The Florida Senate

440.20  Time for payment of compensation; penalties for late payment.--

(1)(a)  Unless it denies compensability or entitlement to benefits, the carrier shall pay compensation directly to the employee as required by ss. 440.14, 440.15, and 440.16, in accordance with the obligations set forth in such sections.

(b)  Notwithstanding any other provision of this chapter, all insurance carriers, group self-insurance funds, assessable mutual insurers, and the Joint Underwriting Association authorized to write workers' compensation insurance in this state shall make available a notice in writing to the employer the fact that a state-authorized deductible plan is available. Under this plan, an employer may pay, for each injury for which an employee files a claim under this chapter as a deductible, up to the first $2,500 of the total amount payable under compensable claims related to such injury. An employer shall not be reimbursed for any amount paid under this paragraph; however, the reporting requirements of the employer, relating to injuries required under any provision under this chapter, are not altered or alleviated. The rate base of any workers' compensation insurance offered pursuant to this chapter shall include the deductible provision authorized by this paragraph. Any amounts paid by an employer pursuant to this paragraph shall not apply in any way to such employer's experience rating for injury.

(2)  The carrier must pay the first installment of compensation or deny compensability no later than the 14th day after the employer receives notice of the injury or death. The carrier shall thereafter pay compensation in biweekly installments or as otherwise provided in s. 440.15, unless the judge of compensation claims determines or the parties agree that an alternate installment schedule is in the best interests of the employee.

(3)  Upon making payment, or upon suspension or cessation of payment for any reason, the carrier shall immediately notify the division that it has commenced, suspended, or ceased payment of compensation. The division may require such notification in any format it deems necessary to obtain accurate and timely reporting.

(4)  If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. 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. Upon commencement of payment, the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.

(5)  If the employer has advanced compensation payments or benefits to the employee, the carrier shall reimburse the employer for the advanced payments if the employee is entitled to compensation and benefits pursuant to this chapter. The carrier may deduct such reimbursements from the employee's compensation installments or, if applicable, from payments to the employee ordered by a judge of compensation claims.

(6)  If any installment of compensation for death or dependency benefits, disability, permanent impairment, or wage loss payable without an award is not paid within 7 days after it becomes due, as provided in subsection (2), subsection (3), or subsection (4), there shall be added to such unpaid installment a punitive penalty of an amount equal to 20 percent of the unpaid installment or $5, which shall be paid at the same time as, but in addition to, such installment of compensation, unless notice is filed under subsection (4) or unless such nonpayment results from conditions over which the employer or carrier had no control. When any installment of compensation payable without an award has not been paid within 7 days after it became due and the claimant concludes the prosecution of the claim before a judge of compensation claims without having specifically claimed additional compensation in the nature of a penalty under this section, the claimant will be deemed to have acknowledged that, owing to conditions over which the employer or carrier had no control, such installment could not be paid within the period prescribed for payment and to have waived the right to claim such penalty. However, during the course of a hearing, the judge of compensation claims shall on her or his own motion raise the question of whether such penalty should be awarded or excused. The division may assess without a hearing the punitive penalty against either the employer or the insurance carrier, depending upon who was at fault in causing the delay. The insurance policy cannot provide that this sum will be paid by the carrier if the division or the judge of compensation claims determines that the punitive penalty should be made by the employer rather than the carrier. Any additional installment of compensation paid by the carrier pursuant to this section shall be paid directly to the employee.

(7)  If any compensation, payable under the terms of an award, is not paid within 7 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.

(8)  In addition to any other penalties provided by this chapter for late payment, if any installment of compensation is not paid when it becomes due, the employer, carrier, or servicing agent shall pay interest thereon at the rate of 12 percent per year from the date the installment becomes due until it is paid, whether such installment is payable without an order or under the terms of an order. The interest payment shall be the greater of the amount of interest due or $5.

(a)  Within 30 days after final payment of compensation has been made, the employer, carrier, or servicing agent shall send to the division a notice, in accordance with a form prescribed by the division, stating that such final payment has been made and stating the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid.

(b)  If the employer, carrier, or servicing agent fails to so notify the division within such time, the division shall assess against such employer, carrier, or servicing agent a civil penalty in an amount not over $100.

