Timmeny v. Tropical Botanicals Corp.

• Decision Date: 16 March 1993
• Docket Number: No. 91-3723,91-3723
• Citation: 615 So.2d 811
• Parties: 18 Fla. L. Week. D769 William TIMMENY, Appellant, v. TROPICAL BOTANICALS CORP./Zurich Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 811

615 So.2d 811

18 Fla. L. Week. D769

William TIMMENY, Appellant, v. TROPICAL BOTANICALS CORP./Zurich Insurance Company Appellees.

No. 91-3723.

District Court of Appeal of Florida First District.

March 16, 1993.

Jerold Feuer, Peter Schwedock of Pelzner, Schwedock, Finkelstein, Miami, for appellant.

Steven Kronenberg and Sylvia A. Krainin of Kelley, Kronenberg, Kelley, Gilmartin & Fichtel, Miami Lakes, for appellees.

ERVIN, Judge.

Appellant, William Timmeny, appeals an order denying his claim for temporary and/or permanent disability benefits, medical care, costs, and attorney's fees, based upon the bar of the two-year statute of limitations found in Section 440.19(1)(a), Florida Statutes (1985). ¹ We conclude that because the employer/carrier (E/C) did not afford adequate notice to the claimant of his possible entitlement to disability benefits within the limitation period, thereby prejudicing claimant, the E/C is estopped from asserting the statute of limitations defense until the time that claimant was first notified, within a reasonable degree of medical probability, that his condition was compensable. We therefore reverse and remand the case for further proceedings.

The claimant was employed by Tropical Botanicals Corporation as president of its subsidiary in Costa Rica in 1985. He has, however, been unable to work since February 1987 due to his development of aplastic anemia, a form of anemia which, according to his personal treating physician, Dr. Yeon Ahn, a hematologist, causes the suppression of bone marrow so that the body is unable to manufacture blood cells. Dr. Ahn testified that it is a very rare and often fatal disease. The parties stipulated that the accident occurred on February 1, 1987, and that claimant's disability began on February 12, 1987, when he was hospitalized for the condition. The claim was filed on June 29, 1990.

In applying the statutory bar, the judge of compensation claims (JCC) found that as of March 1987 the claimant knew of a possible connection between his condition and pesticide exposure at his workplace in Costa Rica, based upon a report by Dr. Ahn dated March 24, 1987, and a conference shortly thereafter between Dr. Ahn, the claimant, and the employer. Dr. Ahn's medical report of March 24, 1987 stated that Dr. Ahn had discussed claimant's condition with him and that two possible causes of his condition were considered viral infection (a nonindustrial cause) and chemical exposure at the workplace. Copies of the report were issued both to the employer and the claimant. Following the employer's receipt of the report, a conference was held at which claimant, Dr. Ahn, Jeannette Toburmina, the trustee in bankruptcy of the employer, and Arthur Weitzner, the general counsel for the employer, were present. One of the topics discussed was all of the possible causes of claimant's condition, including pesticide exposure.

In addition to Dr. Ahn's report, the JCC relied on a report dated November 19, 1987, by Dr. Roger Kelley, a neurologist with the University of Miami Hospitals, stating that claimant informed him in November 1987 of the possible connection between his aplastic anemia and his pesticide exposure while employed with Tropical Botanicals. The JCC thereupon concluded that because claimant knew of a possible connection between his condition and his employment as early as February 1987 and as late as November 1987, the claim filed in 1990 was barred by the statute of limitations.

While applying the limitation restriction to the claim, the JCC also accepted the opinion testimony of Dr. Lora Fleming, employed as an assistant professor at the University of Miami School of Medicine, and board certified in both family medicine and occupational medicine, who stated that it was more probable than not that claimant's disease was related to his exposure to chemicals during his employment. Dr. Fleming stated that she first met claimant in July 1990 at the University of Miami medical library and has since been assisting him in preparing a paper for publication on the subject of aplastic anemia. After taking a history from claimant, reviewing Dr. Ahn's records, and researching the medical literature on the subject, she reached her conclusion on causation, particularly in view of claimant's history of exposure to Lindane and Captan while in Costa Rica, which she described as culprits in the development of the disease.

