final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from an order of the Judge of Compensation Claims.
Mary A. D'Ambrosio, Judge. Date of Accident: August 22,
Christine M. Tomasello of Gordon & Doner, P.A., Palm
Beach Gardens, for Appellant.
George Kagan of H. George Kagan, P.A., Gulf Stream, for
workers' compensation case, Claimant challenges, on
multiple grounds, the Judge of Compensation Claims'
(JCC's) denial of his petitions for benefits (PFBs) based
on a failure of proof as well as a successful affirmative
defense of intoxication. Because we agree with Claimant that
the Employer/Carrier (E/C) waived the right to contest
compensability of his injuries under subsection 440.20(4),
Florida Statutes (2015), we reverse and remand for entry of
an order awarding the benefits claimed. Specifically, we find
no competent substantial evidence that the E/C demonstrated
material facts, relevant to the issue of compensability,
which they could not have discovered through a reasonable
investigation during the 120-day pay-and-investigate period
of the statute. As a result, we find it unnecessary to
address the other issues raised by Claimant in this appeal.
"standard of review in worker's compensation cases
is whether competent substantial evidence supports
the decision below, not whether it is possible to
recite contradictory record evidence which supported the
arguments rejected below." Wintz v. Goodwill,
898 So.2d 1089, 1093 (Fla. 1st DCA 2005) (quoting Mercy
Hosp. v. Holmes, 679 So.2d 860, 860 (Fla. 1st DCA
1996)). See also Ullman v. City of Tampa Parks
Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993)
(holding factual findings are reviewed for competent
440.20(4) provides, in pertinent part:
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. . . . A carrier that
fails to deny compensability within 120 days after the
initial provision of benefits or payment of compensation . .
. 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.
court has held that once the employer/carrier become aware of
the need for medical benefits for a particular condition or
injury, they have three options: pay, deny, or pay and
investigate within 120 days in accordance with subsection
440.20(4). See Mathis v. Broward Cty. School Bd.,
224 So.3d 852, 855 (Fla. 1st DCA 2017) (citing Bynum
Transp., Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st
August 22, 2015, Claimant, an employee at a fish market, fell
on the right side of his body while emptying garbage in the
outside dumpster. Claimant later testified that he slipped on
a piece of fish. Mr. Sheafer, a co-worker, came to
Claimant's aid and called an ambulance. Once the
ambulance arrived, Claimant asked to be taken to the Veterans
Administration (VA) Medical Center even though another
hospital was closer. The owner of the fish market, Mr.
Giamporcaro, was informed of the accident that day, but he
never reported the accident to his workers' compensation
VA Medical Center, Claimant was diagnosed with a fractured
right hip and eventually underwent surgery. His recovery was
complicated by repeated infections, including MRSA, and he
ultimately had five surgeries with the last one resulting in
removal of his right hip joint. He was ...