Florida Senate - 2014                              CS for SB 444
       
       
        
       By the Committee on Appropriations; and Senator Galvano
       
       
       
       
       
       576-04677-14                                           2014444c1
    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; providing for stop-work order
    7         information to be available on the Division of
    8         Workers’ Compensation website; revising requirements
    9         for the release of stop-work orders; revising
   10         penalties; amending ss. 440.15 and 440.16, F.S.;
   11         revising rate formulas related to the determination of
   12         compensation for disability and death; amending s.
   13         440.49, F.S.; revising provisions relating to the
   14         assessment rate of the Special Disability Trust Fund;
   15         reducing the assessment rate limitation; providing an
   16         effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Paragraphs (a), (d), and (e) of subsection (7)
   21  of section 440.107, Florida Statutes, are amended to read:
   22         440.107 Department powers to enforce employer compliance
   23  with coverage requirements.—
   24         (7)(a) Whenever the department determines that an employer
   25  who is required to secure the payment to his or her employees of
   26  the compensation provided for by this chapter has failed to
   27  secure the payment of workers’ compensation required by this
   28  chapter or to produce the required business records under
   29  subsection (5) within 10 5 business days after receipt of the
   30  written request of the department, such failure shall be deemed
   31  an immediate serious danger to public health, safety, or welfare
   32  sufficient to justify service by the department of a stop-work
   33  order on the employer, requiring the cessation of all business
   34  operations. If the department makes such a determination, the
   35  department shall issue a stop-work order within 72 hours. The
   36  order shall take effect when served upon the employer or, for a
   37  particular employer worksite, when served at that worksite. In
   38  addition to serving a stop-work order at a particular worksite
   39  which shall be effective immediately, the department shall
   40  immediately proceed with service upon the employer which shall
   41  be effective upon all employer worksites in the state for which
   42  the employer is not in compliance. A stop-work order may be
   43  served with regard to an employer’s worksite by posting a copy
   44  of the stop-work order in a conspicuous location at the
   45  worksite. Information related to an employer’s stop-work order
   46  shall be made available on the division’s website and updated
   47  daily. The information shall remain on the website for at least
   48  5 years. The order shall remain in effect until the department
   49  issues an order releasing the stop-work order upon a finding
   50  that the employer has come into compliance with the coverage
   51  requirements of this chapter and has paid any penalty assessed
   52  under this section. The department may issue an order of
   53  conditional release from a stop-work order to an employer upon a
   54  finding that the employer has complied with the coverage
   55  requirements of this chapter, paid a penalty of $1,000 as a down
   56  payment, and has agreed to remit periodic payments of the
   57  remaining penalty amount pursuant to a payment agreement
   58  schedule with the department or pay the remaining penalty amount
   59  in full. If an order of conditional release is issued, failure
   60  by the employer to pay the penalty in full or enter into a
   61  payment agreement with the department within 28 days after
   62  service of the stop-work order upon the employer, or to meet any
   63  term or condition of such penalty payment agreement, shall
   64  result in the immediate reinstatement of the stop-work order and
   65  the entire unpaid balance of the penalty shall become
   66  immediately due. The department may require an employer who is
   67  found to have failed to comply with the coverage requirements of
   68  s. 440.38 to file with the department, as a condition of release
   69  from a stop-work order, periodic reports for a probationary
   70  period that shall not exceed 2 years that demonstrate the
   71  employer’s continued compliance with this chapter. The
   72  department shall by rule specify the reports required and the
   73  time for filing under this subsection.
