Gomez Lawn Serv., Inc. v. Hartford, No. 1D12–0302.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: LEWIS
• Citation: 98 So.3d 212
• Docket Number: No. 1D12–0302.
• Decision Date: 28 September 2012
• Parties: GOMEZ LAWN SERVICE, INC. and Eugenio Gomez, Appellants, v. THE HARTFORD, Appellee.

98 So.3d 212

GOMEZ LAWN SERVICE, INC. and Eugenio Gomez, Appellants,
v.
THE HARTFORD, Appellee.

No. 1D12–0302.

District Court of Appeal of Florida,
First District.

Sept. 28, 2012.

[98 So.3d 213]

Bram J. Gechtman of the Law Offices of Bram J. Gechtman, P.A., Miami, for Appellant.

Eugenio Gomez; Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant Gomez Lawn Service, Inc.

William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.

LEWIS, J.

In this workers' compensation appeal, Appellants challenge an order of the Judge of Compensation Claims (JCC) that bars Eugenio Gomez's (Claimant's) petition for benefits, based on the JCC's interpretation of section 440.185, Florida Statutes (2010). Because the JCC erred in continuing his analysis after finding that Claimant gave notice of his accident to his Employer within thirty days of the accident, we reverse.

BACKGROUND

The relevant facts are not in dispute. Claimant, along with his wife, are the owners of Gomez Lawn Service, Inc. (Employer), a Florida corporation. Claimant is president of the corporation and his wife is the corporate secretary. Mrs. Gomez acts as the chief operating officer, handling all the business details. Claimant and his brother perform the services provided by the corporation and are also paid as employees of the Employer. Claimant did not elect to exempt himself from the provisions of chapter 440, as he is empowered to do by section 440.02(15)(b) 1., Florida Statutes (2010).

On July 13, 2010, Claimant was traveling in a company-owned vehicle from one job site to another when he was involved in a motor vehicle accident that resulted in cervical and lumbar injuries. When Mrs. Gomez was notified of the accident, she reported it to the Employer's motor vehicle insurer, which opened a personal injury claim under the personal injury protection (PIP) provisions of the policy. Claimant's medical treatment throughout the summer and fall was provided under the PIP insurance. Claimant's treating neurologist advised Claimant in August that objective evidence of a disk herniation at L5/S1 had been discovered and that surgery was an option. Thereafter, Claimant underwent a series of injections.

In November, with the PIP benefits reaching their limit and the possibility of surgery looming, Mrs. Gomez consulted an attorney. As a result of that consult, Mrs. Gomez notified the Employer's workers' compensation carrier, The Hartford (Carrier), of the claim on approximately December 1, 2010. On January 26, 2011,

[98 So.3d 214]

when the Carrier failed to activate a claim, Claimant filed a petition for benefits. The Carrier denied the claim, citing lack of timely notice pursuant to section 440.185, Florida Statutes (2010).

In the final order, the JCC denied and dismissed the claim, finding that Claimant and the Employer were in effect the same party and did not notify the Carrier of the injuries until approximately ninety days after the accident. The JCC reasoned that, because Claimant “pursued a course of treatment and received a diagnosis that could lead to more extensive medical care including surgery,” it was “necessary to determine if the exceptions in Section [440.185(1)](b) or (d) of the Statute would apply and render effective the otherwise not timely notice.” The JCC concluded that, based upon his assessment of Mrs. Gomez's testimony, “the nature, seriousness and probable compensable character of the event ... should have been apparent on the date of the accident and that notice 90+ days after the fact in this case is not reasonable and is untimely.”

ANALYSIS

When the facts are not in dispute, the JCC's application of the law to those facts is reviewed de novo. See Airey v. Wal–Mart, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009). When the issue is one of statutory interpretation, appellate review is de novo. See McKenzie v. Mental Health Care, Inc., 43 So.3d 767, 768 (Fla. 1st DCA 2010). Section 440.185(1) provides that:

“An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter....”

Section 440.41(1), Florida Statutes (2010), provides that when the employer is not a self-insurer, “[n]otice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier.”

The plain language of section 440.185(1), Florida Statutes (2010), the version of the operative statute based on Claimant's date of accident, required Claimant to report his injury to his Employer within thirty days of its occurrence, and nothing more. See Germ v. St. Luke's Hosp. Ass'n, 993 So.2d 576, 578 (Fla. 1st DCA 2008) (“When interpreting a statute, courts look first to the statute's plain language. If the statute's plain language is clear and unambiguous, courts should rely on the words used in the statute without involving rules of construction or speculating as to the legislature's intent. Courts should give statutory language its plain and ordinary meaning and may not add words that were not included by the legislature.”) (citations omitted). Likewise, section 440.41(1)'s plain language imputes the Employer's knowledge to the Carrier. Accordingly, once Claimant gave notice to the Employer, Claimant fully satisfied the notice requirement imposed by section 440.185(1). The JCC had no authority to read into section 440.185(1) a requirement that Claimant report the injury to the Carrier within thirty days. This Court's reasoning in Bend v. Shamrock Services, 59 So.3d 153 (Fla. 1st DCA 2011), and McArthur v. Mental Health Care, Inc., 35 So.3d 105 (Fla. 1st DCA 2010), both have application here. In Bend, this Court explained:

We begin our analysis by asserting the necessary and oft-repeated premise that workers' compensation is purely a creature of statute, and all rights and liabilities under the system are established by chapter 440, Florida Statutes. A JCC

[98 So.3d 215]

has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that...