Bussey v. Wal-Mart Store# 725, 1D02-4804.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | KAHN, J. |
| Citation | 867 So.2d 542 |
| Parties | Mary BUSSEY, Appellant, v. WAL-MART STORE # 725 and Integrated Administrators, Appellees. |
| Docket Number | No. 1D02-4804.,1D02-4804. |
| Decision Date | 27 February 2004 |
v.
WAL-MART STORE # 725 and Integrated Administrators, Appellees
No. 1D02-4804.
District Court of Appeal of Florida, First District.
February 27, 2004.
Thomas P. Vecchio of Ross, Vecchio, & Trussell, P.A., Lakeland, for Appellees.
KAHN, J.
In this case we are asked to decide whether failure of an employer/carrier (E/C) to respond within 134 days to a section 440.192(8) petition for workers' compensation benefits waives the E/C's right to later contest the injured employee's entitlement to particular requested benefits. We affirm because no such waiver occurred.
Claimant, Mary Bussey, worked for Wal-Mart as a cashier. On November 17, 2001, claimant fell at work and broke her wrist while trying to avoid a collision with a small child. Instead of immediately reporting the injury, Bussey completed her day's work and sought treatment at a local emergency room the next day. Bussey told the emergency room personnel that she had tripped over her dog while at home. She later admitted that she chose this course of action because she feared a post work-related accident urinalysis would indicate marijuana use. On November 20, 2001, Wal-Mart's manager learned that Bussey's injury occurred on the job. She instructed Bussey to go to Wal-Mart's designated treatment provider. Bussey complied and submitted to a urinalysis. On November 26, 2001, Wal-Mart terminated Bussey because the results of her urinalysis confirmed marijuana use. Wal-Mart did not attempt to invoke the provisions of the drug-free workplace program outlined in section 440.102 and continued to pay for claimant's medical expenses after her termination.
On February 1, 2002, the claimant filed a petition requesting, among other things, payment of temporary partial disability (TPD) benefits. The E/C did not deny or otherwise respond to the petition. The parties agreed during the final hearing held on September 27, 2002, that Bussey's entitlement to TPD benefits was the only disputed issue remaining. After the hearing, the Judge of Compensation Claims issued a final order denying claimant's entitlement to TPD benefits. The JCC found that Bussey's lost earnings resulted from the termination for drug use rather than the work-related injury. He further found that the E/C's failure to respond to claimant's petition for benefits did not amount to a waiver of defenses under section 440.192(8) or section 440.20(4), Florida Statutes.
On appeal, claimant argues that the E/C's failure to deny the petition for benefits mandates payment of the requested TPD benefits. Resolution of the issue requires a review of this court's previous decisions construing section 440.192(8) and 440.20(4). We focus upon the interpretation of statutory language relating to the "pay and investigate" rule and the effect of an E/C's failure to file a denial of a section 440.192(8) petition for benefits.
Section 440.192 outlines the procedure for resolving benefit disputes. By its
In Waffle House v. Hutchinson, we addressed the effect of failure to respond to a petition for benefits within 14 days of receipt. 673 So.2d 883 (Fla. 1st DCA 1996). There, we held that such a failure resulted in a procedural default in which the E/C "was properly deemed by operation of the statute to have accepted the claim as compensable." Id. at 885. We have since expressly overruled our holding in Waffle House.
In North River Insurance Co. v. Wuelling, this court, sitting en banc, reversed an order holding that an E/C's failure to deny compensability within 14 days barred assertion of a statute of limitations defense against a claim for benefits. 683 So.2d 1090 (Fla. 1st DCA 1996). We analyzed the interrelationship between section 440.192(8) and section 440.20(4). Section 440.20(4) provides in part:
If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. 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).... 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.
We noted, "the third sentence of 440.192(8) which reads: `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 ...' refers to and is a reiteration of the waiver provision of 440.20(4) as it relates to the opportunity to pay and investigate." Wuelling, 683 So.2d at 1092. We concluded that neither section 440.192 nor section 440.20 imposed a penalty for failing to timely deny a petition for benefits or barred an E/C from defenses to a petition for benefits. Id. Accordingly, we receded from our contrary holding in Waffle House. Id.
Thereafter, we had occasion to comment further upon the effect of an E/C's failure to respond to a petition for benefits within 14 days. In Russell Corp. v. Brooks, we reiterated our disapproval of Waffle House and stated that an E/C's failure to respond to a petition for benefits operates "not as an admission of...
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...was acquitted on the theft count. Here, where appellant was convicted on the theft count, we cannot say that the error in the instruction 867 So.2d 542 on the resisting count "reach[ed] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obt......
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Lane v. State, No. 1D02-4057.
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