Cameron v. City of Miami Beach, s. 32176
| Decision Date | 29 March 1963 |
| Docket Number | Nos. 32176,32276,s. 32176 |
| Citation | 152 So.2d 163 |
| Parties | James O. CAMERON et al., PetitionerS v. CITY OF MIAMI BEACH et al., Respondents. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Petitioner, v. James O. CAMERON et al., and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Jerry V. Wilkey of Wilkey & Williams, Miami, for petitioners-respondents.
Joseph A. Wanick and Milton Robbins, Miami Beach, for City of Miami Beach.
Burnis T. Coleman and Patrick H. Mears, Tallahassee, for Florida Industrial Commission.
By a petition and a cross-petition for a writ of certiorari, we have for review an order of the Florida Industrial Commission which reversed an order of the deputy commissioner who had allowed benefits to surviving dependents of a deceased employee of the City of Miami Beach.
We must decide whether a failure to file a written notice of death in compliance with Section 440.18, Florida Statutes, F.S.A., was fatal to recovery under the circumstances revealed by the record.
The deceased employee James O. Cameron was a lieutenant in the fire department of the respondent city. His dependents claimed that his death on September 6, 1959, was caused by a coronary thrombosis which allegedly resulted from unusual exertion and heat exhaustion while fighting an extensive fire on August 26, 1959. Admittedly, no written notice of the death was served upon the employer within the thirty-day period stipulated by Section 440.18, Florida Statutes, F.S.A. The formal claim for benefits was not filed until July 31, 1961, more than twenty-two months after the employee's death occurred. At the initial hearing on the claim, the employer made a timely objection to the effect that no notice had been filed under Section 440.18, Florida Statutes, F.S.A. Without passing upon the objection, the deputy awarded full death benefits to the dependents. Upon review the Full Commission reversed the deputy and held that he should have made findings in connection with the failure to give notice. The order of reversal likewise concluded that the deputy had failed to consider the impact of the decedent's pre-existing physical ailments and the propriety of an apportionment of the award in accord with our opinions in Victor Wine and Liquor, Inc. v. Beasley, Fla., 141 So.2d 581, and Hampton v. Owens-Illinois Glass Co., Paper Products Division, Fla., 140 So.2d 868. For these and other reasons the Full Commission remanded the cause to the deputy for further proceedings and the entry of adequate findings. The claimants seek review of this order of reversal with reliance upon the rule that the order of the deputy should not be disturbed in the presence of competent substantial evidence to support it. The employer, by cross-petition, contends that the record reveals a total failure to comply with the requirements of the notice statute and a complete absence of any evidence to excuse such compliance.
In view of the conclusion which we hereafter announce, it is unnecessary to consider any aspect of the matter except the question of failure to file the statutory notice.
Section 440.18(1), provides in part:
'(1) Notice of an injury or death in respect to which compensation is payable under this chapter shall be given within thirty days after the date of such injury or death (a) to the commission (b) to the employer; * * *.'
Section 440.18(2), requires that the notice shall be in writing, shall contain the name and address of the employee and shall submit a statement of the time, place, nature and cause of death.
Section 440.18(4), announces the conditions under which failure to give the notice shall be excused in order to prevent a bar of the claim because of the failure to give the written notice. This section also provides that when such failure occurs '* * * every presumption shall be against the validity of the claim.'
At the outset, it should be observed that we here deal with the requirement of the so-called thirty-day notice of injury or death required by Section 440.18, Florida Statutes, F.S.A., as distinguished from the requirement for the filing of a formal claim as prescribed by Section 440.19, Florida Statutes, F.S.A. A. B. Taff & Sons v. Clark, Fla.App., 110 So.2d 428. The purpose of the notice under Section 440.18, supra, is to advise the employer and the ...
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...v. J. B. Forbes Plumbing and Heating, Inc., 5 FCR 378 (1964), cert. denied without opinion 178 So.2d 337 (Fla.1965); Cameron v. City of Miami Beach, 152 So.2d 163 (Fla.1963).' The Judge of Industrial Claims, however, properly applied Fla.Stat. § 440.18, F.S.A., and he made the proper findin......
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...knowledge was raised by the petitioner, and no evidence was presented as to such issues. As this Court stated in Cameron v. City of Miami Beach, 152 So.2d 163 (Fla.1963): '. . . Although the giving of notice may be waived or excused, the burden is upon the claimant to submit evidence to sup......