Responding to a Defective Petition for Benefits IV: The 120 Day Rule

24 Jul, 2019 Bruce Burk


Sarasota, FL ( - When you are trying to respond to a defective petition for benefits every tool in the toolbox matters. In Florida, one of the most useful of the adjuster’s tools is the 120 Day Rule.

This rule allows you to get more time to investigate a claim. Normally, you would have to respond to a Petition within 30 days or attorney fee entitlement could attach. This rule extends the period to respond to the Petition to 120 days.

Florida statute 440.20(4) states:

“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 as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability.”

When this statute is invoked, the employer/carrier will authorize medical treatment and pay any other benefits due while simultaneously investigating the claim. The 120 day period starts from the first provision of benefits. Typically, that will be the first date that the claimant sees the authorized doctor. It is important for the employer/carrier to issue a letter to the claimant when the 120 day rule is being used to notify them that the claim is being paid and investigated.

After the end of the 120 day period, the employer/carrier must accept or deny the claim. It is important to note that the 120 day period is not benefit specific and only applies to the compensability of the underlying claim which is whether there was an accident within the course and scope of employment.

It is very important that prior to the 120 day period expiring the employer/carrier issue a notice of denial. Otherwise, the failure to issue a denial could be construed as the claim being compensable. It would also possibly result in an estoppel argument made by the claimant’s attorney.

Once the 120 day rule is invoked, it is important that actions be taken to investigate the claim. This could include authorizing medical treatment, reviewing the employer’s records, getting a peer review, getting an independent medical examination, etc.

One example of when you could use the 120 day rule to investigate a claim would be if there were suspicions of the going and coming rule applying. If you had a car accident case where it is unclear whether the claimant deviated from employment or was in the course and scope, you could use the 120 day rule to get more time to get accident reports, speak to the employer, or get other records.

Florida statute 440.20(4) goes on to state:

A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) 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 part of the statute points out that the 120 day rule can be extended if the employer/carrier can show circumstances beyond their control that prevented them from making a decision regarding compensability. An example of this could be that a doctor would not respond to a subpoena or the claimant has failed to attend the employer/carrier’s independent medical examination. The 120 day rule is a great tool for adjusters to use to investigate claims and save money in the long run.

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    About The Author

    • Bruce Burk

      Bruce Burk is an experienced workers' compensation defense attorney located in South Florida. He has also worked in civil litigation and criminal defense, handling more than 40 trials, both jury and non-jury. Burk received his law degree from the University of South Carolina and his bachelor's degree from Palm Beach Atlantic University.

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