Our law firm recently obtained a favorable judgment from the JCC denying a claim for Modification of a prior Final Order. (Carlos Blanco v. City of Hialeah/Sedgwick MCS OJCC No. 13-002455GCC). We prevailed on the original Final Order where claimant was seeking PTD and we again prevailed on claimant’s request for Modification. Unfortunately, the law in workers’ compensation allows the claimant several bites at the apple. The claimant has to either show mistake of fact or change of condition to modify a prior order. In our case, we were able to successfully argue that there was no change of condition and that there was no mistake of fact on the part of the JCC. For specific facts see the opinion, but do keep in mind the following when dealing with claims for Modification.
The mistake of fact must be in the part of the JCC in making his/her determination. In other words, if the mistake of fact is due to the fact that claimant failed to present evidence available at the time of the original proceeding, it is a mistake of fact on the part of the claimant and not the JCC. To modify a prior Final Order based on a mistake of fact, the petitioner must provide material evidence adding something new to the facts already known at the time of the first hearing or that the evidence could not have been discovered at the time of the original hearing. A claimant’s failure to present critical evidence during the first hearing is the claimant’s mistake, not the JCC’s, and a petition for Modification is inappropriate to rectify this failure.
With respect to a change of condition, it is the claimant’s burden to establish by competent substantial evidence the occurrence of the change or deterioration in his/her condition, and with reasonable medical certainty, the period during which his condition progressively worsened. If the claimant’s treating physician testified that claimant is not capable of working in first proceeding that then a few years later renders the same opinion, there is no change of condition even if there were some progressive symptoms of the disease.