Bussey v. Wal-Mart Store# 725
| Citation | 867 So.2d 542 |
| Decision Date | 27 February 2004 |
| Docket Number | No. 1D02-4804.,1D02-4804. |
| Parties | Mary BUSSEY, Appellant, v. WAL-MART STORE # 725 and Integrated Administrators, Appellees. |
| Court | Court of Appeal of Florida (US) |
Nora Leto of Kaylor & Kaylor, Winter Haven, for Appellant.
Thomas P. Vecchio of Ross, Vecchio, & Trussell, P.A., Lakeland, for Appellees.
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 terms, "any employee who has not received a benefit to which the employee believes she or he is entitled" may file a petition for benefits with the Office of the Judges of Compensation Claims. § 440.192(1), Fla. Stat. (2002). Upon receiving the petition for benefits, an E/C has 14 days to § 440.192(8), Fla. Stat. (2002). In this case, claimant argues that because the E/C failed to file a denial or response in either the 14 days after receipt of the petition or the 120 days after that period, it should not be allowed to contest her entitlement to TPD benefits. We reject this argument.
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 compensability but as a denial of every allegation in the petition for benefits." 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). From that point forward, we have consistently adhered to this interpretation. See, e.g., Mitchell v. Sunshine Cos., 850 So.2d 632, 633 (Fla. 1st DCA 2003) (); Denestan v. Miami-Dade County, 789 So.2d 515, 516 (Fla. 1st DCA 2001) (); McDonald's Rest. # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999) (); Alachua County Bd. of County Comm'rs v. Starling, 699 So.2d 310, 311 (Fla. 1st DCA 1997) (). Thus, our precedent establishes that the E/C's decision not to respond within 14 days operates as a denial. Bussey, nevertheless, places a great deal of emphasis upon the language in section 440.192(8) referring to the 120-day "pay and investigate" period outlined in section 440.20(4). We agree that an E/C opting to pay benefits while reserving the right to deny compensability pursuant to section 440.20(4) must deny within 120 days or waive the right to challenge compensability. Here, however, the E/C did not invoke the pay and investigate option.
The 120-day period becomes relevant only when an E/C has elected to pursue the "pay and investigate" option. Section 440.20(4) applies to a carrier that is "uncertain of its obligation to provide all benefits or compensation" and gives the E/C an option to pay benefits while reserving the right to later deny compensability after investigation. See Wuelling, 683 So.2d at 1092 (). Here, the E/C was not uncertain and needed no investigation because Wal-Mart knew it had discharged claimant for drug use. As a result, the 120-day period was never triggered in this case.
Under section 440.20(4), the 120-day period is measured from the "initial provision of benefits or payment of compensation as required under ... s.440.192(8)." Here, claimant filed her petition for benefits pursuant to section 440.192(8) and the E/C made no payments in response to that petition. Wal-Mart never denied compensability, but by operation of law, denied Bussey's right to temporary partial disability. A claim for temporary partial disability, temporary total disability, permanent total disability, or impairment benefits may well, as in this case, raise questions quite different from the question of compensability of an accident. We do not read "entitlement to benefits" to mean the same as "compensability." Section 440.20(1)(a) directly recognizes that a carrier may deny "compensability or entitlement to benefits." (emphasis added). See Wuelling, 683 So.2d at 1092 (). Bussey's temporary partial disability claim raises questions not concerning the compensability of her accident, but concerning the causal relationship between her injury and her lost earnings.
The purpose of the 120-day limit is to ensure that an...
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