Florida Senate - 2014              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. SB 444
       
       
       
       
       
                               Ì314816/Î314816                          
       
       576-01686-14                                                    
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on General Government)
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation; amending s.
    3         440.107, F.S.; revising powers of the Department of
    4         Financial Services relating to compliance with and
    5         enforcement of workers’ compensation coverage
    6         requirements; revising requirements for the release of
    7         stop-work orders; revising penalties; amending ss.
    8         440.15 and 440.16, F.S.; revising rate formulas
    9         related to the determination of compensation for
   10         disability and death; amending s. 440.49, F.S.;
   11         revising provisions relating to the assessment rate of
   12         the Special Disability Trust Fund; reducing the
   13         assessment rate limitation; providing an effective
   14         date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Paragraphs (a), (d), and (e) of subsection (7)
   19  of section 440.107, Florida Statutes, are amended to read:
   20         440.107 Department powers to enforce employer compliance
   21  with coverage requirements.—
   22         (7)(a) Whenever the department determines that an employer
   23  who is required to secure the payment to his or her employees of
   24  the compensation provided for by this chapter has failed to
   25  secure the payment of workers’ compensation required by this
   26  chapter or to produce the required business records under
   27  subsection (5) within 10 5 business days after receipt of the
   28  written request of the department, such failure shall be deemed
   29  an immediate serious danger to public health, safety, or welfare
   30  sufficient to justify service by the department of a stop-work
   31  order on the employer, requiring the cessation of all business
   32  operations. If the department makes such a determination, the
   33  department shall issue a stop-work order within 72 hours. The
   34  order shall take effect when served upon the employer or, for a
   35  particular employer worksite, when served at that worksite. In
   36  addition to serving a stop-work order at a particular worksite
   37  which shall be effective immediately, the department shall
   38  immediately proceed with service upon the employer which shall
   39  be effective upon all employer worksites in the state for which
   40  the employer is not in compliance. A stop-work order may be
   41  served with regard to an employer’s worksite by posting a copy
   42  of the stop-work order in a conspicuous location at the
   43  worksite. The order shall remain in effect until the department
   44  issues an order releasing the stop-work order upon a finding
   45  that the employer has come into compliance with the coverage
   46  requirements of this chapter and has paid any penalty assessed
   47  under this section. The department may issue an order of
   48  conditional release from a stop-work order to an employer upon a
   49  finding that the employer has complied with the coverage
   50  requirements of this chapter, paid a penalty of $1,000 as a down
   51  payment, and has agreed to remit periodic payments of the
   52  remaining penalty amount pursuant to a payment agreement
   53  schedule with the department or pay the remaining penalty amount
   54  in full. If an order of conditional release is issued, failure
   55  by the employer to pay the penalty in full or enter into a
   56  payment agreement with the department within 28 days after
   57  service of the stop-work order upon the employer, or to meet any
   58  term or condition of such penalty payment agreement, shall
   59  result in the immediate reinstatement of the stop-work order and
   60  the entire unpaid balance of the penalty shall become
   61  immediately due. The department may require an employer who is
   62  found to have failed to comply with the coverage requirements of
   63  s. 440.38 to file with the department, as a condition of release
   64  from a stop-work order, periodic reports for a probationary
   65  period that shall not exceed 2 years that demonstrate the
   66  employer’s continued compliance with this chapter. The
   67  department shall by rule specify the reports required and the
   68  time for filing under this subsection.
   69         (d)1. In addition to any penalty, stop-work order, or
   70  injunction, the department shall assess against any employer who
   71  has failed to secure the payment of compensation as required by
   72  this chapter a penalty equal to 2 1.5 times the amount the
   73  employer would have paid in premium when applying approved
   74  manual rates to the employer’s payroll during periods for which
   75  it failed to secure the payment of workers’ compensation
   76  required by this chapter within the preceding 2-year 3-year
   77  period or $1,000, whichever is greater. For employers who have
   78  not been previously issued a stop-work order, the department
   79  shall allow the employer to receive a credit for the initial
   80  payment of the estimated annual workers’ compensation policy
   81  premium, as determined by the carrier, to be applied to the
   82  penalty. Before the department applies the credit to the
   83  penalty, the employer must provide the department with
   84  documentation reflecting that the employer has secured the
   85  payment of compensation pursuant to s. 440.38 and proof of
   86  payment to the carrier. In order for the department to apply a
   87  credit for an employer that has secured the payment of
   88  compensation by entering into an employee leasing contract with
   89  a licensed employee leasing company, the employer must provide
   90  the department with a written attestation by a representative
   91  from the employee leasing company that the employer has entered
   92  into an employee leasing contract, the dollar amount
   93  attributable to the initial payment of the estimated workers’
   94  compensation premium for the employer, and proof of payment to
   95  the employee leasing company. The $1,000 penalty shall be
   96  assessed against the employer even if the calculated penalty
   97  after the credit has been applied is less than $1,000.
   98         2. Any subsequent violation within 5 years after the most
   99  recent violation shall, in addition to the penalties set forth
  100  in this subsection, be deemed a knowing act within the meaning
  101  of s. 440.105.
