Jeffrey P. Gale, P.A. // A Key Element for Establishing Compensability by Operation of Law (Florida Workers’ Compensation)

Florida law offers a mechanism for making non-compensable workers’ compensation injuries compensable. A key element to the equation is the date when the Employer/Carrier (E/C) knew or should have known that the injury may not be compensable. See Travelers Ins. Co. v. Collins, 825 So. 2d 451 (Fla. 1st DCA 2002).

Unless an accident is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought, the injury is not compensable. Section 440.09(1), Florida Statutes (2017). This principle allows the E/C to avoid furnishing workers’ compensation benefits when the combination of preexisting conditions exceed the need for care and treatment caused by the workplace accident. It is known as the major contributing cause (MCC) defense.

The E/C can waive this defense, either intentionally or inadvertently. The consequence of both is the same: the questionable injury becomes compensable.

An intentional waiver occurs when the E/C affirmatively decides that it will accept rather than contest compensability. The decision is always based on a cost analysis.

Inadvertent waiver occurs two different ways: (1) E/C overlooks or misinterprets MCC medical evidence and accepts compensability; and (2) administrative oversight.

Administrative oversight arises in the context of section 440.20(4), Florida Statutes (2017), which allows E/C the opportunity to commence investigation of the employee’s entitlement to benefits and admit or deny compensability within 120 days after the initial provision of compensation or benefits. If the E/C fails to deny compensability within the 120 day period, it waives the right to deny compensability unless it carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. § 440.20(4), Fla. Stat. (2017). See, e.g., McIntosh v. CVS Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000); see also § 440.192(8), Fla. Stat. (2017) (“A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered . . .”)

Compensability is deemed when E/C fails to invoke the 120 day rule and pays benefits or pays benefits after invoking the rule but fails to deny compensability within 120 days of invoking the rule.

Importantly, for waiver to apply it must be shown that E/C knew or should have known that compensability was in question. In Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002), the E/C was ordered by the trial judge (JCC) to cover a pre-existing back condition because it failed to deny compensability within 120 days. In affirming the lower court decision, the appellate court gave the following explanation:

Here, the JCC expressly found that a report from the physician authorized to treat the claimant’s back put the employer and carrier on notice that claimant’s lower back condition consisted of a pre-existing degenerative disc condition coupled with an aggravation. As in Franklin, the physician’s report on which the JCC relied is competent and substantial evidence of notice, and a sufficient evidentiary basis for finding that the appellants waived their right to deny compensability after benefits had been paid for substantially longer than 120 days. @ 452.

Similar scenarios played out in Hutchinson v. Lykes Smithfield Packing, 870 So. 2d 144 (Fla. 1st DCA 2004) and Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001).

We are litigating a case where diagnostic testing performed shortly after our client’s workplace fall revealed a torn meniscus, an accident-related injury, and significant unrelated degenerative joint disease (DJJ). Armed with this information, the E/C issued a 120 day investigation notice. As required under 440.20(4), E/C furnished benefits related to both conditions during the 120 day investigation period. However, even though there was clear medical evidence that the fall was not the MCC of the DJJ, E/C failed to deny the DJJ within the 120 day period. Because of the DJJ, our client needs a full knee replacement. We believe that E/C waived the right to deny the non-compensable DJJ and is therefore obligated to cover the surgery and related benefits (e.g., physical therapy and lost wages during the recovery process).


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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.