(c)  In order to ensure carrier compliance under this chapter, the division shall monitor the performance of carriers. The division shall establish by rule minimum performance standards for carriers to ensure that a minimum of 90 percent of all compensation benefits are timely paid. The division shall fine a carrier as provided in s. 440.13(11)(b) up to $50 for each late payment of compensation that is below the minimum 90 percent performance standard. This paragraph does not affect the imposition of any penalties or interest due to the claimant. If a carrier contracts with a servicing agent to fulfill its administrative responsibilities under this chapter, the payment practices of the servicing agent are deemed the payment practices of the carrier for the purpose of assessing penalties against the carrier.

(9)  The division may upon its own initiative at any time in a case in which payments are being made without an award investigate same and shall, in any case in which the right to compensation is controverted, or in which payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examination to be made, or hold such hearings, and take such further action as it considers will properly protect the rights of all parties.

(10)  Whenever the division deems it advisable, it may require any employer to make a deposit with the Treasurer to secure the prompt and convenient payments of such compensation; and payments therefrom upon any awards shall be made upon order of the division or judge of compensation claims.

(11)(a)  Upon joint petition of all interested parties, a lump-sum payment in exchange for the employer's or carrier's release from liability for future medical expenses, as well as future payments of compensation expenses and any other benefits provided under this chapter, shall be allowed at any time in any case in which the employer or carrier has filed a written notice of denial within 120 days after the date of the injury, and the judge of compensation claims at a hearing to consider the settlement proposal finds a justiciable controversy as to legal or medical compensability of the claimed injury or the alleged accident. The employer or carrier may not pay any attorney's fees on behalf of the claimant for any settlement under this section unless expressly authorized elsewhere in this chapter. Upon the joint petition of all interested parties and after giving due consideration to the interests of all interested parties, the judge of compensation claims may enter a compensation order approving and authorizing the discharge of the liability of the employer for compensation and remedial treatment, care, and attendance, as well as rehabilitation expenses, by the payment of a lump sum. Such a compensation order so entered upon joint petition of all interested parties is not subject to modification or review under s. 440.28. If the settlement proposal together with supporting evidence is not approved by the judge of compensation claims, it shall be considered void. Upon approval of a lump-sum settlement under this subsection, the judge of compensation claims shall send a report to the Chief Judge of the amount of the settlement and a statement of the nature of the controversy. The Chief Judge shall keep a record of all such reports filed by each judge of compensation claims and shall submit to the Legislature a summary of all such reports filed under this subsection annually by September 15.

(b)  Upon joint petition of all interested parties, a lump-sum payment in exchange for the employer's or carrier's release from liability for future medical expenses, as well as future payments of compensation and rehabilitation expenses, and any other benefits provided under this chapter, may be allowed at any time in any case after the injured employee has attained maximum medical improvement. An employer or carrier may not pay any attorney's fees on behalf of the claimant for any settlement, unless expressly authorized elsewhere in this chapter. A compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under s. 440.28. However, a judge of compensation claims is not required to approve any award for lump-sum payment when it is determined by the judge of compensation claims that the payment being made is in excess of the value of benefits the claimant would be entitled to under this chapter. The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary, in each case in which the parties have stipulated that a proposed final settlement of liability of the employer for compensation shall not be subject to modification or review under s. 440.28, to determine whether such final disposition will definitely aid the rehabilitation of the injured worker or otherwise is clearly for the best interests of the person entitled to compensation and, in her or his discretion, may have an investigation made by the Rehabilitation Section of the Division of Workers' Compensation. The joint petition and the report of any investigation so made will be deemed a part of the proceeding. An employer shall have the right to appear at any hearing pursuant to this subsection which relates to the discharge of such employer's liability and to present testimony at such hearing. The carrier shall provide reasonable notice to the employer of the time and date of any such hearing and inform the employer of her or his rights to appear and testify. When the claimant is represented by counsel or when the claimant and carrier or employer are represented by counsel, final approval of the lump-sum settlement agreement, as provided for in a joint petition and stipulation, shall be approved by entry of an order within 7 days after the filing of such joint petition and stipulation without a hearing, unless the judge of compensation claims determines, in her or his discretion, that additional testimony is needed before such settlement can be approved or disapproved and so notifies the parties. The probability of the death of the injured employee or other person entitled to compensation before the expiration of the period during which such person is entitled to compensation shall, in the absence of special circumstances making such course improper, be determined in accordance with the most recent United States Life Tables published by the National Office of Vital Statistics of the United States Department of Health and Human Services. The probability of the happening of any other contingency affecting the amount or duration of the compensation, except the possibility of the remarriage of a surviving spouse, shall be disregarded. As a condition of approving a lump-sum payment to a surviving spouse, the judge of compensation claims, in the judge of compensation claims' discretion, may require security which will ensure that, in the event of the remarriage of such surviving spouse, any unaccrued future payments so paid may be recovered or recouped by the employer or carrier. Such applications shall be considered and determined in accordance with s. 440.25.

