Senate Bill 1342

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)

    By Senator Diaz-Balart





    37-1189A-98

  1                      A bill to be entitled

  2         An act relating to rulemaking authority of the

  3         Division of Workers' Compensation (RAB);

  4         amending ss. 440.05, 440.13, 440.16, 440.185,

  5         440.191, 440.20, 440.40, 440.42, 440.49,

  6         440.59, F.S.; extending rulemaking authority to

  7         the Division of Workers' Compensation;

  8         providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  Subsection (7) is added to section 440.05,

13  Florida Statutes, to read:

14         440.05  Election of exemption; revocation of election;

15  notice; certification.--

16         (7)  The division may by rule prescribe procedures for

17  filing an election of exemption for all employers and require

18  specified forms to be submitted by all employers in filing for

19  the election of exemption.

20         Section 2.  Paragraphs (a) and (b) of subsection (3),

21  paragraph (b) of subsection (4), and paragraph (b) of

22  subsection (10) of section 440.15, Florida Statutes, are

23  amended to read:

24         440.15  Compensation for disability.--Compensation for

25  disability shall be paid to the employee, subject to the

26  limits provided in s. 440.12(2), as follows:

27         (3)  PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--

28         (a)  Impairment benefits.--

29         1.  Once the employee has reached the date of maximum

30  medical improvement, impairment benefits are due and payable

31

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  within 20 days after the carrier has knowledge of the

  2  impairment.

  3         2.  The three-member panel, in cooperation with the

  4  division, shall establish and use a uniform permanent

  5  impairment rating schedule. This schedule must be based on

  6  medically or scientifically demonstrable findings as well as

  7  the systems and criteria set forth in the American Medical

  8  Association's Guides to the Evaluation of Permanent

  9  Impairment; the Snellen Charts, published by American Medical

10  Association Committee for Eye Injuries; and the Minnesota

11  Department of Labor and Industry Disability Schedules. The

12  schedule should be based upon objective findings. The schedule

13  shall be more comprehensive than the AMA Guides to the

14  Evaluation of Permanent Impairment and shall expand the areas

15  already addressed and address additional areas not currently

16  contained in the guides. On August 1, 1979, and pending the

17  adoption, by rule, of a permanent schedule, Guides to the

18  Evaluation of Permanent Impairment, copyright 1977, 1971,

19  1988, by the American Medical Association, shall be the

20  temporary schedule and shall be used for the purposes hereof.

21  For injuries after July 1, 1990, pending the adoption by

22  division rule of a uniform disability rating schedule, the

23  Minnesota Department of Labor and Industry Disability Schedule

24  shall be used unless that schedule does not address an injury.

25  In such case, the Guides to the Evaluation of Permanent

26  Impairment by the American Medical Association shall be used.

27  Determination of permanent impairment under this schedule must

28  be made by a physician licensed under chapter 458, a doctor of

29  osteopathic medicine licensed under chapters 458 and 459, a

30  chiropractor licensed under chapter 460, a podiatrist licensed

31  under chapter 461, an optometrist licensed under chapter 463,

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  or a dentist licensed under chapter 466, as appropriate

  2  considering the nature of the injury. No other persons are

  3  authorized to render opinions regarding the existence of or

  4  the extent of permanent impairment.

  5         3.  All impairment income benefits shall be based on an

  6  impairment rating using the impairment schedule referred to in

  7  subparagraph 2. Impairment income benefits are paid weekly at

  8  the rate of 50 percent of the employee's average weekly

  9  temporary total disability benefit not to exceed the maximum

10  weekly benefit under s. 440.12. An employee's entitlement to

11  impairment income benefits begins the day after the employee

12  reaches maximum medical improvement or the expiration of

13  temporary benefits, whichever occurs earlier, and continues

14  until the earlier of:

15         a.  The expiration of a period computed at the rate of

16  3 weeks for each percentage point of impairment; or

17         b.  The death of the employee.

18         4.  After the employee has been certified by a doctor

19  as having reached maximum medical improvement or 6 weeks

20  before the expiration of temporary benefits, whichever occurs

21  earlier, the certifying doctor shall evaluate the condition of

22  the employee and assign an impairment rating, using the

23  impairment schedule referred to in subparagraph 2.

