
    FERLITA v. FLORIDA ART STUCCO CORP., et al.
    Industrial Commission.
    May 11, 1953.
    Michael J. Buscemi, Cutler & Mittle, Tampa, for claimant.
    F. T. Saussy, Jr. and Nick J. Falsone, both of Tampa, for the employer.
    R. Corbin Glos, Tampa, for the insurance carrier.
    
      Chairman JAMES T. VOCELLE, Commissioner H. E. WOLFE, and Commissioner L. R. WESTON participated in the disposition of this matter.
   BY THE COMMISSION.

This cause came on to be heard on application for review of a deputy commissioner’s order dismissing claimant’s application for modification. The question before the commission is one of law only, to-wit — whether the payment by the employer of the increased amount of compensation due under section 440.54, Florida Statutes 1951, is compensation within the purview of the Act. or is the payment of a penalty.

Claimant was injured in 1947 while a minor and the last compensation payment by the carrier occurred on or about August 30, 1948. At that time the question of the application of section 440.54 was specifically held in abeyance by the deputy, later it was held that the section was applicable and the employer was compelled to pay the additional benefits on or about August 31, 1952.

On February 18, 1953 claimant filed an application for additional benefits for the original injury. The deputy held that the payment made in 1952 was the payment of a penalty and that the statute of limitations provided in section 440.28 had expired. It is the opinion of the commission that the additional payment made by the employer on or about August 31, 1952, as required by section 440.54, was the payment of a penalty and was not the payment of compensation within the purview of the Act. The deputy commissioner’s order dismissing the application is therefore affirmed.  