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Paradise v. Neptune Fish Market

Florida Court of Appeals, First District

February 23, 2018

Edward Paradise, Appellant,
v.
Neptune Fish Market/ RetailFirst Insurance Company, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from an order of the Judge of Compensation Claims. Mary A. D'Ambrosio, Judge. Date of Accident: August 22, 2015.

          Christine M. Tomasello of Gordon & Doner, P.A., Palm Beach Gardens, for Appellant.

          H. George Kagan of H. George Kagan, P.A., Gulf Stream, for Appellees.

          PER CURIAM.

         In this 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.

         I.

         The "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 substantial evidence).

         Subsection 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.

         This 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 DCA 2000)).

         II.

         On 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 insurance carrier.

         At the 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 ...


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