North River Ins. Co. v. Wuelling
| Decision Date | 19 November 1996 |
| Docket Number | No. 95-4050,95-4050 |
| Citation | 683 So.2d 1090 |
| 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 | Florida District Court of Appeals |
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 period." On the one side, it is argued that a carrier which files a notice of denial more than 14 days after receipt of a petition for benefits is "defaulted" and therefore cannot raise an affirmative defense to payment of benefits. On the other side, it is argued that this language has nothing to do with the initial filing of a notice of denial to a petition for benefits, but instead precludes a carrier from claiming that no injury for which benefits may be due was occasioned by an accident that arose out of the employment and occurred during the course and scope of employment, when the carrier has availed itself of the "pay and investigate" provisions of section 440.20(4) and does not deny compensability within 120 days of providing requested benefits. We agree with the latter position. In doing so, we recede from our decision in Waffle House v. Hutchinson, 673 So.2d 883 (Fla. 1st DCA 1996), to the extent it holds that section 440.192(8) precludes the carrier from contesting compensability when it fails to file a notice of denial within 14 days after receipt of a petition for benefits.
In construing the provision at issue, we must first understand the relationship between section 440.192(8) and section 440.20(4). Sections 440.20(1) and 440.20(2) require the carrier to deny compensability or entitlement to benefits or to pay benefits as required by law within 14 days after receipt of a notice of injury. Section 440.20(4) allows the carrier to postpone the decision to deny any obligation to pay benefits for up to 120 days while it conducts an investigation, provided it pays the requested benefits for which it is undertaking the period of investigation. If, at the end of 120 days, the carrier does not deny compensability, it loses its right to deny. Section 440.192 sets out the mechanism for the employee to recover the benefits which he has not received and to which he believes he is entitled. This action is initiated by serving a petition for benefits, which could occur during the 120 day period for investigation following the notice of injury, if the carrier has denied some benefits.
Section 440.192(8) requires the carrier, within 14 days of the petition for benefits, to either pay the requested benefits or file...
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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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