Public Storage v. Galano

894 So. 2d 287, 2005 WL 225232

• Court: District Court of Appeal of Florida
• Decided: February 1, 2005
• Docket: 1D04-1269
• Status: Published

Opinion

894 So.2d 287 (2005)

PUBLIC STORAGE and Hartford Insurance Company, Appellants,
v.
Esmeralda GALANO, Appellee.

No. 1D04-1269.

District Court of Appeal of Florida, First District.

February 1, 2005. Rehearing Denied March 2, 2005.

Robert L. Teitler and Warren Brown of Walton Lantaff Schroeder & Carson, LLP, Miami, for Appellants.

Martha D. Fornaris, Coral Gables, and Bill McCabe, Longwood, for Appellee.

PER CURIAM.

In this case, the trial court correctly found that appellants failed to deny compensability of appellee's workplace injury within 120 days "after the initial provision of benefits." § 440.20(4), Fla. Stat. (2002). Accordingly, appellants waived the right to deny compensability. See Hutchinson v. Lykes Smithfield Packing, 870 So.2d 144 (Fla. 1st DCA 2004). Where the employer/carrier seeks relief from the harshness of the 120-day "pay and investigate" provision, the burden is on the employer/carrier to demonstrate "material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period." § 440.20(4), Fla. Stat. (2002). Neither in the pretrial stipulation, nor elsewhere, did appellants assert entitlement to relief from the 120-day rule, nor would competent substantial evidence in this record support such relief.

AFFIRMED.

WOLF, C.J., KAHN, and POLSTON, JJ., Concur.