Checkers Restaurant v. Wiethoff

Decision Date16 February 2006
Docket NumberNo. 1D04-193.,1D04-193.
Citation925 So.2d 348
PartiesCHECKERS RESTAURANT and Specialty Risk Services, Inc., Appellants/Cross-Appellees, v. Cheryl WIETHOFF, Appellee/Cross-Appellant.
CourtFlorida District Court of Appeals

Rusten C. Hurd of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.

Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.

EN BANC

DAVIS, J.

In this workers' compensation appeal, the E/C asserts that the JCC erred by concluding that the E/C, which had not denied compensability within 120 days of initially providing medical care, was estopped from denying the claimant's request for additional treatment including surgery, even though the JCC found that the claimant's preexisting condition was the major contributing cause (MCC) of any need for further treatment or surgery. We agree with the E/C and reverse the JCC's authorization of this additional medical care. Finding no merit to the claimant's issues on cross-appeal, we affirm the JCC's denial of other benefits.

Section 440.20(4), Florida Statutes, provides in relevant part:

. . . 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. . . . A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation . . . . waives the right to deny compensability . . . .

(emphasis added). In North River Ins. Co. v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996), a case which was decided en banc, this court recognized that there is a distinction between the concept of compensability and a worker's entitlement to benefits as those terms are contemplated in section 440.20(4). The waiver provision of section 440.20(4) pertains solely to the concept of compensability. In failing to deny compensability, the E/C only admits that there was an industrial accident resulting in some injury to the worker. Other issues concerning the worker's entitlement to benefits remain subject to challenge, including the extent of the compensable injury and the causal relationship between the compensable injury and the condition for which the worker seeks benefits.

In the present case, the claimant suffered an industrial accident which exacerbated a preexisting medical condition. The E/C immediately began providing medical care for the injured claimant. The claimant was seen by various doctors, and surgery was recommended. However, some of these doctors indicated that the claimant had reached maximum medical improvement with a 0% permanent impairment rating from the industrial accident. Several of the doctors also opined that the MCC of the claimant's need for surgery was the preexisting condition, and not the industrial exacerbation. The E/C terminated the claimant's benefits, asserting that the claimant was no longer entitled to indemnity benefits or medical treatment because she had returned to her pre-accident state.

The claimant filed two petitions for benefits, both of which the E/C denied by maintaining that it had already furnished appropriate benefits. The claimant then filed a third petition, requesting further medical care with treatment including surgery. The E/C did not respond to this third petition.

After the final hearing the JCC found that the claimant's compensable injury had resolved, but the JCC concluded that the E/C was estopped from denying the requested treatment and surgery. The JCC determined that the E/C's actions did not constitute a deemed denial of the benefits, and the JCC found that the E/C violated the 120-day provision and was thereby precluded from denying responsibility for this medical care.

On appeal, the E/C contends that reversal is warranted because the claimant failed to prove that the industrial injury remains the MCC of her need for continuing medical treatment and surgery. The E/C further contends that the JCC erred in authorizing this medical care because, although section 440.20(4) barred the E/C from denying compensability after the expiration of the 120-day pay and investigate period, it did not preclude the E/C from challenging the claimant's entitlement to benefits. We agree.

As explained in Wuelling, the section 440.20(4) waiver of the right to deny compensability does not necessarily establish an entitlement to benefits. Since Wuelling, however, cases such as Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002), and Hutchinson v. Lykes Smithfield Packing, 870 So.2d 144 (Fla. 1st DCA 2004), have at times blurred the distinction between compensability and entitlement to benefits. Other cases such as Bussey v. Wal-Mart Store # 725, 867 So.2d 542 (Fla. 1st DCA 2004), may have further clouded the application of section 440.20(4), in discussing the effect of an E/C's failure to respond to a petition for benefits. Because of the apparent confusion in this area and the potential conflict in the application of this court's decisions, the present case is being decided by this court en banc.

As the earlier en banc opinion in Wuelling explained, section 440.192(8), Florida Statutes, must be read in conjunction with section 440.20(4), with regard to the statutory waiver of the right to deny compensability. Wuelling established that the recitation as to such a waiver in section 440.192(8) is merely a reiteration of the waiver provision in section 440.20(4), and that the failure to file a notice of denial in response to a claim under section 440.192(8) does not in itself result in a waiver. Instead, the waiver arises under section 440.20(4) when an E/C provides compensation or other benefits and does not deny compensability within 120 days of the initial provision of such compensation or benefits. And while an E/C's failure to respond to a petition for benefits might be treated as an implicit denial of the petition for certain other purposes,1 an E/C's failure to respond to a section 440.192 petition does not interrupt the 120-day period and does not avoid the section 440.20(4) waiver provision. Similarly, a section 440.192(8) notice of denial which challenges entitlement to a claimed benefit but does not dispute compensability (the occurrence of an industrial accident resulting in injury) will not avoid the section 440.20(4) waiver. As that statute indicates, it is the payment of compensation or provision of benefits that begins the 120-day period within which the E/C may admit or deny compensability. And although section 440.20(4) directs the E/C to provide written notice when it has elected to pay the claim pending further investigation, an E/C's failure to provide such notice does not negate application of the section 440.20(4) waiver when the E/C does not deny compensability within 120 days of the initial provision of benefits. Bynum Transp., Inc. v. Snyder, 765 So.2d 752 (Fla. 1st DCA 2000).

The 120-day period under section 440.20(4) thus commenced in the present case upon the E/C's initial provision of benefits. The JCC properly determined that the E/C's failure to respond to the section 440.192 petition requesting medical...

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17 cases
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...926 So.2d 448 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Checkers Rest. v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890......
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...926 So.2d 448 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Checkers Rest. v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890......
  • Sanchez v. YRC, Inc.
    • United States
    • Florida District Court of Appeals
    • October 28, 2020
    ...evidence that the compensable industrial injury is the MCC for the requested medical treatment. See, e.g., Checkers Restaurant v. Wiethoff , 925 So. 2d 348 (Fla. 1st DCA 2006). But, as this Court explained in Meehan v. Orange County Data & Appraisals ,once a claimant has established compens......
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    • United States
    • Florida District Court of Appeals
    • September 21, 2020
    ...evidence that the compensable industrial injury is the MCC for the requested medical treatment. See, e.g., Checkers Restaurant v. Weithoff, 925 So. 2d 348 (Fla. 1st DCA 2006). But, as this Court explained in Meehan v. Orange County Data & Appraisals,once a claimant has established compensab......
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