Special Disability Trust Fund v. Aetna Cas. & Sur. Co., WW-446

• Decision Date: 21 April 1981
• Docket Number: No. WW-446,WW-446
• Citation: 397 So.2d 381
• Parties: SPECIAL DISABILITY TRUST FUND, State of Florida, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Parkway General Hospital, Appellees.
• Court: Florida District Court of Appeals

Page 381

397 So.2d 381

SPECIAL DISABILITY TRUST FUND, State of Florida, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Parkway General Hospital, Appellees.

No. WW-446.

District Court of Appeal of Florida, First District.

April 21, 1981.

Michael J. Rudicell, Lakeland, for appellants.

Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, North Miami, for appellees.

MILLS, Chief Judge.

The Special Disability Trust Fund (Fund) appeals from a determination that the sixty-day period during which the employer/carrier (E/C) was required to file an application for hearing from the denial of a claim for reimbursement did not run because the Fund engaged in positive action upon which the E/C reasonably relied in not seeking a hearing within the time required. We reverse.

Section 440.49(2)(g), Florida Statutes, provides, in pertinent part:

If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the Division at Tallahassee within sixty (60) days after notice to the employer or carrier of such denial or controversion.

It is undisputed that the Fund denied a claim for reimbursement by letter dated 14 September 1978 which was received by the E/C on 19 September 1978. An assistant supervisor at Aetna Casualty and Surety Company, the carrier, testified that she called the Fund on 2 October 1978 and talked to the Fund's attorney. The attorney is reported to have said that she was missing a portion of the file and that actually three files had been set up using different names or spellings for the claimant. She requested that Aetna send copies of documents that were missing. On that same day the supervisor sent the requested documents with a cover letter saying as follows:

This will acknowledge receipt of your most recent correspondence dated September 14, 1978 in reference to the above captioned file.

Please be advised that we have completely reviewed our file and did find that the Judge of Industrial Claims did find that the employer was aware of the claimant's pre-existing disabilities and a merger was found to have occurred.

Please review the file again and let us have your thoughts. I am enclosing a copy of Judge William Johnson's informal ruling for your review.

The next communication was a letter by the E/C to the Fund on 4 April 1979 inquiring as to the "present status of our pending claim." The supervisor testified that on 30 October 1979 a representative of the Fund called and said that the correspondence sent the previous October had not been received. Finally, on 18 February 1980 the Fund's attorney wrote in response to the April 1979 inquiry by informing Aetna that since no hearing was requested within sixty days of receipt of a denial of the claim, the file was "now and forever dead." At the hearing Aetna's supervisor testified that she relied on the ongoing correspondence, communications, and negotiations with the Fund in not setting the claim...