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Kestel v. City of Cocoa3/27/2003
This workers' compensation appeal poses the question of whether the 120-day pay-and-investigate provision set forth in section 440.20(4), Florida Statutes (Supp. 1998), applies to a situation in which the claimant has a pre-existing compensable injury that is exacerbated or aggravated by work duties. The judge of compensation claims (JCC) concluded that the statutory provision was inapplicable, because claimant had suffered an exacerbation of a prior compensable injury, not a new compensable accident, as claimant had contended, and all benefits to which claimant was entitled had been provided. As a result, he made no determination of the applicability of the 120-day period. We decline to read the 120-day rule so restrictively and therefore reverse and remand for further proceedings.
Section 440.20(1), Florida Statutes (Supp. 1998), requires the employer/carrier (E/C) to provide compensation benefits to the injured worker , unless the E/C denies compensability. Alternatively, the E/C may opt to " pay and investigate," as set forth in subsection 440.20(4), as follows:
If the carrier is uncertain of its obligation to provide benefits or compensation , it may initiate payment without prejudice and without admitting liability. 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.
Upon commencement of payment, the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. 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.
Thus, once an E/C becomes aware of an injured employee's need for medical or other compensation benefits, it has three options: pay, pay and investigate within 120 days, or deny. See Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000). If the E/C commences payment and fails to investigate within the 120 days, or fails to deny compensability within that time period, the injury is deemed compensable. See, e.g., id.; Garner v. Clay County Dist. Sch. Bd., 798 So. 2d 821 (Fla. 1st DCA 2001); Franklin v. Northwest Airlines, 778 So. 2d 418 (Fla. 1st DCA 2001); Hunt v. Exxon Co. USA, 747 So. 2d 966 (Fla. 1st DCA 1999).
In applying the 120-day rule, we are cognizant that the above cases do not involve the unique facts of an initial compensable injury followed by a compensable exacerbation or aggravation thereof, as here, but rather involve a condition the E/C eventually contended was non-compensable. We conclude, however, that the occurrence of an exacerbation of a prior injury is not a legitimate factual distinction, because nothing in section 440.20(4) suggests that the pay-and- investigate rule does not apply to exacerbations of compensable injuries. Rather, the statute simply states: "If the carrier is uncertain of its obligation to provide benefits or compensation , it may initiate payment without prejudice and without admitting liability." Here, there was clearly uncertainty as to whether benefits should be paid, either as an exacerbation of a pre-existing injury or as a new accident.
Moreover, case law indicates that the 120-day rule may be applied in multiple circumstances i
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