Burdines Department Store v. Palmer

489 So. 2d 1167, 11 Fla. L. Weekly 1184, 1986 Fla. App. LEXIS 8029

• Court: District Court of Appeal of Florida
• Decided: May 22, 1986
• Docket: No. BH-362
• Status: Published

Opinion

NIMMONS, Judge.

The employer/carrier appeal from an order of the deputy commissioner granting claimant’s petition for modification of the deputy’s earlier order which had denied permanent total disability. We reverse.

The deputy granted claimant’s petition for modification on the grounds that (1) he had made a mistake in a determination of fact and (2) there had been a change in claimant’s condition. However, the order granting the petition cannot be sustained on either ground.

The deputy believed that he had made a mistake in a determination of fact in that he had not considered certain testimony which was given in November 1983 in an earlier proceeding before another deputy commissioner. However, it is clear from the record that the claimant’s attorney failed to present this testimony to the deputy at the initial hearing in June 1984, either in the form of a transcript or otherwise. It was the claimant’s responsibility to have had such critical testimony admitted into evidence at the June 1984 hearing. As in any other proceeding, he is bound by the evidence he has presented. Thus, the mistake made in this case was not by the deputy, but by the claimant.

Further, the order cannot be sustained on the ground that there was a change in claimant’s condition. The deputy stated in the appealed order that claimant had suffered a material change in condition in that claimant was suffering from advanced cataracts. However, the evidence available at the initial hearing established that claimant was suffering from advanced cataracts even then. Thus, there had been no change in claimant’s condition.

The deputy’s order granting claimant’s petition for modification is therefore

REVERSED.

BARFIELD, J., and FRANK, RICHARD H. (Associate Judge), concur.