(dissenting).
The facts in this case show that the claimant was injured on November 21,1951, and that he received compensation and medical benefits on December 11, 1951. No other compensation payments were made, nor were further medical payments made; therefore, the two-year statute of limitations had run on December 11, 1953. Nothing further was heard concerning the claim until the claimant’s attorney wrote the commission on May 19, 1954 — over five months after the statute of limitations had run its course. Thereafter, the regular printed form of notice of hearing was sent out by the deputy notifying the parties to be prepared and produce their witnesses and evidence at the initial hearing, therein scheduled for June 23, 1954; but at the top of this regular printed form there was typed in a “note” from the deputy requesting the parties and their attorneys to appear at his office on June 10, 1954 for a pre-hearing conference prior to the initial hearing.
The so-called pre-hearing conference in workmen’s compensation cases is unknown to workmen’s compensation cases and not authorized by statute in Florida, except that it is used by several deputies in Miami for the purpose of ascertaining what the claimant is seeking, eliminating the calling of expert witnesses, etc. preparatory to the actual hearing, since there are no formal pleadings in compensation cases.
In fact, the commission in Nielsen v. Food Fair Stores, Inc., 6 Fla. Supp. 153, decided that a pre-hearing conference was not an authorized hearing. The defendants in this case at the so-called pre-hearing conference did not invoke the statute of limitations; *73but at the first actual hearing in the case which was stenographi-cally reported and where evidence was received as required by the statute, did invoke the same.
The sole question in this case is whether the defendants waived their right to invoke the statute of limitations by not raising the same at a so-called “pre-hearing conference,” where such defendants did properly raise the question at the first actual hearing which was being stenographically reported and where evidence was being received, pursuant to the Act. The deputy held that the defendants did not waive the right to invoke the statute of limitations and in my opinion, properly dismissed the cause.
It is clear that the statute of limitations must be raised at the first hearing, section 440.19(2), quoted in the majority opinion. A hearing is defined in section 440.29(2) as follows — “Hearings before the commission shall be open to the public and shall be stenographically reported, and the commission is authorized to contract for the reporting of such hearings.” (Italics added.)
The record reveals that the statute of limitations was invoked at the first hearing which was stenographically reported and which complied with the italicized provisions of the statute quoted above. This first hearing was the only hearing which was reported, thereby creating a record in the case which could be reviewed by either the full commission or the Supreme Court.
The defense of the statute of limitations is an affirmative defense not only in workmen’s compensation cases, but also in common law cases of this state. Certainly, it would be foolish to require a defendant to raise this affirmative defense at an informal conference where the record and proceedings were not being stenographically reported, regardless of whether it was called a pre-hearing conference, or by any other name.
The evidence in this case definitely shows that at the pre-hearing conference no testimony was taken, no evidence was submitted, and the proceedings were not stenographically reported. The defendants did not raise the statute of limitations at this pre-trial conference because they were not required to do so by the workmen’s compensation law.
The opinion expressed by the majority of the members of the commission in this case is diametrically opposed to the decision which these two gentlemen reached in August of this past year in Nielsen v. Food Fair Stores, Inc., supra, order dated August 11, 1954. In that case the claimant’s attorney appealed the deputy’s ruling on the ground that a pre-hearing conference was not a hearing within *74the purview of the Act, insisting that the deputy had no right to enter an order in the case giving the claimant certain benefits and setting the claimant’s attorney’s fee at such conference, in that the same was not a hearing within the purview of the Act where evidence was legally adduced and the proceedings reported. The claimant’s attorney in that case contended that the order which set his attorney fee at $125 was null and void in that it emanated from a pre-hearing conference rather than a hearing authorized by the Act.
The same employer and carrier, and the same firm of attorneys in this case were called upon in the Nielsen case, to defend the deputy’s position before the full commission that a pre-hearing conference was a hearing under the Act, from which a binding order could be entered. The same two members of this commission who have reversed the deputy in their majority opinion in this case, in no uncertain terms supported the claimant’s attorney’s position in the Nielsen case that a pre-hearing conference, which is not stenographically reported, could not be termed a “hearing” under the Act, and in so holding said—
In our opinion claimant’s contention is valid. The prehearing conference was not stenographically reported and the parties were required to stipulate as to what proceedings were had at this conference. While such a pre-hearing conference may have a good and valid purpose, it cannot be substituted for a regularly scheduled hearing at which the parties are allowed to submit evidence and a record is made of the proceedings as a basis for an appeal. Such a conference may result in an order if the parties wish to stipulate on all matters in controversy —as the deputy could approve such stipulation by an appropriate order and there would be no need for further hearing. Where there is controversy remaining, however, he cannot enter an order based upon the discussions held at such a conference — which cannot be a substitute for the scheduled hearing. (Italics added.)
Certainly, if a binding order could not be entered on a pre-hearing conference in regard to attorney’s fees, as held in the Nielsen case, how could an affirmative defense be injected in a pre-hearing conference and the deputy be called upon to dismiss a case at such a conference, when no record is being made either for the full commission or the Supreme Court at. such conference.
•The legislature prescribed the conditions of a “hearing” in section 440.29(2) of the Act when it was first passed in 1935, more than ten years prior to the time when a “pre-hearing conference” was known to our practice in the state courts. Surely the defense counsel in this case, who were the same defense counsel in the Nielsen case, and the deputy commissioner in this case, had every *75right to rely upon the decision rendered by the full commission in the Nielsen case. Even if the Nielsen case had not been so decided by this commission, the statute as to what constitutes a hearing is plain and without ambiguity.
It cannot be argued that estoppel is applicable because the time limitation for this claim expired almost six months before the pre-hearing conference. Claimant was not lulled into a false sense of security because the statute was not asserted at the so-called “pre-hearing conference,” for his claim had long been barred. Claimant also attempts to proceed on the theory of waiver; but there can be no question of waiver where the defendant proceeds in accordance with the provisions of the Act.
The majority opinion completely ignores the substantial evidence rule which this commission and our Supreme Court have so long recognized. All of the argument presented by the claimant to the full commission was also presented to the deputy commissioner. Prejudice and bad faith were asserted before the deputy, but the order denying this very claim operated to establish conclusively the fact that the carrier and employer acted in good faith and did nothing which served to prejudice any rights of the claimant. They could not prejudice a claim which was already barred. The deputy heard all the testimony and received all the evidence involved in this claim. He found that, the carrier and employer acted in accordance with the terms of the Act and in food 'faith. He further found that no waiver and no estoppel had been established by the claimant. Certainly the deputy commissioner who heard this case had substantial evidence upon which to base his decision. His findings should not be disturbed, and his order should be affirmed.