Put it in Practice June 2023: Monthly Tips for Florida WC Professionals
Navigating 120-Day Minefields: Part II
Last month, Bill Rogner provided excellent analysis of the potential pitfalls of the 120-day rule along with tips on how to avoid them. This month, the First District Court of Appeals has provided another weapon for claimant’s lawyers with its latest interpretation: Churchill v. DBI Services, LLC, (Fla. 1st DCA, May 31, 2023).
Ms. Churchill was a rest area custodian who mixed three different cleaning chemicals together resulting in these chemicals exploding in her face. Timeline:
11-1-20: Chemicals explode in claimant’s face, sending her to the ER and a five-day hospitalization.
11-10-20: Adjuster commences payment of prescriptions.
1-8-21: E/C sends 120-day “pay and investigate” letter to claimant.
1-25-21: E/C sends Notice of Denial denying compensability.
The Court below found the incident did not result in an injury by exposure to a toxic substance. Judge Clark did not address the waiver or estoppel arguments raised by claimant’s counsel. The 1st DCA reversed and focused on the carrier’s failure to timely issue the 120-day letter.
The Appellate Court reiterates the carrier’s only options at the onset of a claim: “pay, pay and investigate, or deny.” The Court emphasized that the carrier is obligated to timely notify the claimant when choosing to “pay and investigate,” stating: “without that letter, a claimant would not know to preserve evidence for potential litigation of entitlement to benefits.” The 120-day letter is due “upon commencement of payment.” The Court then ruled that “upon” must occur at the time of commencement or very soon thereafter. In its analysis, the Court found the carrier did not issue the 120-day letter until 59 days after the initial payment of the prescription on 11-10-20. This was not timely enough and therefore the carrier waived its right to contest compensability.
In sum, even if an adjuster timely identifies non-compensable conditions and timely issues DWC-12’s denying them, if the adjuster does not also timely issue the 120-day letter, the employer/carrier could still waive its right to contest compensability. Therefore:
1. Address issues of compensability at the onset of the claim. If there is any question about compensability the decision must be made with the assistance of counsel whether the carrier is going to pay, deny, or pay and investigate. Remember: the “pay and investigate” option requires payment during investigation. Cases involving big hospital bills require careful analysis.
2. Carefully identify the date upon which benefits have commenced. As in Churchill, a simple payment for a prescription triggers the rule.
3. Issue the 120-day letter immediately after you choose the “pay and investigate” option. 59 days was too long in the Churchill case. Our recommendation: issue the 120-day letter within 14 days.
4. Do not miss the 120-day deadline. Carefully count the days from commencement of any benefit or the filing of a Petition and issue Notice of Denial within 120 days when appropriate. Make sure Notice of Denial is also sent to claimant’s counsel.
As always, if you have any questions on this topic, please feel free to reach out to one of us at HR Law. This month’s author is Scott Miller, smiller@hrlawflorida.com.