24  Compensation is not payable for the mental, psychological, or

25  emotional injury arising out of depression from being out of

26  work. If the certification and evaluation are performed by a

27  doctor other than the employee's treating doctor, the

28  certification and evaluation must be submitted to the treating

29  doctor, and the treating doctor must indicate agreement or

30  disagreement with the certification and evaluation. The

31  certifying doctor shall issue a written report to the

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  division, the employee, and the carrier certifying that

  2  maximum medical improvement has been reached, stating the

  3  impairment rating, and providing any other information

  4  required by the division. If the employee has not been

  5  certified as having reached maximum medical improvement before

  6  the expiration of 102 weeks after the date temporary total

  7  disability benefits begin to accrue, the carrier shall notify

  8  the treating doctor of the requirements of this section.

  9         5.  The carrier shall pay the employee impairment

10  income benefits for a period based on the impairment rating.

11         6.  The division may by rule specify the method of

12  payment of wage loss and impairment benefits for dates of

13  accidents before January 1, 1994, and for dates of accidents

14  on or after January 1, 1994.

15         (b)  Supplemental benefits.--

16         1.  All supplemental benefits must be paid in

17  accordance with this subsection. An employee is entitled to

18  supplemental benefits as provided in this paragraph as of the

19  expiration of the impairment period, if:

20         a.  The employee has an impairment rating from the

21  compensable injury of 20 percent or more as determined

22  pursuant to this chapter;

23         b.  The employee has not returned to work or has

24  returned to work earning less than 80 percent of the

25  employee's average weekly wage as a direct result of the

26  employee's impairment; and

27         c.  The employee has in good faith attempted to obtain

28  employment commensurate with the employee's ability to work.

29         2.  If an employee is not entitled to supplemental

30  benefits at the time of payment of the final weekly impairment

31  income benefit because the employee is earning at least 80

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  percent of the employee's average weekly wage, the employee

  2  may become entitled to supplemental benefits at any time

  3  within 1 year after the impairment income benefit period ends

  4  if:

  5         a.  The employee earns wages that are less than 80

  6  percent of the employee's average weekly wage for a period of

  7  at least 90 days;

  8         b.  The employee meets the other requirements of

  9  subparagraph 1.; and

10         c.  The employee's decrease in earnings is a direct

11  result of the employee's impairment from the compensable

12  injury.

13         3.  If an employee earns wages that are at least 80

14  percent of the employee's average weekly wage for a period of

15  at least 90 days during which the employee is receiving

16  supplemental benefits, the employee ceases to be entitled to

17  supplemental benefits for the filing period. Supplemental

18  benefits that have been terminated shall be reinstated when

19  the employee satisfies the conditions enumerated in

20  subparagraph 2. and files the statement required under

21  subparagraph 5. Notwithstanding any other provision, if an

22  employee is not entitled to supplemental benefits for 12

23  consecutive months, the employee ceases to be entitled to any

24  additional income benefits for the compensable injury. If the

25  employee is discharged within 12 months after losing

26  entitlement under this subsection, benefits may be reinstated

27  if the employee was discharged at that time with the intent to

28  deprive the employee of supplemental benefits.

29         4.  During the period that impairment income benefits

30  or supplemental income benefits are being paid, the carrier

31  has the affirmative duty to determine at least annually

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  whether any extended unemployment or underemployment is a

  2  direct result of the employee's impairment. To accomplish this

  3  purpose, the division may require periodic reports from the

  4  employee and the carrier, and it may, at the carrier's

  5  expense, require any physical or other examinations,

  6  vocational assessments, or other tests or diagnoses necessary

  7  to verify that the carrier is performing its duty. Not more

  8  than once in each 12 calendar months, the employee and the

  9  carrier may each request that the division review the status

10  of the employee and determine whether the carrier has

11  performed its duty with respect to whether the employee's

12  unemployment or underemployment is a direct result of

13  impairment from the compensable injury.

14         5.  After the initial determination of supplemental

15  benefits, the employee must file a statement with the carrier

16  stating that the employee has earned less than 80 percent of

17  the employee's average weekly wage as a direct result of the

18  employee's impairment, stating the amount of wages the

19  employee earned in the filing period, and stating that the

20  employee has in good faith sought employment commensurate with

21  the employee's ability to work. The statement must be filed

22  quarterly on a form and in the manner prescribed by the

23  division. The division may modify the filing period as

24  appropriate to an individual case. Failure to file a statement

25  relieves the carrier of liability for supplemental benefits

26  for the period during which a statement is not filed.

