Florida Senate - 2014                                    SB 1214
       
       
        
       By Senator Hays
       
       
       
       
       
       11-00227E-14                                          20141214__
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation; amending s.
    3         440.09, F.S.; clarifying factors to be considered in
    4         determining major contributing cause; authorizing the
    5         collection and testing of blood and urine samples upon
    6         employer or carrier request; providing for payment of
    7         resulting medical bills regardless of test results;
    8         amending s. 440.102, F.S.; providing for post-accident
    9         drug testing; authorizing use of drug test results by
   10         an employer who complies with material provisions of
   11         drug-free workplace requirements; amending s. 440.13,
   12         F.S.; revising the period within which a carrier must
   13         authorize an alternative physician; revising
   14         requirements related to treatment reassessment when
   15         certain controlled substances are prescribed; amending
   16         s. 440.15, F.S.; providing that permanent total
   17         disability benefits shall not be awarded if an
   18         employee is capable of performing light-duty work;
   19         providing that all preexisting conditions and injuries
   20         are subject to apportionment; amending s. 440.20,
   21         F.S.; authorizing the advance payment of compensation
   22         only for compensable injuries; providing a methodology
   23         for the repayment of advances made by self-insured
   24         employers; providing an effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Paragraph (b) of subsection (1) and paragraph
   29  (a) of subsection (7) of section 440.09, Florida Statutes, are
   30  amended to read:
   31         440.09 Coverage.—
   32         (1) The employer must pay compensation or furnish benefits
   33  required by this chapter if the employee suffers an accidental
   34  compensable injury or death arising out of work performed in the
   35  course and the scope of employment. The injury, its occupational
   36  cause, and any resulting manifestations or disability must be
   37  established to a reasonable degree of medical certainty, based
   38  on objective relevant medical findings, and the accidental
   39  compensable injury must be the major contributing cause of any
   40  resulting injuries. For purposes of this section, “major
   41  contributing cause” means the cause which is more than 50
   42  percent responsible for the injury as compared to all other
   43  causes combined for which treatment or benefits are sought. In
   44  cases involving occupational disease or repetitive exposure,
   45  both causation and sufficient exposure to support causation must
   46  be proven by clear and convincing evidence. Pain or other
   47  subjective complaints alone, in the absence of objective
   48  relevant medical findings, are not compensable. For purposes of
   49  this section, “objective relevant medical findings” are those
   50  objective findings that correlate to the subjective complaints
   51  of the injured employee and are confirmed by physical
   52  examination findings or diagnostic testing. Establishment of the
   53  causal relationship between a compensable accident and injuries
   54  for conditions that are not readily observable must be by
   55  medical evidence only, as demonstrated by physical examination
   56  findings or diagnostic testing. Major contributing cause must be
   57  demonstrated by medical evidence only.
   58         (b) If an injury arising out of and in the course of
   59  employment combines with a preexisting disease or condition to
   60  cause or prolong disability or need for treatment, the employer
   61  must pay compensation or benefits required by this chapter only
   62  to the extent that the injury arising out of and in the course
   63  of employment is and remains more than 50 percent responsible
   64  for the injury as compared to all other causes combined and
   65  thereafter remains the major contributing cause of the
   66  disability or need for treatment. Major contributing cause must
   67  be demonstrated by medical evidence only. A preexisting disease
   68  or condition is not limited to work-related injuries and
   69  conditions, and all preexisting diseases and conditions may be
   70  considered in the determination of major contributing cause.
   71         (7)(a) To ensure that the workplace is a drug-free
   72  environment and to deter the use of drugs and alcohol at the
   73  workplace, if the employer has reason to suspect that the injury
   74  was occasioned primarily by the intoxication of the employee or
   75  by the use of any drug, as defined in this chapter, which
   76  affected the employee to the extent that the employee’s normal
   77  faculties were impaired, and the employer has not implemented a
   78  drug-free workplace pursuant to ss. 440.101 and 440.102, the
   79  employer may require the employee to submit to a test for the
   80  presence of any or all drugs or alcohol in his or her system.
