GARY DENESTAN, APPELLANT,
v.
MIAMI-DADE COUNTY, AND RISK MANAGEMENT DIVISION OF MIAMI-DADE COUNTY, APPELLEES
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This case concerns whether an employer/carrier's late filing of a notice of denial in a workers' compensation claim prevents them from asserting the statute of limitations as a defense. The court held that a late filing does not preclude this defense.
No, the failure to file a notice of denial within 14 days does not preclude the employer/carrier from asserting the statute of limitations as a defense, especially when the stipulated facts show the claim is barred by the statute of limitations.
[1] Failure to file a notice of denial within 14 days constitutes a denial.
[2] A notice of denial filed late may still assert the statute of limitations as a defense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although we have held that the failure to file a notice of denial within 14 days constitutes a denial, see Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997), we find no authority to support claimant’s “general denial” theory.”
Establishes the court's rejection of the claimant's 'general denial' argument.
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Join FLexlaw to unlock all legal intelligenceThe claimant argued that the employer/carrier's failure to file a notice of denial within 14 days, as required by statute, constituted a "general deni…
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PER CURIAM.
In this appeal, appellant-claimant contends that appellee-employer’s [hereafter E/C] failure to file a notice of denial within 14 days, as required by section 440.192(8), Florida Statutes (1997), constituted a “general denial,” and that the E/C could not thereafter file a notice of a denial specifically asserting the statute of limitations as a defense, since the notice of denial was not the initial response to the petition. See § 440.19(4), Fla. Stat. (1997) (the statute of limitations is not a bar to an employee’s claim unless the E/C advances that defense in its initial response to the petition for benefits). Although we have held that the failure to file a notice of denial within 14 days constitutes a denial, see Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997), we find no authority to support claimant’s “general denial” theory. In fact, North River Insurance Co. v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996) (en banc), indicates a contrary conclusion. There this court explained that under section 440.192, Florida Statutes, an E/C must, within 14 days, either pay the requested benefits or file a notice of denial. Payment could be made, however, without prejudice to the right to deny compensability within 120 days under the “pay and investigate” provisions in section 440.20, Florida Statutes. This court noted, however, that nothing in either of the above statutes imposed a penalty for a carrier’s failure to timely file a notice of denial or imposed a bar on it from asserting a particular defense. Rather, sanctions for untimely filing of a notice of denial were found in other statutes.
Notwithstanding the fact that the notice of denial in the case at bar was not filed until 93 days after the petition was filed, it nonetheless included the statute of limitations defense, and, because the stipulated facts establish that the statute of limitations barred the claim for benefits, the order denying the claim is
AFFIRMED.
ERVIN, KAHN and POLSTON, JJ„ concur.
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Bussey v. Wal-Mart Store # 725 & Integrated Administrators, 867 So. 2d 542 (Fla. 1st DCA 2004)…tently adhered to this interpretation. See, e.g'., Mitchell v. Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003) (noting that a failure to timely respond is the procedural equivalent of a [*545] notice of denial); Denestan v. Miami-Dade County, 789 So. 2d 515, 516 (Fla. 1st DCA 2001) (holding that the late filing of notice of denial did not bar E/C from asserting statute of limitations defense); McDonald’s Rest. # 7160 v. Montes, 736 So. 2d 768, 769 (Fla. 1st DCA 1999) (noting that a “carrier that fails…
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Jamin Palmer v. McKesson Corp., 7 So. 3d 561 (Fla. 1st DCA 2009)…ive defense, the employer and servicing agent had the burden of raising that defense and proving that the petitions for benefits were untimely pursuant to section 440.19(1). See § 440.19(4), Fla. Stat. (2001); see also Denestan v. Miami-Dade County, 789 So. 2d 515 (Fla. 1st DCA 2001). However, here the employer and servicing agent were obliged only to establish the date of injury (stipulated as August 17, 2001) and the date of the first petition for benefits (July 5, 2005) to carry that burden. Having done so…
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Gallagher v. Walgreen's Distrib. Ctr., 808 So. 2d 287 (Fla. 1st DCA 2002)…PER CURIAM. AFFIRMED. See North River Ins. Co. v. Wuelling, 688 So. 2d 1090 (Fla. 1st DCA 1996) (Administrative Division en banc); Denestan v. Miami-Dade County, 789 So. 2d 515 (Fla. 1st DCA 2001). WEBSTER and BENTON, JJ., and SMITH, LARRY G., Senior Judge, concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The N. River Ins. Co. v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996)
- Russell Corp. & Thomas Howell Group/GAB Robbins v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997)