   74         (d)1. In addition to any penalty, stop-work order, or
   75  injunction, the department shall assess against any employer who
   76  has failed to secure the payment of compensation as required by
   77  this chapter a penalty equal to 2 1.5 times the amount the
   78  employer would have paid in premium when applying approved
   79  manual rates to the employer’s payroll during periods for which
   80  it failed to secure the payment of workers’ compensation
   81  required by this chapter within the preceding 2-year 3-year
   82  period or $1,000, whichever is greater. For employers who have
   83  not been previously issued a stop-work order, the department
   84  shall allow the employer to receive a credit for the initial
   85  payment of the estimated annual workers’ compensation policy
   86  premium, as determined by the carrier, to be applied to the
   87  penalty. Before the department applies the credit to the
   88  penalty, the employer must provide the department with
   89  documentation reflecting that the employer has secured the
   90  payment of compensation pursuant to s. 440.38 and proof of
   91  payment to the carrier. In order for the department to apply a
   92  credit for an employer that has secured workers’ compensation
   93  for leased employees by entering into an employee leasing
   94  contract with a licensed employee leasing company, the employer
   95  must provide the department with a written confirmation by a
   96  representative from the employee leasing company of the dollar
   97  or percentage amount attributable to the initial estimated
   98  workers’ compensation expense for leased employees and proof of
   99  payment to the employee leasing company. The $1,000 penalty
  100  shall be assessed against the employer even if the calculated
  101  penalty after the credit has been applied is less than $1,000.
  102         2. Any subsequent violation within 5 years after the most
  103  recent violation shall, in addition to the penalties set forth
  104  in this subsection, be deemed a knowing act within the meaning
  105  of s. 440.105.
  106         (e) When an employer fails to provide business records
  107  sufficient to enable the department to determine the employer’s
  108  payroll for the period requested for the calculation of the
  109  penalty provided in paragraph (d), for penalty calculation
  110  purposes, the imputed weekly payroll for each employee,
  111  corporate officer, sole proprietor, or partner shall be the
  112  statewide average weekly wage as defined in s. 440.12(2)
  113  multiplied by 2 1.5.
  114         Section 2. Paragraph (a) of subsection (1), paragraph (a)
  115  of subsection (2), and paragraph (a) of subsection (4) of
  116  section 440.15, Florida Statutes, are amended to read:
  117         440.15 Compensation for disability.—Compensation for
  118  disability shall be paid to the employee, subject to the limits
  119  provided in s. 440.12(2), as follows:
  120         (1) PERMANENT TOTAL DISABILITY.—
  121         (a) In case of total disability adjudged to be permanent,
  122  66 2/3 or 66.67 percent of the average weekly wages shall be
  123  paid to the employee during the continuance of such total
  124  disability. No Compensation is not shall be payable under this
  125  section if the employee is engaged in, or is physically capable
  126  of engaging in, at least sedentary employment.
  127         (2) TEMPORARY TOTAL DISABILITY.—
  128         (a) Subject to subsection (7), in case of disability total
  129  in character but temporary in quality, 66 2/3 or 66.67 percent
  130  of the average weekly wages shall be paid to the employee during
  131  the continuance thereof, not to exceed 104 weeks except as
  132  provided in this subsection, s. 440.12(1), and s. 440.14(3).
  133  Once the employee reaches the maximum number of weeks allowed,
  134  or the employee reaches the date of maximum medical improvement,
  135  whichever occurs earlier, temporary disability benefits shall
  136  cease and the injured worker’s permanent impairment shall be
  137  determined.
  138         (4) TEMPORARY PARTIAL DISABILITY.—
  139         (a) Subject to subsection (7), in case of temporary partial
  140  disability, compensation shall be equal to 80 percent of the
  141  difference between 80 percent of the employee’s average weekly
  142  wage and the salary, wages, and other remuneration the employee
  143  is able to earn postinjury, as compared weekly; however, weekly
  144  temporary partial disability benefits may not exceed an amount
  145  equal to 66 2/3 or 66.67 percent of the employee’s average
  146  weekly wage at the time of accident. In order to simplify the
  147  comparison of the preinjury average weekly wage with the salary,
  148  wages, and other remuneration the employee is able to earn
  149  postinjury, the department may by rule provide for payment of
  150  the initial installment of temporary partial disability benefits
  151  to be paid as a partial week so that payment for remaining weeks
  152  of temporary partial disability can coincide as closely as
  153  possible with the postinjury employer’s work week. The amount
  154  determined to be the salary, wages, and other remuneration the
  155  employee is able to earn shall in no case be less than the sum
  156  actually being earned by the employee, including earnings from
  157  sheltered employment. Benefits are shall be payable under this
  158  subsection only if overall maximum medical improvement has not
  159  been reached and the medical conditions resulting from the
  160  accident create restrictions on the injured employee’s ability
  161  to return to work.