   81  Upon request of the employer or carrier, a hospital, medical
   82  clinic, physician, or other medical provider licensed and
   83  authorized to collect bodily samples, including blood or urine,
   84  shall collect blood or urine samples, retain all samples, follow
   85  chain-of-custody requirements, retain laboratory reports, and
   86  release the samples to a licensed laboratory for subsequent
   87  testing following all work-related injuries. The cost of
   88  collecting and testing the samples and related medical costs
   89  must be paid by the employer or carrier, regardless of the test
   90  results, in accordance with the provisions of this chapter
   91  governing the payment of medical bills.
   92         Section 2. Paragraph (a) of subsection (4) of section
   93  440.102, Florida Statutes, is amended, subsections (13) through
   94  (15) of that section are renumbered as subsections (14) through
   95  (16), respectively, and a new subsection (13) is added to that
   96  section, to read:
   97         440.102 Drug-free workplace program requirements.—The
   98  following provisions apply to a drug-free workplace program
   99  implemented pursuant to law or to rules adopted by the Agency
  100  for Health Care Administration:
  101         (4) TYPES OF TESTING.—
  102         (a) An employer is required to conduct the following types
  103  of drug tests:
  104         1. Job applicant drug testing.—An employer must require job
  105  applicants to submit to a drug test and may use a refusal to
  106  submit to a drug test or a positive confirmed drug test as a
  107  basis for refusing to hire a job applicant.
  108         2. Reasonable-suspicion drug testing.—An employer must
  109  require an employee to submit to reasonable-suspicion drug
  110  testing.
  111         3. Routine fitness-for-duty drug testing.—An employer must
  112  require an employee to submit to a drug test if the test is
  113  conducted as part of a routinely scheduled employee fitness-for
  114  duty medical examination that is part of the employer’s
  115  established policy or that is scheduled routinely for all
  116  members of an employment classification or group.
  117         4. Followup drug testing.—If the employee in the course of
  118  employment enters an employee assistance program for drug
  119  related problems, or a drug rehabilitation program, the employer
  120  must require the employee to submit to a drug test as a followup
  121  to such program, unless the employee voluntarily entered the
  122  program. In those cases, the employer has the option to not
  123  require followup testing. If followup testing is required, it
  124  must be conducted at least once a year for a 2-year period after
  125  completion of the program. Advance notice of a followup testing
  126  date must not be given to the employee to be tested.
  127         5. Post-accident drug testing.—An employee who sustains or
  128  reports a work-related injury shall submit to drug testing
  129  immediately after receiving initial treatment for the injury. If
  130  the injured employee refuses to submit to testing, it shall be
  131  presumed, in the absence of clear and convincing evidence to the
  132  contrary, that the injury was occasioned primarily by the
  133  influence of drugs. This presumption may be rebutted only by
  134  evidence that there is no reasonable hypothesis that the drug
  135  influence contributed to the injury.
  136         (13) COMPLIANCE WITH MATERIAL PROVISIONS.—An employer who
  137  is in compliance with the material provisions of this section
  138  but is not in compliance with every nonmaterial provision may
  139  not be precluded from using positive test results to deny
  140  benefits unless the noncompliance affects the validity of the
  141  test results obtained.
  142         Section 3. Paragraph (f) of subsection (2) and paragraph
  143  (c) of subsection (15) of section 440.13, Florida Statutes, are
  144  amended to read:
  145         440.13 Medical services and supplies; penalty for
  146  violations; limitations.—
  147         (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.—
  148         (f) Upon the written request of the employee, the carrier
  149  shall give the employee the opportunity for one change of
  150  physician during the course of treatment for any one accident.
  151  Upon the granting of a change of physician, the originally
  152  authorized physician in the same specialty as the changed
  153  physician shall become deauthorized upon written notification by
  154  the employer or carrier. The carrier shall authorize an
  155  alternative physician who shall not be professionally affiliated
  156  with the previous physician within 5 business days after receipt
  157  of the request. If the carrier fails to provide a change of
  158  physician as requested by the employee, the employee may select
  159  the physician and such physician shall be considered authorized
  160  if the treatment being provided is compensable and medically
  161  necessary.
  162  
  163  Failure of the carrier to timely comply with this subsection
  164  shall be a violation of this chapter and the carrier shall be
  165  subject to penalties as provided for in s. 440.525.
