Jones v. Ludman Corp.

190 So. 2d 760, 1966 Fla. LEXIS 3322

• Court: Supreme Court of Florida
• Decided: October 12, 1966
• Docket: No. 35396
• Status: Published

Opinion

DREW, Justice.

The petitioner seeks review of an order of the commission reversing an award of temporary total disability compensation for the months of February and March 1963. The commission found that this claim for additional compensation, filed in October 1964, was precluded by the terms of F.S. Section 440.28, F.S.A., providing a compensation award may be modified only upon application “prior to two years after the date of the last payment of compensation’’ pursuant thereto.¹

Petitioner’s initial claim was determined by an order under which the last payment of permanent partial compensation was made in 1960. Remedial care has since been furnished under that and subsequent orders and is not here in dispute. An intervening award of further temporary total compensation was in 1963 reversed, and certiorari was denied in this Court on June 24, 1964. Jones v. Ludman Corp., 165 So.2d 767.

Petitioner contends that his current claim is not one for modification but simply for additional benefits and should be governed by Sec. 440.19(1) (a).² The language of that section is limited, however, as already noted in the earlier decision relied on by the commission,³ to the situation where payments are made without an award, in which case further claims may be made within two years after payment of compensation or remedial treatment. In view of the clear distinction made in this instance and throughout the act between medical benefits and disability compensation, we do not find error in the cited decision nor can we ignore the explicit provision of Sec. 440.28 by which a determination of disability compensation becomes final and unalterable unless modified upon petition filed within the specified time after the last payment of compensation.

Other contentions by petitioner in contest of the orders of the commission and deputy in this cause have been considered and found to be without merit.

Certiorari denied.

THORNAL, C. J., and O’CONNELL, CALDWELL and ERVIN, JJ., concur.

1 .“440.28 * * * Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commission may at any time prior to two years after the date of the last payment of compensation pursuant to any compensation order, * * * review a compensation case in accordance with the procedure prescribed in respect of claims in § 440.26 and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. * * * ”

2 . “440.19 Time and procedure for filing claims. — ■

“(1) (a) The right to compensation for disability under this chapter shall be barred unless a daim therefor is filed within two (2) years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award, on account of such injury a claim may be filed within two (2) years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.” (E.S.)

3 . Food Fair Stores, Inc. v. Tokayer, Fla. 1964, 167 So.2d 563.