Turner v. Keller Kitchen Cabinets, Southern, Inc.
| Decision Date | 14 April 1971 |
| Docket Number | No. 40189,40189 |
| Citation | 247 So.2d 35 |
| Parties | Joffre E. TURNER, Petitioner, v. KELLER KITCHEN CABINETS, SOUTHERN, INC., Liberty Mutual Insurance Company, and Industrial Relations Commission, Florida Department of Commerce, Respondents. |
| Court | Florida Supreme Court |
Anthony I. Provitola, of Provitola, Vaughen & McDermott, DeLand, for petitioner.
Paul Smalbein, of Sands, Smalbein, Eubank, Johnson & Rosier, Daytona Beach, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.
In this workman's compensation case, we are to decide whether a letter, written by claimant's wife, and addressed to the State Treasurer but transmitted in time to the Industrial Relations Commission, can constitute a claim when the letter presents facts sufficient to state a claim, but also asks for advice. The Judge of Industrial Claims held that the letter created a claim and tolled the statute of limitations, but the Industrial Relations Commission reversed, stating that the letter was merely one of inquiry. Through our decision today, we quash the Order of the Commission and remand the cause for further proceedings on the merits.
Petitioner-claimant Turner sustained injuries in September, 1965, when his place of business was engulfed in flames. His employer, respondent here along with the carrier, voluntarily furnished total temporary disability payments from the time of the accident to December 8, 1966. Authorized remedial care and treatment were voluntarily continued until July 15, 1966. Claimant's first attorney filed a claim in his behalf in February, 1966, and a hearing was set for May 20, 1966. However, on May 11, claimant's attorney informed the Commission by letter that he wished to withdraw the claim and have the hearing cancelled. The Commission complied with the request without entry of a formal order. This action was subsequently discussed by claimant and his attorney, and claimant accepted the withdrawal without objection.
On December 7, 1966, approximately six months after claimant received his last authorized treatment, Mrs. Turner, claimant's wife, wrote to the State Treasurer as follows:
'I would appreciate some information about insurance.
'My husband was working at Keller Kitchen when it burned the 29th of September of '69. He was the last one pulled out alive. He stayed in the hospital two weeks. Two weeks prior to the fire, he suffered a heart attack. He was out of work a week. He went back to work on Monday, the fire (was) on Wednesday. Doctor Wells treated him and has said that the only job Joffre can hold is an office or supervisor and he doesn't have the education for either. But the Liberty Mutual cut him off December 1, 1965 without even notifying him.
'Joffre has applied any number of times for a job and can not pass the physical.
'The doctor at Keller Kitchen is Doctor John Collette of DeLand, Florida.
'Would it be asking too much to see if there is anything you can do, and let me know if we have any claim or not.'
The State Treasurer's office informed Mrs. Turner that her letter was being forwarded to the Industrial Commission. By letter dated January 17, 1967, the Commission acknowledged to Mrs. Turner that her letter had been received. The Commission informed her that her husband's attorney had asked that the hearing be cancelled along with the claim. It is suggested that if claimant thought himself entitled to additional benefits, he should return to his attorney for advice.
The Commission did not hear from claimant or his wife again until December 3, 1969, when it received a claim filed by claimant's second attorney. This claim came on for hearing on January 9, 1970. The paramount issue was whether the statute of limitations provided by Fla.Stat. § 440.19(1)(a), F.S.A. and Fla.Stat. § 440.13(3)(b), F.S.A. had run on the claim. The employer and its carrier contended that the claim was barred because it was not refiled within eight months of May 20, 1966, the original hearing date; for this argument, they relied upon their interpretation of Section (a) of Rule of Procedure No. 3. In the alternative, respondents argued that more than two years had passed since the last remedial treatment authorized, and, therefore, the statute of limitations applied; in making this latter argument, respondents took the position that Mrs. Turner's letter did not constitute a claim.
The Judge of Industrial Claims ruled that the letter from claimant's first attorney did eliminate the first claim even though no formal Commission order of dismissal was entered; this being so, the current proceedings were not a continuation of the first claim. Additionally, the Judge ruled that the statute of limitations would have run on the second claim as well, were it not for the letter written by Mrs. Turner, which was transmitted to the Commission. This letter, the Judge determined, was sufficient to constitute a new claim under the authority of A. B. Taff & Sons v. Clark, 110 So.2d 428 (1st D.C.A.Fla.1959), and Florida Telephone Corporation v. Oliver, 126 So.2d 885 (Fla.1961). It was timely filed since received by the Commission within two years after the last remedial treatment.
The Full Commission agreed that the letter from claimant's first attorney effectively withdrew the initial claim even though no Commission Order resulted; and further, it agreed that the statute of limitations barred pursuit of the initial claim. But the Commission held that Mrs. Turner's letter did not constitute a claim. It determined instead that under its previous holding in Troyer v. Burnup & Sims, Decision No. 2--1794 (1968), cert. denied, 222 So.2d 188 (Fla.1969), the letter was merely an inquiry which would not toll the running of the limitations' statute.
We agree with the Judge of Industrial Claims and the Commission that the first claim was effectively withdrawn. We note that claimant was subsequently apprised of this withdrawal and that he raised no objection. But although we denied certiorari in the Troyer case, with one Justice in dissent, we are of the view that the Judge of Industrial Claims correctly found that Mrs. Turner's letter stated a claim. Before discussing the status of the letter, certain preliminary issues need to be resolved.
Since the initial claim was withdrawn without adjudication on the merits, we find that it was subject to renewal by timely action. A similar situation arose in Florida Telephone Corporation v. Oliver, 126 So.2d 885 (Fla.1961). A claim lodged with the Commission was dismissed on the motion of the employer and carrier without resistance by claimant's attorney. Subsequently, claimant wrote to the State Treasurer and asked that the claim be reopened since it was not properly prosecuted. The Treasurer's office transmitted the letter to the Industrial Commission. The claimant was then asked by the Commission if he wanted his cause set for hearing; he responded affirmatively and a hearing was held. The Deputy Commissioner ruled that the cause should be dismissed since the original dismissal was not contested within the time allowed for appeals. The Industrial Commission reversed saying that since no adjudication had occurred on the merits, a refiling was permissible. On certiorari review, we upheld the Commission: so long as the claim letter had actually been transmitted to the Commission and no previous adjudication had been made, the claim could be refiled if within the statute of limitations. Cf., Superior Home Builders v. Moss, 70 So.2d 570 (Fla.1954). Similarly, in the instant case we find that transfer of the letter by the Treasurer's Office effectively lodged the paper with the Commission as of the date of its receipt by the Commission; we also find that a refiling of the claim was possible since no previous adjudication had occurred.
Now to the central question. In examining the status of Mrs. Turner's letter, we turn first to prior cases in which the format of claims have been discussed. A. B. Taff & Sons v. Clark, supra, was a workman's compensation case in which the Court was concerned with the propriety of attorney fees assigned below. The form of the claim filed was not in issue. In discussing whether it was necessary or only...
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...never been filed and the statute of limitations had never been tolled." (Footnote omitted). Id. at 505. In Turner v. Keller Kitchen Cabinets, Southern, Inc., 247 So.2d 35 (Fla.1971), the Florida Supreme Court analyzed whether a letter from the claimant's wife constituted a claim where a pri......
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