
    TROPICANA PRODUCTS, INC., and Globe Indemnity Company, Petitioners, v. John J. PARRISH, and the Florida Department of Commerce, Industrial Relations Commission, Respondents.
    No. 44573.
    Supreme Court of Florida.
    April 24, 1974.
    
      L. Floyd Price of Mann, Fay & Price, Bradenton, for petitioners.
    C. Eugene Jones of Ginsburg, Ross, Dent & Byrd, Sarasota, for respondents.
   DEKLE, Justice.

By way of petition for writ of certiorari to the Industrial Relations Commission, we are again confronted with questions as to the proper application and construction of Workmen’s Compensation Rule 8AW-1.03 (hereinafter referred to as Rule 3) and Rule 8AW-l.il (hereinafter referred to as Rule ll).

The initial hearing on the merits of the instant claim was scheduled for Nov. 3, 1972, but was cancelled due to the illness of claimant’s attorney and was rescheduled for Feb. 9, 1973. This hearing in turn was rescheduled for March 9, 1973, due to the commitments of the claimant’s attorney made prior to receipt of the Notice of this hearing. On Feb. 6, 1973, the employer filed a motion to dismiss pursuant to Rules 3 and 11, and an unverified motion to extend time for taking testimony was filed by claimant’s attorney on February 9, 1973. It may be noted that the rescheduling of the hearings was not due to any fault of the claimant himself, but rather was due to the illness and previous commitments of his counsel, and that the relatively long periods of time between scheduled hearing dates were necessitated by the crowded calendar. On the other hand, it is clear that the claimant, through his attorney, did fail to comply with the provision of Rule 3 requiring the testimony to be presented within 90 days of the date set for the first hearing, and that no verified petition was filed within the applicable 90-day period seeking an extension of time. No testimony was submitted in support of the claim prior to the motion to dismiss, other than the deposition of an expert witness taken by the claimant’s attorney prior to the date set for the first hearing and claimant’s appearance to have his deposition taken on the same date.

The employer has invoked the provisions of Rule 3 requiring the testimony to be taken within 90 days, and the provisions of Rule 11 providing for dismissal of a claim for failure to comply with the provisions of Rule 3. These provisions were timely invoked, and no question of waiver of their benefits is presented.

A review of our varied decisions on this question is indicated. This Court stated in Black v. Blue Ribbon Laundry, 161 So.2d 532 (Fla.1964), that although Rule 3 is not mandatory in the sense that its provisions cannot be waived by agreement of the parties or by course of conduct, it is “mandatory in the sense that in the absence of such a waiver, the deputy is bound to apply it when a party claims its benefits.” This general rule has been reaffirmed on a number of occasions. See B. F. Todd Electrical Contractors v. Hammond, 164 So.2d 513 (Fla.1964); Perez v. Carillon Hotel, 231 So.2d 519 (Fla.1970); Sweeney v. Pine Island Citrus Groves, Inc., 234 So.2d 644 (Fla.1970); Smith v. Kikilis Florist, 290 So.2d 22 (Fla.1973).

We have made a complete review of the line of cases dealing with the recurring problem in the application of Rule 3 of whether a more literal, mandatory application is required (as some of the holdings mentioned above have indicated), or whether Rule 3 is more a matter of discretion in the JIC. We now clarify the view as extracted from the several cases involving Rule 3 and hold, generally consistent with our decisions, albeit they seem to vary to some degree on the point, that Rule 3 is what has been termed “directory” in contrast to strictly mandatory and that the rule should be applied when its benefits are claimed except in the cases of (1) waiver by agreement or by a course of conduct of the parties justifying the extension of time in the interest of justice or (2) where a valid special cause is shown for relaxation of the strict 90-day provision in which to conclude testimony. These two exceptions dictate a certain degree of discretion in the JIC in such instances, but we adhere generally to the interpretation which furthers the purpose of the rule, namely, to conclude promptly the taking of testimony and disposition of the cause. The rule is not, however, to be arbitrarily invoked by the JIC where there has been a waiver by agreement or by a course of conduct of the parties amounting to a waiver of strict application of Rule 3, as in Smith v. Kikilis Florist, opinion filed Feb. 6, 1974, 290 So. 2d 22. We expressly recede from any indications appearing in prior cases, which may be contrary to the above recapitulation of the rule, such as the statement that there is a complete absence of discretion in the rule’s application, found in B. F. Todd Elec. Contractors v. Hammond, supra, which is hereby expressly overruled, as are any similar contrary statements in our prior holdings.