27         6.  The carrier shall begin payment of supplemental

28  benefits not later than the seventh day after the expiration

29  date of the impairment income benefit period and shall

30  continue to timely pay those benefits. The carrier may request

31  a mediation conference for the purpose of contesting the

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  employee's entitlement to or the amount of supplemental income

  2  benefits.

  3         7.  Supplemental benefits are calculated quarterly and

  4  paid monthly. For purposes of calculating supplemental

  5  benefits, 80 percent of the employee's average weekly wage and

  6  the average wages the employee has earned per week are

  7  compared quarterly. For purposes of this paragraph, if the

  8  employee is offered a bona fide position of employment that

  9  the employee is capable of performing, given the physical

10  condition of the employee and the geographic accessibility of

11  the position, the employee's weekly wages are considered

12  equivalent to the weekly wages for the position offered to the

13  employee.

14         8.  Supplemental benefits are payable at the rate of 80

15  percent of the difference between 80 percent of the employee's

16  average weekly wage determined pursuant to s. 440.14 and the

17  weekly wages the employee has earned during the reporting

18  period, not to exceed the maximum weekly income benefit under

19  s. 440.12.

20         9.  The division may by rule specify the method of

21  payment of supplemental benefits for dates of accidents before

22  January 1, 1994 and for dates of accidents on or after January

23  1, 1994.

24         (4)  TEMPORARY PARTIAL DISABILITY.--

25         (b)  Such benefits shall be paid during the continuance

26  of such disability, not to exceed a period of 104 weeks, as

27  provided by this subsection and subsection (2). Once the

28  injured employee reaches the maximum number of weeks,

29  temporary disability benefits cease and the injured worker's

30  permanent impairment must be determined. The division may by

31  rule specify the method of payment of temporary disability

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  benefits for dates of accidents before January 1, 1994, and

  2  for dates of accidents on or after January 1, 1994.

  3         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

  4  AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE

  5  ACT.--

  6         (b)  If the provisions of 42 U.S.C. s. 424(a) are

  7  amended to provide for a reduction or increase of the

  8  percentage of average current earnings that the sum of

  9  compensation benefits payable under this chapter and the

10  benefits payable under 42 U.S.C. ss. 402 and 423 can equal,

11  the amount of the reduction of benefits provided in this

12  subsection shall be reduced or increased accordingly. The

13  division may by rule specify the method for calculating and

14  administering the offset of benefits payable under this

15  chapter and benefits payable under 42 U.S.C. ss. 402 and 423.

16         Section 3.  Subsection (8) is added to section 440.16,

17  Florida Statutes, to read:

18         440.16  Compensation for death.--

19         (8)  The division may by rule specify the time within

20  which funeral expenses are to be paid.

21         Section 4.  Subsection (5) of section 440.185, Florida

22  Statutes, is amended and subsection (10) is added to that

23  section to read:

24         440.185  Notice of injury or death; reports; penalties

25  for violations.--

26         (5)  Additional reports with respect to such injury and

27  of the condition of such employee, including copies of medical

28  reports and wage statements, shall be filed sent by the

29  employer or carrier to the division at such times and in such

30  manner as the division may prescribe.  In carrying out its

31  responsibilities under this chapter, the division may by rule

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  provide for the obtaining of any medical records relating to

  2  medical treatment provided pursuant to this chapter,

  3  notwithstanding the provisions of ss. 90.503 and, 395.3025(4),

  4  and 396.112.

  5         (10)  The division may by rule prescribe definitions

  6  that are necessary for the effective administration of this

  7  section.

  8         Section 5.  Subsection (1) and paragraph (d) of

  9  subsection (2) of section 440.191, Florida Statutes, are

10  amended to read:

11         440.191  Employee Assistance and Ombudsman Office.--

12         (1)(a)  In order to effect the self-executing features

13  of the Workers' Compensation Law, this chapter shall be

14  construed to permit injured employees and employers or the

15  employer's carrier to resolve disagreements without undue

16  expense, costly litigation, or delay in the provisions of

17  benefits. It is the duty of all who participate in the

18  workers' compensation system, including, but not limited to,

19  carriers, service providers, health care providers, attorneys,

20  employers, and employees, to attempt to resolve disagreements

21  in good faith and to cooperate with the division's efforts to

22  resolve disagreements between the parties. The division may by

23  rule prescribe definitions that are necessary for the

24  effective administration of this section.

