Davis v. Kyle

• Decision Date: 12 August 1988
• Docket Number: No. 87-1229,87-1229
• Parties: 13 Fla. L. Weekly 1927 Edward DAVIS, Appellant, v. Arc KYLE and CNA Insurance Group, Appellees.
• Court: Florida District Court of Appeals

Page 1240

529 So.2d 1240

13 Fla. L. Weekly 1927

Edward DAVIS, Appellant, v. Arc KYLE and CNA Insurance Group, Appellees.

No. 87-1229.

District Court of Appeal of Florida First District.

Aug. 12, 1988.

David M. Hammond, P.A., Orlando, for appellant.

Wendell J. Kiser and John W. Moser, III of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.

ERVIN, Judge.

The claimant appeals the order of the deputy commissioner (dc), which held that the statute of limitations barred his claim for medical treatment. Because we conclude that the dc erroneously determined that certain evidence introduced by the claimant was irrelevant, we reverse and remand.

The claimant injured his back in an industrial accident which occurred on September 3, 1981. He reached maximum medical improvement in 1982 and was given a disability rating of 0-10% impairment. In the present appeal, the claimant filed a claim for medical treatment and rehabilitative assistance on February 18, 1987. The employer defended on the ground that the claim was barred by the statute of limitations, pursuant to Section 440.19(2)(a), Florida Statutes (1981). ¹ Although the parties stipulated that the last compensation payment was in September 1984, and the last medical payment in April 1984, the claimant argued that the statute of limitations was tolled by the claimant's receipt of wages from the employer on March 2, 1985, and that such payment must be considered wages in lieu of compensation, therefore the claim filed on February 18, 1987 was within the two-year period.

The record discloses that the claimant had worked for the employer on several occasions following his injury and performed various tasks, including weeding, raking, and taking inventory. At an earlier hearing on a claim for wage-loss benefits, a representative of the employer testified that these various positions were specifically created for claimant as a result of his industrial injury and were not positions that were available to persons generally seeking employment. At the later hearing for medical treatment, however, the claimant's supervisor testified that, in regard to the March 2, 1985 employment--involving raking, hoeing, and general grounds maintenance--the work was of a type that was done routinely for beautification purposes and was not specifically created for the claimant. The supervisor further testified that if the claimant had not been hired for the job, he would have had to assign another employee to perform such work.

In holding the claim barred by the statute of limitations, the dc looked only to the nature of the March 2nd employment, stating that "[t]he characterization of work activities offered by the employer years earlier in this claim is irrelevant to the determination that on March 2, 1985, the claimant was not in sheltered employment and his wages were not intended to be in lieu of compensation." (e.s.) We cannot agree that the prior actions of the employer are irrelevant, thereby implying that they have no evidentiary value. In City of St. Augustine v. Allen, 404 So.2d 1115, 1118 (Fla. 1st DCA 1981), this court held:

[T]he two-year bar of the statute applies unless the employer intended, or the employee reasonably believed the employer intended, to pay wages in lieu of Chapter 440 disability benefits-not as sick pay, not as a gratuity, not as a act of enlightened labor management, but specifically in lieu of Chapter 440 benefits considered to be due.

(Emphasis supplied) Thus, in deciding whether the payment made on March 2nd was actually payment in lieu of compensation, the deputy below necessarily was required to focus his direction to the employer's intent, as well as the employee's perception of that intent. Such a determination could not be properly made by excluding as irrelevant evidence of other post-injury jobs given the claimant by the employer which the employer has admitted were sheltered. It was therefore...