  102         (e) When an employer fails to provide business records
  103  sufficient to enable the department to determine the employer’s
  104  payroll for the period requested for the calculation of the
  105  penalty provided in paragraph (d), for penalty calculation
  106  purposes, the imputed weekly payroll for each employee,
  107  corporate officer, sole proprietor, or partner shall be the
  108  statewide average weekly wage as defined in s. 440.12(2)
  109  multiplied by 2 1.5.
  110         Section 2. Paragraph (a) of subsection (1), paragraph (a)
  111  of subsection (2), and paragraph (a) of subsection (4) of
  112  section 440.15, Florida Statutes, are amended to read:
  113         440.15 Compensation for disability.—Compensation for
  114  disability shall be paid to the employee, subject to the limits
  115  provided in s. 440.12(2), as follows:
  116         (1) PERMANENT TOTAL DISABILITY.—
  117         (a) In case of total disability adjudged to be permanent,
  118  66 2/3 or 66.67 percent of the average weekly wages shall be
  119  paid to the employee during the continuance of such total
  120  disability. No Compensation is not shall be payable under this
  121  section if the employee is engaged in, or is physically capable
  122  of engaging in, at least sedentary employment.
  123         (2) TEMPORARY TOTAL DISABILITY.—
  124         (a) Subject to subsection (7), in case of disability total
  125  in character but temporary in quality, 66 2/3 or 66.67 percent
  126  of the average weekly wages shall be paid to the employee during
  127  the continuance thereof, not to exceed 104 weeks except as
  128  provided in this subsection, s. 440.12(1), and s. 440.14(3).
  129  Once the employee reaches the maximum number of weeks allowed,
  130  or the employee reaches the date of maximum medical improvement,
  131  whichever occurs earlier, temporary disability benefits shall
  132  cease and the injured worker’s permanent impairment shall be
  133  determined.
  134         (4) TEMPORARY PARTIAL DISABILITY.—
  135         (a) Subject to subsection (7), in case of temporary partial
  136  disability, compensation shall be equal to 80 percent of the
  137  difference between 80 percent of the employee’s average weekly
  138  wage and the salary, wages, and other remuneration the employee
  139  is able to earn postinjury, as compared weekly; however, weekly
  140  temporary partial disability benefits may not exceed an amount
  141  equal to 66 2/3 or 66.67 percent of the employee’s average
  142  weekly wage at the time of accident. In order to simplify the
  143  comparison of the preinjury average weekly wage with the salary,
  144  wages, and other remuneration the employee is able to earn
  145  postinjury, the department may by rule provide for payment of
  146  the initial installment of temporary partial disability benefits
  147  to be paid as a partial week so that payment for remaining weeks
  148  of temporary partial disability can coincide as closely as
  149  possible with the postinjury employer’s work week. The amount
  150  determined to be the salary, wages, and other remuneration the
  151  employee is able to earn shall in no case be less than the sum
  152  actually being earned by the employee, including earnings from
  153  sheltered employment. Benefits are shall be payable under this
  154  subsection only if overall maximum medical improvement has not
  155  been reached and the medical conditions resulting from the
  156  accident create restrictions on the injured employee’s ability
  157  to return to work.
  158         Section 3. Paragraph (b) of subsection (1) and subsection
  159  (3) of section 440.16, Florida Statutes, are amended to read:
  160         440.16 Compensation for death.—
  161         (1) If death results from the accident within 1 year
  162  thereafter or follows continuous disability and results from the
  163  accident within 5 years thereafter, the employer shall pay:
  164         (b) Compensation, in addition to the above, in the
  165  following percentages of the average weekly wages to the
  166  following persons entitled thereto on account of dependency upon
  167  the deceased, and in the following order of preference, subject
  168  to the limitation provided in subparagraph 2., but such
  169  compensation shall be subject to the limits provided in s.
  170  440.12(2), shall not exceed $150,000, and may be less than, but
  171  shall not exceed, for all dependents or persons entitled to
  172  compensation, 66 2/3 or 66.67 percent of the average wage:
  173         1. To the spouse, if there is no child, 50 percent of the
  174  average weekly wage, such compensation to cease upon the
  175  spouse’s death.
  176         2. To the spouse, if there is a child or children, the
  177  compensation payable under subparagraph 1. and, in addition, 16
  178  2/3 or 16.67 percent on account of the child or children.
  179  However, when the deceased is survived by a spouse and also a
  180  child or children, whether such child or children are the
  181  product of the union existing at the time of death or of a
  182  former marriage or marriages, the judge of compensation claims
  183  may provide for the payment of compensation in such manner as
  184  may appear to the judge of compensation claims just and proper
  185  and for the best interests of the respective parties and, in so
  186  doing, may provide for the entire compensation to be paid
  187  exclusively to the child or children; and, in the case of death
  188  of such spouse, 33 1/3 or 33.33 percent for each child. However,
  189  upon the surviving spouse’s remarriage, the spouse shall be
  190  entitled to a lump-sum payment equal to 26 weeks of compensation
  191  at the rate of 50 percent of the average weekly wage as provided
  192  in s. 440.12(2), unless the $150,000 limit provided in this
  193  paragraph is exceeded, in which case the surviving spouse shall
  194  receive a lump-sum payment equal to the remaining available
  195  benefits in lieu of any further indemnity benefits. In no case
  196  shall A surviving spouse’s acceptance of a lump-sum payment does
  197  not affect payment of death benefits to other dependents.
