Starkman v. Bechtel Power Corp., 90-2197

• Decision Date: 04 November 1991
• Docket Number: No. 90-2197,90-2197
• Citation: 588 So.2d 304
• Court: Florida District Court of Appeals
• Parties: Judith STARKMAN, personal representative, Appellant, v. BECHTEL POWER CORPORATION, Florida Power & Light Wrap Up, Appellees. 588 So.2d 304, 16 Fla. L. Week. D2787

Page 304

588 So.2d 304

Judith STARKMAN, personal representative, Appellant, v. BECHTEL POWER CORPORATION, Florida Power & Light Wrap Up Appellees.

No. 90-2197.

588 So.2d 304, 16 Fla. L. Week. D2787

District Court of Appeal of Florida First District.

Nov. 4, 1991.

Jerold Feuer, Miami, for appellant.

Pamela Craig, Gary L. Stump, Whittaker, Stump, Webster & Miller, P.A., Orlando, for appellees.

PER CURIAM.

In this worker's compensation case, appellant, Judith Starkman, personal representative of claimant Edward Stacey, deceased, challenges the July 5, 1990 order of the judge of compensation claims (JCC) denying Mr. Stacey's petition for modification of the JCC's order of June 28, 1988 which found Mr. Stacey not to be permanently and totally disabled (PTD). Because we find competent, substantial evidence to support the JCC's conclusion that claimant Stacey had not suffered a material change of condition, we affirm the JCC's finding that claimant was not PTD and the JCC's denial of the petition for modification.

Appellant argues that the JCC erred in requiring claimant to meet an inappropriate burden of proof in two respects: (1) by requiring that claimant prove his change of condition by clear and convincing evidence; (2) by requiring that the petition for modification be supported by an unanticipated worsening of claimant's condition. With respect to the first claim, although the JCC's order employed the phrase "clear and convincing evidence," the context in which the phrase was used does not indicate such a burden was imposed on the claimant. Rather, when read in its entirety, the order clearly imposed upon the claimant the correct burden, that of showing claimant's change of condition by the greater weight of competent, substantial evidence. See Soloff v. U-Totem, Inc. of Broward, 257 So.2d 31, 32 (Fla.1971) (quoting Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162, 165 (Fla.1963)).

We write principally to clarify a point of law with respect to appellant's second claim. A number of prior decisions of this court have held that the change of condition provision of Section 440.28 Florida Statutes is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding. Westwinds Transp., Inc. v. Murphy, 494 So.2d 519 (Fla. 1st DCA 1986); Acree Oil Co. v. Peterson, 467 So.2d 346 (Fla. 1st DCA 1985); Thatcher Glass Co. v. Joseph, 424 So.2d 68 (Fla. 1st DCA 1982); City of Tampa v. Morales, 423 So.2d 571 (Fla. 1st DCA 1982); General Electric Co. v. Osborne, 394 So.2d 1089 (Fla. 1st DCA 1981). The aforementioned cases should not be construed to impose the requirement that a material change of condition be unanticipated in order to...