
    EASTERN AIRLINES & GAB, Appellants, v. Willie GRIFFIN, Appellee.
    No. 93-292.
    District Court of Appeal of Florida, First District.
    April 4, 1995.
    Rehearing Denied June 19, 1995.
    Yvette R. Prescott and Geralyn M. Passa-ro, of Peters, Robertson, Lax, Parsons & Welcher, Miami, for appellants.
    Ramon Malea, Coral Gables, and Randy D. Ellison, West Palm Beach, for appellee.
    Steven Kronenberg and Jacqueline M. Gregory, of Kelley, Kronenberg, Kelley, Gil-martin & Fiehtel, Miami Lakes, for appellee.
   EN BANC

BARFIELD, Judge.

Eastern Airlines and GAB (E/C) appeal a compensation order awarding benefits. The E/C assert that the judge of compensation claims (JCC) erred in awarding twelve hours per day of attendant care services because the parties had stipulated that the claimant was entitled to six hours of attendant care per day. We disagree and affirm the order on appeal.

The claimant began working for Eastern Airlines in 1969. In 1980, he was promoted to the position of painter and mechanic. Since his promotion, the claimant has worked regularly with paints, solvents, and other chemicals and toxic substances. The parties agreed that the claimant suffered damage to his nervous system as a result of chemical exposure and that he is permanently, totally disabled.

In the claim for benefits, the claimant sought attendant care for twelve hours per day pursuant to the recommendation of Dr. Wagshul. The claimant also listed past and future attendant care for twelve hours per day as a benefit sought in the initial pretrial stipulation. In an amended pretrial stipulation, the claimant sought attendant care from December 18, 1989 forward at the rate of six hours per day.

At the beginning of the hearing, the claimant’s counsel stated that he wished to amend or clarify the claim for attendant care services in light of depositions taken subsequent to the pretrial stipulations and that the claimant sought an award of twelve hours per day from December 2, 1989 through the present. The claimant’s counsel explained that the claim was lowered to six hours based on the wife’s explanation to him of what she was doing for the claimant; there were certain houi’s the wife was not providing care and he did not understand at the time that another family member was stepping in to care for the claimant when the wife was not providing care. Although counsel for GAB objected to the claimant amending the claim for attendant care services contrary to the pretrial stipulation, the JCC awarded the claimant twelve hours per day of attendant care.

The E/C argue that the JCC erred in ignoring the stipulation because the case presents none of the exceptions to the general principle in favor of upholding stipulations. The E/C acknowledge that the JCC is not bound by a stipulation if evidence presented at the hearing is in variance with the facts recited in the stipulation, but contend that the facts in the instant case do not negate the binding effect of the stipulation. The E/C also assert that by ignoring the stipulation, the JCC defeated the salutary purpose and policy underlying and encouraging the usual binding effect of stipulations.

We conclude that the JCC did not abuse his discretion by permitting the claimant to amend the number of attendant hours claimed. Rule 4.130, Rules of Workers’ Compensation Procedure, provides:

No agreement or stipulation shall be valid unless: (1) in writing and signed by the parties or their attorneys, or (2) dictated on the record. Any agreement or stipulation under this rule may be expressly relied on by the judge of compensation claims in any proceeding, unless a party seeks to be relieved of the agreement or stipulation for good cause shown. The judge of compensation claims may abrogate any stipulation which appears to be manifestly contrary to the evidence on due notice to the parties; however, the judge of compensation claims need not inquire beyond the stipulation or agreement.

(Emphasis added).

Counsel for the claimant explained the mistake that led to the reduction in the number of hours claimed in the amended pretrial stipulation. The testimony of Dr. Wagshul and the claimant’s wife clearly indicated that the claimant is in need of attendant care twelve hours per day. Although counsel for the E/C argued that she did not cross-examine the doctor regarding the number of hours of attendant care necessary each day during his deposition and that she did not attempt to find a witness to testify that some lesser amount was necessary because she thought the matter had been settled, the E/C did not seek a continuance of the proceedings in order to do so.

The E/C cite Fawaz v. Florida Polymers and Fiesco, 622 So.2d 492 (Fla. 1st DCA 1993), in support of their argument. In Fa-waz this court said that a stipulation could be set aside only if it was “obtained by fraud, misrepresentation, or mistake of fact.” Id at 495. As to the mistake of fact this court said:

[t]he general rule is that a party will be relieved from a stipulation entered into under a mistake as to a material fact, if there has been reasonable diligence exercised to ascertain such fact. On the other hand, if a party enters into an agreement, not as a result of a mistake of fact, but merely due to a lack of full knowledge of the facts, caused by the party’s failure to exercise due diligence to ascertain them, there is no proper ground for relief.

