North River Ins. Co. v. Wuelling, 95-4050
| Citation | 683 So.2d 1090 |
| Decision Date | 19 November 1996 |
| Docket Number | No. 95-4050,95-4050 |
| Parties | 21 Fla. L. Weekly D2492 The NORTH RIVER INSURANCE COMPANY, c/o Crum & Forster and M.F. Hinote & Son, Appellants, v. Wayne WUELLING, Appellee. |
| Court | Court of Appeal of Florida (US) |
Page 1090
v.
Wayne WUELLING, Appellee.
First District.
Rehearing Denied Dec. 31, 1996.
Page 1091
William H. Rogner, of Hurley & Rogner, P.A., Orlando, for Appellants.
James F. McKenzie and Stephanie A. Taylor of McKenzie & Soloway, Pensacola, for Appellee.
BARFIELD, Chief Judge.
The employer/carrier (E/C) appeal a workers' compensation order finding that the claimant's petition for benefits was not barred by the statute of limitations, based on application of section 440.192(8), Florida Statutes (Supp.1994). We reverse.
The following facts are pertinent to this appeal. The claimant injured his shoulder at work in 1985, reached maximum medical improvement (MMI) with a five percent permanent impairment in 1986, and in 1987 received a lump-sum settlement which excluded medical benefits. Thereafter, more than two years passed during which the claimant did not receive any medical care for his shoulder. In May and June 1994, he incurred medical expenses which he contended were related to his 1985 work injury. On August 15, 1995, the carrier received a petition seeking payment of these medical expenses, but did not file its notice of denial, which was based on the statute of limitations, until October 25, 1995. In the challenged order, the judge of compensation claims found that section 440.192(8) is procedural, that the penalty for failure to timely respond to the petition for benefits is "forfeiture of the carrier's right to contest compensability of the petition" and that by asserting the statute of limitations defense, "[t]he E/C deny all benefits claimed and, in effect, denying (sic) compensability of the claim in its entirety." The JCC ruled that in the instant case, the "procedural default" aspects of section 440.192(8) "act to revive a claim previously barred by the statute of limitations under F.S. 440.19(2)(a)." He ordered the E/C to pay the medical bills detailed in the petition for benefits, plus interest, costs and a reasonable attorney's fee.
Disposition of this case turns on the construction of the third sentence in section 440.192(8), which provides: "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, unless it can establish material facts relevant to the issue of compensability that could not have been discovered through reasonable investigation within the 120-day...
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...by criminal division without antecedent publication of panel decision), approved by 705 So.2d 567 (Fla.1998); N. River Ins. Co. v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996) (en banc decision released by workers' compensation division without antecedent publication of panel decision); Sin......
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