Neptune's 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, RetailFirst Insurance Company.

At the VA Medical Center, Mr. Paradise was diagnosed with a fractured right hip; he 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 hospitalized almost continuously from the date of the accident through November 2016.

On May 12, 2016, Mr. Paradise filed a petition for benefits ("PFB"), which was the insurance company's first notice of the injury.

Neptune and RetailFirst elected to pay and investigate under the 120-day rule of Subsection 440.20(4), Florida Statutes.

On December 14, 2016, they denied Mr. Paradise's petition, asserting that, by operation of Subsection 440.09(3), Florida Statutes, no compensation was due because (they asserted) Mr. Paradise's injuries primarily had been occasioned by intoxication.

The Judge of Compensation Claims ("JCC") found that the 120-day period for the investigation ran from May 25 through September 22, 2016, but that Neptune and RetailFirst had not waived their right to deny compensability under Subsection 440.20(4) because they had demonstrated material facts, relevant to the issue of compensability, that they could not have discovered during the 120-day period. In particular, the JCC pointed out that Mr. Paradise had refused had refused to provide a full release for the medical records and that he had been resistant to being deposed.

Mr. Paradise appealed the JCC's decision.

Florida Law

Subsection 440.20(4) provides:

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.

The Court's Decision

The court reversed.

In its decision, the court explained that although the JCC had recited the various factual circumstances that had hampered the investigation by Neptune and RetailFirst, the JCC had not "clearly articulate[d] the actual material facts relevant to compensability that were not discoverable through reasonable investigation within the 120-day period."

For example, the court said, the JCC had not addressed why, during the 120-day investigation period, it had been reasonable for Neptune and RetailFirst to:

(1) Not contact Mr. Paradise's co-worker who was a witness immediately before and after the accident;

(2) Not move to compel Mr. Paradise to attend a deposition at the hospital; or

(3) Not move to compel the production of VA records or set the records custodian for deposition.

The court also found that the JCC had not made any findings explaining why the material facts relevant to Mr. Paradise's burden of proof could not have been discovered by Neptune and RetailFirst through reasonable investigation within the 120-day period.

Moreover, the court noted, although Neptune and RetailFirst had raised the intoxication defense on December 14, 2016, they could "not be excused from timely denying compensability" where the same "material facts" that the JCC had identified as sufficient to perfect the intoxication defense were a part of Neptune and RetailFirst's investigation file before the end of the 120-day period.

Accordingly, the court ruled that Neptune and RetailFirst had waived their right to deny compensability of the workplace injury because they had not done so within the 120-day period as required by Subsection 440.20(4).

The case is Paradise v. Neptune Fish Market, No. 1D17-1283 (Fla. Ct.App. Feb. 23, 2018). Attorneys involved include: 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.