  166         (15) STANDARDS OF CARE.—The following standards of care
  167  shall be followed in providing medical care under this chapter:
  168         (c) Reasonable necessary medical care of injured employees
  169  shall in all situations:
  170         1. Utilize a high intensity, short duration treatment
  171  approach that focuses on early activation and restoration of
  172  function whenever possible.
  173         2. Include reassessment of the treatment plans, regimes,
  174  therapies, prescriptions, and functional limitations or
  175  restrictions prescribed by the provider every 30 days. If a
  176  controlled substance listed in Schedule II, Schedule III, or
  177  Schedule IV of s. 893.03 is prescribed, the employer or carrier
  178  may require the prescribing physician to meet with and evaluate
  179  the injured worker at medically reasonable intervals to
  180  determine the level of each controlled substance in the injured
  181  worker’s system. Such evaluation may include testing of blood or
  182  urine.
  183         3. Be focused on treatment of the individual employee’s
  184  specific clinical dysfunction or status and shall not be based
  185  upon nondescript diagnostic labels.
  186  
  187  All treatment shall be inherently scientifically logical, and
  188  the evaluation or treatment procedure must match the documented
  189  physiologic and clinical problem. Treatment shall match the
  190  type, intensity, and duration of service required by the problem
  191  identified.
  192         Section 4. Paragraphs (a) and (b) of subsection (1) and
  193  paragraph (b) of subsection (5) of section 440.15, Florida
  194  Statutes, are amended to read:
  195         440.15 Compensation for disability.—Compensation for
  196  disability shall be paid to the employee, subject to the limits
  197  provided in s. 440.12(2), as follows:
  198         (1) PERMANENT TOTAL DISABILITY.—
  199         (a) In case of total disability adjudged to be permanent,
  200  66 2/3 or 66.67 percent of the average weekly wages shall be
  201  paid to the employee during the continuance of such total
  202  disability. No Compensation is not shall be payable under this
  203  section if the employee is engaged in, or is physically capable
  204  of engaging in, at least sedentary employment. Permanent total
  205  disability benefits shall not be awarded if, in the opinion of
  206  the authorized physicians, the employee is able to perform
  207  light-duty work. However, an employee is not precluded from
  208  contesting her or his release to light-duty work.
  209         (b) In the following cases, an injured employee is presumed
  210  to be permanently and totally disabled unless the employer or
  211  carrier establishes that the employee is physically capable of
  212  engaging in at least sedentary employment within a 50-mile
  213  radius of the employee’s residence:
  214         1. Spinal cord injury involving severe paralysis of an arm,
  215  a leg, or the trunk;
  216         2. Amputation of an arm, a hand, a foot, or a leg involving
  217  the effective loss of use of that appendage;
  218         3. Severe brain or closed-head injury as evidenced by:
  219         a. Severe sensory or motor disturbances;
  220         b. Severe communication disturbances;
  221         c. Severe complex integrated disturbances of cerebral
  222  function;
  223         d. Severe episodic neurological disorders; or
  224         e. Other severe brain and closed-head injury conditions at
  225  least as severe in nature as any condition provided in sub
  226  subparagraphs a.-d.;
  227         4. Second-degree or third-degree burns of 25 percent or
  228  more of the total body surface or third-degree burns of 5
  229  percent or more to the face and hands; or
  230         5. Total or industrial blindness.
  231  
  232  In all other cases, in order to obtain permanent total
  233  disability benefits, the employee must establish that he or she
  234  is not able to engage in at least sedentary employment, within a
  235  50-mile radius of the employee’s residence, due to his or her
  236  physical limitation. Permanent total disability benefits shall
  237  not be awarded if, in the opinion of the authorized physicians,
  238  the employee is able to perform light-duty work. However, an
  239  employee is not precluded from contesting her or his release to
  240  light-duty work. Entitlement to such benefits shall cease when
  241  the employee reaches age 75, unless the employee is not eligible
  242  for social security benefits under 42 U.S.C. s. 402 or s. 423
  243  because the employee’s compensable injury has prevented the
  244  employee from working sufficient quarters to be eligible for
  245  such benefits, notwithstanding any age limits. If the accident
  246  occurred on or after the employee reaches age 70, benefits shall
  247  be payable during the continuance of permanent total disability,
  248  not to exceed 5 years following the determination of permanent
  249  total disability. Only claimants with catastrophic injuries or
  250  claimants who are incapable of engaging in employment, as
  251  described in this paragraph, are eligible for permanent total
  252  benefits. In no other case may permanent total disability be
  253  awarded.
