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Dunlevy v. Seminole County Department of Public Safety8/14/2001
As amended September 24, 2001.
MICHAEL DUNLEVY, APPELLANT
v.
SEMINOLE COUNTY DEPARTMENT OF PUBLIC SAFETY AND GALLAGHER BASSETT SERVICES, INC., APPELLEES
Christian G. Payer, Orlando; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant. Michael Broussard and Danni Lynn Germano of Broussard & Cullen, P.A., Orlando, for Appellees.
The opinion of the court was delivered by: Ervin, J.
An appeal from an order of the Judge of Compensation Claims. Thomas G. Portuallo, Judge.
Michael Dunlevy, claimant, appeals an order of the judge of compensation claims (JCC) denying the compensability of an injury, because he sustained it during horseplay and failed to prove causation. Dunlevy contends the JCC erred because: (1) the employer, Seminole County Department of Public Safety, and servicing agent, Gallagher Bassett Services, Inc. (E/SA), waived their right to challenge the compensability of claimant's accident and injury under section 440.20(4), Florida Statutes (Supp. 1998), by failing to deny compensability within 120 days after the initial provision of benefits; (2) there was no competent, substantial evidence to support the JCC's finding that compensability was barred by horseplay and that claimant deviated from his employment under section 440.092(3), Florida Statutes (1997); (3) the evidence showed that claimant's hamstring injury was causally related to his accident; (4) the only physician who rendered an opinion on the matter said claimant has a two percent permanent impairment as a result of his hamstring injury; and (5) claimant is entitled to impairment benefits. We affirm the first issue, reverse and remand as to the second and third, and, because the JCC never decided the merits of the fourth and fifth issues, we remand with directions for him to determine claimant's entitlement to the benefits requested.
On April 19, 1998, while working as a firefighter/paramedic for the employer, Dunlevy fell and injured his right thigh. Dr. Robert Hatch, orthopedist, diagnosed right hamstring strain, and the servicing agent accepted the claim as compensable and began paying temporary total disability and medical benefits soon thereafter. Over a year later, Chief Kent Castleman informed the servicing agent that he had learned that Dunlevy's fall had occurred during a playful wrestling match with a co-worker, rather than from slipping. Counsel for the E/SA investigated and determined that Dunlevy was injured while engaging in horseplay, and the E/SA thereafter denied compensability.
We first reject Dunlevy's contention that the E/SA waived the right to deny compensability of the claim, because it did not investigate his claim within 120 days of the initial provision of benefits pursuant to section 440.20(4), which provides:
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.
In contrast to the facts in Bynum Transport, Inc. v. Snyder, 765 So. 2d 752 (Fla. 1st DCA 2000), and Franklin v. Northwest Airlines, 778 So. 2d 418 (Fla. 1st DCA 2001), there was nothing in the information the servicing agent obtained after Dunlevy's injury, either from claimant, the employer or Dunlevy's physicians, that raised or should have raised any doubts as to the cause of injury, thus prompting the need for "reasonable investig
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