          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1283
                  _____________________________

EDWARD PARADISE,

    Appellant,

    v.

NEPTUNE FISH MARKET/
RETAILFIRST INSURANCE
COMPANY,

    Appellees.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
Mary A. D’Ambrosio, Judge.

Date of Accident: August 22, 2015.

                         February 23, 2018


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)).

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                                 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 hospitalized almost
continuously from the date of the accident through November
2016.

      On May 12, 2016, Claimant filed a PFB, which was the
insurance carrier’s first notice of the injury. The E/C elected to pay
and investigate under the 120-day rule of subsection 440.20(4). As
found by the JCC, the 120-day period for the investigation ran from
May 25 through September 22, 2016. The E/C, however, did not
file a notice denying compensability of the workplace injuries until
December 14, 2016. In the notice of denial, the E/C asserted that,
by operation of subsection 440.09(3), Florida Statutes (2015), no
compensation was due because (according to the E/C) Claimant’s
injuries were primarily occasioned by intoxication. In the process
of defending the claims, the E/C also challenged major contributing
cause. Ultimately, the JCC ruled in the E/C’s favor; but, before
doing so, she first found that the E/C had not waived their right to
deny compensability under subsection 440.20(4) because the E/C
demonstrated material facts, relevant to the issue of
compensability, which they could not have discovered during the
120-day period. Thus, under the standard of appellate review
here, we are required to determine whether the record contains
competent substantial evidence to support this finding. If not,


                                  3
then the E/C waived the right to deny compensability under the
120-day rule and their defenses must fail.

                                III.

     The E/C’s investigation began May 25, 2016, when the
assigned nurse case manager unsuccessfully tried to obtain
Claimant’s records from the VA Medical Center. On May 30th, the
E/C’s attorney sent a subpoena for medical records, but the VA
responded about a month later that the records would not be
released without a signed release from Claimant. The E/C’s
attorney immediately served Claimant with a request to produce
to obtain a signed release (which did not yet exist) followed by a
motion to compel. Claimant eventually provided the E/C’s attorney
with a CD of the VA medical records by July 6th 1 and a signed
release form by July 27th. But, Claimant did not tick off the box
on the release form that would allow the VA to provide information
regarding alcoholism or alcohol abuse.

     On August 17th, the E/C’s attorney received medical records
directly from the VA itself. During her deposition, the claims
adjuster for the E/C identified a set of VA records with a print date
of August 5th as the records she had received from their attorney
on September 5th. These records, however, were redacted and,
according to the adjuster’s testimony, did not include lab reports
or test results. On November 23rd, the E/C’s attorney filed a
motion to compel the VA to produce a complete set of the records.
Although the JCC granted the motion to compel and the VA
records custodian was deposed, the VA refused to produce an un-
redacted version. The JCC denied the E/C’s subsequent motion to
compel Claimant to sign a full release. In the denial, the JCC
stated that the E/C had not shown that the redacted information
was “relevant or necessary to their defense” and that Claimant’s
“right to privacy outweigh[]the prejudice of production of the
redacted records.” The JCC also ruled that the records



    1 This version of the VA records, which was obviously received
by the E/C long before the end of the 120-day period, is not clearly
designated in the record on appeal.

                                 4
authenticated by the VA records custodian would be the records
used at the final hearing.

    The E/C’s investigation efforts also included attempts to
depose Claimant on May 24th, August 19th, and September 21st,
but Claimant resisted, citing his medical condition. Although the
JCC granted a motion for protective order regarding the
September 21st deposition, she also ordered Claimant to attend a
deposition within 45 days. Eventually, the E/C deposed Claimant
at the VA hospital on October 19th. During his deposition,
Claimant admitted to a history of drinking every day, but denied
he was intoxicated at the time of the accident.

     Early in the investigation, the E/C contacted Mr.
Giamporcaro, but he had no information to offer because he was
out of the state at the time of the accident. No evidence was
presented to show any contact with Mr. Sheafer until Mr.
Giamporcaro testified on November 14th that Mr. Sheafer had just
told him a week and a half earlier that he believed Claimant was
intoxicated when he fell. The E/C did not depose Mr. Sheafer until
January 2017 at which time Mr. Sheafer stated that, based on his
personal knowledge and experience, he knew that Claimant drank
on the job, was intoxicated on the day of the accident despite the
fact that he was not seen drinking, and fell because he was
intoxicated. During the 120-day period, the E/C did not seek to
depose any doctors and did not designate an independent medical
examiner.

                                IV.