  198         3. To the child or children, if there is no spouse, 33 1/3
  199  or 33.33 percent for each child.
  200         4. To the parents, 25 percent to each, such compensation to
  201  be paid during the continuance of dependency.
  202         5. To the brothers, sisters, and grandchildren, 15 percent
  203  for each brother, sister, or grandchild.
  204         (3) If Where, because of the limitation in paragraph
  205  (1)(b), a person or class of persons cannot receive the
  206  percentage of compensation specified as payable to or on account
  207  of such person or class, there shall be available to such person
  208  or class that proportion of such percentage as, when added to
  209  the total percentage payable to all persons having priority of
  210  preference, will not exceed a total of said 66 2/3 or 66.67
  211  percent, which proportion shall be paid:
  212         (a) To such person; or
  213         (b) To such class, share and share alike, unless the judge
  214  of compensation claims determines otherwise in accordance with
  215  the provisions of subsection (4).
  216         Section 4. Paragraphs (b) and (c) of subsection (9) of
  217  section 440.49, Florida Statutes, are amended to read:
  218         440.49 Limitation of liability for subsequent injury
  219  through Special Disability Trust Fund.—
  220         (9) SPECIAL DISABILITY TRUST FUND.—
  221         (b)1. The Special Disability Trust Fund shall be maintained
  222  by annual assessments upon the insurance companies writing
  223  compensation insurance in the state, the commercial self
  224  insurers under ss. 624.462 and 624.4621, the assessable mutuals
  225  as defined in s. 628.6011, and the self-insurers under this
  226  chapter, which assessments shall become due and be paid
  227  quarterly at the same time and in addition to the assessments
  228  provided in s. 440.51. Such payments shall be made by each
  229  carrier and self-insurer to the department for the Special
  230  Disability Trust Fund pursuant to department rule.
  231         2. The department shall estimate annually in advance the
  232  amount necessary for the administration of this subsection and
  233  the maintenance of this fund pursuant to this paragraph and
  234  shall make such assessment in the manner hereinafter provided.
  235  By July 1 of each year, the department shall calculate the
  236  assessment rate, which shall be based upon the net premiums
  237  written by carriers, the amount of premiums calculated by the
  238  department for self-insured employers, and the anticipated
  239  balance and expenses of the Special Disability Trust Fund for
  240  the next calendar year. Such assessment rate shall take effect
  241  January 1 of the next calendar year. Such amount shall be
  242  prorated among the insurance companies writing compensation
  243  insurance in the state and the self-insurers.
  244         2. The annual assessment shall be calculated to produce
  245  during the next calendar year an amount which, when combined
  246  with that part of the balance anticipated to be in the fund on
  247  December 31 of the current calendar year which is in excess of
  248  $100,000, is equal to the average of:
  249         a. The sum of disbursements from the fund during the
  250  immediate past 3 calendar years, and
  251         b. Two times the disbursements of the most recent calendar
  252  year.
  253         c. Such assessment rate shall first apply on a calendar
  254  year basis for the period beginning January 1, 2012, and shall
  255  be included in workers’ compensation rate filings approved by
  256  the office which become effective on or after January 1, 2012.
  257  The assessment rate effective January 1, 2011, shall also apply
  258  to the interim period from July 1, 2011, through December 31,
  259  2011, and shall be included in workers’ compensation rate
  260  filings, whether regular or amended, approved by the office
  261  which become effective on or after July 1, 2011. Thereafter, the
  262  annual assessment rate shall take effect January 1 of the next
  263  calendar year and shall be included in workers’ compensation
  264  rate filings approved by the office which become effective on or
  265  after January 1 of the next calendar year. Assessments shall
  266  become due and be paid quarterly.
  267  
  268  Such amount shall be prorated among the insurance companies
  269  writing compensation insurance in the state and the self
  270  insurers.
  271         3. The net premiums written by the companies for workers’
  272  compensation in this state and the net premium written
  273  applicable to the self-insurers in this state are the basis for
  274  computing the amount to be assessed as a percentage of net
  275  premiums. Such payments shall be made by each carrier and self
  276  insurer to the department for the Special Disability Trust Fund
  277  in accordance with such regulations as the department
  278  prescribes.
  279         4. The Chief Financial Officer is authorized to receive and
  280  credit to such Special Disability Trust Fund any sum or sums
  281  that may at any time be contributed to the state by the United
  282  States under any Act of Congress, or otherwise, to which the
  283  state may be or become entitled by reason of any payments made
  284  out of such fund.
  285         (c) Notwithstanding the Special Disability Trust Fund
  286  assessment rate calculated pursuant to this section, the rate
  287  assessed may shall not exceed 2.5 4.52 percent.
  288         Section 5. This act shall take effect July 1, 2014.