City of St. Augustine v. Allen, XX-77

• Decision Date: 13 October 1981
• Docket Number: No. XX-77,XX-77
• Citation: 404 So.2d 1115
• Parties: CITY OF ST. AUGUSTINE and Travelers Insurance Co., Appellants, v. Edward ALLEN, Appellee.
• Court: Florida District Court of Appeals

Page 1115

404 So.2d 1115

CITY OF ST. AUGUSTINE and Travelers Insurance Co., Appellants, v. Edward ALLEN, Appellee.

No. XX-77.

District Court of Appeal of Florida, First District.

Oct. 13, 1981.

Rehearing Denied Nov. 13, 1981.

Lloyd C. Leemis, of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellants.

Edward H. Hurt, of Hurt & Parrish, P.A., and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.

ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier appeal from the deputy's order awarding permanent total disability benefits and finding that the two-year statute of limitation, which otherwise would bar the claim, was tolled by the employer's payment to Allen of wages in lieu of disability compensation within two years before the claim was filed. Section 440.19, Florida Statutes (1977). We find the claim was barred. Without reaching the contested issue of whether Allen's disability is compensable under Chapter 440, we reverse the order appealed and dismiss the claim.

Allen scraped a leg at work in his employment by the City of St. Augustine on June 17, 1977. Notice of the injury was promptly given. Allen lost no time from work immediately but healing was slow and problematic because, it was later determined, Allen was diabetic. The carrier voluntarily paid bills for medical treatment from July through November 1977, and when the wound became infected, absenting Allen from work for about ten days in late August and early September, the carrier voluntarily wrote checks for temporary total disability benefits. Allen endorsed those checks over to the City at its request, for the City continued paying Allen his full wages.

Though his leg lesions had not healed, Allen returned to regular work on September 8 and he worked as usual for two months. On November 7, he was hospitalized for treatment of swelling and ulcers on both legs. Then learning the extent of Allen's diabetic condition, the carrier paid no more medical bills after November 16 and refused to renew payment of disability benefits, citing Allen's pre-existing diabetes as the cause of his difficulties. The City's personnel manager advised Allen that workers' compensation was no longer available and counseled him concerning the use of his extensive earned sick leave, the possibility of benefits from an employees' disability insurance program (which didn't materialize), and, finally, retirement as of July 1978. Allen did not work after November 25, 1977 and his leg lesions were debrided or grafted under general anesthetic in December 1977 and repeatedly in 1978 through April. Allen continued to receive his regular paycheck during that period, and the payments were described in the City's record, though not on the checks themselves, as salary payments to an employee on sick leave.

In December 1978, after personality changes and loss of memory and balance, Allen was neurologically diagnosed as suffering organic brain damage. In January 1980, more than two years after the carrier stopped paying Allen temporary total disability compensation in September 1977 and stopped paying medical benefits in November 1977, an attorney filed a claim in Allen's behalf for permanent total disability benefits. Allen was unable to testify at the hearing held in April 1980 because he was disturbed mentally and completely disabled physically. The deputy found those conditions, as well as the previous leg swelling and ulcers, were the result of the industrial injury aggravating the diabetes. The deputy awarded benefits including permanent total disability payments, finding that "the most reasonable and logical cause" for Allen's brain damage "is the hospitalization in December, 1977." The deputy did not further elaborate her "logical cause" finding.

The carrier having stopped payment to Allen of any sort of workers' compensation benefits more than two years before his claim was finally filed on January 15, 1980, the claim would indisputably have been barred by Section 440.19(1)(a) ¹ had the City of St. Augustine not continued paying Allen's wages without interruption until July 1978, when he was retired. The deputy found:

I further find that the Statute of Limitations defense is not applicable in this case in that the City of St. Augustine during the summer of 1977 paid the Claimant's full salary whether he was working or not, and maintained this policy of full salary until July 1, 1978, and I find these payments to be payments in lieu of compensation.

In Florida as elsewhere, when compensation for disability or remedial treatment is furnished by the employer and then is terminated, the limitation period on claims for additional compensation begins to run, the statute specifies, from "the last payment of compensation" or "the last remedial treatment furnished by the employer." But in Florida as elsewhere judicial decisions have ameliorated that bar by postponing the limitation period during the time the employer pays the employee his wages in lieu of compensation payable under Chapter 440. E. g., Townsley v. Miami Roofing and Sheet Metal Co., 79 So.2d 785 (Fla.1955); Chemstrand Co. v. Enfinger, 231 So.2d 816 (Fla.1970).

Deciding that wages were paid in lieu of compensation, or not, and by that conception granting or barring as stale otherwise meritorious compensation claims, is a hazardous rational exercise. Presumably the Chapter 440 limitation...