American Beryllium Co. v. Stringer, 57134

• Decision Date: 30 October 1980
• Docket Number: No. 57134,57134
• Citation: 392 So.2d 1294
• Parties: AMERICAN BERYLLIUM COMPANY and Employers Insurance of Wausau, Petitioners, v. Lynn W. STRINGER, Respondent.
• Court: Florida Supreme Court

Page 1294

392 So.2d 1294

AMERICAN BERYLLIUM COMPANY and Employers Insurance of Wausau, Petitioners, v. Lynn W. STRINGER, Respondent.

No. 57134.

Supreme Court of Florida.

Oct. 30, 1980.

As Corrected on Denial of Rehearing Feb. 19, 1981.

W. Robert Mann and David Paul Montgomery of Mann & Fay, Bradenton, for petitioners.

Richard A. Bokor, Tampa, for respondent.

ALDERMAN, Justice.

We accept jurisdiction in this case to review an order of the Industrial Relations Commission. ¹ The Commission, reversing an order of the judge of industrial claims, held that respondent Stringer's claim was not barred by the statute of limitations and directed that, on remand, the company not be permitted to offer evidence on its statute of limitations defense. We affirm in part and reverse in part.

Stringer last worked for American Beryllium in 1970. In July, 1977, the upper lobe of his left lung was removed. On December 2, 1977, he filed a claim for compensation against American Beryllium, alleging his illness was caused by exposure to beryllium dust during his employment with that company.

At the pretrial hearing, the judge noted a possible statute of limitations problem. Stringer's position was that the illness was quiescent, and thus the statute of limitations did not begin to run until the claimant should have known of the illness, in this case, 1977. Upon stipulation of the parties, the statute of limitations defense was presented to the judge for determination. The judge ruled that "(a)ssuming arguendo that the claimant did in fact contract a dust disease or beryllium dust disease while in the employ of the employer and assuming further that this dust disease was quiescent or undetected until July of 1977, the fact of quiescence or failure to detect does not toll the running of the Statute of Limitations applicable to Florida Workmen's Compensation cases."

The Industrial Relations Commission reversed the judge, holding that in occupational disease cases the date of disability commences the running of the statute of limitations. Disputing this holding, the company contends that under section 440.02(18), Florida Statutes, Stringer's claim should have been filed within two years of the time of injury, and, defining time of injury as the occurrence of the accident resulting in the injury, it argues that Stringer's injury could not have occurred later than the last date of employment with it. On this issue, we affirm the Commission's order.

This case is an occupational disease case and is governed by the occupational disease section of the workmen's compensation statute. An occupational disease, according to section 440.151(2), Florida Statutes (1969), is "a disease which is due to causes and conditions which are characteristic of and peculiar to" a particular employment. An employee of such an occupation becomes disabled when he becomes "actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of...