Sub pidice there has been no waiver by the employer of the benefits of the rule, either by agreement or by course of conduct, and he has timely invoked its benefits. However, Perez v. Carillon Hotel, supra, compels the very result in (2) above that is dictated by special circumstances, absent a waiver. Perez expressly recognizes the general rule first set forth in Black v. Blue Ribbon Laundry, supra-, it further states, however (231 So.2d at page 521) :

“We also recognize that cause for relaxation of Rule 3 might arise under rare circumstances where strict application of the rule would offend due process of law.”

The instant cause provides just such circumstances. Strictly to apply Rules 3 and 11 in the instant case would deprive this claimant of any benefits which may be due him under the provisions of our Workmen’s Compensation Law without his ever having had an opportunity to present the evidence which would support his claim for compensation payments. This much, of course, is true in any case in which Rule 3 is applied. However, the circumstances before us present other factors which impel us to conclude that strict application of the rule should be relaxed here. Claimant certainly should not be held responsible for the crowded condition of the dockets which caused the subsequent hearings to be set at a time in excess of the 90-day limitation provision of Rule 3. Nor is he to be blamed for the illness or prior commitments of his counsel which necessitated the postponements of the hearings to such subsequent dates. Indeed, if there is any blame to attach, it should attach to the claimant’s counsel, who failed to file the required verified petition for extension of time; even in this, though, there are mitigating circumstances, in that the record clearly discloses that claimant’s counsel was under the impression that the granting of a continuance by the JIC (which had been obtained) was, in effect, the equivalent of the granting of an extension of time for the taking of testimony.

To deprive the claimant of whatever benefits he may be due under our compensation act because of an understandable oversight or misapprehension of his counsel in the circumstances here would offend due process of law and the spirit of the Act. This cause, therefore, falls within the exception noted in Perez v. Carillon Hotel, supra. Both the Judge of Industrial Claims and the Industrial Relations Commission, which affirmed the JIC’s denial of the employer’s motion to dismiss, were correct in declining strictly to apply Rules 3 and 11 in the particular circumstances sub judice.

Accordingly, the petition is denied and the order of the Industrial Relations Commission is affirmed.

It is so ordered.

ADKINS, C. J., and ERVIN, McCAIN and OVERTON, JJ., concur.

ROBERTS, J., dissents.

BOYD, J., dissents with opinion.

BOYD, Justice

(dissenting).

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission. Oral argument has been dispensed with, pursuant to Rule 3.-10(e), Florida Appellate Rules.

The facts of the case, as reported in the Order of the Judge of Industrial Claims, are as follows:

“The claim herein was filed on February 18, 1972. An application for hearing was filed on August 17, 1972. On August 29, 1973, a Notice of Hearing was mailed to the parties, scheduling the hearing on the merits on November 3, 1972. Because of Mr. Ginsburg’s illness, this hearing was cancelled and was rescheduled by the Tampa office of the Bureau of Workmen’s Compensation on February 9, 1973, with the Notice of Hearing being mailed on January 8, 1973. The hearing was then rescheduled on March 9, 1973, again at the request of Mr. Ginsburg. The Motion to Dismiss, pursuant to Rules 8AW-1.03 and 8AW-l.il was filed on February 6, 1973, and the unverified Motion to Extend Time for Taking Testimony was filed on February 9, 1973.”