Dr. Fleming characterized aplastic anemia as an extremely rare condition, the cause of which not much is currently known, although its most commonly assumed cause is viral. She moreover opined that the state of knowledge about the disease in 1987 was such that it would then have been extremely difficult to determine, within a reasonable degree of medical probability, that a causal relationship existed between aplastic anemia and pesticide exposure, in that not many studies of the disease had then been made. She continued, however, that research in this particular area has increased in more recent years.

Claimant was apparently first informed by Dr. Fleming of the compensable character of his condition within a reasonable medical probability sometime during 1990, the same year he filed his claim. The information which claimant received from Dr. Fleming in 1990 contrasted sharply from that which he obtained from his treating physician, Dr. Ahn, who, when he was last deposed in 1991, stated that he remained uncertain as to what caused claimant's disease.

Appellant argues that in applying the statutory bar of section 440.19(1)(a), based upon the fact that claimant knew more than two years before the filing of his claim that one of the possible causes of his condition was pesticide exposure at the workplace, the JCC applied an incorrect legal standard. Claimant argues that until he realized, as a reasonable person, the probable compensable character of the disease, indicating to him that his condition was causally related to exposure to chemicals at the workplace, the running of the statute of limitations was tolled. We do not reach this issue in that we agree with appellant regarding his second point, in which he contends that the JCC erred in failing to estop the E/C from raising the statute of limitations defense.

Assuming, without deciding, that an employee's recognition that his or her injury or disease may possibly be related to his or her employment equates to knowledge of the probable compensable character of such injury or disease, thereby setting in motion the running of the statute of limitations, we conclude that in circumstances wherein an employer has the same knowledge as the claimant of such possible cause, but fails to apprise the claimant that he or she may be entitled to compensation benefits within the statutory period, resulting in prejudice to claimant, the employer must be estopped from relying upon the statute of limitations as a defense until such time that claimant receives actual knowledge of the compensable nature of the claim.

The evidence at bar clearly discloses that despite the employer's knowledge at approximately the same time as claimant that a possible cause of claimant's disease was his exposure to pesticides at his employment, it failed to notify claimant of this and of his possible entitlement to compensation benefits. Notwithstanding the breach of its obligation to inform, it now inconsistently relies upon the statute of limitations defense. We are in agreement that Florida's statutory notice requirement bars the employer's assertion of the defense under such circumstances.

Section 440.185(2), Florida Statutes (Supp.1986), requires the employer, within seven days of knowledge of injury, to report such injury to the carrier and the employee, advising, among other things, the cause and nature of the injury and its date of occurrence, and requires the carrier to notify the Division of Workers' Compensation in Tallahassee within 10 days. Subsection (4) provides that upon receipt of notice of injury from the employer, the Division shall immediately mail an informational brochure to the injured worker, setting forth in clear and understandable language a summary statement of the rights, benefits, and obligations of injured workers under the workers' compensation act. Consequently, in consideration of the above statutory provisions, we are of the view that if an employer, as here, receives information that an employee's injury or condition may be work-related, but fails to comply with its statutory obligation to provide notice of same, the employer must be estopped from later asserting the statute of limitations as a defense under circumstances disclosing that the employer's breach of its statutory duty to inform resulted in prejudice to the claimant.

In reaching our decision, we are strongly influenced by the California Supreme Court's opinion in Reynolds v. Workmens' Compensation Appeals Board, 12 Cal.3d 726, 117 Cal.Rptr. 79, 527 P.2d 631 (1974) (in bank), wherein the court rejected the E/C's reliance upon the statute of limitations as a bar to the employee's claim. In so concluding, the court noted that the employer was required, pursuant to California Department of Industrial Relations rules, to notify the claimant of the possibility of his entitlement to workers' compensation benefits and, because the employer denied that claimant was entitled to same, to send him an unequivocal statement to such effect, which it had failed to do. Id., 117 Cal.Rptr. at 80, 527 P.2d at 632. The court concluded with the following statements:

The clear purpose of these rules is to protect and preserve the rights of an injured employee who may be ignorant of the procedures or, indeed, the very existence of the workmen's compensation law. Since the employer is generally in a better position to be aware of the employee's rights, it is proper that he should be charged with the responsibility of notifying the employee, under...