Greetings,

There has been a recent slew of cases addressing the 120 day rule, and estoppel arguments regarding the Employer/Carrier’s failure to deny part or all of a claim or injury.

However, none of these cases had arguments or issues regarding the “backdoor” caveat to the 120 day rule.  If E/C doesn’t deny the accident or a specific injury within 120 days after the first provision of a benefit for that condition, they waive the right to deny compensability UNLESS there are material facts regarding compensability that could not have been discovered through a reasonable investigation within the 120 days.  The “backdoor” way out of waiving your right to deny.

A few examples of this would be:

• The claimant does not reveal a preexisting condition or accident (even if it doesn’t rise to the level of misrepresentation).
• The claimant omits a very key detail to the accident that could not have been found out in in an investigation (ex; Clmt was exposed to COVID through family member AND at work).
• The claimant went for unauthorized treatment after the accident unbeknownst and gave a different story.
• The diagnosis changes, the treater finds an unrelated cause after 120 days.
• Diagnostic studies after 120 days show another cause.
• Surgery reveals a previously unknown cause.
• Etc…..

It can’t be information that could have been found out in a “reasonable” investigation within the 120 days after the clock starts.  The initial provision of a benefit or treatment of a condition starts the clock.  Be sure to analyze your cases on that aspect before simply conceding that the 120 days has expired.

Here is the statute section below.  If you missed our CEU on all the changes to the 120 based on recent caselaw, please let me know and we can certainly schedule a webinar for your company,

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).

Sincerely,

Morgan Indek | Managing Partner