On the basis of these facts, the Judge of Industrial Claims held as follows:

“It is apparent that the claimant has failed to comply with the provision of Rule 8AW-1.03, requiring the testimony to be presented within ninety days. No verified petition was filed within the ninety day period and no testimony has been submitted in support of the claim. On the other hand, the claimant has not failed to diligently prosecute his claim. The deposition of an expert witness was taken by the attorney for the employee on October 6, 1972, and the claimant appeared to have his deposition taken by counsel for the employer/carrier on the same date. In addition, the fact that the hearing was not rescheduled within 90 days was due to the heavy hearing schedule in Manatee County, rather than any lack of diligence on the part of the claimant.
“The Supreme Court of Florida has held that the Rules of the Commission are not mandatory. Sweeney v. Pine Island Citrus Groves, 234 So.2d 644 (1970). In the instant case, since the claimant has not shown any lack of diligence in prosecuting his claim, and in order to avoid a possible injustice, the failure to strictly follow Rule 8AW-1.03 should be excused.
“WHEREFORE, it is ORDERED, that the Motion to Dismiss is denied.”

On appeal taken by the employer-carrier, petitioners herein, the Industrial Relations Commission affirmed, 2-1, holding:

“Upon consideration of the record, the briefs of counsel, and research of the applicable law, the Order appealed from is affirmed on the authority of Sweeney v. Pine Island Citrus Groves, Inc., 234 So.2d 644 (Fla. 1970); Bradshaw v. Miami Provision Company, 261 So.2d 829 (Fla.1972); and Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973).”

Chairman Slepin, dissenting, had argued:

“The Rules of Practice and Procedure in Workmen’s Compensation are, as interpreted by the Supreme Court, mandatory unless waived by agreement or conduct of the parties.
“In the instant cause the Judge of Industrial Claims concedes that Rule 3 would bar the claim, and concedes furthermore that claimant did not pursuant to Rule 3 proceed to seek an extension of time. By every test, including the assertions of the Judge of Industrial Claims in derogation of his holding, Rule 3 squarely applies to the instant cause and the claim must be denied thereunder. Affirmance of the Judge’s Order, which Order is not explanatory of any agreement by the parties to waive the Rule or course of conduct by the parties which would constitute a waiver as ‘waiver’ has been defined, amounts to the reduction of the Rule to meaningless verbiage. The Judge apparently excused application of the Rule because he divined an intent in the claimant or his counsel not to have the cause dismissed; but such a divination, if accurate, is not legal cause for ‘emasculation of the Rule.’ ....
“I would reverse the Order on appeal and remand the cause to the Judge of Industrial Claims for denial of the claim pursuant to Rule 3, I.R.C. Rules of Procedure.”

I am in agreement with the dissenting opinion of Chairman Slepin, and we should reverse the opinion of the majority of the Commission in this cause, for reasons which will be set forth below.

Department of Commerce Rule 8AW-1.-03 gives the parties ninety days from the date set for the first hearing within which to conclude testimony. If the testimony is not concluded within said ninety day period, the Judge of Industrial Claims must determine the merits on the evidence which was submitted timely. Of course, certain extensions of time are permitted when good cause is shown provided a verified petition has been filed prior to the expiration of said ninety day period

Under Rule 8AW-l.il, when, as in the case at bar, no evidence has been timely submitted to the Judge of Industrial Claims, the employee’s claim should be dismissed.

As the Judge of Industrial Claims noted, “It is apparent that the claimant has failed to comply with the provision of Rule 8AW-1.03, requiring the testimony to be presented within ninety days. No verified petition was filed within the ninety day period and no testimony has been submitted in support of the claim.” (Emphasis supplied.) Further, counsel for the employee admitted that the second hearing date was over ninety days from the first date set for hearing, and that he “probably could have filed a verified petition and requested a later time”.

In view of the facts before him, the Judge of Industrial Claims, under the Florida law, had no alternative but to dismiss the employee’s claim for failure to prosecute. See Perez v. Carillon Hotel; B. F. Todd Electrical Contractors v. Hammond; Black v. Blue Ribbon Laundry.

The Judge of Industrial Claims cited Sweeney v. Pine Island Citrus Groves, as authority for denying the employer/carrier’s motion to dismiss. Although the language in Sweeney, in light of Perez, B. F. Todd Electrical Contractors, and Black, might be considered confusing, the net effect of these cases is to hold that the Rules in question are mandatory unless the parties have expressly, or impliedly through their actions, waived the enforcement of same. In Perez, this Court stated, “A relaxation of Rule 3 (now Rule 8AW-1.03) would materially defeat the concept of speedy justice.” We then went on to point out that, under certain conditions, the Rule could be waived by direct stipulation or action of the parties.

