Chemstrand Co. v. Enfinger, 38803

• Decision Date: 11 February 1970
• Docket Number: No. 38803,38803
• Citation: 231 So.2d 816
• Parties: CHEMSTRAND COMPANY, a division of Monsanto Chemical Company, and Liberty Mutual Insurance Company, a corporation, Petitioners, v. William H. ENFINGER and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 816

231 So.2d 816

CHEMSTRAND COMPANY, a division of Monsanto Chemical Company, and Liberty Mutual Insurance Company, a corporation, Petitioners, v. William H. ENFINGER and the Florida Industrial Commission, Respondents.

No. 38803.

Supreme Court of Florida.

Feb. 11, 1970.

Rehearing Denied March 16, 1970.

J. Nixon Daniel, Jr., of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for petitioners.

H. Clay Mitchell, Jr., Pensacola, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the order of the Full Commission affirming the award of 75% Permanent partial disability of the body as a whole.

Petitioners contend that the claim is barred under Florida Statute § 440.19(1) (a), F.S.A. because not filed within two years after the date of the accident. ¹ Claimant, respondent herein, allegedly injured his right leg and back on March 27, 1962, while shoving a portable blender. He was off work for approximately six weeks following the accident and received three to four weeks of workmen's compensation. Thereafter, he returned to work for the same employer in a lighter job classification at lower pay. Over the next six years he was absent a number of times due to low back complaints. On each occasion that he was absent for medical reasons he received payments under the employer's accident and sickness benefit program and group insurance medical benefits. Claim for workmen's compensation benefits was not filed until March of 1968.

The Judge of Industrial Claims found that under the circumstances the claim was not barred and the Full Commission affirmed.

We have held in Steinfeldt-Thompson Company v. Trotter ² that an employer may be estopped to assert the statute of limitations where an injured employee has been led to believe that he is receiving workmen's compensation benefits from his employer and so fails to file his claim within the time allowed.

Claimant in the instant case received workmen's compensation benefits following his injury in the form of two or three checks of $42.00 each. The last payment of workmen's compensation was in May of 1962. Subsequent payments made when claimant was absent from work during the next six years were made under the employer's accident and sickness insurance program. These payments were for full pay less three day waiting periods and were paid during all medical or sick leaves regardless of whether connected or unconnected with his employment.

Claimant, 37 years old, with an eleventh grade education, testified that he knew that these payments were under the group insurance plan and were not workmen's compensation. He was asked:

'Have you received any $42.00 or any other indication that you've been receiving workmen's compensation benefits since May of 1962?'

and responded:

'No. Sir, not except the two or three in 1962.'

Claimant also knew that his medical benefits were being paid under a group insurance plan to which he contributed.

It is clear that the rule of the Trotter case, supra, is inapplicable to the instant case. Claimant does not contend he was misled. His testimony shows he understood the nature of the payments he was receiving.

Another rule waiving the bar of the statute of limitations has been recognized by this Court. In Townsley v. Miami Roofing and Sheet Metal Co. ³ we held that payment of regular wages to a disabled employee during his absence from work because of the disability will be deemed payment of compensation within the intent of Florida Statutes § 440.19, F.S.A. In that case the disabled claimant returned to work at his regular pre-injury pay and, with the knowledge and consent of his employer, took time off from work for 84 medical treatments of one to four hours each during the working day. His pay was not docked for the time taken for these treatments and the treatments were paid for by the employer's carrier.

The Townsley rule was further defined in University of Miami v. Matthews, ⁴ wherein this Court held a claim filed in 1956 for an injury occurring in 1951, was barred by the statute of limitations. In Matthews, as in the instant case, some of claimant's absences from work during the intervening years were due to his workconnected injuries; others were not. In Matthews he received regular pay during his absences. This Court stated: ⁵

'An injured employee who is paid regular wages during an absence from work due to a compensable injury should either put his employer on notice that such absence is due to a continuance of the disability, or such absence should be under circumstances that the employer is presumed to know that this is the case. Such knowledge by the employer of the reason for the employee's absence from work is necessary to excuse the employee for not timely filing a claim for benefits as the statute requires. If, as in this case, an employee can wait four and one-half years from the date of his injury to assert a claim for disability benefits without his employer ever having known or having had reason to know that he continued to suffer disability, or that his absences from work were a direct result thereof, then he could wait for any longer period of time that might suit his convenience. Such a situation would defeat the purpose which the...