  254         (5) SUBSEQUENT INJURY.—
  255         (b) If a compensable injury, disability, or need for
  256  medical care, or any portion thereof, is a result of aggravation
  257  or acceleration of a preexisting condition, or is the result of
  258  merger with a preexisting condition, only the disabilities and
  259  medical treatment associated with such compensable injury shall
  260  be payable under this chapter, excluding the degree of
  261  disability or medical conditions existing at the time of the
  262  impairment rating or at the time of the accident, regardless of
  263  whether the preexisting condition was disabling at the time of
  264  the accident or at the time of the impairment rating and without
  265  considering whether the preexisting condition would be disabling
  266  without the compensable accident. All preexisting conditions and
  267  injuries, whether work related or not work related, are subject
  268  to apportionment. The degree of permanent impairment or
  269  disability attributable to the accident or injury shall be
  270  compensated in accordance with this section, apportioning out
  271  the preexisting condition based on the anatomical impairment
  272  rating attributable to the preexisting condition. Medical
  273  benefits shall be paid apportioning out the percentage of the
  274  need for such care attributable to the preexisting condition. As
  275  used in this paragraph, “merger” means the combining of a
  276  preexisting permanent impairment or disability with a subsequent
  277  compensable permanent impairment or disability which, when the
  278  effects of both are considered together, result in a permanent
  279  impairment or disability rating which is greater than the sum of
  280  the two permanent impairment or disability ratings when each
  281  impairment or disability is considered individually.
  282         Section 5. Paragraph (c) of subsection (12) and subsection
  283  (13) of section 440.20, Florida Statutes, are amended to read:
  284         440.20 Time for payment of compensation and medical bills;
  285  penalties for late payment.—
  286         (12)
  287         (c) If In the event the claimant has sustained a
  288  compensable injury and has not returned to the same or
  289  equivalent employment with no substantial reduction in wages or
  290  has suffered a substantial loss of earning capacity or a
  291  physical impairment, actual or apparent:
  292         1. An advance payment of compensation not in excess of
  293  $2,000 may be approved informally by letter, without hearing, by
  294  any judge of compensation claims or the Chief Judge.
  295         2. An advance payment of compensation not in excess of
  296  $2,000 may be ordered by any judge of compensation claims after
  297  giving the interested parties an opportunity for a hearing
  298  thereon pursuant to not less than 10 days’ notice by mail,
  299  unless such notice is waived, and after giving due consideration
  300  to the interests of the person entitled thereto. When the
  301  parties have stipulated to an advance payment of compensation
  302  not in excess of $2,000, such advance may be approved by an
  303  order of a judge of compensation claims, with or without
  304  hearing, or informally by letter by any such judge of
  305  compensation claims, if such advance is found to be for the best
  306  interests of the person entitled thereto.
  307         3. When the parties have stipulated to an advance payment
  308  in excess of $2,000, such payment may be approved by a judge of
  309  compensation claims by order if the judge finds that such
  310  advance payment is for the best interests of the person entitled
  311  thereto and is reasonable under the circumstances of the
  312  particular case. The judge of compensation claims shall make or
  313  cause to be made such investigations as she or he considers
  314  necessary concerning the stipulation and, in her or his
  315  discretion, may have an investigation of the matter made. The
  316  stipulation and the report of any investigation shall be deemed
  317  a part of the record of the proceedings.
  318         4. An advance payment of compensation shall not be issued
  319  or ordered if compensability has been denied by the employer or
  320  carrier.
  321         (13) If the employer has made advance payments of
  322  compensation, she or he shall be entitled to be reimbursed out
  323  of any unpaid installment or installments of compensation due.
  324  If an advance payment of compensation is made by a self-insured
  325  employer, the employer may deduct 20 percent of the claimant’s
  326  wages until the entire amount of the advance is repaid.
  327         Section 6. This act shall take effect July 1, 2014.