This cause came on to be heard upon application for review of a deputy’s order dated October 28, 1954 dismissing a claim on the ground that it had been barred by the statute of limitations.
On May 19, 1954 claim was filed for compensation and medical benefits — the accident having occurred on November 21, 1951. On May 27, 1954 the usual “Notice of Hearing” form was sent by registered mail to all the parties stating that — “A hearing will be held in the above case ... at 10:30 A.M., June 23,1954.” Also typed on the notice was — “Note: The parties and their attorneys are requested to appear at this office for the purpose of a pre-hearing conference regarding this claim on Thursday, June 10, 1954, at 2 P.M.”
The parties appeared before the deputy on June 10,1954. Counsel stipulated there had been an accidental injury on November 21, 1951, that the claimant had an average weekly wage of $72 at the time, and that compensation had been paid for one day. The *70claimant acceded to the carrier’s request that he be examined by its doctor, and he was so examined on July 7, 1954. The hearing scheduled for June 23, 1954 was postponed to July 22, 1954.
At the hearing on July 22,1954 the carrier interposed the defense of the statute of limitations in section 440.19, Florida Statutes 1953. There were several hearings on the merits of the case, the last on August 12, 1954. The deputy found that claimant was temporarily and totally disabled as a result of the 1951 accident and “will need further medical treatment, and will be incapacitated for an indefinite period, and perhaps for life.” The deputy, however, dismissed the claim on the ground that it had been barred by the statute of limitations.
Section 440.19 (1) provides — “The right to compensation for disability . . . shall be barred unless a claim therefor is filed within two years after the time of injury . . .” Section 440.19(2) provides — “Notwithstanding the provisions of subsection (1) failure to file claim within the period prescribed in such subdivision shall not be a bar to such right unless objection to such failure is made at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard.” (Italics added.)
The claim having been filed two and a half years after the injury, it is barred under section 440.19(1) unless under the facts and section 440.19(2) the defense is not available to the carrier. Claimant contends that the carrier’s failure to interpose its defense at the so-called pre-hearing conference on June 10, 1954 constitutes a waiver within the provisions of section 440.19(2). The issue narrows down to whether the events which were scheduled and occurred before the deputy on June 10,1954 constituted a “first hearing” within the meaning of section 440.19 (2).
It is noteworthy that the notice to appear on June 10 was on the usual Notice of Hearing form. It was addressed to the parties and their attorneys. Notice was by registered mail and the parties had in excess of the ten days’ notice required by section 440.25(3) for the hearing of claims. When the parties appeared before the deputy on the appointed day, stipulations were entered into with respect to the merits of the claim and a request was made by the carrier for medical examination of the claimant, typical procedure in hearings before a deputy commissioner — but no mention was made of a limitations defense under section 440.19(1).
The deputy relied on the commission ruling in Nielsen v. Food Fair Stores, Inc., 6 Fla. Supp. 153. That case involved a totally *71different issue. It was a claim for attorney fees. A matter was presented to the deputy for determination on the merits. At a prehearing conference he decided the attorney fee issue without the taking of any testimony. There was no record for the commission to review and accordingly it was remanded. The deputy’s error related to his failure to follow a fundamental procedure— the making of a record when a matter is decided on the merits. The fact that it was done at a so-called “pre-hearing conference” was not important. The result would have been the same if his failure had occurred at any proceeding irrespective of its label. Essentially, the Nielsen case states the following rule — a determination on the merits can be accomplished in one of two ways — (a) by an order based on a written stipulation, or (b) by an order supported by a record. Of course, if it is the latter it follows that the presence of a stenographer is necessary in order to make up the record if the stenographic method is employed as in Dade County where the Nielsen case originated. That is what the commission meant when it said in that case — “The pre-hearing conference was not stenographically reported and the parties were required to stipulate (for purposes of review) as to what proceedings were had at this conference.” The deputy evidently interpreted the Nielsen case as authority that there can be no “hearing” for any purpose without the presence of a stenographer. It is not uncommon for parties to agree to pursue their problem “off the record” at a hearing. As a matter of fact deputies in some parts of the state do not use a court reporter, the record being later prepared by transcription from a dictaphone recording of the proceedings.
Section 440.19(2) has not been construed by our Supreme Court. This section is similar to the Federal Longshoremen’s Act which has been construed in Grain Handling Co. v. McManigal (D.C.N.Y.), 30 F. Supp. 974, wherein at page 976 the court said— “It seems to the court that the intent of the statute was to require the defense to be raised promptly and that in using the words ‘at the first hearing’ it meant that the defense should be claimed ‘at the first opportunity upon going before the deputy commissioner.’ The courts of New York state seem to have adopted such an interpretation.”
The principle that the statute of limitations must be pleaded at the first opportunity is universal. This principle is implied in the very section of the Act under consideration. One may ask why the Act provides that the defense must be pleaded at “the first hearing.” Simply because, there being no pleadings prior to hearing or trial in workmen’s compensation cases, the first opportunity to do so is when an appearance is made before the deputy. At com*72mon law with its use of pleadings as such, pleadings offer the first opportunity and for that reason, at common law, the statute of limitations must be “pleaded.” The authors of the Act had no way of expressing “first opportunity” other than by providing it be done at the first hearing. The spirit of the principle should be carried out by requiring the carrier to state its position with regard to limitations at the first official gathering of the parties before the deputy. In the opinion of a majority of the commission the June 10 procedure was a “first hearing” within the meaning of section 440.19 (2).
The deputy’s order is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. In the event the deputy allows the claim he is directed to allow claimant’s attorney a $325 fee for his services before the commission on this review.