Stevens v. Pursell's Wrecker & Road Service

645 So. 2d 13, 1994 Fla. App. LEXIS 9041, 1994 WL 502945
CourtDistrict Court of Appeal of Florida
DecidedSeptember 16, 1994
DocketNo. 93-444
StatusPublished
Cited by1 cases

This text of 645 So. 2d 13 (Stevens v. Pursell's Wrecker & Road Service) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stevens v. Pursell's Wrecker & Road Service, 645 So. 2d 13, 1994 Fla. App. LEXIS 9041, 1994 WL 502945 (Fla. Ct. App. 1994).

Opinion

PER CURIAM.

Claimant, Charles Stevens, appeals the order of the judge of compensation claims (JCC) modifying his prior order of October 15, 1991, and denying claimant’s claim for continuing medical and indemnity benefits. We reverse in part and affirm in part.

Claimant, Charles D. Stevens, was employed by appellee Pursell’s Wrecker & Road Service, an uninsured employer. The original hearing on this claim was held September 19, 1991, with a final order issuing October 15, 1991. The primary issue to be resolved by the JCC was whether the claimant suffered an accident in the course of his employment or whether claimant deviated from his employment by engaging in “horseplay.” There was some testimony that while claimant and other employees were rolling tires into the shop at the end of the day, claimant engaged in horseplay by attempting to jump over one of the tires. On the other hand, claimant testified that one of the tires began rolling toward a customer’s Corvette and he tried to kick the tire so that it would not hit the Corvette. In so doing, claimant fell and injured his wrist. In resolving this conflict, the JCC accepted claimant’s testimony and found that claimant sustained a compensable injury to his left wrist. There was apparently no dispute that claimant did, in fact, injure his wrist, for the JCC’s order recites the findings of Dr. Kessler which include swelling of claimant’s left wrist, stiffness of the fingers and black and blue marks. The JCC found claimant entitled to TTD benefits from June 26, 1990, through date of the hearing, statutory penalties, continued treatment by Dr. Kessler and further evaluation by a hand specialist.

On March 4, 1992, claimant filed the instant claim for benefits. Claimant sought TTD, TPD or wage loss benefits from September 19, 1991, and continuing, and further medical treatment (surgery). The employer defended on the grounds that (1) all benefits due under the prior order have been paid; (2) claimed disability not causally related to the accident; (3) wage loss not due to physical impairment related to the accident; (4) inadequate job search; (5) voluntary limitation of income; (6) claimed medical treatment not reasonably necessary nor causally related to the accident.

A hearing on the claim was held on October 15, 1992. Among the witnesses was one James Roop. Roop testified that he met claimant on one occasion about one year pri- or to the hearing. Claimant came to Roop’s house with a friend who was interested in purchasing Roop’s four-wheel all terrain motorbike. Roop estimated that the bike weighed three hundred pounds. Roop said claimant was not wearing a wrist brace. Roop said claimant grabbed a hold of the rollbar or rollcage and lifted or shook the vehicle in some manner. Claimant did not appear to be in any distress. Roop’s encounter with claimant lasted only about thirty or forty minutes.

Also testifying was Roxie Torres, who had known claimant for about ten years. Torres was also employed by appellee Pursell for an undetermined period of time. Torres got to know claimant personally over the last three years because claimant and his wife lived down the street from her. Torres lived with claimant’s wife during the preceding summer. Claimant lived with them for about a week. Torres made claimant move out be[15]*15cause claimant ran up a phone bill of approximately one hundred and sixty dollars. Torres said she saw claimant frequently over the past year and the only time he wore a wrist brace was the day he brought it back from Miami and the day of the hearing. Torres saw claimant working on cars and never heard him complain about his hand or arm. When claimant discussed a possible job with her ex-husband, claimant insisted on getting paid in cash because of his pending claim against appellee. Torres stated that on one occasion claimant sold his prescription medication to her for ten dollars. On cross-examination, Torres admitted that she bought the drugs from claimant and turned them over to the Purcells in the hope of helping the Purcells in the workers’ compensation case.

The JCC requested a conference with counsel the day following the hearing. The JCC indicated that he may have made a mistake in finding claimant credible in the prior order and accepting claimant’s testimony that he was not injured during horseplay. The judge plainly suggested that he may be willing to amend his prior order and suggested that he might be. able to do so under University of Florida v. Massie, 602 So.2d 616 (Fla.1992). The JCC admitted that none of the testimony presented the preceding day had anything to do with the initial accident at all. Nonetheless, the JCC thought it may be appropriate to modify the prior order to avoid an injustice.

On November 25, 1992, appellee filed a petition for modification. The motion asserted, inter alia, that: (1) the JCC made a mistake of fact in determining the credibility of the claimant at the time of the first hearing; (2) as a result of the most recent hearing it is obvious that claimant was not a credible witness with respect to how the accident occurred, his subsequent medical condition, his ability to work or his job search efforts; (3) the order of October 15, 1991, was procured through fraud and misrepresentation because claimant was not credible and presented false testimony; (4) an order obtained through fraud and misrepresentation is grounds for modification, citing Section 440.28, Florida Statutes and Oakdell v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987); (5) a court may correct its own erroneous prior decisions in order to prevent “manifest injustice,” citing University of Florida v. Massie.

A telephone conference was held on December 1, 1992, on the motion of the JCC. Appellee argued that the JCC had authority to amend the order of October 15, 1991, that such modification was warranted by new evidence obtained after the initial merits hearing, and that the initial order was procured by fraud. In response, claimant’s attorney argued that no evidence was presented at the second hearing to controvert the prior evidence as to how the accident occurred. The JCC agreed. Claimant argued that “bad act” evidence should not be used to collaterally attack the JCC’s prior findings. Counsel also argued that nothing presented at the recent hearing pertained to claimant’s capacity to use his hand prior to May or June of 1992. Appellee replied that the JCC was entitled to find that if claimant was not telling the truth about his condition now, then perhaps he wasn’t telling the truth at the earlier hearing.

On January 11, 1993, the JCC entered the order presently on appeal. The JCC concluded that as a result of the evidence presented at the second hearing claimant is totally without credibility. The JCC found that he made a mistake in finding the accident compensable. The JCC termed the mistake a manifest injustice and grounds for modification. The JCC, on his own motion, modified the prior order, sustaining appel-lee’s horseplay defense and finding that a compensable accident did not occur. The JCC also denied the claim for indemnity benefits from September 19, 1991, in its entirety.

On appeal, claimant raises three issues: (1) whether the JCC deprived claimant of due process by modifying the order of October 15, 1991, without adequate notice; (2) whether there exists competent, substantial evidence to support the JCC’s finding that the prior order was based upon a mistake of fact; (3) whether there exists competent, substantial evidence to support the JCC’s denial of the continuing claim for med[16]

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Bluebook (online)
645 So. 2d 13, 1994 Fla. App. LEXIS 9041, 1994 WL 502945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-pursells-wrecker-road-service-fladistctapp-1994.