25         (b)  An Employee Assistance and Ombudsman Office is

26  created within the Division of Workers' Compensation to inform

27  and assist injured workers, employers, carriers, and health

28  care providers in fulfilling their responsibilities under this

29  chapter. The division may by rule specify the procedures for

30  administering requests for assistance provided by this

31  section.

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1         (2)

  2         (d)  The Employee Assistance and Ombudsman Office may

  3  assign an ombudsman to assist the employee in resolving the

  4  dispute. If the dispute is not resolved within 30 days after

  5  the employee contacts the office, the ombudsman shall, at the

  6  employee's request, assist the employee in drafting a petition

  7  for benefits and explain the procedures for filing petitions.

  8  The division may by rule determine the method used to

  9  calculate the 30-day period. The Employee Assistance and

10  Ombudsman Office may not represent employees before the judges

11  of compensation claims. An employer or carrier may not pay any

12  attorneys' fees on behalf of the employee for services

13  rendered or costs incurred in connection with this section,

14  unless expressly authorized elsewhere in this chapter.

15         Section 6.  Paragraph (a) of subsection (15) of section

16  440.20, Florida Statutes, is amended and subsections (17) and

17  (18) are added to that section to read:

18         440.20  Time for payment of compensation; penalties for

19  late payment.--

20         (15)(a)  The division shall examine on an ongoing basis

21  claims files in order to identify questionable claims-handling

22  techniques, questionable patterns or practices of claims, or a

23  pattern of repeated unreasonably controverted claims by

24  employers, carriers, self-insurers, health care providers,

25  health care facilities, training and education providers, or

26  any others providing services to employees pursuant to this

27  chapter and may certify its findings to the Department of

28  Insurance. Such questionable techniques, patterns, or repeated

29  unreasonably controverted claims as constitute a general

30  business practice of a carrier in the judgment of the division

31  shall be certified in its findings by the division to the

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1  Department of Insurance or such other appropriate licensing

  2  agency. Such certification by the division is exempt from the

  3  provisions of chapter 120. Upon receipt of any such

  4  certification, the Department of Insurance shall take

  5  appropriate action so as to bring such general business

  6  practices to a halt pursuant to s. 440.38(3)(a). The division

  7  may initiate investigations of questionable techniques,

  8  patterns, practices, or repeated unreasonably controverted

  9  claims. The division may by rule establish procedures for

10  corrective-action plans and for reauditing carriers receiving

11  unfavorable audits.

12         (17)  The division may by rule prescribe definitions

13  that are necessary for the effective administration of this

14  section.

15         (18)  The division may by rule establish procedures and

16  set standards for the Automated Carrier Performance System.

17         Section 7.  Section 440.40, Florida Statutes, is

18  amended to read:

19         440.40  Compensation notice.--Every employer who has

20  secured compensation under the provisions of this chapter

21  shall keep posted in a conspicuous place or places in and

22  about her or his place or places of business typewritten or

23  printed notices, in accordance with a form prescribed by the

24  division, stating that such employer has secured the payment

25  of compensation in accordance with the provisions of this

26  chapter. Such notices shall contain the name and address of

27  the carrier, if any, with whom the employer has secured

28  payment of compensation and the date of the expiration of the

29  policy. The division may by rule require carriers to provide

30  the notices to policyholders.

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1         Section 8.  Subsection (2) of section 440.42, Florida

  2  Statutes, is amended to read:

  3         440.42  Insurance policies; liability.--

  4         (2)  No contract or policy of insurance issued by a

  5  carrier under this chapter shall expire or be canceled until

  6  at least 30 days have elapsed after a notice of cancellation

  7  has been sent to the division and to the employer in

  8  accordance with the provisions of s. 440.185(7).  However,

  9  when duplicate or dual coverage exists by reason of two

10  different carriers having issued policies of insurance to the

11  same employer securing the same liability, it shall be

12  presumed that only that policy with the later effective date

13  shall be in force and that the earlier policy terminated upon

14  the effective date of the latter.  In the event that both

15  policies carry the same effective date, one of the policies

16  may be canceled instanter upon filing a notice of cancellation

17  with the division and serving a copy thereof upon the employer

18  in such manner as the division prescribes by rule by

19  regulation may prescribe. The division may by rule require

20  retroactive cancellation by the carrier and may prescribe the

21  content of the notice of cancellation, including the time,

22  place, and manner in which the notice of cancellation is to be

23  served.

