First District Court of Appeals holds 120-day rule is an affirmative defense that must be pled timely and specifically by claimant.

This claim involved a low back injury and request for fusion surgery. The employer/carrier asserted a major contributing cause defense. The claimant argued that the employer/carrier had not denied the claim or condition within 120 days and, therefore, it could not argue a major contributing cause defense. The employer/carrier claimed that the claimant had not raised his defense timely.

The Judge of Compensation Claims pointed to an email exchange and doctor depositions where the 120-day argument had been discussed. The judge found that the employer/carrier was timely placed on notice of the claimant’s position. Therefore, the judge awarded the surgery and other benefits because the employer/carrier had not challenged the condition within 120 days.

The First District Court of Appeals reversed the judge’s ruling, holding that a defense of an employer/carrier’s waiver to compensability of an accident or specific injury/condition outside of 120 days is an affirmative defense that must be timely raised and specifically pled.

_{Case Law Alerts, 4^th Quarter, October 2018}

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