Garner v. Clay County Dist. School Bd.

• Decision Date: 30 October 2001
• Docket Number: No. 1D00-3281.,1D00-3281.
• Citation: 798 So.2d 821
• Parties: Frank GARNER, Appellant, v. CLAY COUNTY DISTRICT SCHOOL BOARD and RSKCo., Appellees.
• Court: Florida District Court of Appeals

798 So.2d 821

Frank GARNER, Appellant, v. CLAY COUNTY DISTRICT SCHOOL BOARD and RSKCo., Appellees.

No. 1D00-3281.

District Court of Appeal of Florida, First District.

October 30, 2001.

John J. Rahaim, II and Wendy L. Steiner, Jacksonville, for Appellant.

Frank K. Calhoun, of Frank K. Calhoun, P.A., Jacksonville, for Appellee.

PER CURIAM.

The claimant in this case raises two issues stemming from the final order in which the Judge of Compensation Claims determined that the employer/carrier was not estopped from denying appellant's claims and ordered that his claims be denied. Because our reversal on the first issue is determinative, we do not address the second.

As a result of his inhalation of battery acid fumes over the course of several months, appellant suffered a compensable injury in March 1996. The e/c apparently provided benefits beginning that month, and beginning June 1996 the e/c authorized claimant's treatment with Dr. Samir Najjar and paid for such treatment through July 1997. Dr. Najjar diagnosed claimant as suffering from toxic chemical sinusitis/chronic sinusitis and asthma, both resulting from claimant's toxic exposure at work. The e/c filed its first claim denial on July 28, 1997, based on the opinion of the e/c's Independent Medical Examiner who interviewed claimant in June 1997. Dr. Knibbs opined that claimant's chronic sinusitis was not work-related. One year later, in June 1998, the e/c had claimant examined by another IME, Dr. Grigas, who diagnosed claimant as suffering from asthma not causally related to work. At the hearing below, claimant argued that the e/c was estopped from denying benefits for claimant's current medical condition because the e/c failed timely to deny the claims under section 440.20(4), Florida Statutes (1995). The e/c contended that claimant was not diagnosed as having asthma until Dr. Grigas did so in June 1998¹ and that claimant's inhalation of toxic fumes caused a compensable aggravation of claimant's underlying asthma, but that the asthma itself was not compensable. The JCC determined under the relevant statute and case law that the e/c was not estopped from denying the claims. The JCC found that the e/c made reasonable efforts to investigate the claim, that claimant's asthma was not diagnosed until July 1998, and that the e/c only accepted compensability for the aggravation of claimant's sinusitis caused by exposure to the toxic fumes but did not knowingly pay any benefits related to asthma.

Section 440.20(4), Florida Statutes, requires a carrier to admit or deny compensability of a claim within 120 days. Failure timely to act waives the right to deny compensability unless the e/c meets the following standard:

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, 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.

§ 440.20(4). In Hunt v. Exxon Co. USA, 747 So.2d 966 (Fla. 1st DCA 1999), this court found no competent substantial evidence to support a JCC's finding that the e/c made a reasonable investigation under this statute, noting that the evidence showed that the e/c did not even ask the carrier-authorized treating physician basic questions about the causal relationship between the claimant's injury and her job duties until shortly before the merits hearing. Accordingly, the employer was deemed to have waived the right to deny the compensability of the employee's injury. See Bynum Transport, Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st DCA 2000)

(stating that once e/c began paying benefits the e/c cannot evade obligation to investigate and timely decide either to continue to pay or to deny compensability, and failure to deny compensability within 120 days constitutes acceptance of compensability). Recently in Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001), this court again applied section 440.20(4) to find that the e/c waived denial of compensability. Although competent substantial evidence supported the JCC's determination that the injury the claimant suffered was not the major contributing cause of the claimant's disability, this court held that the e/c waived denial of compensability under section 440.20(4). Frank...