State/Dept. of Transp. and Div. of Risk Management v. Greene

• Decision Date: 18 May 1992
• Docket Number: No. 91-1337,91-1337
• Parties: 17 Fla. L. Weekly D1302 STATE of Florida/DEPARTMENT OF TRANSPORTATION AND DIVISION OF RISK MANAGEMENT, Appellant, v. Roger GREENE, Appellee.
• Court: Florida District Court of Appeals

Page 1368

599 So.2d 1368

17 Fla. L. Weekly D1302

STATE of Florida/DEPARTMENT OF TRANSPORTATION AND DIVISION

OF RISK MANAGEMENT, Appellant, v. Roger GREENE, Appellee.

No. 91-1337.

District Court of Appeal of Florida,

First District.

May 18, 1992.

Rehearing Denied June 22, 1992.

Joseph C. Segor, Miami, for appellant.

Edward P. Busch of Levine, Busch, Schnepper & Stein, P.A., Miami, for appellee.

PER CURIAM.

The State of Florida/Department of Transportation and Division of Risk Management (state) appeal an order of the judge of compensation claims (JCC) which finds that certain overpayments in compensation constituted a gratuity, and that Roger Greene (claimant) was entitled to retain the overpayments. ¹ The state asserts on appeal that (1) a previous order of the JCC which was entered after a stipulation between parties and allowed the state to deduct overpayments from the claimant's compensation, constituted the law of the case and precluded the claimant from asserting that the overpayments constituted a gratuity; (2) the state did not have appropriate notice that the issue of the carrier's entitlement to reimbursement would be considered at the hearing on March 19, 1991; (3) the issue of the overpayment constituting a gratuity was ripe for adjudication on December 13, 1990, and the claimant's failure to pursue the issue at that time precluded later consideration by the JCC. We find (1) that the previous order and stipulation were ambiguous and did not necessarily preclude further consideration of the issue of overpayment by the JCC; (2) the state had sufficient notice of the nature of the proceeding; and (3) the carrier's assertion that the issue of the overpayment was ripe for adjudication at the time of an earlier proceeding and, thus, could not be considered by the JCC, was not properly raised during the proceedings before the JCC and will not be considered for the first time on appeal. We affirm.

The claimant was injured in a compensable accident in October of 1987. The state paid benefits from October 26, 1987, through January 1989, based on an average weekly wage of $522.48. The carrier was informed in January by the employer that a mistake had been made in the average weekly wage, in that the employer had mistakenly reported the claimant's biweekly wage as his weekly wage.

The employer/carrier (E/C) filed a motion and amended motion for credit for the overpayment in February of 1989. The motion alleged a total overpayment of $11,137.92 due to a scrivener's error. The E/C requested a lump sum credit or a 50 percent reduction in future benefits paid to the claimant. Prior to a hearing on the amended motion, the parties entered into a stipulation which read that

future payments to the claimant will [sic] made at the rate of $127.53 less $20.00 per week for credit of an overpayment, or payment to the claimant of $107.53 per week, until such time as future discovery reveals otherwise.

On March 16, 1989, the JCC entered an agreed order which adopted the language of the stipulation. The carrier continued to pay at the reduced rate.

On May 4, 1990, the parties entered a pretrial stipulation. In the stipulation, the claimant listed as an issue, "Return to cl (claimant) of gratuitous overpayment previously collected and termination of rights of CR (carrier) to take credit on future compensation benefits." The state listed as an issue, "overpayments not gratuitous, credit for overpayment requested."

On December 13, 1990, after hearing, the JCC entered an order which included the following:

The parties stipulated that only issues ripe for adjudication on or before May 4th, 1990, which is the date of the Pretrial Hearing, would be presented for determination. The only issue therefore presented for adjudication at this time is the Claimant's average weekly wage and appropriate compensation rate. All other claims for attorneys fees and costs, and penalties and interest were withdrawn by the Claimant.

The order also established a new average weekly wage based on a promotion received by the claimant. The order was silent as to the state's right to continue to take a deduction.

On January 30, 1991, the state filed a petition for modification alleging that they were still entitled to a deduction for overpayment as a result of the March 16, 1989, order approving the parties' stipulation. A hearing was held on the petition for modification on March 4, 1991.

At the hearing, the state called Samantha Walker, the adjuster on the case, who testified during direct examination that the reason for the overpayment was that the carrier used a biweekly, rather than a weekly, figure in calculating the average weekly wage. On cross-examination, the adjuster clarified without objection that the error was the sole responsibility of the employer, and...