Superior Home Builders v. Moss
| Citation | 70 So.2d 570 |
| Parties | SUPERIOR HOME BUILDERS et al. v. MOSS et al. |
| Decision Date | 26 February 1954 |
| Court | Florida Supreme Court |
Brown, Dean & Hill, Miami, for petitioners.
M. Dudley Burton, Miami, Burnis T. Coleman and Rodney L. Durrance, Tallahassee, for respondents.
Green Moss, on April 23, 1951, sustained personal injuries as the result of an accident arising out of and in the course of his employment with the employer. He filed a claim for compensation under the Workmen's Compensation Act, F.S.A. § 440.01 et seq., and the employer and the compensation carrier controverted the claim. Upon a hearing the deputy commissioner, on July 23, 1951, entered an award sustaining the right of the employee to 'temporary total disability compensation' and medical benefits, and in his order provided that the employer and its compensation carrier make weekly compensation benefits '* * * and continue said weekly disability compensation payments until said employee has recovered from his injury and is able to return to his work.' No appeal was taken from this order.
On March 19, 1952, the attending physician of the employee filed his final medical report with the Industrial Commission wherein he reported that on January 12, 1952, the employee had returned to work; he made no report than on that date the claimant had recovered from his injury and was able to work. The carrier had on February 6, 1952, discontinued the payment of the weekly compensation payments to the employer that had been made pursuant to the order of the deputy commissioner.
Nothing further was heard from the employee until February 13, 1953, on which date the employee notified the Florida Industrial Commission that he was making a claim for 'additional compensation and medical treatment.' The employer and the compensation carrier controverted the claim on the ground that the claim was barred by the limitations imposed by section 440.28, Florida Statutes 1951, F.S.A., in that a period in excess of one year had intervened between the date of the receipt of the last payment of compensation by the employee and the date upon which the employee had filed his petition for additional compensation.
After objections to the claim had been filed, the deputy commissioner gave notice to the interested parties of a hearing to be held 'to determine the merits of the claim for additional compensation and medical treatment for injury of April 23, 1951.' The hearing was held pursuant to the notice and evidence was submitted by the parties. Subsequently, the deputy commissioner entered an order which contained the following findings:
'Without regard to claimant's present or past physical condition since compensation was discontinued, and based solely on the limitations imposed by section 440.28, F.S.A., amended, the undersigned * * * finds that the claim filed February 13, 1953, was, in essence, for modification of the previous award and was not made within the time allowed, the last compensation having been paid and received by the claimant on or before February 6, 1952, and more than one year having elapsed between that time and the filing of the claim. * * *
'Wherefore, it is the order * * * that the above entitled claim for additional compensation be rejected. * * *'
On appeal from this order the full commission found 'that the one year limitation in Section 440.28, Florida Statutes 1951 [F.S.A.], is not the applicable limitation period in this matter as it appears that the claimant did not ask for a modification of [the deputy commissioner's] award [and] did not contend that the said award was based upon a mistake in determination of fact nor did claimant contend there had been a change in condition * * *.' Based upon this finding the full commission reversed the order of the deputy commissioner and remanded the cause to the deputy commissioner for a decision on the merits.
The employer and the compensation carrier have sought a review of this order.
Section 440.28, Florida Statutes 1951, F.S.A., upon which the deputy commissioner based his ruling, provides as follows:
'Modification of awards.--Upon their own initiative or upon the application of any ...
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