A review of the record in the instant case reveals that there was no allegation the employer and carrier had, in any way, expressly or impliedly, waived the provisions of Rules 8AW-1.03 and 8AW-l.il. Therefore, under the applicable law, I think the Judge of Industrial Claims and the majority of the Industrial Relations Commission erred in failing to grant the employer/carrier’s motion to dismiss for failure to prosecute.

Once again, as Chairman Slepin pointed out in his dissent:

“Affirmance of the Judge’s order, which Order is not explanatory of any agree ment by the parties to waive the Rtile or course of conduct by the parties which would constitute a waiver as ‘waiver’ has been defined, amounts to the reduction of the Rule to meaningless verbiage. The Judge apparently excused application of the Rule because he divined an intent in the claimant or his counsel not to have the cause dismissed; but such a divination, if accurate, is not legal cause for ‘emasculation of the Rule.’ ” (Emphasis supplied.)

Accordingly, the petition for writ of cer-tiorari should be granted, the Order of the Industrial Relations Commission should be quashed, and the claim should be dismissed pursuant to Department of Commerce Rules 8AW-1.03 and 8AW-l.il.

I respectfully dissent. 
      
      . Eff. Jan. 1, 1974, these rules are now referred to as Rules 8 and 30, Workmen’s Comp. Rules of Procedure. See In Re Workmen’s Compensation Rules of Procedure, 285 So.2d 601 (Fla.1973).
     
      
      . As we observed in Kramer v. Chapman & Gerber, Inc., 235 So.2d 489 (Fla.1970), after noting some of the circumstances in which strict application of the rule is not required: “In all other situations, we again affirm our previous holdings that these rules are directory.”
     
      
      . Black v. Blue Kibbon Laundry, 161 So.2d 532 (Fla.1964; Knell v. Southgate Towers Restaurant, Inc., 235 So.2d 291 (Fla.1970); Kramer v. Chapman & Gerber, Inc., supra, note 1.
     
      
      . Perez v. Carillon Hotel, 231 So.2d 519 (Fla.1970); Sweeney v. Pine Island Citrus Groves, Inc., 234 So.2d 644 (Fla.1970).
     
      
      . Said Rule provides, in pertinent part:
      “(1) When a claim for compensation or medical benefit is filed with the Department, claimant shall diligently prosecute his claim. If the testimony of the parties is not concluded within ninety days from the date set for the first hearing, the claim shall thereupon he determined hy the Judge of Industrial Claims on the evidence which has heen submitted. For good cause shown, the Judge may grant such extension of time as may be reasonably required, provided application therefor is made hy any pa/rty hy verified petition filed with the Judge prior to the 
        
        expiration of the said ninety-day period. In no event shall the time be extended on the application of any party beyond eight months from the date set for the first hearing to take the testimony. This does not apply to cases arising under Section 440.28, Florida Statutes, or to cases appealed and reversed or modified where it becomes necessary to take additional testimony, or to cases where proof is presented to the Judge showing that the party is in such physical or mental state that he cannot testify during the period above limited.” (Emphasis supplied.)
     
      
      .The rule clearly places upon the party seeking an extension the burden of strict compliance with the prerequisites therefor. Cf. Henderson’s Portion Pak v. Jones, 281 So.2d 342 (Fla.1973).
     
      
      . Said Rule provides :
      “Failure to Comply with Rules 8AW-1.03, 8AW-1.04, or 8AW-1.06 shall be cause for dismissal upon motion of any interested party or by the Commission on its own motion.” (Emphasis supplied.)
     
      
      . 231 So.2d 519 (Fla.1970).
     
      
      . 164 So.2d 513 (Fla.1964).
     
      
      . 161 So.2d 532 (Fla.1964).
     
      
      . 234 So.2d 644 (Fla.1970).
     
      
      . 231 So.2d at 521.
     