Summary
reversing judge's finding that carrier had not been prejudiced by self-employed claimant/employer's failure to give notice of injury within thirty days
Summary of this case from Gomez Lawn Serv., Inc. v. HartfordOpinion
No. QQ-39.
December 7, 1979.
Richard G. Davis of Fowler, White, Gillen, Boggs, Villareal Banker, Tampa, for appellants.
D. Russell Stahl, Tampa, for appellee.
Appellants challenge the finding of the judge of industrial claims that the employer (a self-employed claimant) had knowledge of his hernia injury and the carrier had not been prejudiced by claimant's failure to give notice of his injury within 30 days.
From our examination of the record, we find no basis for excusing claimant's failure to timely report his injury. In Rand Millwork and Supply Company and Allstate Insurance Company v. Harry Rand, IRC Order 2-3538 (September 12, 1978), the Industrial Relations Commission stated:
The statutory placement of the employer in the shoes of the carrier, and vice versa, is not total, final and binding in each and every instance. There can be instances where their interest(s) in the cause become so divergent that one no longer can speak for or bind the other. In Brent v. Brent, 107 So.2d 181 (Fla. 3rd DCA 1958) the employer's wife was an employee, and filed a claim for benefits under the workmen's compensation act. The employer-husband, among other things, attempted to waive certain defenses otherwise available to the carrier which waiver was rejected by the trial judge, affirmed by the then Florida Industrial Commission, and ultimately upheld by the District Court of Appeals and the Supreme Court, which denied certiorari in 112 So.2d 9 (Fla. 1959).
It was therein held, among other things, that the carrier had an independent right to assert valid defenses, which right could not be waived at the whim of the employer.
Accord: Vibrations, Inc. and Home Indemnity Company v. Nora Schaffer, IRC Order 2-3723 (February 27, 1979).
In the instant case, the testimony was that claimant knew injuries were supposed to be reported within thirty (30) days but was too busy to report. The lengthy delay in giving notice to the carrier precluded any prompt or effective investigation of the accident to establish the statutory requirements. F.S. § 440.15(6).
Accordingly, the order is reversed and the claim dismissed.
McCORD, Acting C.J., and SHAW and WENTWORTH, JJ., concur.