Id at 496. The due diligence requirement imposed by this court is inconsistent with Rule 4.130 and the law generally applicable to relief from a stipulation as set forth by Judge Webster in his dissent in Fawaz. Cf. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987) (“Section 440.28 by its terms does not limit one seeking to modify a compensation order to a shorter period than two years from the entry of the order, or within two years after the last payment of compensation, because of such person’s lack of due diligence.” The deputy commissioner imposed a due diligence standard on the employer/carrier which is not required by section 440.28.); Metropolitan Dade County v. Barry, 614 So.2d 666 (Fla. 1st DCA 1993) (Relying on Gallardo, modification pursuant to section 440.28, Florida Statutes, is not precluded even though the portion of the order to be modified was agreed upon by stipulation, and even though the employer may have failed to exercise due diligence to discover the fraud through investigative and discovery procedures.). We, therefore, recede from our decision in Fawaz to the extent it limits the discretion of the judge of compensation claims in granting relief from stipulations beyond that contemplated by Rule 4.130.

In this case the E/C was clearly on notice that the claimant intended to prove the need for twelve hours of attendant care; yet, the E/C didn’t ask for additional time to develop facts to support the stipulation much less suggest that such facts existed. The stipulation was manifestly contrary to all the evidence presented to the JCC.

AFFIRMED.

BOOTH, JOANOS, MINER, ALLEN, WOLF, KAHN, WEBSTER, LAWRENCE, DAVIS and VAN NORTWICK, JJ., concur.

ZEHMER, C.J., specially concurs with opinion in which BENTON, J., concurs.

ERVIN, J., concurs and dissents with opinion in which MICKLE, J., concurs.

ZEHMER, C.J., and BENTON, J., concur in part.

ZEHMER, Chief Judge

(specially concurring).

I concur in affirming the appealed order for the reasons stated in the majority opinion in all respects except one. I cannot agree to that portion of the opinion that purports to recede from our decision in Fawaz v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993), for two reasons. First, Fawaz is materially distinguishable from the instant case and does not involve the same issue. Second, to the extent the majority opinion purports to approve Judge Webster’s dissent in Fawaz as a correct statement of the law governing stipulations in workers’ compensation cases, the majority opinion errs because the rule stated in Judge Webster’s dissent is based on common law principles described in non-workers’ compensation cases that have been somewhat modified by the workers’ compensation rule. Further, the rule described in that dissent is not complete, as is more fully explained in Judge Ervin’s concurring and dissenting opinion, with which I concur in part.

Fawaz is materially distinguishable because the stipulations involved therein had been approved by orders before the employer and carrier relied on a position inconsistent with the facts previously agreed to in the stipulations, and no motion was ever made by the employer and carrier seeking to modify or set aside the orders. My concurrence in the Fawaz decision is based upon these facts which are clearly set forth in the opinion, and should be read in that context. Unlike Fa-waz, in the instant case we are dealing with a pretrial stipulation that had never been, approved by the judge’s order. In the Fawaz situation, the order approving the stipulation remains binding on the parties until modified pursuant to section 440.28. In the current situation, the pretrial stipulation is binding for purposes of the ease only when accepted by the judge of compensation claims pursuant to rule 4.130, because the rule expressly provides that a stipulation may be abrogated by the judge for good cause shown or when the stipulation appears to be manifestly contrary to the evidence.

The decision in Fawaz must be read and understood in context with the material facts cited in the opinion. Because the stipulations in that case had been approved by orders, that decision is not in conflict with the decision in the instant case. The discussion of Fawaz in the majority opinion is, therefore, essentially dictum that is not essential to reaching a decision in the instant case and, for this reason, does not serve as a valid basis for requiring that the entire court hear this case en banc pursuant to rule 9.331, Florida Rules of Appellate Procedure.

