Edward Koren v. City of Kissimmee, and Preferred Governmental Claim Solutions

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D2023-2428
_____________________________

EDWARD KOREN,

Appellant,

v.

CITY OF KISSIMMEE, and
PREFERRED GOVERNMENTAL
CLAIM SOLUTIONS,

Appellees.
_____________________________

On appeal from the Office of the Judges of Compensation Claims.
Lourdes M. Sancerni, Judge.

Date of Accident: December 2, 2019.

June 10, 2026
PER CURIAM.

Edward Koren, the claimant, appeals a final compensation
order denying his request for psychiatric treatment related to his
compensable on-the-job accident. He argues that the Judge of
Compensation Claims (JCC) erred in concluding that the City of
Kissimmee and its servicing agent had not waived their defenses
to the petition under section 440.20(4), Florida Statutes (2019),
and that the JCC thus erred as a matter of law by not shifting the
burden of proof to the E/C.
We affirm the final compensation order because Koren failed
to challenge an alternative basis for the JCC’s ruling. See Nat’l
Equity Recovery Servs., Inc. v. Amerifund Equity Grp., 428 So. 3d
635, 635 (Fla. 6th DCA 2026); Mirlalda v. Mitchell, 423 So. 3d 951,
951 (Fla. 6th DCA 2025) (citing Willens v. Willens, 225 So. 3d 1017,
1018 (Fla. 1st DCA 2017) (Winsor, J., concurring) (“When a
decision is based on more than one independent ground and the
initial brief challenges only one, we must affirm.”)). The JCC
denied relief to Koren on multiple alternative grounds. Among
them, that he failed to satisfy his burden to establish that the
medical benefits sought were medically necessary.

AFFIRMED.

ROWE and RAY, JJ., concur; M.K. THOMAS, J., specially concurs
with opinion.

_____________________________

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

M.K. THOMAS, J., specially concurring.

I join the majority in ultimately affirming the order on appeal
but write to address several of the alternative findings of the JCC.
The factual backdrop of the case is imperative to an understanding
of the issues.

I. Facts

On December 2, 2019, Koren sustained physical injuries to his
upper lip, tooth, right knee, and right foot when a board gave way
on a deck he was repairing for the City. The accident was accepted
as compensable and various doctors were authorized for physical
injuries, including an ear nose and throat specialist, dentist,
orthopedist, and plastic surgeon.

2
In October 2022, Koren set up and attended an independent
medical examination with Dr. Ruano, a psychiatrist. Dr. Ruano
reported “disfigurement of [Koren’s] upper lip” and diagnosed him
with “adjustment disorder with mixed anxiety and depressed
mood.” Dr. Ruano opined that the cause of the psychiatric
diagnosis was “the actual appearance of the scar” that resulted
from the on-the-job accident. He recommended Koren continue
medications, including an anti-depressant, and follow up with a
psychiatrist for the medication and a psychologist for therapy. He
gave no opinion on whether the medical treatment recommended
was medically necessary.

Koren filed a Petition for Benefits (PFB) attaching Dr.
Ruano’s report and requesting the City “authorize and set up
psychiatric care recommended by Dr. Ruano.” The City filed a
Response to the PFB advising that “[it] has authorized Dr. Cubano
and the injured worker saw him on 1/19/23.” It did not file a notice
of denial or send a written notice to Koren that the 120-day pay-
and-investigate provision was being invoked.

At his deposition, Dr. Cubano, a psychiatrist, confirmed that
he had received an authorization letter from the City, had seen
Koren, and that his bill had been paid. He testified that the
appointment was not set up as an evaluation only and he never
received a deauthorization letter or a notice of suspension of
authorization from the City. Ultimately, Dr. Cubano opined that
the psychiatric condition was not caused by the industrial
accident, and that Koren’s PTSD was attributable to his prior
employment as a law enforcement officer and a volunteer
firefighter. He also concluded that the work accident was not the
major contributing cause (MCC) of the psychiatric condition. He
gave no opinion on medical necessity of the recommended
psychiatric treatment regardless of its cause. The City did not
schedule any follow-up appointments for Koren with Dr. Cubano.

