Sargent v. Evening Independent, Inc.

• Decision Date: 19 December 1952
• Citation: 62 So.2d 58
• Parties: SARGENT v. EVENING INDEPENDENT, Inc. et al.
• Court: Florida Supreme Court

Page 58

62 So.2d 58

SARGENT v. EVENING INDEPENDENT, Inc. et al.

Supreme Court of Florida, Special Division A.

Dec. 19, 1952.

Rehearing Denied Jan. 16, 1953.

Stuart B. Warren, St. Petersburg, for appellant.

Mann, Harrison & Stone, and Paul H. Roney, St. Petersburg, for appellees.

MATHEWS, Justice.

This appeal results from the order of the Deputy Commissioner denying compensation because more than two years had elapsed after the last payment was made to the appellant, or to state it another way, because the claim was not filed within the time required by the statute. An appeal was prosecuted to the full Commission which affirmed the order of the Deputy Commissioner and on appeal the Circuit Court it was ordered that the finding of the Deputy Commissioner as affirmed by the full Commission be affirmed. This appeal is prosecuted from the final order of the Circuit Court.

It appears from the undisputed facts that the appellant suffered an injury on April 21, 1947 and May 5, 1947, which was diagnosed as lead poisoning. He received compensation for these injuries. For the period of time beginning November 10th to November 16th, 1947, the appellant was again disabled. At the time of his last injury he was receiving a salary of $47 per week which was made up of a base pay of $29.40 for his services as a night watchman, and $18 extra for melting lead. During the period of his disability he was paid his regular salary of $29.40 per week with deductions for Social Security and withholding tax by the employer, but he was not paid the $18 for extra work in melting lead.

The undisputed facts are that the appellant was paid full compensation for his regular base pay for the period of time lost from November 10th to November 16th, 1947, by the employer and that a check was sent to the employer by the carrier which was payable to the employee for $14.70, dated January 9, 1948, and the same was eventually received, endorsed and cashed by the employee. It was received sometime between January 12th and February 3rd, 1948.

This practice, above mentioned, appears to have been observed with reference to the disability payments for April 21 and May 5, 1947. There was substantial evidence in the record to support the findings of the Deputy Commissioner to the effect that the usual practice of the employer was to pay an employee full wages during a period of disability and to be reimbursed by the insurance carrier's check to the extent of the amount of such check when it was received by the employee. Such findings of fact will not be disturbed on appeal. See U. S. Casualty Co. v. Maryland Casualty Co., Fla., 55 So.2d 741; Town of Crescent City v. Green, Fla., 59 So.2d 1; and Williamson v. Roy L. Willard, Inc., Fla., 59 So.2d 865.

The appellant's claim for compensation was received by the Commission on January 11, 1950. Based upon the facts as hereinabove stated the question of law is: Was the payment of the above-mentioned check, dated January 9, 1948, the 'last payment of compensation?' The Deputy Commissioner, the Full Commission and the Circuit Court answered this question in the negative. If they were correct, the two-year statute was not tolled and the claim of the appellant, received by the Commission on January 11, 1950, was too late.

Section 440.19(1), F.S.A., provides that a workmen's compensation claim must be filed within two years of the time of the injury, with one exception, which is:

'* * * except that if payment of compensation has been made without an award on account of such...