David Drill, Partner, Jacksonville

We have all heard the expression “You bought the farm,” which means that you unwittingly made a purchase of something you did not want or had no intention to buy. Buying the farm in the workers’ compensation setting means you have unintentionally accepted compensability of an injury, condition, or procedure through operation of law.  These unintentional compensable injuries or procedure happens all too often, but they need not if you are “watching the chicken coop.” 

Florida Statute §440.20(4) allows the employer/carrier to commence an investigation of the employee’s entitlement to benefits and admit or deny compensability within 120 days. If the employer/carrier fails to deny compensability within 120 days of the initial provision of benefits or the payment of compensation, it waives the right to deny compensability.  

Florida Statute §440.20(4) suggests that, if you do not deny compensability of the accident and injury from the accident within 120 days of providing benefits or compensation, “you bought the farm;” however, in 2006, our Appellate Court issued the opinion Checkers Rest. v. Wiethoff.  The Checkers Court reviewed a JCC’s order authorizing surgery even though the JCC found the worker’s pre-existing condition was the MCC of the need for surgery. The employer/carrier did not deny compensability within 120 days of initially providing medical care, and the JCC held the employer/carrier waived its right to deny the surgery. Id. The Checkers Court disagreed with the JCC’s analysis, noting a distinction between the concept of compensability and entitlement to benefits as those terms are used in §440.20(4). The Court also noted that the waiver provision of §440.20(4) pertains solely to the concept of compensability, and that, by failing to deny compensability within 120 days of the first provision of benefits, the employer/carrier was only admitting there was an accident that resulted in some injury to the worker.  Id.

The Checkers Court went on to state that a workers’ entitlement to future benefits remains subject to challenge, including the worker establishing a causal connection between the compensable injury and the condition for which the worker seeks benefits.  The expiration of the initial 120 day pay and investigate compensability period does not prevent the employer/carrier from challenging the worker’s entitlement to additional benefits.  Id.   The Checkers Court concluded that the JCC improperly extended the scope of the §440.20(4) waiver provision by precluding the employer/carrier from challenging the worker’s entitlement to the surgery. Id.

The moral of the story is you can avoid “buying the farm” through operation of law, by taking advantage of your right to challenge new injuries, new treatment modalities, or requests for authorization of surgical procedures that arise during the course of a claim.  Send the worker a 120 day letter and aggressively investigate all defenses to compensability of the new benefit, and, if you can, deny the benefit within 120 days of the first mention of the benefit. That way, you avoid having “buyer’s remorse.”