At her deposition, the workers’ compensation adjuster for the
City confirmed that she did not invoke the 120-day pay-and-
investigate option upon authorization of Dr. Cubano for
psychiatric care. She received Dr. Cubano’s report on January 30,
2023. Regardless, she did not file a notice of denial or take any
other action. During the deposition, Koren’s counsel asked, “Is

3
[Koren’s] psych condition compensable, being accepted as
compensable then?” Before responding, the City’s counsel objected
and instructed her not to answer on the basis that the inquiry
“invades attorney-client privilege.” 1

In May 2023, the parties completed a Uniform Pretrial
Stipulation. The City stipulated that Dr. Cubano was authorized.
For the first time, it denied psychiatric treatment. It listed
defenses as follows: “[The City] timely authorized Dr. Cubano and
claimant was seen on 1/19/23” and “Dr. Cubano opined that
claimant’s psychological or psychiatric conditions are not causally
related to industrial accident.” Koren raised the affirmative
defense, among others, that the City had waived its right to deny
compensability of the PTSD condition pursuant to the 120-day
rule. Despite the conflict in psychiatric opinions, neither party nor
the JCC requested an expert medical advisor.

At the final hearing, the adjuster testified, in conflict with her
deposition testimony and that of Dr. Cubano, that the appointment
with Dr. Cubano was set up as a one-time evaluation only. She also
confirmed that, despite receiving Dr. Cubano’s opinion that the
PTSD condition was not related to the work accident, no notice of
denial was filed with the Division of Administrative Hearings and
no notice given to Koren or Dr. Cubano regarding deauthorization
of psychiatric treatment. Koren argued that pursuant to the 120-
day provision, the City waived its ability to deny compensability of
the PTSD condition and care. The City responded that the 120-day
provision did not apply because it accepted the accident as
compensable and then challenged only the connection between the
work accident and the need for psychiatric benefits, arguing that
the 120-day rule applies only to the initial provision of benefits
generally and not to each specific request for treatment.
Alternatively, the City asserted that, if the 120-day rule applied,
it timely denied the psychiatric condition on the Pretrial
Stipulation filed within 120 days of its receipt of Dr. Cubano’s
report.

1 Claimant’s counsel certified the question, but the record is

silent regarding whether the matter was brought before the Judge
of Compensation Claims (JCC) to compel a response.

4
In the final order, the JCC identified the primary issue as
follows:

. . . I find that the issue in the instant matter is the causal
relationship between the compensable physical injury
and the psychiatric condition for which [Koren] is seeking
a medical benefit. Therefore, the [E/SA] is not precluded
from challenging the entitlement of the medical benefit
sought in the Petition for Benefits.

Ultimately, the JCC denied the claim for psychiatric
treatment because: 1) she accepted Dr. Cubano’s opinions over Dr.
Ruano’s and determined Koren had failed to satisfy his burden of
proving that the compensable physical injury was at least 50%
responsible for the PTSD as required by section 440.093(2), Florida
Statutes; 2) the 120-day rule did not apply because the City never
furnished psychiatric treatment to Koren but provided only a
single evaluation; 3) the City was merely contesting Koren’s
entitlement to the specific benefits requested, not compensability
of the “injury;” and 4) Koren “did not meet his burden to establish
the medical benefits sought in the [PFB] are medically necessary.”

II. Analysis

This Court “reviews findings of fact for competent, substantial
evidence and a JCC’s interpretation of law de novo.” Churchill v.
DBI Servs., LLC, 361 So. 3d 896, 900–01 (Fla. 1st DCA 2023)
(citing Sullivan v. NUC02, LLC/Broadspire, 308 So. 3d 659, 662
(Fla. 1st DCA 2020)).

Koren asserts four errors by the JCC. Initially, he argues that
the JCC failed to apply the plain language of subsection 440.20(4),
Florida Statutes, (the 120-day pay-and-investigate provision), to
bar the City’s denial of psychiatric care. But, the 120-day pay-and-
investigate provision does not apply here—not because treatment
was not provided by the City, as found by the JCC, but because the
City never invoked the pay-and-investigate privilege.

Under the framework of sections 440.09, 440.20, and 440.192,
Florida Statutes, this Court has often summarized a carrier’s
options upon receipt of a request for benefits as “pay, pay and

5
investigate, or deny.” Id. at 902; Franklin v. Nw. Airlines, 778 So.
2d 418, 421 (Fla. 1st DCA 2001); Bynum Transp., Inc. v. Snyder,
765 So. 2d 752, 754 (Fla. 1st DCA 2000). The catchphrase remains
an accurate shorthand for the statutory scheme.

