IN THE SUPREME COURT OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA CARLOS VALDES v. Petitioner, SC Case: SC First DCA Case: 1D INTEGRATED ADMINISTRATORS and WAL-MART STORE #6020, Respondent. / On discretionary review from the First District Court of Appeals State of Florida PETITIONER S AMENDED JURISDICTIONAL BRIEF RONALD S. WEBSTER, ESQ., FB# PAMELA CRAIG, ESQ., FB# Stump, Webster, Craig, Staten & Recksiedler, P.A. 118 E. Jefferson Street Orlando, FL Pho (407) Fax (407) Attorneys for the Petitioner

2 TABLE OF CONTENTS Page Table of Contents i Table of Citations ii Preliminary Statement 1 Statement of the Case and the Facts 2 Summary of the Argument 4 Argument 8 Jurisdiction is conferred on the basis of prior Supreme Court decisions involving res judicata and modification in workers compensation proceedings. Conclusion 18 Certificate of Service 19 Certificate of Font & Type Size 19 Appendix App. A i

3 TABLE OF CITATIONS Case Law: Page(s) decancino v. Eastern Airlines So.2d 97 (Fla. 1973) Holder v. Keller Kitchen Cabinets So.2d 1264 (Feb. 1992) Hughes v. Denny s Restaurant So.2d 830 (Fla. 1976) Sauder v. Coast Cities Coaches, Inc So.2d 162 (Fla. 1963) F.S.: Page(s) (37)(f) (1) (1)(b) ii

4 PRELIMINARY STATEMENT Petitioner, CARLOS VALDES, may be referred to as petitioner and/or claimant. Judge of Compensation Claims may be referred to as JCC. PTD may be referred to as PTD. Social security disability may be referred to as SSD. District Court of Appeal may be referred to as DCA. Maximum medical improvement may be referred to as MMI. Workers Compensation may be referred to as WC. Florida Statutes may be referred to as F.S..

5 STATEMENT OF THE CASE AND OF THE FACTS The claimant, and petitioner herein, CARLOS VALDES, had three accidents while working as a truck driver for Wal-Mart and the dates of the accidents were August 1, 1994, March 9, 1995 and April 26, These accidents involved a hernia, cervical and psychiatric injuries. The claimant filed an initial claim and Petition for Benefits for PTD benefits, which was heard before the Honorable Richard S. Thompson, Judge of Compensation Claims. Following that hearing, Judge Thompson entered a compensation order denying benefits dated November 28, 2000 based upon the JCC s factual determination that I do not find that the claimant would be eligible for SSD benefits as a result of the accidents and, thus, he failed to establish entitlement to PTD benefits (App. A, pp 9 emphasis applied). Approximately one and a half years later, the claimant filed a new Petition for Benefits for PTD benefits, requesting PTD to commence at a date following the initial denial of PTD benefits. The hearing on the second PTD claim was held on August 14, The JCC entered an order dated September 13, 2002 finding the claimant to be permanently and totally disabled and awarded the claimant PTD benefits, along with supplemental benefits, from March 20, 2001, plus some additional medical benefits. The JCC, in this order, recognized the fact the claimant had qualified for

6 SSD benefits based only on the injuries received in the workers compensation claim. The employer/carrier filed a Notice of Appeal and the First District Court rendered an opinion dated November 25, 2003 (See App. A) reversing the order granting PTD benefits and remanding for proceedings consistent with the opinion, but gave no instruction to the JCC upon remand. Thereafter, the appellee in the First DCA, CARLOS VALDES, and the petitioner herein, filed a Motion for Certification and an additional Motion for Rehearing, Rehearing En Banc or for Clarification of Decision. By order dated December 9, 2003, the First DCA denied the appellee s Motion for Certification and Motion for Rehearing, Rehearing En Banc or Clarification of Decision. A timely Notice to Invoke Discretionary Jurisdiction of the Supreme Court was filed herein. SUMMARY OF ARGUMENT Jurisdiction could be conferred on several bases, all of which involve Supreme Court decisions, which expressly and directly conflict with the decision of the DCA below. The cases and the general basis for accepting jurisdiction are as follows: 1. Holder v. Keller Kitchen Cabinets, 610 So.2d 1264 (Feb. 1992), holding modification is not required because a premature compensation claim, not ripe for

