Tokyo House, Inc. v. Hsin Chu

Citation597 So.2d 348
Decision Date13 April 1992
Docket NumberNo. 90-3063,90-3063
Parties17 Fla. L. Weekly D961 TOKYO HOUSE, INC. and Associated Industries of Florida, Appellants, v. HSIN CHU and American Policyholders Insurance Company, Appellees.
CourtCourt of Appeal of Florida (US)

Valerie A. Marshall and J. Larry Hanks of Jeffery, Thomas & Marshall, Maitland, for appellants.

Larry E. Powers, Jr., Orlando, for appellees.

ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

In response to appellants' motion for clarification, we withdraw our previous opinion and substitute the following opinion. In light of the substituted opinion, appellants' motion for rehearing is denied.

Tokyo House, Inc., and Associated Industries of Florida appeal two workers' compensation orders in this repetitive trauma injury case. The first order found the claim to have been filed within the two-year statute of limitations. The second order dismissed the employer's former insurance carrier from the case. For the reasons hereafter explained, we affirm both of the appealed orders.

Hsin Chu, the claimant in this case, is an employee of Tokyo House, Inc., which operates a restaurant. Since April 24, 1989, Associated Industries of Florida (Associated) has provided workers' compensation insurance coverage for Tokyo House. American Policyholders Insurance Company (American Policyholders) provided workers' compensation insurance for Tokyo House for many years prior to Associated; its coverage terminated April 15, 1989.

On June 9, 1989, Hsin Chu filed a notice of injury with Associated alleging that he recently sustained a work-related injury to his right foot. Also on June 9, 1989, Hsin Chu filed a claim for benefits with Associated alleging injuries to both elbows, shoulders, and hands, and alleging that these injuries resulted from repetitive trauma during his 14 years as a cook at Tokyo House. 1 Associated controverted the latter claim for benefits.

On March 20, 1990, a hearing was held wherein it was established that Associated had become the carrier for Tokyo House on April 24, 1989, and had assumed liability for the injury to Hsin Chu's right foot. At that hearing, Hsin Chu's counsel conceded that Hsin Chu was symptomatic as to the repetitive trauma injuries prior to April 24, 1989, but stated that Associated was the appropriate carrier to assume liability under a repetitive trauma theory because the last injurious trauma occurred after April 24, 1989. The judge suggested that it might be appropriate for American Policyholders to be brought into the case since it provided workers' compensation insurance coverage for Tokyo House prior to Associated, and offered to continue the hearing until a later date for that purpose; both Hsin Chu and Associated agreed to the continuance.

On August 22, 1990, a hearing was held at which Hsin Chu, Associated, and American Policyholders were represented. The attorney for American Policyholders acknowledged receiving a notice of hearing, but stated that neither Hsin Chu nor Associated had filed a claim against American Policyholders. The judge offered to continue the case again so Hsin Chu could file a claim against American Policyholders, but Hsin Chu's attorney decided against that course of action. The judge then stated that American Policyholders was officially dismissed from the case. Associated did not object to the dismissal nor request a continuance on its behalf for the purpose of filing a claim against American Policyholders.

On September 24, 1990, the judge issued the two appealed orders. One of the orders reflected the dismissal of American Policyholders from the case. In the other order, the judge found that Hsin Chu's claim was filed within the two-year statute of limitations. He also ordered Associated to pay all of the treating physician's bills retroactive to June 9, 1989, and continuing.

Associated and Tokyo House first argue on the appeal that the order dismissing American Policyholders from the case must be reversed because American Policyholders made an appearance, waived jurisdictional objections, and provided workers' compensation coverage at all times material to the claim. We reject this argument. The record shows that neither Hsin Chu nor Associated ever filed any type of claim against American Policyholders, thus it was never a party to the action. Associated argues that American Policyholders's acts of filing a pretrial stipulation and appearing at the hearing after receiving notice constituted a waiver of jurisdictional objections. That argument misses the point: American Policyholders was never named a party in any pleading, and filing the pretrial stipulation and appearing at the hearing did not make it one. For this reason, we affirm the order of dismissal.

Associated and Tokyo House next argue that the judge assigned the wrong date of accident to the claim and thereby unfairly prohibited their otherwise effective statute of limitations defense. Associated and Tokyo House argue that Food Machinery v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983), stands for the proposition that the date of accident from repetitive trauma is the date the claimant becomes disabled to the extent that he seeks medical attention for the injury. We do not read Food Machinery so narrowly. In that case, the claimant suffered hearing loss from long-term noise exposure. The deputy commissioner found June 1, 1979, to be the date of accident "because it was June 1, 1979 before the claimant reached a point where his hearing loss had become disabling and he was required to seek medical attention." 425 So.2d at 165. This court affirmed because, "[r]eversible error has not been shown on this point." 425 So.2d at 165. The court did not state that the date of accident could only be the date when the claimant became disabled to the point that he had to seek medical attention. It merely stated that the appellant in that case had shown no reason to reverse the date of accident as found by the deputy.

Food Machinery involved a "prolonged exposure" to "excessive noise trauma," which the court analyzed as an exposure case. 2 But the court referred to American Beryllium Co. v. Stringer, 392 So.2d 1294 (Fla.1980), which was an occupational disease case where the disability constituted the accident upon which the limitations period commenced. Stating that "no reason has been suggested why the same rule should not apply in exposure cases," the Food Machinery court recognized that the limitations ruling that it addressed was in accord with American Beryllium. To the extent that the claimant's disability and the need for medical care in Food Machinery did not occur until after the last injurious exposure, this approach is consistent with the general proposition that the limitations period does not commence until a reasonable claimant would recognize the probable compensable character of the injury. See e.g., Herb's Exxon v. Whatmough, 487 So.2d 1169 (Fla. 1st DCA 1986).

The reference to occupational disease theory in...

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11 cases
  • Rueda v. Utah Labor Comm'n
    • United States
    • Utah Supreme Court
    • 31 Agosto 2017
    ...and accounts for many of the successful cases that lack brevity of both cause and result."); see also Tokyo House, Inc. v. Hsin Chu , 597 So.2d 348, 350–51 (Fla. Dist. Ct. App. 1992) (stating that "repetitive trauma theory" exists "apart from occupational disease theory"); Martin v. Cudahy ......
  • James v. ARMSTRONG WORLD INDUSTRIES, INC.
    • United States
    • Florida District Court of Appeals
    • 31 Diciembre 2003
    ...trauma and exposure cases, which permit the date of disablement to be determined as the date of injury. See Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348 (Fla. 1st DCA 1992); Food Machinery Corp. v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983); Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DC......
  • Associated Industries Ins. Co., Inc. v. Federal Ins. Company-Chubb Group
    • United States
    • Florida District Court of Appeals
    • 6 Marzo 1998
    ...As the court made clear in Aetna Life & Casualty Co. v. Schmitt, 597 So.2d 938, 939 (Fla. 1st DCA 1992), citing Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348 (Fla. 1st DCA 1992), recovery by one workers' compensation insurance carrier from another such carrier may depend on whether an employ......
  • Kulick v. Entertainment Publications, Inc.
    • United States
    • Florida District Court of Appeals
    • 26 Septiembre 1995
    ...combine to produce the compensable injury. Worden v. Pratt Whitney Aircraft, 256 So.2d 209, 210 (Fla.1971); Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348, 351 (Fla. 1st DCA 1992). In this case, the JCC determined that the limitations period began in 1988, because that was when claimant began......
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