North River Ins. Co. v. Wuelling, No. 95-4050

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARFIELD; ERVIN
Citation683 So.2d 1090
Parties21 Fla. L. Weekly D2492 The NORTH RIVER INSURANCE COMPANY, c/o Crum & Forster and M.F. Hinote & Son, Appellants, v. Wayne WUELLING, Appellee.
Docket NumberNo. 95-4050
Decision Date19 November 1996

Page 1090

683 So.2d 1090
21 Fla. L. Weekly D2492
The NORTH RIVER INSURANCE COMPANY, c/o Crum & Forster and M.F. Hinote & Son, Appellants,
v.
Wayne WUELLING, Appellee.
No. 95-4050.
District Court of Appeal of Florida,
First District.
Nov. 19, 1996.
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.

EN BANC

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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21 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...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); Single......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...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); Single......
  • Russell Corp. v. Brooks, No. 96-3265
    • United States
    • Court of Appeal of Florida (US)
    • 12 Septiembre 1997
    ...1996), review denied, 683 So.2d 486 (Fla.1996), which we have since repudiated, originally in North River Insurance Company v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). On the authority of Wuelling, we reverse the order under review, and remand for consideration of the merits of Ms. Bro......
  • Alachua County Bd. of County Com'rs v. Starling, No. 96-4269
    • United States
    • Court of Appeal of Florida (US)
    • 18 Septiembre 1997
    ...denied, 683 So.2d 486 (Fla.1996), and did not have the benefit of this court's opinion in North River Insurance Company v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). We find no procedural default. "[T]he penalties for failing to file a [timely] notice of denial do not include forfeiture ......
  • Request a trial to view additional results
21 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...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); Single......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...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); Single......
  • Russell Corp. v. Brooks, No. 96-3265
    • United States
    • Court of Appeal of Florida (US)
    • 12 Septiembre 1997
    ...1996), review denied, 683 So.2d 486 (Fla.1996), which we have since repudiated, originally in North River Insurance Company v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). On the authority of Wuelling, we reverse the order under review, and remand for consideration of the merits of Ms. Bro......
  • Alachua County Bd. of County Com'rs v. Starling, No. 96-4269
    • United States
    • Court of Appeal of Florida (US)
    • 18 Septiembre 1997
    ...denied, 683 So.2d 486 (Fla.1996), and did not have the benefit of this court's opinion in North River Insurance Company v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). We find no procedural default. "[T]he penalties for failing to file a [timely] notice of denial do not include forfeiture ......
  • Request a trial to view additional results

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