By special request, here is a tip on the “120-day rule”, one of the more frequent questions I see.
Because of conflicting caselaw over the years, there is still some lingering confusion. The 120 day rule goes to the compensability of the accident itself, as well as subsequent body parts that arise. More on that below.
Within 14 days of the initial provision or benefits, the carrier has 3 choices:
- Deny; or
- Pay and investigate (AKA the 120 day rule).
The nuance is the initial provision of a benefit. If a claim is not reported until the 15th day after the accident, your clock doesn’t start until you provide a benefit…indemnity or medical. The Employer sending the claimant to the clinic or the hospital IS the initial provision of a benefit, as long as they sent them under WC (if they call 911 because someone has a heart attack, that does not necessarily start the clock).
Once 14 days pass after the initial provision of a benefit, you are in the 120 day stage (which includes the first 14 days). That means you must pay for everything until you make the decision to deny it. So if the carrier gets the claim 15 days after the Employer sends them to the clinic, it can be denied, but everything must be paid for up until the denial date.
This also applies to new body parts. For example, let’s use a 1/1/19 foot injury, and the claimant alleges back problems from altered gait 6 months later on 6/1/19. The 120 has already expired on compensability of the foot approximately on 5/1/19. The E/C authorizes an eval and treat of the back injury for 7/1/19 appointment. The E/C then has 120 days from that initial provision of the back treatment to deny compensability of the back, or be stuck with it, roughly 11/1/19, 120 days after the authorized visit.
A Notice of Denial, dwc-12, should be issued within 120 days. Arguably a PFB response or a PTS response may be a secondary layer, but a DWC-12 is clearest.
There is an out clause beyond 120 days. If the carrier can establish materials facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period, you can still deny afterwards. I had this once where no one could figure out what was wrong with the claimant and it was not until 6-7 months later after testing it was discovered he had a rare lung condition causing his problems.
After 120 days from the initial provision of a benefit, you can no longer deny compensability of the accident, the event itself. But the claimant still has to prove the accident is the major contributing cause of each and every benefit, as well as medical necessity. And in the example above, if the doctor states the accident is no longer the MCC of the need for treatment of the back after 120, you can deny future care for the back.
There is some confusion still about whether you need to send a letter advising you are invoking the 120 day rule. The Checkers case (Checkers Restaurant and Specialty Risk Services v. Wiethoff, 925 So. 2d 348 (Fla. 1st DCA 2006)), said you do not need to send the letter, you automatically get the 120. Then the Babahmetovic case came out in 2015 and said you don’t get to use the 120 pay and investigate period unless you send the 120 day letter BUT there was a rehearing and the revised decision doesn’t mention the letter at all (Babahmetovic v. Scan Design, 176 So. 3d 1006 (Fla. 1st DCA 2015)). A lot of people didn’t catch that the first opinion was withdrawn and still latch on to that ruling. Arguably now you get the benefit of the 120 whether or not you send the letter per Checkers (which by the way still has the 2nd best fries).
Of course, each case is fact specific as to when and how the rule applies. Here is the statute, and as always let me know if you have any questions.
440.20 (4) If the carrier is uncertain of its obligation to provide all benefits or compensation, 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 as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay 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 as required under subsection (2) or s. 440.192(8) 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. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).
Morgan Indek | Partner