The North River Insurance Co. v. Wuelling: the First District Court of Appeal recedes from Waffle House.

• Author: Lazarus, Jason D.
• Position: Workers' compensation - Florida

In workers' compensation law, a petition for benefits,[1] filed by the employee/claimant begins the litigation process. The insurance carrier is required either to file a notice of denial[2] with the Division of Workers' Compensation within 14 days of receiving the petition for benefits, or pay the requested benefits without prejudice to its right to deny the claim within 120 days.[3] Central to the debate in Waffle House v. Hutchinson, 673 So. 2d 883 (Fla. 1st DCA 1996), and The North River Insurance Co. v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996), was the question of what penalty, if any, is imposed if a carrier fails to file a notice of denial within 14 days of receipt of a petition for benefits.

Waffle House and its Progeny

The First District Court of Appeal held in Waffle House that insurance carriers, under F.S. [sections] 440.192(8), are precluded from contesting compensability when they fail to file a notice of denial within 14 days after receipt of a petition for benefits. The claimant in Waffle House was allegedly injured at work in November 1993. A notice of injury was filed on December 2, 1993. Waffle House filed a notice of denial 14 days after the notice of injury was filed. Thereafter, the claimant filed an initial petition for benefits on June 23, 1994, and two amended petitions in September and October 1994. Waffle House did not file notices of denial to these petitions or commence payment. At the final hearing, the judge of compensation claims (JCC) raised the issue of the applicability of F.S. [sections] 440.192(8), and ruled that even though Waffle House timely filed an initial notice of denial, its failure to file a second. notice of denial after the claimant filed her subsequent petitions meant that Waffle House had accepted the accident as compensable. The First District Court of Appeal affirmed.

In Regency Kawaski & Sea Doo v. Sheppard, 674 So. 2d 849 (Fla. 1st DCA 1996), the First District Court of Appeal reaffirmed its stance in Waffle House. The court held in Regency Kawaski that the carrier could not raise a Martin v. Carpenter, 132 So. 2d 400 (Fla. 196 1),[4] defense since the defense was not raised by a notice of denial within 14 days of the petition.

Finally, in Spence v. Rader Publishing Co., 675 So. 2d 974 (Fla. 1st DCA 1996.), the First District Court of Appeal held, under the authority of Waffle House, that a claimant's stroke that did not take place at work was compensable by operation of F.S. [sections] 440.192(8). The claimant in Spence filed a notice of injury on April 18, 1993. The employer filed a notice of denial which denied any and all benefits for stress which caused a stroke. A petition for benefits was filed by the claimant in July 1994, and an amended petition was filed in August 1994. The employer/carrier did not file notices of denial to either of the claimant's petitions. The JCC denied the claim, holding that the claimant was not prejudiced by the carrier's failure to file subsequent notices of...