  162         Section 3. Paragraph (b) of subsection (1) and subsection
  163  (3) of section 440.16, Florida Statutes, are amended to read:
  164         440.16 Compensation for death.—
  165         (1) If death results from the accident within 1 year
  166  thereafter or follows continuous disability and results from the
  167  accident within 5 years thereafter, the employer shall pay:
  168         (b) Compensation, in addition to the above, in the
  169  following percentages of the average weekly wages to the
  170  following persons entitled thereto on account of dependency upon
  171  the deceased, and in the following order of preference, subject
  172  to the limitation provided in subparagraph 2., but such
  173  compensation shall be subject to the limits provided in s.
  174  440.12(2), shall not exceed $150,000, and may be less than, but
  175  shall not exceed, for all dependents or persons entitled to
  176  compensation, 66 2/3 or 66.67 percent of the average wage:
  177         1. To the spouse, if there is no child, 50 percent of the
  178  average weekly wage, such compensation to cease upon the
  179  spouse’s death.
  180         2. To the spouse, if there is a child or children, the
  181  compensation payable under subparagraph 1. and, in addition, 16
  182  2/3 or 16.67 percent on account of the child or children.
  183  However, when the deceased is survived by a spouse and also a
  184  child or children, whether such child or children are the
  185  product of the union existing at the time of death or of a
  186  former marriage or marriages, the judge of compensation claims
  187  may provide for the payment of compensation in such manner as
  188  may appear to the judge of compensation claims just and proper
  189  and for the best interests of the respective parties and, in so
  190  doing, may provide for the entire compensation to be paid
  191  exclusively to the child or children; and, in the case of death
  192  of such spouse, 33 1/3 or 33.33 percent for each child. However,
  193  upon the surviving spouse’s remarriage, the spouse shall be
  194  entitled to a lump-sum payment equal to 26 weeks of compensation
  195  at the rate of 50 percent of the average weekly wage as provided
  196  in s. 440.12(2), unless the $150,000 limit provided in this
  197  paragraph is exceeded, in which case the surviving spouse shall
  198  receive a lump-sum payment equal to the remaining available
  199  benefits in lieu of any further indemnity benefits. In no case
  200  shall A surviving spouse’s acceptance of a lump-sum payment does
  201  not affect payment of death benefits to other dependents.
  202         3. To the child or children, if there is no spouse, 33 1/3
  203  or 33.33 percent for each child.
  204         4. To the parents, 25 percent to each, such compensation to
  205  be paid during the continuance of dependency.
  206         5. To the brothers, sisters, and grandchildren, 15 percent
  207  for each brother, sister, or grandchild.
  208         (3) If Where, because of the limitation in paragraph
  209  (1)(b), a person or class of persons cannot receive the
  210  percentage of compensation specified as payable to or on account
  211  of such person or class, there shall be available to such person
  212  or class that proportion of such percentage as, when added to
  213  the total percentage payable to all persons having priority of
  214  preference, will not exceed a total of said 66 2/3 or 66.67
  215  percent, which proportion shall be paid:
  216         (a) To such person; or
  217         (b) To such class, share and share alike, unless the judge
  218  of compensation claims determines otherwise in accordance with
  219  the provisions of subsection (4).