24         Section 9.  Subsections (2) and (8) of section 440.49,

25  Florida Statutes, are amended and paragraph (g) is added to

26  subsection (7) of that section to read:

27         440.49  Limitation of liability for subsequent injury

28  through Special Disability Trust Fund.--

29         (2)  DEFINITIONS.--As used in this section, the term:

30         (a)  "Permanent physical impairment" means and is

31  limited to the conditions listed in paragraph (6)(a).

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    Florida Senate - 1998                 SB 1342 (Corrected Copy)
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  1         (b)  "Preferred worker" means a worker who, because of

  2  a permanent impairment resulting from a compensable injury or

  3  occupational disease, is unable to return to the worker's

  4  regular employment.

  5         (c)  "Merger" describes or means that:

  6         1.  If the permanent physical impairment had not

  7  existed, the subsequent accident or occupational disease would

  8  not have occurred;

  9         2.  The permanent disability or permanent impairment

10  resulting from the subsequent accident or occupational disease

11  is materially and substantially greater than that which would

12  have resulted had the permanent physical impairment not

13  existed, and the employer has been required to pay, and has

14  paid, permanent total disability or permanent impairment

15  benefits for that materially and substantially greater

16  disability;

17         3.  The preexisting permanent physical impairment is

18  aggravated or accelerated as a result of the subsequent injury

19  or occupational disease, or the preexisting impairment has

20  contributed, medically and circumstantially, to the need for

21  temporary compensation, medical, or attendant care and the

22  employer has been required to pay, and has paid, temporary

23  compensation, medical, or attendant care benefits for the

24  aggravated preexisting permanent impairment; or

25         4.  Death would not have been accelerated if the

26  permanent physical impairment had not existed.

27         (d)  "Excess permanent compensation" means that

28  compensation for permanent impairment, or permanent total

29  disability or death benefits, for which the employer or

30  carrier is otherwise entitled to reimbursement from the

31  Special Disability Trust Fund.

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  1

  2  In addition to the definitions contained in this subsection,

  3  the division may by rule prescribe definitions that are

  4  necessary for the effective administration of this section.

  5         (7)  REIMBURSEMENT OF EMPLOYER.--

  6         (g)  The division may by rule require specific

  7  procedures for the administration and processing of claims

  8  made through the Special Disability Trust Fund.

  9         (8)  PREFERRED WORKER PROGRAM.--The division shall

10  issue identity cards to preferred workers upon request by

11  qualified employees and shall reimburse an employer, from the

12  Special Disability Trust Fund, for the cost of workers'

13  compensation premium related to the preferred workers payroll

14  for up to 3 years of continuous employment upon satisfactory

15  evidence of placement and issuance of payroll and

16  classification records and upon the employee's certification

17  of employment. The division may by rule prescribe definitions

18  and procedures for the administration of the preferred worker

19  program.

20         Section 10.  Subsection (2) of section 440.59, Florida

21  Statutes, is amended to read:

22         440.59  Reporting requirements.--

23         (2)  The Division of Workers' Compensation of the

24  Department of Labor and Employment Security shall complete on

25  a quarterly basis an analysis of the previous quarter's

26  injuries which resulted in workers' compensation claims. The

27  analysis shall be broken down by risk classification, shall

28  show for each such risk classification the frequency and

29  severity for the various types of injury, and shall include an

30  analysis of the causes of such injuries. The division shall

31  distribute to each employer and self-insurer in the state

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  1  covered by the Workers' Compensation Law the data relevant to

  2  its workforce. The report shall also be distributed to the

  3  insurers authorized to write workers' compensation insurance

  4  in the state. The division may by rule require the submission

  5  of reports containing information necessary for the effective

  6  administration of this section.

  7         Section 11.  This act shall take effect upon becoming a

  8  law.

  9

10            *****************************************

11                          SENATE SUMMARY

12    Authorizes the Division of Workers' Compensation to adopt
      rules relating to the administration of the Workers'
13    Compensation Law.

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