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Florida: Intoxication Defense Waived by Carrier Once 120-Day "Pay-and-Investigate" Period Had Passed

March 01, 2018 (1 min read)

Noting that once a Florida employer (or carrier) becomes aware of the need for medical benefits for a particular condition or injury, it has three options: pay, deny, or pay and investigate within 120 days, in accordance with § 440.20(4), Fla. Stat., a Florida appellate court held that where the employer/carrier did not bring forward its intoxication defense within the 120-day period, it waived its right to do so and could not subsequently defend the claim on that basis, particularly since there was no competent evidence that the employer/carrier could not have discovered facts relevant to the defense through a reasonable investigation during the 120-day “pay-and-investigate” period of the statute. The court acknowledged that claimant filed his claim almost a year after the injury, but also noted during the 120-day investigation period, the carrier did not seek to depose any doctors, did not request an IME, and with reasonable diligence could have discovered the alleged evidence of intoxication before the investigation period expired.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Paradise v. Neptune Fish Market, 2018 Fla. App. LEXIS 2647 (1st DCA Feb. 23, 2018)

See generally Larson’s Workers’ Compensation Law, § 36.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law