A. Pay

In choosing to provide or “pay” the initial request for benefits,
an employer/carrier (E/C) may: 1) pay outright; or 2) pay and
invoke the 120-day pay-and-investigate period which allows
payment without prejudice to its right to deny compensability of
an accident or injury. See §§ 440.20(4), 440.192(8), Fla. Stat.

Section 440.09(1), Florida Statutes (2019), mandates that the
employer “pay compensation or furnish benefits required by this
chapter if the employee suffers an accidental compensable injury
or death arising out of work performed in the course and scope of
employment.” Carriers must pay the first installment of death or
disability benefits within fourteen days of receiving notification of
the injury. See § 440.20(2)(a), Fla. Stat. These timelines apply even
if a carrier is unsure of its liability. See Churchill, 361 So. 3d at
902. An uncertain carrier may avail itself of an option allowing it
to pay while reserving its right to deny within 120 days. As section
440.20(4) explains:

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).

Section 440.192(8) reiterates that the pay-and-investigate
option is also available if the carrier receives the initial request via
a PFB. As this Court has previously declared, the 120-day pay-and-
investigate option is not limited to the initial request for benefits
following an accident; it may also be invoked when a new injury or
condition later arises, and treatment is requested. See McIntosh v.
CVS Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014)
(explaining that 120-day pay-and-investigate period relates to

6
compensability—whether of the initial accident or to a specific
injury or condition); Sierra v. Metro. Protective Servs., 188 So. 3d
863, 866–67 (Fla. 1st DCA 2015); Bynum Transp., Inc., 765 So. 2d
at 754 (holding section 440.20(4) applies to any claim for
compensability of any injury made following date of accident, not
just the first claim). Thus, when an employee claims a new injury
or condition arising out of an accident, even if the work accident is
accepted as compensable, the carrier has the three options upon
the initial request for benefits: “pay, pay and investigate, or deny.”

However, to trigger the 120-day pay-and-investigate option
and take advantage of its protections, an E/C must affirmatively
invoke it. A 120-day protection window to deny does not
automatically apply or attach to an E/C’s provision of initial care.
The misconception that a 120-day window is automatic was
recently dispelled by Churchill. In Churchill, this Court
distinguished a portion of the analysis in Checkers Restaurant v.
Wiethoff, 925 So. 2d 348, 350–51 (Fla. 1st DCA 2006) (en banc),
which fostered this confusion. The dicta in Checkers Restaurant
provided:

[A]lthough section 440.20(4) directs the E/C to provide
written notice when it has elected to pay the claim
pending further investigation, an E/C’s failure to provide
such notice does not negate application of the section
440.20(4) waiver when the E/C does not deny
compensability within 120 days of the initial provision of
benefits.

Churchill cleared the fog created by Checkers Restaurant by
clarifying,

[T]he dicta in Checkers Restaurant conflicts with the
plain language of section 440.20(4) requiring notice that
the right to pay and investigate is being invoked “upon
commencement of payment.” . . . “Other issues concerning
the worker’s entitlement to benefits remain subject to
challenge, including the extent of the compensable injury
and the causal relationship between the compensable
injury and the condition for which the worker seeks
benefits.”

7
Churchill, 361 So. 3d at 904 (quoting Checkers Rest., 925 So. 2d at
349). Thus, uncertain carriers that desire to use the option must,
per the plain language of the statute, affirmatively invoke it by
sending a 120-day letter. Id. at 902. “Without a pay and investigate
letter, then, the E/Cs who have furnished benefits are ‘deemed to
have accepted the employee’s injuries as compensable’ or to have
‘waive[d] the right to deny compensability unless [they] can
establish material facts relevant to the issue of compensability
that [they] could not have discovered through reasonable
investigation within the 120-day period.’” Id. at 903 (citing §§
440.192(8), 440.20(4), Fla. Stat.). Without proper invocation, there
is no 120-day window that automatically attaches to an initial
provision of benefits.

