Opinion
January 4, 1952. Rehearing Denied February 8, 1952.
Appeal from the Circuit Court of Dade County, Marshall C. Wiseheart, J.
Lucille Snowden, Miami, for appellant.
Knight, Smith Underwood, Miami, for appellees.
January 1, 1947, while working at the Versailles Hotel, Miami Beach, the claimant-appellant slipped and fell on greasy steps, causing injury to his back and elbow. He was paid compensation benefits until March 17, 1947. On May 1947, the Deputy Commissioner entered an award requiring the payment of compensation and medical benefits until claimant reaches his maximum healing period. Payments were made to October 17, 1947, pursuant to latter order. April 30, 1948, the Deputy Commissioner entered an order requiring the continuance of compensation benefits from October 17, 1947, until claimant reaches his maximum healing period.
The latter order was appealed to and reviewed by the full commission, which returned the cause to the Deputy Commissioner with directions to have complainant examined by an orthopedic physician, not heretofore connected with the case. After said examination the Deputy Commissioner will hold another hearing at which either party may submit other evidence as they may be advised. When this is done the Deputy Commissioner will enter such additional order as the circumstances may warrant. After complying with the foregoing the Deputy Commissioner found that "claimant is not entitled to further compensation after October 17, 1947, in as much, as he has been able to return to his former employment since said date." On appeal to the full commission the latter order was affirmed and no appeal was taken therefrom. This proceeding will hereafter be referred to as the "former suit."
September 26, 1949, claimant instituted the present suit by petition to review his right to further compensation and medical benefits under Section 440.28, Florida Statutes 1941, F.S.A. A hearing was held and the Deputy Commissioner found that the claimant was entitled to weekly compensation from October 18, 1947, at the rate of $22 per week for temporary total disability to continue to maximum recovery. The finding and order of the Deputy Commissioner also carried hospital, doctors and medical care pending recovery, including fee for claimant's attorney in the sum of $475. On appeal the full commission reversed the order of the Deputy Commissioner and dismissed the cause. The order of the full commission was on appeal affirmed by the Circuit Court. This appeal is from the latter order. This proceeding will hereafter be referred to as the "present suit."
The point for determination is whether or not sufficient showing was made under Section 440.28, Florida Statutes 1941, F.S.A., for the order of the Deputy Commissioner awarding the claimant $22 per week from October 18, 1947, for temporary total disability to maximum recovery, including other benefits named in the order.
Section 440.28 provides: "Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commission may at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in § 440.25, and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation."
Examination of the quoted statute discloses only two pretexts that permit the commission to review a compensation case. They are (1) Change in condition. (2) Mistake in determination of fact. Did the evidence taken by the Deputy Commissioner reveal either of these pretexts? Claimant does not contend that there was a change in condition but he says there was a mistake as to the nature and extent of the claimant's physical injury.
We have reviewed the medical testimony taken in the former suit and in the present suit and it conclusively appears that each category of doctors testified as to the same injury, that the evidence taken as to the injury in the present suit was cumulative and added nothing to that taken in the former suit. It conclusively appears that nothing new was developed in the present suit and that nothing material as to nature and extent of the injuries was overlooked in the former suit.
In Sonny Boy's Fruit Company v. Compton, Fla., 46 So.2d 17, 18, we construed Section 440.28 and among other things, held: "Evidence that does nothing more than add to or controvert that already taken is not sufficient to reopen a case for the purpose of securing additional compensation. It must reveal new or changed developments in the claimant's condition that have a causal relationship to his injury to warrant a reopening of the case." We find nothing to indicate a mistake as to the physical injury. When that is the case the order appealed from should be affirmed. Stansfield v. Lykes Bros. S.S. Co., 5 Cir., 124 F.2d 999; Texas Employers' Ins. Ass'n v. Sheppeard, D.C., 42 F. Supp. 669.
Appellant contends that the commission and the Circuit Court misapplied the doctrine of Sonny Boy's Fruit Company v. Compton. This contention is based on the fact that four Deputy Commissioners have reviewed the evidence and all but one held that appellant is entitled to compensation. It is further contended that the rule established by the last cited case is that the finding of the Deputy Commissioner as to questions of fact, is binding on the full commission. The answer to this point is that there was no appeal from the finding of the Deputy Commissioner in the former suit so his judgment became final after thirty days. We are in nowise concerned with that judgment in the present case. If the Deputy Commissioner in the present case undertook to review the order of the Deputy Commissioner and the full Commission in the former case, he was not only without authority to do so, but was invading the province of the Circuit Court. He was limited in the present case to finding a change in condition or mistake in determination of fact.
No such determination was shown so the full commission and the Circuit Court were correct in reversing the Deputy Commissioner.
Affirmed.
SEBRING, C.J., CHAPMAN, J., and LEWIS, Associate Justice, concur.