Publix Super Markets, Inc. v. Gomis , 379 So. 2d 130 ( 1979 )

PER CURIAM.

Following an opinion reported in Publix Super Markets, Inc. v. Gomis, 367 So.2d 722 (Fla.3d DCA 1979), the matter reoceurred in the trial court for a determination of whether or not the claimant under workmen’s compensation had received less than the full value of the damages sustained from a third party tort-feasor. The trial judge again rendered a fifteen (15%) per cent equitable distribution. We reverse.

The claimant failed to demonstrate in the record, and therefore did not sustain his burden to show a recovery of less than the full value of his injuries. Therefore, pursuant to Section 440.39(3)(a), Florida Statutes (1975), the employer and its workmen’s compensation carrier were entitled to fifty (50%) per cent of what was paid and future benefits to be paid.

The appellee attempts to defeat the lien of the carrier because of an alleged failure to record its lien, as provided in Section 440.39, Florida Statutes (1975). If recording is a requirement for a valid lien (which we do not here decide) any objection upon this ground was waived because it was not properly raised in the trial court by pleading or as an issue in the prior proceedings before this court.

Therefore, the order of distribution is reversed, with directions to award the employer or its compensation carrier one-half of the amount it has paid on the claim.

Reversed and remanded, with directions.