B. Deny

A denial of benefits by an E/C may be accomplished explicitly
or implicitly. Sections 440.20(3) and 440.192(8) require that an E/C
that chooses to deny a request for benefits must notify the injured
employee and, in the case of a response to a PFB, explain its
justification for nonpayment. Compliance provides an explicit
denial. When an E/C does nothing in response to a request for
benefits—meaning it does not pay or explicitly deny by giving
notice—the E/C is deemed to have denied the claim. See Bussey v.
Wal-Mart Store No. 725, 867 So. 2d 542, 546 (Fla. 1st DCA 2004);
Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997)
(holding that an E/C which neither denies a petition for benefits
nor elects to pay and investigate pursuant to section 440.20(4) is
placed in the identical position as the E/C that files a notice of
denial). Thus, an E/C’s inaction after receipt of a request for
benefits equates to a denial. Neither section 440.20 nor 440.192
imposes a penalty for failure to file a timely notice of denial or
when no notice of denial is filed. “The sanctions to be imposed upon
a carrier who either files an untimely notice of denial or takes no
action are found elsewhere in chapter 440.” N. River Ins. Co. v.
Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996). 2

2 Carriers are subject to sanctions, including penalties,
interest and attorney’s fees if the carrier fails to pay timely. See §§
440.20(6)–(8), 440.34(3), Fla. Stat.; Fla. Admin. Code R. 69L-

8
C. As Applied to Facts

Koren alleged that a psychiatric injury resulted from his
compensable physical injuries and requested authorization of
medical care via a PFB. The City elected to provide the benefit
outright. It filed a Response to PFB advising that Dr. Cubano was
“authorized.” It did not invoke the 120-day pay-and-investigate
option or deny compensability. The JCC reasoned that the 120-day
pay-and-investigate provision was not triggered because the City
never provided “treatment” for the PTSD. While the JCC was
ultimately correct that the 120-day pay-and-investigate period
does not apply here, its nonapplication is for different reasons.
First, the 120-day pay-and-investigate provision does not apply
because it was never invoked by the City. Secondly, an evaluation
is sufficient to satisfy an initial provision of benefits for purposes
of the 120-day pay-and-investigate provision.

The JCC found that the City set up an evaluation only with
Dr. Cubano. But this finding is not supported by competent,
substantial evidence. This determination had a dual impact—it
influenced the JCC’s decision that the 120-day pay-and-
investigate provision did not apply (albeit incorrectly) and resulted
in Koren being held to an improper standard of proof.

The JCC distinguished this Court’s holding in Sierra, 188 So.
3d 863, because she perceived Dr. Cubano’s appointment as a one-
time evaluation only. But Koren established the following
unrefuted facts: 1) the City notified him that Dr. Cubano was
“authorized” in its response to the PFB requesting psychiatric
treatment; 2) Dr. Cubano testified he received a letter from the
City authorizing him with no clarification of limited parameters;
3) after being evaluated by Dr. Cubano and the City received the
medical report, the City did not file a notice of denial or provide
notice that Dr. Cubano had been deauthorized; 4) the first
communication of the City’s deauthorization of Dr. Cubano and a

24.006 and 69L-56.500 (providing a penalty for untimely filing
practices, designating assessments for untimely filings based on
overall carrier performance).

9
denial of treatment for the PTSD arose in a Uniform Pretrial
Stipulation; and 5) the adjuster testified at deposition that Dr.
Cubano was authorized.

Upon the initial request for psychiatric care, the City
authorized Dr. Cubano. After receiving his medical report, the City
did nothing until it denied compensability of the condition and
further treatment in the Uniform Pretrial Stipulation, almost four
months after authorizing Dr. Cubano. The City’s attempt to recast
the authorization of Dr. Cubano as a “one-time evaluation” does
not undo the statutory waiver. See Tomaskovich v. Lapointe, 904
So. 2d 538, 540 (Fla. 1st DCA 2005) (“[T]he benefit that triggers
the 120-day period must actually be provided, not merely
authorized.”); Osceola Cnty. Sch. Bd. v. Arace, 884 So. 2d 1003,
1006 (Fla. 1st DCA 2004) (“[T]he first authorized doctor’s visit by
a claimant is the ‘initial provision of benefits’ beginning the 120-
day pay-and-investigate period mentioned in section 440.20(4),
Florida Statutes (2000).”).

