No intervening injury was shown. Deputy Teller concluded that there was a mistake in the determination of a fact in the original order entered by Deputy Falk. He reevaluated the claimant's condition and allowed him temporary total disability benefits from September 1959 to June 1, 1960, taking credit for partial disability benefits paid. Temporary partial benefits were allowed from June 1, 1960, to July 10, 1961, a period during which claimant worked as a barber. Temporary total benefits were allowed from July 10, 1961, to December 27, 1961, which was then set as the date of maximum medical improvement. Thereafter, the claimant was allowed benefits for 75% permanent partial disability of the body as a whole. On review the Full Commission, one member dissenting, reversed the deputy by holding that there was no competent substantial evidence to support a finding of a mistake in the determination of a fact in the initial proceeding. The claim for modification was dismissed. The dissenting member agreed in the reversal predicated upon a failure to establish a mistake in the determination of a fact. However, it was his view that the matter should be remanded to the deputy to ascertain from the record whether a modification was justified on the basis of a change in condition.

We agree with the Full Commission that the record fails to support a finding of a mistake in the determination of a fact in the initial compensation order. In order to support a modification under Section 440.28, Florida Statutes, F.S.A., on the ground of the mistake in the determination of a fact, a claimant has the burden of showing that the mistake was one committed by the deputy and was not merely an erroneous conclusion formed by his own witnesses. Power v. Joseph G. Moretti, Inc., Fla., 120 So.2d 443. The claimant insists that the...

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16 cases
  • Massie v. University of Florida, BN-98
    • United States
    • Florida District Court of Appeals
    • June 29, 1990
    ...cases construing that longshoreman's act provision for assistance in determining the statutory meaning. E.g., Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963); Beaty v. M & S Maintenance Co., 124 So.2d 868 (Fla.1960); Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960);......
  • Eastern Airlines v. Griffin
    • United States
    • Florida District Court of Appeals
    • April 4, 1995
    ...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); McDonough v. Versailles Hotel, 57 So.2d 16 (Fla.1952); W......
  • Flesche v. Interstate Warehouse, AD-327
    • United States
    • Florida District Court of Appeals
    • March 15, 1982
    ...search evidence must be rejected under the rule prohibiting the use of "cumulative evidence" for such purposes. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963), the case cited by the deputy commissioner in support of his res judicata ruling, does state that it is the responsi......
  • East Manor Medical Care Center v. Stevens
    • United States
    • Florida District Court of Appeals
    • September 2, 1983
    ...misplaced. As pointed out in Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), in discussion of Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963) (also cited by appellant here), the cumulative evidence rule is uniquely applicable to petitions for modification ......
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