Few parts of Chapter 440 of the Florida Statutes demand as much attention from the workers’ compensation insurance carrier as section 440.20(4), Florida Statutes. It provides:
If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the 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. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).
It is not always easy to determine which injuries are work related. This is why section 440.20(4) gives E/C 120 days to investigate and decide. Doctors can be questioned, medical records can be reviewed, witnesses and the injured worker can be deposed.
Absent a showing that material facts relevant to the issue of compensability could not have been discovered through reasonable investigation within the 120-day period, an E/C who intentionally provides benefits, but fails to deny compensability within 120 days waives its right to contest an injury “arose out of, and occurred within the course and scope of, the claimant’s employment. North River Ins. Co. v. Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996) (en banc).
For a carrier to be responsible for an injury by operation of law, it must be determined which injuries were authorized. The test for determining the E/C’s obligation is set forth in Sierra v. Metropolitan Protective Services, 188 So. 3d 863 (1st DCA 2015): (1) On what date did E/C first provide benefits for the disputed body part; (2) Identify the specific injuries for which benefits were provided; and (3) Whether E/C timely denied — “i.e., within the 120-day period immediately following the initial provision of benefits…” — compensability of the injury and conditions for which it provided benefits.
Interestingly, “[t]he ‘120-Day Rule’ is not necessarily rendered obsolete on the 121st day after the first report of accident and initial installment of benefits. The rule remains viable and is again triggered when and if, a new condition or injury arises.” Bynum Transport, Inc. v. Snyder, 765 So.2d 752, 754; Boyle v. JA Cummings, Inc., 212 So.3d 1060, 1062-63 (Fla. 1st DCA 2017) (holding JCC erred by excluding adjuster’s testimony concerning specific identity of condition accepted as compensable as it related to application of subsection 440.20(4) to preexisting condition); McIntosh v. CVS Pharmacy, 135 So.3d 1157, 1159 (Fla. 1st DCA 2014) (“It was of no consequence that compensability [of the claimant’s PTSD] was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD.”).”
Our firm is involved in a case where the Claimant had an MRI more than two years after the accident. The MRI, which revealed injuries that had not been diagnosed by any previous medical provider, was prescribed by a newly authorized doctor during his first examination of the Claimant the week before. At his next follow up appointment with the Claimant, the doctor concluded that the workers’ compensation accident was the major contributing cause (MCC) of the injuries revealed by the MRI. He notified E/C of his opinions in writing and has continued to provide care for those injuries for more than 18 months with E/C’s full permission, including securing physical therapy, a brace, and medicine. Based on the above cited cases, E/C had 120 days from when it received the doctor’s opinions, rather than from the date of the accident, to deny compensability.
The “120-Day Rule” is a useful and sensible rule. It requires medical providers to describe their opinions with clarity, and obligates employers/carriers to be diligent in making decisions that impact the lives of injured workers.
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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.
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