  220         Section 4. Paragraphs (b) and (c) of subsection (9) of
  221  section 440.49, Florida Statutes, are amended to read:
  222         440.49 Limitation of liability for subsequent injury
  223  through Special Disability Trust Fund.—
  224         (9) SPECIAL DISABILITY TRUST FUND.—
  225         (b)1. The Special Disability Trust Fund shall be maintained
  226  by annual assessments upon the insurance companies writing
  227  compensation insurance in the state, the commercial self
  228  insurers under ss. 624.462 and 624.4621, the assessable mutuals
  229  as defined in s. 628.6011, and the self-insurers under this
  230  chapter, which assessments shall become due and be paid
  231  quarterly at the same time and in addition to the assessments
  232  provided in s. 440.51. Payments of assessments shall be made by
  233  each carrier, self-insurer, and self-insured employer to the
  234  department for the Special Disability Trust Fund pursuant to
  235  department rule establishing such method of payment.
  236         2. The department shall estimate annually in advance the
  237  amount necessary for the administration of this subsection and
  238  the maintenance of this fund pursuant to this paragraph and
  239  shall make such assessment in the manner hereinafter provided.
  240  By July 1 of each year, the department shall calculate the
  241  assessment rate, which shall be based upon the net premiums
  242  written by carriers and self-insurers, the amount of premiums
  243  calculated by the department for self-insured employers, the sum
  244  of the anticipated disbursements and expenses of the Special
  245  Disability Trust Fund for the next calendar year, and the
  246  expected fund balance for the next calendar year. Such
  247  assessment rate shall take effect January 1 of the next calendar
  248  year. Such amount shall be prorated among insurance companies
  249  writing workers’ compensation insurance in the state, the self
  250  insurers, and self-insured employers.
  251         2. The annual assessment shall be calculated to produce
  252  during the next calendar year an amount which, when combined
  253  with that part of the balance anticipated to be in the fund on
  254  December 31 of the current calendar year which is in excess of
  255  $100,000, is equal to the average of:
  256         a. The sum of disbursements from the fund during the
  257  immediate past 3 calendar years, and
  258         b. Two times the disbursements of the most recent calendar
  259  year.
  260         c. Such assessment rate shall first apply on a calendar
  261  year basis for the period beginning January 1, 2012, and shall
  262  be included in workers’ compensation rate filings approved by
  263  the office which become effective on or after January 1, 2012.
  264  The assessment rate effective January 1, 2011, shall also apply
  265  to the interim period from July 1, 2011, through December 31,
  266  2011, and shall be included in workers’ compensation rate
  267  filings, whether regular or amended, approved by the office
  268  which become effective on or after July 1, 2011. Thereafter, the
  269  annual assessment rate shall take effect January 1 of the next
  270  calendar year and shall be included in workers’ compensation
  271  rate filings approved by the office which become effective on or
  272  after January 1 of the next calendar year. Assessments shall
  273  become due and be paid quarterly.
  274  
  275  Such amount shall be prorated among the insurance companies
  276  writing compensation insurance in the state and the self
  277  insurers.
  278         3. A reimbursement request that has been approved but
  279  remains unpaid as of June 30, 2014, shall be paid by October 31,
  280  2014 The net premiums written by the companies for workers’
  281  compensation in this state and the net premium written
  282  applicable to the self-insurers in this state are the basis for
  283  computing the amount to be assessed as a percentage of net
  284  premiums. Such payments shall be made by each carrier and self
  285  insurer to the department for the Special Disability Trust Fund
  286  in accordance with such regulations as the department
  287  prescribes.
  288         4. The Chief Financial Officer is authorized to receive and
  289  credit to such Special Disability Trust Fund any sum or sums
  290  that may at any time be contributed to the state by the United
  291  States under any Act of Congress, or otherwise, to which the
  292  state may be or become entitled by reason of any payments made
  293  out of such fund.
  294         (c) Notwithstanding the Special Disability Trust Fund
  295  assessment rate calculated pursuant to this section, the rate
  296  assessed may shall not exceed 2.5 4.52 percent.
  297         Section 5. This act shall take effect July 1, 2014.