Virginian, Inc. v. Ponder
| Decision Date | 21 May 1954 |
| Parties | VIRGINIAN, Inc. et al. v. PONDER. |
| Court | Florida Supreme Court |
G. A. O'Brien, Lawrence G. Lally, Miami, and Rodney Durrance, Tallahassee, for appellants.
Milton Kelner, Miami Beach, for appellee.
This is an appeal from a judgment entered in the Circuit Court of Dade County ordering a retrial of appellee's Workmen's Compensation claim and awarding claimant an attorney's fee.
Hearing was first had before a Deputy Commissioner on August 11, 1952 on a claim arising from an injury alleged to have occurred sometime between August 14 and August 17 of 1951. At the outset of such hearing claimant's attorney stated into the record as follows: 'The employee, Lucille Ponder, hereby makes claim against the employer'--etc. Counsel for the employer claimed ignorance of such an injury, but admitted knowledge of another injury to claimant on August 8 and payment to claimant thereon of compensation for two days' disability, August 13 and 14. Thereupon claimant's attorney introduced copy of affidavit by claimant, dated May 15, 1952 setting out the two separate injuries occurring on August 8 and on or about August 14th, respectively, which affidavit counsel announced had been filed with the employer. The record is not clear as to when such affidavit was filed with the Commission and the employer. Nevertheless, appellants here concede its receipt on or about May 16, 1952.
After the filing of such affidavit, hearing proceeded before the Deputy Commissioner. During the course of claimant's evidence, attorney for employer stated into the record that the claim being heard was controverted. Such was the first and only Notice of Controversy entered by appellants. Claimant's evidence, in addition to the testimony of her attending physician, consisted only of her own account of her injury, in which she testified that her employer, through its manager, had actual knowledge of her injury from the time of its occurrence. No objection was made at the hearing to presentation of employer's evidence, nor was request made by appellee for a continuance or for leave to present further evidence to establish her claim.
At the conclusion of all the evidence the Deputy Commissioner denied the claim upon his finding that the employee 'was not injured nor was she suffering from any injury as the result of an accident arising out and in the course of her employment * * *.' The order of the Deputy Commissioner was affirmed on review by the full Commission on authority of U. S. Casualty Co. v. Maryland Casualty Co., Fla., 55 So.2d 741 and Town of Crescent City v. Green, Fla., 59 So.2d 1.
On appeal to the Circuit Court, the Commission's order of affirmance was reversed, a new trial ordered, and claimant allowed an attorney's fee for all services to that time. Claimant's contention on review by the full Commission, on appeal to the Circuit Court, and on this appeal, is that claimant was not afforded a fair trial before the Deputy Commissioner in that the failure of the employer to file with the Commission its notice of controversy within 21 days of knowledge of the injury as required by Sec. 440.20(4) Florida Statutes 1951, F.S. A., the Workmen's Compensation Act, and in this case not until the hearing was in progress, misled claimant into the assumption that the validity of her claim would not be contested at the hearing, with the result that claimant was not prepared to present corroborating evidence of various eye witnesses.
It was the Circuit Court's view, based on the record before it, that the failure of the employer to file timely notice of controversy had induced claimant to enter the hearing in the reasonable expectation that her claim would not be contested by the employer and that therefore the need for calling additional witnesses and taking depositions of others in corroboration of claimant's account of the occurrence of her injury could not reasonably be anticipated. Being of such view, the Court below concluded that the...
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...Stucco Corporation, Fla.1954, 74 So.2d 893; Townsley v. Miami Roofing & Sheet Metal Company, Fla.1955, 79 So.2d 785; Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781, and Wick Roofing Company v. Curtis, Fla.1959, 110 So.2d 385, to support this We have examined these cases and we do not thi......
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...cause. An omission to file a notice of controversy does not constitute a default upon which a claim proceeds ex parte. Virginian, Inc. v. Ponder, Fla., 72 So.2d 781. The claimant shared with the physicians the responsibility to file the reports. Hood's Dairy v. Severino, Fla., 178 So.2d 588......
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...proceedings despite the absence of an award of any other benefits for the claimant, contrary to our decision in Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781, as clarified in Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Jones, Fla.1961, 134 So.2d 244. In Virginian, 72 So.2d 78......
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...jurisdiction is invoked with the contention that the quoted order conflicts with the prior decision of this court in Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781. We noted potential jurisdiction, issued the writ, and the matter has been heard on the In Virginian, Inc. v. Ponder, supra,......