(c)  This section applies to all claims that the parties have not previously settled, regardless of the date of accident.

(12)(a)  Liability of an employer for future payments of compensation may not be discharged by advance payment unless prior approval of a judge of compensation claims or the division has been obtained as hereinafter provided. The approval shall not constitute an adjudication of the claimant's percentage of disability.

(b)  When the claimant has reached maximum recovery and returned to her or his former or equivalent employment with no substantial reduction in wages, such approval of a reasonable advance payment of a part of the compensation payable to the claimant may be given informally by letter by a judge of compensation claims, by the division director, or by the administrator of claims of the division.

(c)  In the event the claimant has not returned to the same or equivalent employment with no substantial reduction in wages or has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent:

1.  An advance payment of compensation not in excess of $2,000 may be approved informally by letter, without hearing, by any judge of compensation claims or the Chief Judge.

2.  An advance payment of compensation not in excess of $2,000 may be ordered by any judge of compensation claims after giving the interested parties an opportunity for a hearing thereon pursuant to not less than 10 days' notice by mail, unless such notice is waived, and after giving due consideration to the interests of the person entitled thereto. When the parties have stipulated to an advance payment of compensation not in excess of $2,000, such advance may be approved by an order of a judge of compensation claims, with or without hearing, or informally by letter by any such judge of compensation claims, or by the division director, if such advance is found to be for the best interests of the person entitled thereto.

3.  When the parties have stipulated to an advance payment in excess of $2,000, subject to the approval of the division, such payment may be approved by a judge of compensation claims by order if the judge finds that such advance payment is for the best interests of the person entitled thereto and is reasonable under the circumstances of the particular case. The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary concerning the stipulation and, in her or his discretion, may have an investigation of the matter made by the Rehabilitation Section of the division. The stipulation and the report of any investigation shall be deemed a part of the record of the proceedings.

(d)  When an application for an advance payment in excess of $2,000 is opposed by the employer or carrier, it shall be heard by a judge of compensation claims after giving the interested parties not less than 10 days' notice of such hearing by mail, unless such notice is waived. In her or his discretion, the judge of compensation claims may have an investigation of the matter made by the Rehabilitation Section of the division, in which event the report and recommendation of that section will be deemed a part of the record of the proceedings. If the judge of compensation claims finds that such advance payment is for the best interests of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances of the case, she or he may order the same paid. However, in no event may any such advance payment under this paragraph be granted in excess of $7,500 or 26 weeks of benefits in any 48-month period, whichever is greater, from the date of the last advance payment.

(13)  If the employer has made advance payments of compensation, she or he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

(14)  When an employee is injured and the employer pays the employee's full wages or any part thereof during the period of disability, or pays medical expenses for such employee, and the case is contested by the carrier or the carrier and employer and thereafter the carrier, either voluntarily or pursuant to an award, makes a payment of compensation or medical benefits, the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded, plus medical benefits, if any, out of the first proceeds paid by the carrier in compliance with such voluntary payment or award, provided the employer furnishes satisfactory proof to the judge of compensation claims of such payment of compensation and medical benefits. Any payment by the employer over and above compensation paid or awarded and medical benefits, pursuant to subsection (13), shall be considered a gratuity.