I concur in Judge Ervin’s opinion except as to his statement that “the rule in Faivaz, recognizing a due diligence requirement for parties seeking relief from a stipulation on the ground of mistake of fact, would apply whether or not an order had been entered approving the stipulation.” We need not address this issue because the instant case does not turn on whether claimant’s attorney acted with due diligence in making the pretrial stipulation. Rather, the only issue before us is whether additional facts discovered during routine depositions taken before the pretrial hearing were legally sufficient to demonstrate that the pretrial stipulation was contrary to the facts within the meaning of rule 4.130. Under this rule, whether due diligence in discovering relevant facts that are inconsistent with the stipulated facts is required to avoid or set aside a stipulation becomes relevant only if a party has acted in reliance on the stipulation and will be subjected to nonremedial prejudice if the stipulation is set aside. No such issue is involved in the instant case.

In short, I would affirm this case on the authority of rule 4.130 because the appellants have not shown any abuse of discretion by the judge below in rejecting the pretrial stipulation and awarding attendant care benefits for twelve hours a day. I see absolutely no need for any lengthy discussion of the issue (in fact, this case could easily have been affirmed without opinion).

ERVIN, Judge,

concurring and dissenting.

I concur with that portion of the court’s opinion which affirms the compensation order awarding attendant care benefits in an amount greater than that agreed upon by the parties. I dissent from that part of the opinion receding from certain statements in Fawaz v. Florida Polymers, 622 So.2d 492, 496 (Fla. 1st DCA 1993), which impose a due diligence requirement on a party seeking relief from a stipulation on the ground of mistake of fact.

In approving the order on review, the majority relies upon Florida Rule of Workers’ Compensation Procedure 4.130, authorizing a judge of compensation claims (JCC) to set aside any stipulation which appears to be manifestly contrary to the evidence. This rule pertains to agreements which are not later confirmed by order, such as the stipulation executed in the case at bar. The rule does not, however, apply to cases such as Fawaz, in which the JCC enters orders approving the parties’ stipulations. Although the majority’s opinion in Fawaz did not discuss section 440.28, Florida Statutes, I consider that the statutory grounds for obtaining modification of compensation orders under section 440.28, by a showing of change in condition or mistake in a determination of fact, applied to the two orders in Fawaz, despite the absence of any formal motion for modification, and I find nothing in the provisions of rule 4.130 evidencing any intent to supersede the time-honored requirements of section 440.28. Moreover, I am of the view that the rule in Fawaz, recognizing a due diligence requirement for parties seeking relief from a stipulation on the ground of mistake of fact, would apply whether or not an order had been entered approving the stipulation. The quote from Fawaz, which the majority finds so objectionable, ante at 1195, tracks a general statement of the law found in 73 Am.Jur.2d Stipulations § 14, at 551 (1974). Practically identical language is supplied in 83 C.J.S. Stipulations § 35(b)(2), at 91 (1953).

The due diligence standard the majority approved in Fawaz is altogether consistent with the interpretation placed by Florida courts on the mistake of fact requirement of section 440.28. For example, in Power v. Joseph G. Moretti, Inc., 120 So.2d 443, 446 (Fla.1960), the Florida Supreme Court made the following pertinent observation:

It is well established that in order to justify the modification of a compensation order on the basis of a mistake, the subsequent showing must consist of something more than additional evidence of facts already known, an accumulation of testimony on facts previously established, a mere change of mind by a witness, or a reanalysis of the prior record by the deputy and a change of his conclusions as a result of a retrospective exploration of the original record.

(Emphasis added.) Florida’s courts have rigidly applied the above rule in keeping with the judicial system’s quest for finality of decisions, with the result that modification on such ground is allowed only in the very rare case. See, e.g., Dixon v. Bruce Constr. Corp., 160 So.2d 116 (Fla.1963); Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.

1963); Beaty v. M & S Maintenance Co., 124 So.2d 868 (Fla.1960); McDonough v. Versailles Hotel, 57 So.2d 16 (Fla.1952); Westwinds Transp., Inc. v. Murphy, 494 So.2d 519 (Fla. 1st DCA 1986); Hohenstein v. Jim Wilson Constr. Co., 451 So.2d 964 (Fla. 1st DCA 1984); Ouellette v. Treasure Isle, Inc., 444 So.2d 585 (Fla. 1st DCA 1984); Everwear Prods. Co. v. Holloway, 422 So.2d 1020 (Fla. 1st DCA 1982); Housing by Vogue v. Caswell, 421 So.2d 556 (Fla. 1st DCA 1982); Southern Bell Tel. & Tel. Co. v. Blackstock, 419 So.2d 360 (Fla. 1st DCA 1982); Cleveland v. Everson, 415 So.2d 763 (Fla. 1st DCA 1982); University Inns v. Davis, 413 So.2d 128 (Fla. 1st DCA 1982); Universal Erectors, Inc. v. Murphy, 410 So.2d 209 (Fla. 1st DCA 1982).