7 adjudication, does not meet the required elements of identity in the thing sued for or identify of the cause of action necessary for application of the doctrine of res judicata, Holder supra pp In the instant case, the DCA determined that res judicata would prevent a second filing for PTD benefits. The record is clear, however, that there was no complete identity of issues, since the claimant had not received PTD benefits for several years (since they were initially denied) and sought PTD benefits starting at a later date, once he could show that he had met all of the criteria for PTD. Thus, the identity of the cause of action was not the same. 2. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla. 1963). The DCA determined the petitioner had not shown a change of condition (App. A) and, furthermore, denied a Motion for Certification in the face of the underlying JCC s determination in an order that I specifically find that the claimant s condition has not improved since the last hearing, but decline to decide whether or not his condition has worsened, as well as other evidence in the record that will show the claimant's impairment rating had almost doubled and he had seen a new physician, who determined there were

8 additional diagnoses that had not previously made regarding the accepted condition and the claimant s own testimony that he had worsened. Sauder supra above stands for the proposition that in a WC case where there is evidence in the record which, if accepted, would indicate a change of condition, then the fact that the decision of the deputy commissioner (now titled JCC), which was reversed on a determination that there was no real mistake in determination of fact, the claim should not be dismissed but should be remanded back to consider the record and submit appropriate findings with reference to the claimant s alleged changed condition. 3. Hughes v. Denny s Restaurant, 328 So.2d 830 (Fla. 1976). This Supreme Court case is a WC proceeding where a claimant who had been denied benefits due to an issue of causal relationship and later, when new evidence was developed that could not have been made known at the first hearing and a petition for modification for a mistake of fact was filed, the Supreme Court held that the court should deviate from the long recognized view that a mistake of fact contemplated by a petition for modification is one made by the deputy commissioner (now JCC). In this case,

9 the Supreme Court indicated that since the deputy was ignorant of the evidence, which would later indicate a causal relationship, the court should have treated that as a mistake of fact and allowed the modification. In the instant case, the JCC who denied PTD benefits originally held that the claimant had not been accepted by social security because of his injuries and, thus, did not have a catastrophic injury. The JCC did not know, and could not have known, that later the claimant did qualify for PTD for SSD benefits for those same injuries. This is a clear mistake of fact and the courts should have allowed the second PTD claim. 4. decancino v. Eastern Airlines, 283 So.2d 97 (Fla. 1973). This case involved a WC case where the appellate court dismissed the underlying claim on the basis of res judicata. The Supreme Court stated that the appellate court (in that case, the Industrial Relations Commission), did not consider several exceptions or qualifications to the doctrine of res judicata, including the exceptions that the doctrine will not be invoked where it will work an injustice, decancino supra pp 98. In our case, there was no question that a reversal of a finding of PTD based on the concept of res judicata where the original denial

10 was based upon a fact, which was determined to be 100% wrong and not subject to opinions or conclusions drawn from the trier of fact, would work an injustice. The court in decancino felt the lower court must consider the injustice exception. In fact, the court directed the appellate court in all cases of res judicata to the effect of a judgment as res judicata must be determined from the entire record of the case and not just the judgment itself, decancino supra pp 99. The petitioner herein respectfully requests that jurisdiction be granted to argue the entire merits of this case. ARGUMENT Jurisdiction is conferred on prior Supreme Court decisions involving res judicata, modification and injustice involving WC proceedings. The First DCA decision could not have reversed the trial court s finding on the basis of res judicata and failure to show a change of condition or mistake of fact. That decision expressly and directly conflicts with the decisions previously referred to in the Summary of the Argument. Since the claimant satisfied all of the requirements for PTD in the first decision, with the exception of the JCC finding him not eligible for SSD benefits at that time, the claimant was denied PTD benefits. The record would show that it was later