(15)(a)  The division shall examine on an ongoing basis claims files in order to identify questionable claims-handling techniques, questionable patterns or practices of claims, or a pattern of repeated unreasonably controverted claims by employers, carriers, self-insurers, health care providers, health care facilities, training and education providers, or any others providing services to employees pursuant to this chapter and may certify its findings to the Department of Insurance. Such questionable techniques, patterns, or repeated unreasonably controverted claims as constitute a general business practice of a carrier in the judgment of the division shall be certified in its findings by the division to the Department of Insurance or such other appropriate licensing agency. Such certification by the division is exempt from the provisions of chapter 120. Upon receipt of any such certification, the Department of Insurance shall take appropriate action so as to bring such general business practices to a halt pursuant to s. 440.38(3)(a). The division may initiate investigations of questionable techniques, patterns, practices, or repeated unreasonably controverted claims. The division may by rule establish forms and procedures for corrective action plans and for auditing carriers.

(b)  As to any examination, investigation, or hearing being conducted under this chapter, the Secretary of Labor and Employment Security or the secretary's designee:

1.  May administer oaths, examine and cross-examine witnesses, receive oral and documentary evidence; and

2.  Shall have the power to subpoena witnesses, compel their attendance and testimony, and require by subpoena the production of books, papers, records, files, correspondence, documents, or other evidence which is relevant to the inquiry.

(c)  If any person refuses to comply with any such subpoena or to testify as to any matter concerning which she or he may be lawfully interrogated, the Circuit Court of Leon County or of the county wherein such examination, investigation, or hearing is being conducted, or of the county wherein such person resides, may, on the application of the department, issue an order requiring such person to comply with the subpoena and to testify.

(d)  Subpoenas shall be served, and proof of such service made, in the same manner as if issued by a circuit court. Witness fees, costs, and reasonable travel expenses, if claimed, shall be allowed the same as for testimony in a circuit court.

(e)  The division shall publish annually a report which indicates the promptness of first payment of compensation records of each carrier or self-insurer so as to focus attention on those carriers or self-insurers with poor payment records for the preceding year. A copy of such report shall be certified to the Department of Insurance which shall take appropriate steps so as to cause such poor carrier payment practices to halt pursuant to s. 440.38(3)(a). In addition, the division shall take appropriate action so as to halt such poor payment practices of self-insurers. "Poor payment practice" means a practice of late payment sufficient to constitute a general business practice.

(f)  The division shall promulgate rules providing guidelines to carriers, self-insurers, and employers to indicate behavior that may be construed as questionable claims-handling techniques, questionable patterns of claims, repeated unreasonably controverted claims, or poor payment practices.

(16)  No penalty assessed under this section may be recouped by any carrier or self-insurer in the rate base, the premium, or any rate filing. In the case of carriers, the Department of Insurance shall enforce this subsection; and in the case of self-insurers, the division shall enforce this subsection.

(17)  The division may by rule establish audit procedures and set standards for the Automated Carrier Performance System.

History.--s. 20, ch. 17481, 1935; CGL 1936 Supp. 5966(20); s. 9, ch. 18413, 1937; s. 6, ch. 20672, 1941; s. 2, ch. 23921, 1947; s. 2, ch. 26877, 1951; s. 5, ch. 29778, 1955; s. 1, ch. 59-422; ss. 1, 2, ch. 65-203; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 13, ch. 74-197; s. 11, ch. 75-209; s. 1, ch. 77-174; s. 5, ch. 77-290; ss. 7, 23, ch. 78-300; ss. 16, 124, ch. 79-40; ss. 12, 21, ch. 79-312; s. 179, ch. 79-400; s. 8, ch. 80-236; s. 277, ch. 81-259; s. 31, ch. 83-215; s. 8, ch. 83-305; s. 7, ch. 84-267; s. 9, ch. 86-171; s. 6, ch. 87-330; ss. 6, 7, ch. 88-203; ss. 16, 43, ch. 89-289; ss. 24, 56, ch. 90-201; ss. 22, 52, ch. 91-1; s. 30, ch. 91-46; s. 26, ch. 93-415; s. 116, ch. 97-103; s. 6, ch. 98-125.