     In the order on appeal, the JCC recited the various factual
circumstances here that hampered the E/C’s investigation,
including Claimant’s refusal to provide a full release for the
medical records and resistance to being deposed. But she did not
clearly articulate the actual material facts relevant to
compensability that were not discoverable through reasonable
investigation within the 120-day period. For example, she did not
address why, during the 120-day investigation period, it was
reasonable for the E/C to (1) not contact Mr. Sheafer, given that he
was a witness immediately before and after the accident; (2) not
move to compel Claimant to attend a deposition at the hospital; or

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

      Ultimately, the JCC found that Claimant failed to present any
admissible medical opinions to prove a compensable work-related
injury. In reaching this finding, the JCC noted that the VA medical
records, in contradiction to Claimant’s testimony, indicated that
Claimant fell because his knee gave way. Although the JCC
concluded that Claimant failed to meet his burden of proof, she
made no findings that would explain why the material facts
relevant to this aspect of compensability could not be discovered
through reasonable investigation within the 120-day period. After
all, the E/C had the VA medical records describing the accident
long before the 120-day period ended. And, although Claimant was
not deposed until after the 120-day period, his contradictory
testimony is not the basis of the JCC’s finding of a failure of proof.
Furthermore, as previously noted, the JCC made no finding that
the E/C could not have compelled Claimant’s deposition earlier.
Finally, even assuming that material facts on this issue were not
discoverable until Claimant’s October 19, 2016, deposition, the
JCC does not explain why it was reasonable for the E/C to wait to
file their notice of denial (which asserted only an intoxication
defense) until December 14, 2016. 2

     In the appealed order, the JCC stated that she felt obligated
to address the intoxication issue. She subsequently concluded that
the E/C had timely raised the intoxication defense on December
14, 2016, and had shown “by the greater weight of the evidence,
through the VA Medical Center fact records, that the Claimant’s
injury was caused primarily by the use of alcohol.” Significantly,
she did not rely on any other evidence to find that the E/C had
perfected their intoxication defense. 3 Furthermore, because a
complete version of the VA records was never released, the JCC

    2 Nor is it clear why the E/C failed to raise a specific defense
directed to this point in the October 20, 2016, pretrial stipulation.
    3  Notably, the E/C’s attorney expressly described the VA
medical records as ‘“critical’ to the defense of this claim.” The
adjuster also testified that it was her understanding that the
denial of the claim was based solely on the VA medical records.
                                  6
necessarily relied upon the redacted records to reach this
conclusion. Thus, it is irrelevant whether the E/C could not obtain
the un-redacted VA medical records or reasonably discover other
cumulative evidence from Claimant or Mr. Sheafer before the 120-
day period expired. Because the JCC relied solely on redacted VA
medical records to make the factual finding that Claimant’s injury
was primarily occasioned by intoxication, the E/C cannot be
excused from timely denying compensability if the same material
facts existed in the VA records that they had received on or before
September 22, 2016.

                                 V.

     In the order, the JCC identified four specific reports
demonstrating that Claimant was intoxicated on the date of the
accident. One of these reports included blood alcohol test results
from the day of the accident which stated that Claimant had an
ETOH level of 128 where the normal range was described as “Neg
– 10.” The JCC’s discussion of this report suggests that she
accepted the adjuster’s testimony that no lab reports or test results
were contained in the set of the records she received on September
5th, but this is clearly not accurate: this report, as well as other
records entitled “Lab Results,” are attached to the adjuster’s
deposition. As an aside, it should be noted that the word “ETOH,”
which is redacted in the blood alcohol test report later produced by
the VA records custodian, is un-redacted in the version the
adjuster received on September 5th. With only one exception, the
specific reports identified by the JCC are essentially the same and
redacted in the same manner as those in the possession of the E/C
before the end of the 120-day period. Even if this were not the case,
we would be compelled to find material facts relevant to the issue
of compensability in the other VA records attached to the
adjuster’s deposition which contain references to medication
prescribed for “abstinence” and “to prevent DTs,” symptoms of
“ETOH withdrawal,” and a diagnosis of alcoholism. The JCC
herself described the records as “replete” with references to
Claimant’s substance abuse.

     In short, the same “material facts” that the JCC identified as
sufficient to perfect the intoxication defense were a part of the
E/C’s investigation file before the end of the 120-day period. Thus

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there is no support for the JCC’s finding that the E/C “reasonably
and timely raised the intoxication defense on December 14, 2016,
one day after taking the deposition of the Records Custodian at the
VA.” Significantly, the JCC did not make a finding that any
specific report, produced at that time, established a new material
fact in support of the intoxication defense. More importantly, it
would not be possible to make this finding because the E/C
evidently did not receive a copy of the records attached to the
records custodian’s deposition until January 12, 2017. In other
words, the E/C did not show which material facts suddenly became
available on or about December 14th which would explain the
timing of their notice of denial.

     Based on the foregoing, we find that the E/C waived their right
to deny compensability of the workplace injury because they did
not do so within the 120-day period as required by subsection
440.20(4). 4 We, therefore, REVERSE the order below and REMAND
for entry of an order consistent with this opinion.

B.L. THOMAS, C.J., and WOLF and RAY, JJ., concur.

                 _____________________________

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




    4   Despite the outcome here, we do not condone the
obstructionist tactics employed by Claimant during the
investigation of this claim and we may well have reached a
different result if the E/C had not actually received the relevant
records within the 120-day period.


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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.




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