11 that the claimant was found to be disabled under SSD on exactly the same injuries that he received in his WC case. Under (1), claimant must show a catastrophic injury before he can obtain PTD benefits which includes in the definition his ability to qualify for SSD benefits (440.02, F.S.). When the claimant filed his second PTD claim a year and a half later, he could then show that he was accepted under SSD for exactly the same injuries received in the accident and, thus, now could prove a catastrophic injury. The second JCC indicated the claimant had now proved entitlement to PTD and apparently did not feel he had to determine whether or not the claimant s condition had worsened since he indicated in his order that the claimant s condition had not improved, but declined to decide any issue of worsening. Based upon this scenario, res judicata should not apply. In Holder (discussed earlier), also a WC case, the court discussed the unique nature of WC proceedings and indicated: modification is not required because a premature compensation claim, not ripe for adjudication, does not meet the required elements in the thing sued for or identity of the cause of action necessary for application of the doctrine of res judicata, citing Holder supra pp 1267, and also citing many other Supreme Court and DCA decisions. Certainly the original case here was premature in light of the fact the claimant failed to prove a catastrophic injury and now it had ripened into a PTD claim.

12 Under the reasoning of the DCA, if the claimant filed PTD and could not prove it because he had failed to reach MMI or prove a catastrophic injury or failed to show he was unemployable and the case was denied, it would be against all principles of WC to deny him a chance to prove up his claim, if years later, he now was able to satisfy all of the criteria. If the claimant filed multiple claims without any additional evidence, obviously the concept law of the case would keep the claimant from filing repetitive claims, as well as res judicata. This is not the same case. Jurisdiction should also be allowed on the DCA s interpretation of whether a Petition for Modification had been proved regarding a mistake of fact or change of condition. Clearly, either the awarding of SSD benefits, which establishes his claim, is either a mistake of fact or a change of condition. It has to be one or the other and either one would have allowed this additional hearing. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla. 1963). Modification should be liberally construed in WC cases, Hughes v. Denny s Restaurant, 328 So.2d 830 (Fla. 1976), and certainly the facts of this case, if allowed to stand, would work an injustice against the claimant in violation of decancino v. Eastern Airlines, 283 So.2d 97 (Fla. 1973). CONCLUSION

13 After being denied his first claim for PTD, the claimant established his entitlement to SSD benefits and, thus, a catastrophic injury. He requested benefits different from the first petition for PTD (i.e. compensation benefits from a later date) and, thus, the issues were not identical. Also, the filing was within two years from the last order and clearly the adjudication of PTD by the SSA was a mistake of fact or change of condition, either one of which established the claimant s right, if, in fact, res judicata would have alternatively been an appropriate theory to deny the claim. It would be an injustice in the claimant s case allowing PTD after his claim had ripened and he had shown a mistake of fact and change of condition and, thus, jurisdiction should be conferred and full hearing on the merits should be conducted. Claimant respectfully requests the court to accept jurisdiction and review the merits of this case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail this day of, 2004 to: to Michael Waranch, Esquire, 200 S. Orange Avenue, SunTrust Tower, 20 th Floor, Orlando, Florida 32801; and Bill McCabe, Esquire, 1450 West S.R. 434, Suite 200, Longwood, Florida CERTIFICATE OF FONT & TYPE SIZE

14 12 point. Counsel certifies that this brief was typed in Courier New RONALD S. WEBSTER, ESQ., FB# PAMELA CRAIG, ESQ., FB# Stump, Webster, Craig, Staten & Recksiedler, P.A. 118 E. Jefferson Street Orlando, FL Pho (407) Fax (407)

15 INDEX TO APPENDIX First DCA Opinion Dated November 25, 2003 App. A

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