NORWOOD SHELL, INC. AND AMERICAN HOME ASSURANCE COMPANY, APPELLANTS,
v.
PERCY L. FORBING, AND THE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF WORKERS' COMPENSATION, APPELLEES
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In this workers' compensation appeal, the court held that the two-year statute of limitations for petitioning to modify a compensation order begins from the last date of the compensation period specified in the order, not from the date of the last check actually sent. The court affirmed because the employer improperly expedited payments without authorization, and statutory ambiguities must be construed favorably to the employee.
The two-year statute of limitations begins from the last date of the compensation period as determined in the compensation order itself, not from the date of the last check sent. The court held that where compensation payments are expedited without authorization from the deputy commissioner or request from the claimant, the employer and carrier cannot unilaterally control the limitation period by advancing payments.
[1] The two-year period for petitioning for modification of a workers' compensation order begins to run from the last date of the compensation period determined in the order,…
[2] In workers' compensation cases, where statutory provisions are susceptible to disparate interpretations, the most favorable remedy doctrine requires construction most fav…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The employer and carrier should not be able to determine the date of payments by advancing payments neither requested by the claimant nor ordered by the deputy commissioner when the compensation order sets the time for periodic payments.”
Establishes that unilateral acceleration of payments by the carrier does not control the statutory limitation period.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe deputy commissioner issued a compensation order on October 24, 1980, awarding the claimant 84 weeks of compensation for a 48% permanent partial di…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Judge.
In this workers’ compensation appeal the employer and carrier contend that the deputy commissioner erred in finding that the two year period in which a claimant may petition for modification of a previously entered order begins to run from the last date of the compensation period determined in the order, rather than the date of the last check. Under the circumstances of this case, where the employer and carrier expedited payment of the periodic compensation benefits, we find no error and affirm.
The initial order of October 24, 1980, awarded claimant compensation for a 48% permanent partial disability of the left eye entitling claimant to 84 weeks of compensation beginning June 8, 1979. The last check for compensation paid by the employer and carrier pursuant to the order was sent on December 11, 1980, and reflected that it was for the period December 21, 1980, to January 4, 1981. Notification of suspension of benefits by the carrier sent to the Bureau of Workers’ Compensation reflects that compensation was suspended January 4, 1981, due to payment in full of 84 weeks compensation as per the October 24, 1980, order.
However, the deputy commissioner found that the carrier expedited the payments of compensation to the claimant by sending him advance payments without order of the deputy commissioner or request of the claimant. The deputy commissioner determined that the last payment of compensation pursuant to his previous order should have paid the claimant compensation until January 16, 1981. Claimant’s petition for modification was received by the Bureau of Workers’ Compensation on January 3, 1983. Employer and carrier raised the two-year statute of limitations set forth in Section 440.28, Florida Statutes as a bar to claimant’s petition, arguing that the date of the last check controls.
The employer and carrier should not be able to determine the date of payments by advancing payments neither requested by the claimant nor ordered by the deputy commissioner when the compensation order sets the time for periodic payments. Where Chapter 440 is susceptible to disparate interpretations, such as in Section 440.-28, the “most favorable remedy doctrine” requires a construction most favorable to the employee claimant. Kerce v. Coca-Cola Company—Foods Division, 389 So. 2d 1177 (Fla.1980).
We, therefore, find that the deputy commissioner correctly found that under the circumstances of this case, the last payment of compensation pursuant to a compensation order was determined by the compensation period set forth in the order requiring payments rather than the date of the last check sent to claimant.
Accordingly, the deputy commissioner’s order is AFFIRMED.
ERVIN, C.J., and NIMMONS, J„ concur.
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Clenora Griffin v. Orlando Reg'l Med. Ctr. & Hewitt Coleman & Assocs., Inc., 578 So. 2d 448 (Fla. 1st DCA 1991)…request was clearly made within two years following receipt of payment of compensation under the 1985 order. Consequently, section 440.28 does not preclude appellant from seeking modification of AWW and CR. See, e.g., Norwood Shell, Inc. v. Forbing, 455 So. 2d 504 (Fla. 1st DCA) (two-year period for modification of previously entered order begins to run from last date of compensation period determined in previous order), review dismissed, 459 So. 2d 1041 (Fla.1984). Because the JCC did not reach the merits o…
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Morris v. C.A. Meyer Paving & Constr. & CNA Ins. Co., 516 So. 2d 302 (Fla. 1st DCA 1987)…ts to surgical amputation of a body part. The deputy commissioner’s construction of the statute is reversible error, claimant urges, because the statute must be given an interpretation most favorable to the employee, citing Norwood Shell v. Forbing, 455 So. 2d 504 (Fla. 1st DCA), pet. for rev. dismissed, 459 So. 2d 1041 (Fla.1984). The employer and carrier contend that although claimant has lost his left testicle, he does not suffer the serious economic disabling consequences of severance of a limb as intend…1 / 2
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Santa Rosa Cnty. Bd. OF Cnty. Comm'rs & Travelers Ins. Co. v. Stephens, 585 So. 2d 1067 (Fla. 1st DCA 1991)…is a settled principle that in view of the remedial nature of workers’ compensation laws, “courts should resolve any doubts as to statutory construction in favor of providing benefits to injured workers.” Id. See also Norwood Shell, Inc. v. Forbing, 455 So. 2d 504 (Fla. 1st DCA), review denied, 459 So. 2d 1041 (Fla.1984), determining that section 440.28 “is susceptible to disparate interpretations,” and thus warrants application of the “most favorable remedy doctrine” calling for a construction most favorable…
Authorities Cited
- Kerce v. The Coca-Cola Company-Foods Div. & Gen. Accident Ins. Co., 389 So. 2d 1177 (Fla. 1980)