CHARLES TOMBERLIN, PETITIONER,
v.
CITY OF MIAMI AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
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The Florida Supreme Court reviewed whether a workers' compensation claimant's failure to timely notify his employer of work-related injuries could be excused under state statute. The Court held that a Deputy Commissioner properly excused the late notice because the claimant was incapacitated and the employer suffered no prejudice.
The Deputy Commissioner properly exercised his authority under § 440.18(4) F.S.A. to excuse the late notice because the claimant had a satisfactory reason (incapacity requiring bed rest) for failing to give timely written notice and the employer was not prejudiced.
“Failure to give such notice shall not bar any claim under this chapter (a) if the employer * * * had knowledge of the injury or death and the commission determines that the employer or carrier has not been prejudiced by failure to give such notice, or (b) if the commission excuses such failure on the ground that for some satisfactory reason such notice could not be given”
States the statutory standard permitting excuse of late notice when there is satisfactory reason it could not have been given and employer is not prejudiced
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Join FLexlaw to unlock all legal intelligencePetitioner Tomberlin sustained disabling back injuries while employed as a fireman for the City of Miami. He did not notify the city of the injuries u…
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This case is based upon a petition for writ of certiorari filed pursuant to Section 440.27, F.S.A., requesting that we review an order of the Florida Industrial Commission wherein it reversed a Deputy Commissioner’s award of compensation to the petitioner.
It is undisputed that the petitioner had sustained disabling injuries to his back in the course of his employment as a fireman for the City of Miami and that the city was not notified of these injuries until approximately five weeks after they occurred.
Based on the evidence before him, the Deputy Commissioner found in part:
“4.' That the claimant did not give written notice within thirty days as required by F.S.A. [§] 440.18(1) (2), but that written notice is excused by the undersigned as authorized by F.S. A. [§] 440.18(4), since the claimant, as a result of his accidents, was required to remain in bed for five weeks and thereafter reported the accidents to his employer; and the employer was not prejudiced by said late report of said accidents. * * *”(Tr. p. 52)
The full commission reversed the Deputy Commissioner’s order on the ground that there was no competent substantial evidence to sustain the above-quoted finding.
Subsection (4) of § 440.18 F.S.A., provides in pertinent part:
“(4) Failure to give such notice shall not bar any claim under this chapter (a) if the employer * * * had knowledge of the injury or death and the commission determines that the employer or carrier has not been prejudiced by failure to give such notice, or (b) if the commission excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor unless objection to such failure is raised before the commission at the first hearing of a claim for compensation in respect of such injury or death. Provided, * * * every presumption shall be against the validity of the claim.” (Emphasis supplied.)
The term “commission”, as herein used, refers not only to the full commission but .also to any duly authorized Deputy Commissioner.1
Thus the statute clearly permits the Deputy Commissioner to excuse the claimant's failure to give written notice when he determines there is “some satisfactory reason such notice could not be given.”
The test of the existence of such excuse, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances, is normally a question of fact.
The principle which governs appellate review of Industrial Commission’s or*737ders provides that the order of the Deputy should not be disturbed if it is found to be in accord with reason and logic and is supported by competent substantial evidence.2
From our review of the record, we are of the opinion that although the proof on the question of the validity of the petitioner’s excuse pursuant to § 440.18(4) is not so absolute as to preclude any other reasonable conclusion, nevertheless, there was competent substantial evidence upon which the Deputy could have found as he did.
The petition for writ of certiorari is granted and the order of the Florida Industrial Commission vacating and setting aside the Deputy Commissioner’s order is quashed and the Deputy Commissioner’s order is hereby reinstated.
It is so ordered.
TERRELL, Acting C. J., and DREW, THORNAL and O’CONNELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Escarra v. Winn Dixie Stores, Inc., 131 So. 2d 483 (Fla. 1961)…puty erred in his statement of the reasons justifying the claimant’s failure to give notice. In effect the deputy excused this failure because of the claimant’s ignorance and lack of experience. Under our holding in Tomberlin v. City of Miami, Fla., 117 So. 2d 735, 736, the test of whether a failure to give notice can be excused is “ * * * whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances * * *…
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Herb's Exxon & Peninsular Fire Ins. Co. v. Whatmough, 487 So. 2d 1169 (Fla. 1st DCA 1986)…ublesome and would require medical treatment.” Id. at 485. The court recognized that its holding was in harmony with the “general rule” and with its “ ‘reasonable man’ ” test regarding the giving of notice as set forth in Tomberlin v. City of Miami, 117 So. 2d 735 (Fla.1960).1 See also Riddle v. Brevard County Board of Public Instruction, 286 So. 2d 557 (Fla.1973); and City of Tampa v. Tingler, 397 So. 2d 315 (Fla. 1st DCA 1981). Although Escarra was concerned with the notice of injury, the supreme court the…
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Riddle v. Brevard Cnty. Bd. OF Pub. Instruction, 286 So. 2d 557 (Fla. 1973)…thing. The doctor who examined him testified that the claimant was suffering from a deformed septum which could have been caused by the accident concerning' which the claimant testified. “. . . Under our holding in Tomberlin v. City of Miami, Fla., 117 So. 2d 735, 736, the test of whether a failure to give notice can be excused is ‘ * * * whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances * * *…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- US Cas. Co. v. Md. Cas. Co., 55 So.2d 741 (Fla. 1951)
- Marsh v. Seacord & Sankin, 93 So. 2d 902 (Fla. 1956)
- Belford Trucking Co. v. Carter, 93 So. 2d 902 (Fla. 1956)