Hoppe v. City of Lakeland, 96-3113

• Decision Date: 16 April 1997
• Docket Number: No. 96-3113,96-3113
• Citation: 691 So.2d 585
• Parties: 22 Fla. L. Weekly D981 Harold HOPPE, Appellant, v. CITY OF LAKELAND and Alexsis, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 585

691 So.2d 585

22 Fla. L. Weekly D981

Harold HOPPE, Appellant, v. CITY OF LAKELAND and Alexsis, Inc., Appellees.

No. 96-3113.

District Court of Appeal of Florida,

First District.

April 16, 1997.

Randall O. Reder of Randall O. Reder, P.A., Tampa, and Richard Osborne, Tampa, for Appellant.

Dennis A. Ross and Michael L. Davis of Ross, Williams, & Deal, P.A., Lakeland, for Appellees.

BENTON, Judge.

This appeal turns on when the statute of limitations runs in workers' compensation cases, if (former) employees allege that they have contracted occupational diseases. On the authority of American Beryllium Company v. Stringer, 392 So.2d 1294 (Fla.1980) (as corrected on denial of rehearing 1981), we reverse the dismissal of a petition for benefits and remand for further proceedings, even though the former employee passed up an opportunity to be examined--at his employer's expense--long before any alleged disability.

Harold Hoppe asserts that he first learned that he might be suffering from asbestosis on March 24, 1995, more than six years after he left the employ of the City of Lakeland in September of 1988. The judge of compensation claims found:

1. On September 11, 1995 and February 16, 1996, Claimant, Harold Hoppe, respectively filed a Request for Assistance and Petition for Benefits alleging exposure to asbestos on September 1, 1988. The Request for Assistance and Petition for Benefits are the first formal notices to the Employer/Carrier of any alleged occupational exposure to asbestos. (Claimant gave informal notice in a letter to Mayor Buddy Fletcher dated April 18, 1995.)

2. Claimant was deposed on March 20, 1996. At that time, and at the evidentiary hearing, Claimant claims that he was aware of asbestos materials being used by the City of Lakeland at his place of employment, alleging that he was even informed about the use of asbestos towards the end of his employment. To the best of his recollection, Claimant believes that fellow employee, Gary Ross, told him that there was asbestos in the pipe or materials he was working with, and it was dangerous to him, in approximately 1987. Claimant voluntarily terminated his employment with the City of Lakeland in September 1988.

3. In 1989, Claimant admits that he received a certified letter from the City, asking him to present for an evaluation. On cross-examination in his deposition, Claimant candidly admits that 1989 is the first time that he learned that he may have been injured as a result of exposure to asbestos. (Claimant does not contradict this depositional testimony at the evidentiary hearing.). Claimant admits that he knew that the examination in 1989 was for the purpose of determining whether he had been exposed to asbestos.

4. I find that the Claimant's current claim is time barred, because he knew, or should have known, about a possible exposure to asbestos, and possible injury therefrom, in 1989, well over the two year limit imposed by Section 440.19, Florida Statutes.

5. Claimant, by his own admission, was aware that he was possibly exposed to asbestos no later than 1989. Indeed, the Employer exercised proper diligence in asking Claimant to submit to an examination; however, he chose to ignore these requests until 1995. This is well after the applicable statute of limitations had run.

Section 440.19(1), Florida Statutes (1995), bars all petitions not "filed within 2 years after the date on which the employee knew or should have known that the injury ... arose out of work performed in the course and scope of employment." (Emphasis supplied.)

In deciding when an injury occurs in an occupational disease case, the American Beryllium court relied on statutory language which remains the same today.

This case is an occupational disease case and is governed by the occupational disease section of the workmen's compensation statute. An occupational disease, according to section 440.151(2), Florida Statutes (1969), is "a disease which is due to causes and conditions which are characteristic of and peculiar to" a particular employment. An employee of such an occupation becomes disabled when he becomes "actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease." Section 440.151(3), Florida Statutes (1969). "[T]he disablement or death of an employee resulting from an occupational disease ... shall be treated as the happening of an injury by accident...." Section 440.151(1), Florida Statutes (1969). In occupational disease cases, therefore, it is the disability and...