One of the cases above cited, Housing by Vogue v. Caswell, is particularly instructive. There a dispute arose between claimant and the employer/carrier (E/C) regarding the amount of claimant’s average weekly wage (AWW). Because claimant had not been employed for 13 weeks before the date of the accident, the E/C presented a wage history statement of a similar employee, and, based upon his wages, the JCC adopted the AWW of the similar employee as that of the claimant. The claimant later filed a motion to modify the order pursuant to section 440.28, alleging a mistake of fact, contending that he had only discovered after the entry of the order that the similar employee was not in fact a similar employee, but rather a work-release prisoner who had not been afforded all of the employment advantages as were given other employees. Relying upon this information, the JCC determined that a mistake of fact had occurred and modified the order by changing the amount of the claimant’s AWW. In reversing, this court observed that a motion to revise a compensation order on the ground of mistake of fact “may be brought when material evidence which adds something new becomes available after entry of an order, and this evidence could not have been discovered at the time of the original hearing and entry of the earlier order.” Id. at 558 (emphasis added). We concluded that evidence regarding a similar employee’s job status could have been discovered earlier and that to afford the claimant relief by amending the order would only excuse a lack of diligent preparation on his part. Id.

Case law from other jurisdictions, moreover, has generally imposed a more rigid burden upon applicants asking to be relieved from the binding effect of final orders approving stipulations, than on movants seeking relief from stipulations made without court confirmation. One commentator has summarized these distinctions in the following terms:

The entry of an order or judgment, pursuant to a stipulation of settlement, seems to have been regarded as embracing a change in position of the parties, in itself, so that while, as in the case of other stipulations for settlement, it is removed from the field of ordinary stipulations which may be set aside freely if there has been no material change in position which would prejudice one of the parties, it calls for a showing ... sufficient in equity to justify setting aside a judgment.

H.D. Warren, Annotation, Relief From Stipulations, 161 A.L.R. 1161, 1194 (1946). On the other hand, if the stipulation involves simply procedural matters in litigation, a court in its broad discretion is considered free to set it aside for the sake of convenience alone. Id. at 1192.

An alternative basis for distinguishing Fa-ivaz from the case at bar is that the stipulations in Fawaz were made in contemplation of settlement, while the pretrial stipulation in the instant case was not. In fact, the stipulation here was made prior to discovery. The general law controlling one’s right to seek relief from a stipulation contemplating settlement of the case, based on the ground of mistake of fact, appears to mirror the law governing stipulations which have been endorsed by order. In both situations the courts may determine whether a party acted diligently in seeking to set aside a stipulation on the specified grounds of mistake of fact or inadvertence. Some cases representative of the above rule include Harris v. Spinali Auto Sales, Inc., 49 Cal.Rptr. 610 (Ct.App.1966) (court denied relief to a party who had contended that his lack of exact knowledge of what the corporate assets were at the time of the stipulation dividing the net assets of the corporation resulted in a mistake of fact); Marrujo v. Chavez, 77 N.M. 595, 426 P.2d 199 (1967) (although appellant sought relief from stipulation of settlement, because property which the parties had agreed to convey contained less acreage than was contemplated, the court declined the request, noting that several exhibits earlier placed into evidence should have alerted appellant to an accurate description of the property to be deeded); United Factors v. T.C. Assocs., Inc., 21 Utah 2d 351, 445 P.2d 766 (1968) (when guarantors, seeking to set aside their written stipulation admitting liability, alleged that their guarantee agreement had been modified by a later oral agreement which limited the amount of their liability, but that they had mistakenly failed to advise their attorneys of such fact, the court properly denied relief for failure to exercise diligence).

