What's Hot in Workers' Comp
In order to rely on the pay and investigate provision of Florida’s Workers’ Compensation Statute, a letter must be sent and must be sent timely.
Churchhill v. DBI Services, LLC and Corvel Corporation, Case No. 1D 21–3199, On Appeal, Decision Date May 31, 2023
July 1, 2023
The injured worker, a rest area attendant, mixed a solution for cleaning that allegedly exploded in her face, causing an immediate chemical reaction, on November 1, 2020. The claim was accepted as compensable on November 13, 2020. The carrier paid for prescriptions on November 10, 2020, and initiated indemnity benefits on November 13, 2020. Furthermore, the employer/carrier authorized follow-up with a pulmonologist and an ophthalmologist and paid intermittent indemnity benefits through February 7, 2021.
It was not until two months after the accident, on January 8, 2021, that a 120-day pay and investigate letter went to the claimant and her attorney. Later, on January 25, 2021, a notice of denial was issued, but the adjuster testified that this was an error. The claimant was authorized for testing and follow-up care on February 22, 2021. A second notice of denial was then issued on February 24, 2021.
A petition for benefits was filed, and the employer/carrier filed a response denying the claim, indicating that the claimant was unable to meet her burden of proof.
In the pre-trial stipulations, the employer/carrier altered their position in some respects. They agreed to accept responsibility and payment for payment of all medical bills and treatment through February 24, 2021. The claimant argued waiver and that the employer/carrier failed to comply with the pay and investigate provisions in Sections 440. 192(8) and 440.20 (4), Florida Statutes. A final hearing took place, and the judge issued an order.
The judge ruled that the claimant failed to meet her burden of proof, with clear and convincing evidence, as required for the toxic exposure portion of the statute. The judge did not address the waiver or estoppel argument made by the claimant. Furthermore, the judge did not rule on the issue of entitlement or the amount of attorney’s fees for the conceded medical bills and did not reserve on that issue.
The claimant moved for rehearing, and the judge denied the claim for attorney’s fees and any remaining issues. This appeal followed.
The stand-out portion of the appellate court’s written opinion relates to the pay and investigate provision. Section 440.20 (4) requires that if a carrier is uncertain of its obligation to provide benefits, they shall provide written notice to the employee that it has elected to pay and investigate the claim. The letter is meant to put the claimant on notice so that they can preserve evidence for potential litigation regarding an entitlement to benefits. Without a pay and investigate letter, employers/carriers who have furnished benefits are deemed to have accepted the employee’s injuries as compensable or have waived the right to deny compensability, unless they can establish material facts relevant to the issue of compensability that could not have been discovered through reasonable investigation within the 120-day period.
The First District Court of Appeals held that an employer/carrier’s election to delay their decision about compensability by opting to pay and investigate requires written notice, and the letter does not start the 120-day period because the initial provision of compensation or benefits does. The letter only invokes the right to rely on the pay and investigate statutory mechanism. The court indicated, “and only a timely letter will suffice.”
For this, and other reasons, the case was reversed and remanded.
What’s Hot in Workers’ Comp, Vol. 27, No. 7, July 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.
