Opinion
No. 88-121.
December 13, 1988. Rehearing Denied and Opinion Clarified May 17, 1989.
Petition for review from the Deputy Commissioner Judith A. Brechner.
Robert H. Schott, Palm City, for appellant.
Daniel A. Lewis, West Palm Beach, for appellees.
This cause is before us on appeal from an order of the deputy commissioner denying workers' compensation benefits based on the statute of limitations.
Claimant Henrietta B. McCord, a 71-year-old woman, was struck on the head by a falling case of beer while she was restocking the shelves at Southland Corporation's 7-Eleven Store in March 1983. Several months later, she developed headaches and partial paralysis. Claimant received short and then long-term disability benefits from the employer/carrier as her condition worsened. Her doctor later indicated that her disability resulted from the March 1983 accident. Although her employer was informed that the March 1983 accident was the cause of claimant's disability, neither the employer nor the carrier filed a notice of injury with the Division of Workers' Compensation (the Division) as required by Section 440.185, Florida Statutes (1983). Due to the employer/carrier's failure to file a notice of injury, the Division never mailed claimant an informational brochure on workers' compensation law pursuant to Section 440.185, Florida Statutes (1983). Claimant continued to receive long-term benefits and was not notified that her benefits would terminate when she turned 70 until a year after the workers' compensation statute of limitations had expired. The deputy found that claimant's subsequent workers' compensation claim was barred by the expiration of the statute of limitations and dismissed the case.
We reverse since the statute of limitations under workers' compensation law does not begin to run until the employer/carrier satisfies the initial burden of filing a notice of injury with the Division pursuant to Section 440.185, Florida Statutes (1983).
Accordingly, the order is REVERSED and REMANDED for proceedings consistent herewith.
ERVIN, BOOTH and THOMPSON, JJ., concur.
ON MOTION FOR CLARIFICATION AND/OR RECONSIDERATION AND/OR REHEARING ON EN BANC AND/OR CERTIFICATION TO THE SUPREME COURT
The motion for rehearing is denied; however, clarification is granted, and we delete the next-to-the-last paragraph of the original opinion which ties the commencement of the running of the statute of limitations to compliance with the notice requirement of Section 440.185, Florida Statutes. We hold to our conclusion, however, that appellant is entitled to benefits where there was a failure to comply with Section 440.185 under the rule most recently applied in Wood v. McTyre Trucking Co., Inc., 526 So.2d 739, 742 (Fla. 1st DCA 1988), which provides:
Although the E/C eventually notified claimant subsequent to June 25, 1986, that claimant might be entitled to wage-loss benefits, such notification was not timely. . . . Furthermore, once the E/C finally notified claimant of his right to benefits, the E/C then asserted that claimant's benefits were barred by the statute of limitations.
. . . .
. . . [I]t would be inequitable to allow the E/C to shirk their responsibilities and obligations to notify claimant of possible benefits under the Workers' Compensation Act, and then assert the claimant's untimely claim for benefits is barred by the statute of limitations.
An employer and its carrier are estopped from invoking the statute of limitations defense when their actions have lulled a claimant into complacency so that he does not assert his legal rights. Engle v. Deerborne School, 226 So.2d 681 (Fla. 1969); Howanitz v. Biscayne Electric, Inc., 139 So.2d 678 (Fla. 1962); Foster Wheeler Energy Group v. Fairhurst, 405 So.2d 438 (Fla. 1st DCA 1981).
In the instant case, the employer/carrier's conduct effectively misled claimant into believing no legal action was necessary to protect her legal rights. They never informed claimant of possible benefits pursuant to the Workers' Compensation Act, nor did they notify her that her long-term benefits would terminate when she turned 70, until a year after the workers' compensation statute of limitations had expired.
Accordingly, the order is REVERSED and REMANDED for proceedings consistent herewith.
ERVIN, BOOTH and THOMPSON, JJ., concur.