Even so, this Court has held that a one-off medical evaluation
can constitute treatment or provision of a benefit. See Nunez v.
Pulte Homes, Inc., 985 So. 2d 695, 697 (Fla. 1st DCA 2008) (holding
that authorized evaluation and diagnosis constitutes treatment for
purposes of one-time change under section 440.13(2)(f), Florida
Statutes); Bynum Transp., Inc., 765 So. 2d at 754; Fla. Hosp. v.
Taylor, 784 So. 2d 601, 603 (Fla. 1st DCA 2001) (holding that an
evaluation constitutes a benefit for purposes of attorney’s fees
under section 440.34, Florida Statutes). And we have specifically
held that a carrier may utilize the 120-day pay-and-investigate
option upon providing an evaluation. See Friesen v. Highway
Patrol/Div. of Risk Mgmt., 364 So. 3d 1051, 1053 (Fla. 1st DCA
2023) (noting that E/C’s authorization of a cardiologist “for
evaluation” was sufficient to initiate 120-day period); McIntosh,
135 So. 3d at 1159 (holding that second 120-day period in case, for
subsequently developed PTSD, began at first treatment for the
psychiatric evaluation).

Regardless of any dispute over the provision of “treatment,”
the City never invoked the pay-and-investigate privilege. Having
decided to outright pay and provide the request for psychiatric
care, without invoking the protection of the 120-day investigation

10
period, the City accepted compensability of the PTSD. It did,
however, retain its ability to defend entitlement to ongoing
psychiatric treatment. Once an injury is accepted as
compensable—whether expressly or by operation of the 120-day
rule—the E/C may challenge only the causal link between that
injury and particular treatments. See Perez v. Se. Freight Lines,
Inc., 159 So. 3d 412, 413 (Fla. 1st DCA 2015). Accordingly, the JCC
erred as a matter of law in holding Koren to a standard of proof
regarding compensability of the psychiatric condition itself under
section 440.093(2).

Because the City accepted compensability of the PTSD by
providing benefits, the applicable standard of proof is that required
for entitlement to further medical care. Having accepted
compensability, the City must show a break in the causation chain,
specifically that the compensable injury is no longer the MCC of
the need for the requested treatment. See id. at 413–14 (noting
that once compensability of injury is established, the E/C has the
burden to demonstrate “a break in the causation chain” and that
under the MCC standard “a ‘break’ is understood to occur when
the work-related cause drops to 50% or less of the total cause of the
need for the requested benefits”). “[W]here the waiver of the right
to deny compensability of an identified injury has occurred . . . a
later finding that the compensable injury was not caused in major
part by the workplace accident in the first instance, will not satisfy
the necessary proof that the compensable injury ‘no longer’
remains the major contributing cause of the need for treatment—
as such a finding would be, in actuality, a belated way of saying
‘the compensable injury was never compensable,’ which (assuming
the 120–day rule results in waiver) is prohibited
under section 440.20(4).” Sierra, 188 So. 3d at 867–68.

That established, although the City did not demonstrate a
break in the causal chain, Koren still carried the burden to prove
that the requested psychiatric benefits were medically necessary.
See Ascension Benefits & Ins. Sols. of Fla. v. Robinson, 232 So. 3d
1178 (Fla. 1st DCA 2017). In this alternative finding for denial of
the requested psychiatric benefits, the JCC determined that Koren
did not satisfy this burden. Koren did not challenge this
alternative finding below or on appeal. The failure of proof of

11
medical necessity alone supports the JCC’s denial of the requested
benefits. 3

_____________________________

Nicolette E. Tsambis of Smith, Feddeler, Smith P.A., Lakeland, for
Appellant.

Michael Broussard of Broussard, Cullen & Eldridge, P.A., Orlando,
for Appellees.

3 On these facts, we are not compelled to address the interplay

between the waiver provision of section 440.20(4) and the
standards mandated by section 440.093 for mental and nervous
injuries. That is, whether the waiver provision of section 440.20(4)
supersedes the language of section 440.093(3) which provides,
“Mental or nervous injuries are compensable only in accordance
with the terms of this section.” (Emphasis added.) Here, because
the E/C accepted compensability of the PTSD condition by outright
providing treatment without invoking the 120-day pay-and-
investigate privilege, the task of harmonizing sections 440.20(4)
and 440.09(3) is not before us.

12