Harbor Freight Tools, Inc. and Safety etc. v. Patricia Whitehead

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-3194 _____________________________

HARBOR FREIGHT TOOLS, INC. and SAFETY NATIONAL CASUALTY CORP./CORVEL,

Appellants,

v.

PATRICIA WHITEHEAD,

Appellee. _____________________________

On appeal from an order of the Judge of Compensation Claims. Ralph J. Humphries, Judge.

Date of Accident: May 3, 2015.

May 18, 2018

PER CURIAM.

A judge of compensation claims awarded workers’ compensation benefits based on the so-called “120-day rule,” which generally precludes carriers from denying compensability if they begin paying benefits and do not challenge compensability within 120 days. See § 440.20(4), Fla. Stat. (2015); see also Sierra v. Metropolitan Protective Servs., 188 So. 3d 863, 866-67 (Fla. 1st DCA 2015). But “[a] claimant’s ‘defense’ of waiver to an [employer’s] ability to deny compensability of an accident or specific injury/condition pursuant to the ‘120-Day Rule’ is an

affirmative pleading which must be timely raised and specifically plead[ed].” Teco Energy, Inc. v. Williams, 234 So. 3d 816, 823 (Fla. 1st DCA 2017). Here the claimant did not specifically plead application of the 120-day rule. The judge of compensation claims therefore erred in awarding benefits based on the rule.

REVERSED.

LEWIS, KELSEY, and WINSOR, JJ., concur.

_____________________________

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

Daniel M. Schwarz and Gina M. Jacobs of Cole, Scott & Kissane, P.A., Plantation, for Appellants.

Daniel J. Glary, Jacksonville, for Appellee.