Faulk & Coleman v. Harper

• Decision Date: 16 December 1952
• Parties: FAULK & COLEMAN et al. v. HARPER et al.
• Court: Florida Supreme Court

Page 62

62 So.2d 62

FAULK & COLEMAN et al. v. HARPER et al.

Supreme Court of Florida, Special Division B.

Dec. 16, 1952.

Marks, Gray, Yates & Conroy, Jacksonville, for appellants.

Jesse F .Warren, Jr., Tallahassee, for appellees.

MATHEWS, Justice.

This appeal is prosecuted under and by virtue of the provisions of the Florida Workmen's Compensation law from a final judgment of the Circuit Court of Okaloosa County, which reversed an order of the Full Commission dated the 8th day of January, 1951, which reads as follows:

'This case came on for review by the Full Commission upon petition of the claimant, by and through his attorney, Mr. Jesse Warren, Tallahassee, Florida.

'This case has received the attention of several Deputy Commissioners and the Full Commission. The last Order being that by Deputy Commissioner Rodney Durrance, filed in the office of the Commission on August 30, 1948, from which no appeal was taken. The claim is, therefore, barred by the statute of limitations as provided by the

Workmen's Compensation Act.

'It is the Order of the Full Commission that the petition of the claimant be and the same is hereby denied.'

There is only one question involved in this case and that is: Is the time fixed for taking an appeal under the Florida Workmen's Compensation Act extended or rendered inapplicable by reason of adjudication that the employee is incompetent when no legal guardian has been appointed to represent him?

In reversing the Full Commission the Circuit Judge found:

'Neither the petition or the date of its filing appears in the record but the fact that it was entertained by the commission, referred to a deputy commissioner who had had no previous connection with the case and who denied the carrier's motion to dismiss indicates clearly that it was timely filed or that the statute of limitations was not applicable on account of claimant's mental state and that it was considered as possessing merit.'

It is the contention of the appellants that in the absence of a Saving Clause, the Statute of Limitations runs against all persons whether under disability or not.

In considering this question and in order to understand this case, it is necessary to review briefly many steps taken in the case which culminated in the final order of the Commission from which an appeal was prosecuted to the Circuit Court of Okaloosa County.

The employee sustained an injury on July 8, 1945, and on August 22, 1945, filed a claim for compensation, having first elected to take compensation benefits on August 11, 1945. The claimant was adjudicated insane on the 16th day of November, 1945, but no guardian or other person was appointed to represent him. Thereafter various hearing were had which resulted in an award dated June 5, 1947, and filed with the Commission June 7, 1947. The employer had paid $24.57 and the award denied claimant any further compensation under the Act. In accordance with Section 440.25(4) F.S.A. the employee, within the time allowed, filed an application for review by the Full Commission which was heard by the Commission and on the 11th day of August, 1947, an order of affirmance was entered by the Full Commission in which it was recited that the application for review was filed on June 7, 1947.

On the 11th day of January, 1951, there was filed at Tallahassee an order of the Full Commission hereinabove quoted (which mentioned the order of the Deputy Commissioner which had been filed on the 30th day of August, 1948, from which no appeal had been prosecuted) wherein the Full Commission denied the claim of the employee for modification on the ground that the same was barred by the Statute of Limitations.

The first order made by the Full Commission affirming the Deputy Commissioner which was filed August 14, 1947, was an appealable order and unless appealed within 20 days, such order became final. Section 440.25(4) and Section 440.27(3) F.S.A. No appeal was perfected to the Circuit Court by the employee within the 20-day period. It, therefore, became final twenty days from August 14th, 1947.

Section 440.28, F.S.A. gives to the employee an additional or alternate remedy under certain conditions, notwithstanding no appeal was taken to the Circuit Court. This Section provides for the modification of an award when no appeal has been taken in the event there has been a change in condition of the claimant or a mistake in the determination of fact. Under the section of law in question the employee had one year from the 14th day of August, 1947, to ask for a modification of the award denying his claim. It is true that record does not contain the application for modification or show the date thereof, but the record does disclose in the order of the Deputy Commissioner that a petition had been filed, considered and rules upon, which order was filed on the 30th day of August, 1948. The employee had a right to file an application for review by the Full Commission of the above mentioned order within 7 days from the date it was filed. He failed to do so and this order became final on September 6, 1948.

It appears from an order of the Full Commission dated January 8, 1951, and filed January 11, 1951, that no appeal was taken from the order of the Deputy Commissioner filed the 30th day of August, 1948, but that there had been filed with the Full Commission a petition by the employee to review the matter and the said petition was denied by the Full Commission because it was 'barred by the Statute of Limitations.'

No citation of authority is necessary for the establishment of the principle that when an order and award or final judgment has been made, as appears to have been made in this case, and there are recitals of a fact that a petition has been filed or a claim has...