          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5440
                  _____________________________

SAMUEL HOWARD,

    Appellant,

    v.

CITY OF TALLAHASSEE,

    Appellee.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.

Date of Accident: April 30, 2004.

                          October 15, 2018


PER CURIAM.

     Two issues are presented in this workers’ compensation
appeal. First, whether the Judge of Compensation Claims (JCC)
erred in rejecting the opinion of the expert medical advisor, Dr.
Sharfman. Second, whether the JCC erred in preventing the
Claimant from asserting that section 440.20(4), Florida Statutes
(2003) (commonly called the “120-day rule”), precluded the
Employer from denying his entitlement to ongoing benefits. We
affirm as to the first issue without discussion, but reverse as to the
second, concluding that Claimant’s amendment of the pretrial
stipulation should have been permitted.
                           Background

     The Employer accepted compensability of Claimant’s 2004
accident and injuries. Twelve years later, in February 2016, the
Employer filed a notice, denying Claimant’s entitlement to any
further treatment, asserting that the workplace accident was no
longer the major contributing cause (MCC) of the need for any
ongoing treatment. Claimant filed a petition for benefits in
December 2016 seeking entitlement to ongoing medical treatment
and a finding that the 2004 workplace accident and injuries
remained compensable.

     The parties filed the Uniform Statewide Pretrial Stipulation
on May 19, 2017. Claimant did not list the 120-day avoidance in
that stipulation. On June 1, 2017, Claimant filed a Supplemental
Pretrial Stipulation, asserting that the Employer had waived the
right to deny on-going treatment based on the failure to do so
within 120 days of receiving information calling into question the
MCC of the need for ongoing treatment.

      At the July 7, 2017, final hearing, the Employer objected to
Claimant’s assertion of the 120-day avoidance in the amended
pretrial stipulation, arguing that Claimant should have listed it on
the initial May 19 pretrial stipulation, and that Claimant failed to
file a motion to amend the pretrial. Claimant countered that the
supplemental stipulation was filed more than thirty days prior to
the final hearing and that the Employer had not voiced an
objection until now. Claimant asserted that a motion is not
required outside the thirty-day cutoff date provided for in the
stipulation. The JCC deferred its ruling.

                       Interim Final Order

    In the Interim Final Order, the JCC ruled that the Claimant’s
amendment to the pretrial stipulation was improper under rule
60Q-6.113(2)(a) and (6), Fla. Admin. Code, which provides that:

    . . . the pretrial stipulation (statement) must “[s]tate the
    claims, defenses, and the date of filing of each [PFB] to be
    adjudicated at the final hearing. Any claims that are
    ripe, due, and owing, and all available defenses not raised
    in the pretrial stipulation are waived unless thereafter

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    amended by the judge for good cause shown. Any
    amendment, supplement, or other filing shall only be
    accepted if it clarifies the claims and/or defenses
    pled. Absent an agreement of the parties, in no event
    shall an amendment or supplement be used to raise a new
    claim or defense that could or should have been raised
    when the initial pretrial stipulation was filed, unless
    permitted by the judge for good cause shown.” (Emphasis
    added [in original]). Subsection (6), in pertinent part,
    provides that “[i]n no event shall an amendment or
    supplement be used to raise a new claim or defense that
    could or should have been raised when the initial pretrial
    stipulation was filed, unless permitted by the judge upon
    motion for good cause shown.”

(Emphasis in order). Based upon the rule, the JCC held that
Claimant had failed to “show good cause why [the amendment]
was not raised timely” and had created prejudice for the Employer.

                           Analysis

     Resolution of whether Claimant’s amendment was proper
requires review of both the administrative rule just discussed, as
well as the Uniform Statewide Pretrial Stipulation completed by
the parties. In the latter, the parties agreed that: “Parties may
amend pre-trial stipulation up to thirty (30) days prior to hearing
without filing pleadings/motion for leave of court.” We conclude
that the stipulation controls the outcome in this case.

     Stipulations are favored in the law. In Marin v. Aaron’s Rent
To Own, 53 So. 3d 1048, 1050 (Fla. 1st DCA 2010), this Court
explained that “[t]he joint stipulation of the parties is binding on
the JCC, and a finding by the JCC at variance with the stipulation
will be overturned.” A stipulation is overturned only when “fraud,
overreaching, misrepresentation, withholding of the facts by an
adversary, or some element as would render the agreement void”
is demonstrated. Howard Johnsons v. Pineda, 560 So. 2d 336, 337
(Fla. 1st DCA 1990); see also Delgado v. Agency for Health Care
Admin., 237 So. 3d 432, 436 (Fla. 1st DCA 2018) (judge “should
have abided by the express and stipulated expectation of the
parties.”). Here, the parties agreed that the pretrial stipulation
could be unilaterally amended to include new claims or defenses if
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done so more than thirty days prior to the final hearing. Claimant
filed his supplement more than thirty days before the hearing.
Accordingly, the JCC erred in precluding Claimant’s amendment
of the pretrial stipulation to include consideration of the waiver
argument under section 440.20(4).

     On remand, the JCC should make findings as to whether the
Employer failed to deny the claim within 120 days of learning that
the MCC of Claimant’s condition may not be the workplace
accident, as well as whether any of the Employer’s arguments
against application of the 120-day rule have merit.

     AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings consistent with this opinion.

MAKAR, OSTERHAUS, and JAY, JJ., concur.


                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa,
and Timothy R. Whitney of Morgan & Morgan, Tallahassee, for
Appellant.

Christopher J. DuBois and Mary E. Cruickshank of DuBois &
Cruickshank, Tallahassee, for Appellee.




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