Judge Barfield’s opinion for the court also commends Judge Webster’s dissent in Fawaz as being consistent with the general rule recognizing that no showing of due diligence is essential as a predicate for setting aside a stipulation. The authorities Judge Webster cited, however, do not support this position. For example, at page 499 of his dissent in Fawaz, Judge Webster states: “Equally clearly, a stipulation may be set aside if it is established that it was the result of inadvertence.” This is not a complete statement of the law. Among other authorities, Judge Webster cites 73 Am.Jur.2d Stipulations § 14, at 550 (1974), and 83 C.J.S. Stipulations § 35(3), at 92 (1953). The complete statement from the American Jurisprudence reference is as follows: “It is generally held that relief may be afforded from a stipulation which has been entered into as the result of inadvertence, improvidence, or excusable neglect, provided that the situation has not materially changed to the prejudice of the antagonist and that the one seeking relief has been reasonably diligent in doing so.” (Emphasis added.) Similarly, Corpus Juris Secundum provides: “A stipulation will not be set aside as improvidently made where the circumstances exclude every inference of fraud, collusion, or undue advantage, or the possibility that there ivas not a thorough understanding of the subject matter and of its terms.” (Emphasis added.) The remaining cases Judge Webster listed in his dissent in Fawaz at pages 498-99 simply do not address the precise question which Judge Barfield has chosen to address in this case: Whether a due diligence requirement may be applied to a case wherein a party seeks to set aside a stipulation on the ground of mistake of fact?

Judge Barfield additionally cites Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987), and Metropolitan Dade County v. Barry, 614 So.2d 666 (Fla. 1st DCA 1993), as supportive of the rule that modifications of orders entered pursuant to stipulations may be granted without any showing of due diligence. Both of these opinions, however, involve modifications on the ground of fraud and not, as the statement at issue in Fawaz, on mistake of fact. My research has uncovered no authority which requires, as a precondition to setting aside a stipulation due to fraud, any showing of due diligence. And I think that the reason for not imposing such an obligation is obvious: “ ‘[A] party is not required to anticipate false testimony from the opposing party, and is, therefore, not required to discover evidence which would refute false testimony.’ ” Oakdell, 505 So.2d at 675 (quoting Louisville & Nashville R.R. Co. v. Hickman, 445 So.2d 1023, 1027 (Fla. 1st DCA 1983) (alteration in original), review dismissed, 447 So.2d 887 (Fla.1984)). On the other hand, if one seeks relief based on mistake of fact, the movant is required to show more than “merely a lack of full knowledge of the facts, which was plainly due to failure to exercise due diligence to ascertain them.” 83 C.J.S. Stipulations § 35(2), at 91 (1953).

I have no quarrel with the decision in this case to affirm the JCC’s order awarding claimant 12 hours per day of attendant care, despite the parties’ agreement representing that claimant was entitled to only six hours. The stipulation the JCC ignored appears to be manifestly contrary to the evidence, which is an independent ground for relief under rule 4.130. In Faivaz, in contrast, there was clearly some evidence supporting the two stipulations at the time they were executed. Claimant showed that she had suffered a back injury on the job which caused her to be temporarily disabled and to require both medical services and attendant care. The only issue of which the E/SA was uncertain when it entered into the stipulations was whether claimant’s preexisting back condition had been aggravated by her employment injury, or whether the industrial injury was an independent, separate injury unrelated to her prior condition. If the trauma suffered were the latter, the E/SA would have been unable to establish an essential requisite of the Martin v. Carpenter defense, i.e., that there be a causal connection between the employee’s current injury and the false misrepresentation.

To conclude, in deciding to recede from the rule stated in Fawaz, the majority reaches an issue which is unnecessary to its decision, and, in so doing, it eliminates the long-standing due diligence requirement imposed on those seeking relief from stipulations on the ground of mistake of fact. 
      
      . The remaining arguments raised on appeal are without merit.
     
      
      . In a manner of speaking, since I agree in part both with Judge Barfield’s opinion and Judge Ervin's opinion, I find myself in the position of Chief Justice Christian of the Irish Court of Appeal, who remarked concerning the differing views of two colleagues in a case: " 'I agree with the conclusion arrived at by my brother on the right, for the reasons stated by my brother on the left.’ ” Robert A. Leflar, Appellate Judicial Opinions, 213 (1974).
     
      
      . Florida caso law recognizes additional grounds for modification if the order was based upon a stipulation. See Steele v. A.D.H. Bldg. Contractors, Inc., 174 So.2d 16, 19 (Fla.1965) (“fraud, overreaching, misrepresentation or withholding facts by the adversary or some such element as would render the agreement void”); Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987).
     
      
      . Florida case law involving modification of final orders under the relief from judgment rule, Florida Rule of Civil Procedure 1.540(b), on the ground of mistake of fact, also requires a showing of duo diligence. See, e.g., John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA), cert. denied, 389 So.2d 1113 (Fla.1980); Goldome v. Davis, 567 So.2d 909 (Fla. 2d DCA 1990); Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087 (Fla. 3d DCA 1987).
     
      
      . 132 So.2d 400 (Fla.1961).
     